Dear Chief Justice Nuss and Kansas Supreme Court Justices:
As one interested in freedom of expression and freedom of information, I have examined the proposed amendments to Supreme Court Rule 106 and 108, which were in turn in response to comments the Court received when it first proposed amendments to Rule 106. I appreciate the opportunity to comment on these new amendments and respectfully submit the following for the Court’s consideration.
In reviewing the Explanations of Proposed Changes to Rules 106 and 108 provided by the Court, I am concerned that the Court does not outline any specific reasons for why the court believes it is necessary to “protect from public disclosure” marriage license information. Marriage licenses information certainly includes personally identifiable information, but the Court offers no evidence that disclosure of such information, collected by district courts for decades, has resulted or will result in any harm to anyone. It remains difficult to ascertain why the rule related to disclosure of such information needs to be changed at all.
What is clear is that the Court’s concern relates in part to the fact that district courts are moving “toward electronic records that may eventually be available online.” If the online availability of personally identifiable information is the Court’s concern, a solution would seem to be that anyone searching for information more detailed than what would be included in the uniform marriage license application be required to do so at the courthouse in which the information is kept.
Thus, if the Court is committed to creating special classification of document under 106(d)(3), the information it contains should be online for anyone to access. The remaining information described in subsections (i) through (iv) of 106(d) would then be available to those who actually incur the time and expense of traveling to the courthouse to make the requests. This way, diligent, legitimate researchers such as genealogists and members of the media would still have access to the information, and prospective identity thieves would be more likely to seek such information elsewhere online rather than incur the time and expense themselves.
Furthermore, these new proposed amendments to Rules 106 and 108 again highlight that the Court has not publicized its rule-making procedure. Consequently, the public is not informed about how or when the Court decides to invite public comment, whether or when it will report on the nature and amount of public comment received, its criteria for evaluating comment, its standards for adopting or amending a rule, and when and how it will give public notice of any new or modified rule.
Courts elsewhere make their rule-making procedures accessible to the public, such as Florida, http://www.floridabar.org/TFB/TFBResources.nsf/Attachments/F854D695BA7136B085257316005E7DE7/$FILE/Judicial.pdf; New Hampshire, http://www.courts.state.nh.us/rules/scr/scr-51.htm; and New Mexico, http://www.nmcompcomm.us/nmrules/NMRules/23-106_11-1-2014.pdf.
Because of the Court’s commitment to transparency, plainly expressed on the Kansas Judicial Branch’s Web site, I urge that the Court make public the procedures by which it adopts and amends rules.
Thank you for considering comments on this proposed changes.
Maxwell E. Kautsch