July 16, 2019

CJDs Regarding Wiretapping and Access to Court Records Amended

Two of the Colorado Supreme Court’s Chief Justice Directives were amended last week. CJD 85-02, regarding wiretap reports, was updated on March 31, 2016, to include the location of the electronic wiretap form on the United States Court website, provide updated information for submission to the U.S. courts, and to clarify that all applications and extensions are to be reported whether granted or denied.

CJD 05-01, regarding access to court records, was revised on April 1, 2016, based on the review of a subcommittee of Public Access Committee members. The revisions to CJD 05-01 were substantial. A summary of the most substantial changes is reprinted here:

Section 3.00: General Provisions
• Section 3.00 was expanded to include additional definitions of common terms used in this policy.
• Section 3.01 defines the Department’s Case Management System (CMS) as all Department information systems designed to capture, monitor, and track court and probation content.
• Section 3.02 defines the role of the State Court Administrator, Clerks of Court, and Chief Probation Officers as custodians of court records. This Section also states that Clerks of Court are responsible for assigning document or case security levels.
• Section 3.03 provides the definition of “court record” for purposes of this policy. Section 3.03(a)(2) was added to clarify that any records related to a defendant or probationer that are created, collected, received, and maintained by a probation department are court records.

Section 4.40: Access to Aggregate and Compiled Data from Court Records
• Section 4.40(a)(2)(ii) was added to allow (but not require) requests for compiled or aggregate data specific to one judicial district to be submitted to, prepared by, and released from that judicial district. Data requests specific to one judicial district may also be submitted to, prepared by, and released from SCAO.
• Section 4.40(a)(4) was added to clarify that all reports generated from the Department’s CMS constitute compiled or aggregate data. If a request is made to release these reports outside of the Department, all provisions of CJD 05-01 must be met. This includes all reports created through COGNOS, and management reports generated through ICON/Eclipse/JPOD, etc.
• Section 4.40(f)(4) was added to recognize the need of interagency teams/Best Practice Teams to share information within the team that includes personally identifiable data, and to require the use of a Memorandum of Understanding regarding the protection and use of data.

Section 4.60: Court Records Excluded from Public Access
• Section 4.60(b)(7) was amended to add Probate protected proceedings case types to those case classes/types that are not accessible to the public unless the court orders otherwise.
• Section 4.60(d) was amended to alphabetically list records that are not accessible to the public without a court order.
• Additional records were added to the list, including: (1) Audio/Video recordings collected, received, and maintained by the Court; (7) Domestic Relations Memoranda of Understanding, and Qualified Domestic Relations Orders; (19) Medical marijuana registry application or card; (20) Motion for Informa Pauperis; and (21) National Crime Information Center (NCIC) or Colorado Crime Information Center (CCIC) printed reports.
• Criminal history records checks were removed from this list.
• Section 4.60(e)(6) was amended to clarify that Social Security Numbers (SSNs), including partial SSNs, are to be redacted from pleadings or documents prior to being released.
• Section 4.60(e)(7) was added and requires that tax identification numbers be redacted from pleadings or documents prior to being released.

Section 5.00: Accessing Court Records
• Section 5.00 was amended to align more closely with the requirements outlined in P.A.I.R.R. 2 (Public Access to Administrative Records of the Judicial Branch) regarding the procedure to access records.
• Section 5.00(d) was amended to clarify that if court records cannot be provided upon request, the custodian will provide court records within three business days. If, due to extenuating circumstances, the custodian cannot provide records within three business days, the custodian may have an additional seven business days to respond.
• Sections 5.00 (d)(1-5) provides definitions of the extenuating circumstances under which the custodian may provide court records within the seven business day extension.

Addendum C: Data Request for Purposes or Research, Including Personally Identifiable Data, Pursuant to Section 4.40(f) was created to be used with researchers that request compiled data that includes personally identifiable data components.

Although e-filing specifications are not defined in CJD 05-01, this policy does address “court records subject to remote access” (Section 4.20). As a result, the Public Access Committee also approved case information for Probate trust and estate case types to be opened via remote access in ICCES. ITS requires sufficient time to make necessary updates to ICCES, therefore, this change will occur on or before 9/1/2016. For probate trust and estate cases filed prior to 9/1/16, the security level of public documents filed in these cases will be “protected”; after 9/1/16, only certain public documents (to be specified by the Clerks of Court) will be auto-protected.

For all of the Colorado Supreme Court’s Chief Justice Directives, click here.

Tenth Circuit: In Divorce Case, Husband’s Pension Trust Did Not Qualify as Employee Benefit Plan Under ERISA; GAL Entitled to Quasi-Judicial Immunity on Wiretapping Claims

The Tenth Circuit Court of Appeals published its opinion in Dahl v. Dahl on Thursday, February 20, 2014.

Dr. Charles Dahl and Ms. Kim Dahl were divorced on July 20, 2010. After the divorce, Ms. Dahl filed suit in the United States District Court for the District of Utah, alleging federal-law and state law claims (1) that Dr. Dahl improperly administered the pension trust of his medical practice to deny her funds and an accounting and (2) that her telephone conversations with the Dahls’ minor children were unlawfully monitored, recorded, and disclosed by Dr. Dahl, his attorney, and the children’s guardian ad litem (GAL) in the divorce proceedings. The district court dismissed the federal-law pension claims for lack of subject-matter jurisdiction and granted summary judgment against Ms. Dahl on the federal-law wiretapping claims. It then declined to exercise jurisdiction on the state-law claims. Ms. Dahl appealed.

The Tenth Circuit affirmed the district court’s dismissal of Ms. Dahl’s pension claims under ERISA on the ground that the pension trust did not qualify as an employee benefit plan under ERISA, although the dismissal should have been on the merits rather than for lack of jurisdiction. Ms. Dahl did not show that the pension trust qualified as an employee benefit plan under ERISA. Given that ruling, the court also held that the court properly declined to exercise jurisdiction over the related state-law claims.

The court also affirmed the district court’s summary judgment for the GAL because he was entitled to quasi-judicial immunity for his actions. The claim against the GAL (Mr. Peterson) rested on his use of the recording of a conversation between Ms. Dahl and her child C.D. on October 12, 2009. He used the recording twice: first, when he played part of it during an interview with C.D.; and second, when he discussed it during his verbal report to the court. Because the court directed the GAL to meet with the children and report on how they were responding to the change in Ms. Dahl’s visitation privileges, both uses were within the functions that generally warrant immunity for guardians ad litem. Because Mr. Peterson used the recording in furtherance of his GAL duties and in response to the court’s order to report on the well-being of the children, he was entitled to quasi-judicial immunity on the federal wiretapping claim.

The court also affirmed the summary judgment on the federal wiretapping claim against Dr. Dahl based on the monitoring of a telephone call on October 12, 2009, because at that time it was objectively reasonable for Dr. Dahl to rely on a court order that had authorized monitoring. The federal wiretap statute makes it unlawful to intentionally intercept any wire, oral, or electronic communication or to intentionally use or disclose the contents of any communications known to be illegally obtained. The statute, however, provides an exception when one party to the communication has given prior consent to the interception, and recognizes a defense for good-faith reliance on a court order. The Tenth Circuit held that it was objectively reasonable for Dr. Dahl to believe that the monitoring of the October 12 conversation was authorized by the court’s previous order.

But the court remanded for further proceedings on the alleged monitoring of calls after November 3, 2009, because there was a genuine dispute of fact about whether such monitoring occurred.

In sum, the judgment of the district court on the ERISA claims was AFFIRMED, except that the court instructed the district court to dismiss the claims on the merits with prejudice.

The district court’s decision not to exercise supplemental jurisdiction over the state-law pension claims was AFFIRMED.

The grant of summary judgment to Mr. Peterson on the federal wiretapping claims was AFFIRMED.

The summary judgment to Dr. Dahl and Ms. Blakelock on the federal wiretapping claims based on the October 12, 2009, telephone monitoring was AFFIRMED.

The court REMANDED to the district court for further consideration of Ms. Dahl’s claims against Dr. Dahl and Ms. Blakelock based on alleged monitoring of telephone conversations after November 3, 2009, and for further consideration of whether to exercise its discretion not to assume jurisdiction over the state-law wiretapping claims.