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Restrict Access to Electronic Documents

As electronic documents become more common courts must weigh the rights of the public to get information regarding their case with the need to safeguard privacy. Certain states, like Iowa has already enacted rules that limit access to certain kinds of files. The rest are evaluating the various alternatives.

The first approach is to continue to assume that all files that are not sealed should be available at the courthouse, as well as remotely via electronic public access. This approach would require lawyers and pro se litigants safeguard security and privacy concerns on a case by case basis through motions excluding information from public access to electronic records. This alternative assumes that sensitive information should be kept out of the file in the event that the information doesn’t help to understand the outcome of the case.

Another restriction is that a covered entity may not deny access justification that it or its business associate is responsible for maintaining the PHI required by the individual (e.g. the information is kept by a company that stores records offsite). This denial ground is restricted to situations in which an individual can show that the management of the PHI could cause injury or harm to a significant extent.

Finally, the final ground of denial is if an authorized health professional decides in the exercise of their professional judgment that giving access to a specific individual’s PII is reasonably likely to compromise the life or physical safety of the person. This exception should be interpreted narrowly to ensure the privacy of individuals and their right to make informed health care decisions in accordance with the Privacy Rules.