If the filings of the parties and the rulings of the Business Court weren’t available electronically on the Business Court’s website, I wouldn’t be able to write this blog. That’s one reason I found so interesting the short Order by Judge Diaz today in the case of Clemenzi v. Freer.
The Order addressed Plaintiffs’ Motion to place their Complaint under seal. The concern they raised was the electronic availability of their filing on the Business Court’s website. In their Brief, Plaintiffs said that they had "only recently discovered that the Business Court allows for public access to individual court records in ongoing actions via an unsecured internet link on its website."
The specific concern of the Plaintiffs was that "the case documents might be indexed by Google" which they said would create "an extremely troubling degree of public access." They stated that although they had "done several experiments with Google, and have determined that Google does not index the documents which are held within a Zip file, as is the case on the Business Court’s website," they remained concerned that there was a "threat of indexing . . . unless the court has arrangements to the contrary with Google and the other web indexing services."
Judge Diaz denied the Motion. He held that Court filings are "public records" which fall under N.C. Gen. Stat. §7A-109(a). That statute specifically grants the public the right to inspect court records in criminal and civil proceedings. A Court therefore can limit the public’s right of access only “when there is a compelling countervailing public interest and closure of the court proceedings or sealing of documents is required to protect such countervailing public interest.” (citing Virmani v. Presbyterian Health Servs., 350 N.C. 449, 476, 515 S.E.2d 675, 693 (1999).
On the point that a public record should be treated differently if it is available online at the Business Court’s website as opposed to simply being in the paper file at the courthouse, Judge Diaz held: "because all court filings are ‘public records,’ the fact that the Complaint in the Court’s paper file is also accessible on the Court’s website is a distinction without meaning."