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In move to electronic court records, a debate about privacy emerges

Traditionally, disputes during the pre-trial discovery process played out in private. But in the digital era, concerns about public disclosures of sensitive information have made the role of court-appointed 'special masters' especially important.

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    Court documents are wheeled into the Montgomery County Courthouse before comedian Bill Cosby's appearance for a preliminary hearing on sexual assault charges in Norristown, Pennsylvania February 2, 2016. As courts move to using electronic records and making some documents available online -- particularly in federal court -- privacy advocates have expressed concerns.
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    A photoillustration using portions of court records in a civil suit involving parents of students with disabilities suing California's Department of Education. The move to digital records has raised concerns among some privacy groups about what information is available to the public.
    Max Lewontin/The Christian Science Monitor
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In 2011, a group of parents in Morgan Hill, Calif., sued the state’s education department. The local district, they said, had failed to provide accommodations for students with disabilities, a violation of federal law.

Many of their allegations, detailed in court filings, are disturbing.

According to the group, one principal told the parents of a 16-year-old student diagnosed with autism that “Bullying is part of school,” saying officials couldn’t intervene when the child was unable to ride the bus after being bullied by other students. The school district also refused to provide him with assistive technology, the parents group alleged. The education department has denied the charges.

Traditionally, the details of court cases such as this one are public, though finding them meant digging through paper records stored in stacks of cardboard boxes in a local courthouse. But as many courts have moved toward storing records electronically, with case files and trial transcripts searchable online, privacy advocates have expressed alarm. With evidence often containing sensitive information such as social security numbers, they wonder, what happens if that information becomes public?

“It’s a fascinating and complex topic,” says Frederic Lederer, a professor at William and Mary Law School in Williamsburg, Va., who directs the law school's Center for Legal and Court Technology. “Do you really want the general public to have access to everything, to which almost everyone immediately answers, ‘No!,’ unless we’re dealing with a journalist who wants entry to that particular data.”

Nearly five years after the California parents first filed suit, later joined by others from across the state, what began as a private dispute about documents has escalated into a full-fledged battle that has become a debate on student privacy.

It began when the parents group requested access to education records for both students with disabilities and general education students that are held by the education department in a variety of databases. Using those records, it hoped to determine whether the incidents they described were simply isolated, or part of a larger pattern.

But the case began to stagnate, with the two parties sparring over whether the records would contain social security numbers and other personal information. Such conflicts over documents aren’t uncommon, say lawyers who’ve often mediated similar disputes.

If a dispute becomes particularly contentious, the court can often appoint an expert known as a “special master” to ensure a judge’s orders are being followed.

In the digital age, special masters who specialize in electronic records – including computer forensics – are finding themselves increasingly in demand.

“Sometimes it’s just something pretty straight forward, which I can get in and out of pretty quickly, sometimes it’s a multi-year, painful process to be able to get the train back on the track, and refocus the parties on why they got into the swamp in the first place, which was not to become sidetracked by issues of electronic evidence but to marshal that evidence to get the resolution of some important issue in court. And they forget that,” says Craig Ball, a special master based in Austin.

Traditionally a special master – the term has its origins in English common law – resolves disputes over decades worth of paper records exchanged between lawyers, such as during the pretrial discovery process.

There aren’t explicit requirements for the job – being an attorney is common – but many special masters who focus on electronic records are often part technical expert, part mediator.

Mr. Ball, a former trial lawyer who turned a passion for computer forensics into an exclusive focus as a special master dealing with electronic records, describes his job as “a sort of mix of Oprah and Jerry Springer in terms of dealing with warring parties.”

In California, both sides accuse the other of prolonging the stalemate. In July, the judge appointed a special master to oversee the records process, currently paid at the education department’s expense.

“I think that the legal team put so many options out there that the [education] department refused,” says Christine English, vice president of the non-profit Concerned Parents’ Association. “The more excuses they made, I realized they were not concerned about protecting my child’s privacy, but rather they were trying to avoid the accountability.”

The education department argues it has offered to turn over records that didn’t contain personal information.

“We’ve offered to provide information and they’ve rejected all of our offers, our basic position is that we’re fighting to protect student privacy and we’re going to continue to fight,” says Bill Ainsworth, the department’s communications director, noting that the department is complying with a federal judge’s order requiring the state to satisfy the parents’ requests for records.

The parents’ group says it hopes to investigate whether accommodations were particularly denied to black and Latino students with disabilities. Ms. English says the group wants “derived data” that doesn’t contain personal information about individual students.

Court documents reveal an increasingly tangled picture.  

The department has repeatedly filed motions to dismiss requests for information by the parents group, along with the case itself, calling the requests for information “unduly burdensome.”

But those objections have often been stated “in boilerplate fashion,” wrote Allison Claire, the federal magistrate overseeing the aspects of the case involving the exchange of records.

“At the hearing on this motion, however, it became clear that even when [the education department] objected to only a portion of the request, it failed to produce the documents to which it had no objection,” Judge Claire wrote. “The district judge presiding over this case has already ruled that this case can proceed on the grounds of alleged state-wide, systemic violations.”

Still, the case has been troubled by several issues, according to Ball and Karl Bayer, another special master who is based in Austin. The two special masters, who aren’t affiliated with the case, reviewed documents at the Monitor’s request.

“What I don’t understand at all is why the government decided that they were gonna produce these social security numbers,” says Mr. Bayer, who has often worked on complex intellectual property cases. “It was clear from the [court’s] orders that all the plaintiffs needed was a way to uniquely identify the rest of the student information. They didn’t care, didn’t want to know who a particular student was,” other than as a means to identify students across several databases.

Ball, the other special master, says some aspects of the special masters’ rules were more unusual. For example, the department has said it would take an additional five months to load the data the parents’ group requested into the software they would use as part of the discovery process. While the time it takes to load data can vary, that’s an unusually long time frame, he says.

Both sides say they’ve grown weary of the stalemate.

English, of the Concerned Parents’ Association, says the dispute over the case has also been inflamed by misleading news coverage that created a “mass panic” about student privacy. One Los Angeles-area TV station reported that millions of student records would soon be released to the group, while the process is currently still being negotiated.

Last week, the judge ruled that the department would conduct searches of one large database itself for information the parents had requested.

Some parents said they understood the concerns about student privacy but said they wanted to provide their information to aid the case’s ultimate goal – ensuring students with disabilities receive appropriate accommodations.

In 2013, Jo Ashline’s son Andrew, who has been diagnosed with autism and epilepsy and is non-verbal, was in 5th grade when he was held facedown by a teacher for 12 minutes after he didn’t stop touching the wheel of his special stroller, according to a lawsuit filed against the Orange Unified School District in Orange County, Calif.  

“If it helps just one child like Andrew get access to a safe, appropriate, meaningful education, our horrendous experience will at least not have been in vain,” she wrote in a blog post.

Ball, the special master in Austin, says he often relies on his experience to determine whether a particular search for records could prove useful, though he tries not to reject a party’s request out of hand.

“I have had cases, quite a few, where a tenacious requesting party has insisted over years, ‘It’s in there. It’s in there.’ And everyone has been saying ‘No it’s not, we’ve never seen anything like that,’ ” he says. “And when you finally open the box and take a look, there you go – Schrödinger's cat is both dead and alive – it’s there, and so what they’ve been claiming is borne out by the evidence."

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