At Last! Action (Sort Of) on Bulk Access to Case Law

What’s the modern equivalent of a “broken record?” How about a GIF or TikTok on loop? Either way, I plead guilty. 

My particular hobby horse (the one I perform on the broken record and video loop) for much of the past decade has been bulk or unbundled access to legal information.

On Slaw alone, I’ve touched or ranted on the topic close to a dozen times. Here are a few of the longer pieces directly on point:

2020 – Lowering the Primary Barrier to Legal Innovation – Access to Good Data

2018 – CanLII’s Future as a Canadian Primary Law Cooperative

2016 – We Have Pizza, but How Will We Get Grilled Cheese? 

2015 – What Does it Really Mean to “Free the Law?” – Part 1

2015 – What Does it Really Mean to “Free the Law?” – Part 2

2013 – Unbundling Legal Information

To save you some reading, my point in these posts and in every other mention I make on the topic is this: 

Bulk access to legal information beyond existing legal publishers is essential to innovation and improvement in all domains of law because without it, we are consigned to relying solely on the spending and development priorities of those publishers that already have it.

It’s encouraging to see that Canadian courts are beginning to understand this and I was quite pleased to see the Canadian Judicial Council bring forward a policy document on this subject in April 2021:

Guidelines for Canadian Courts – Management of Requests for Bulk Access to Court Information by Commercial Entities

This document actually goes beyond discussing the interests of “commercial entities” as it accurately notes that parties seeking bulk access to court information include academic institutions, press, not-for-profit organizations and government agencies. The document further notes that the purposes for which the data is sought extends from traditional use in databases, to advanced analytics, to social policy analyses to productivity studies and journalism. In proposing guidelines, the document’s author invites courts to adopt a pragmatic understanding of the limitations of control once published or publishable material is handed off and instead focus on the protocols and mechanism of access:

“The proposed approach is to instead control bulk access to Court Information, the raw material that third parties require to create their products or services. Thereafter, it is recommended that courts merely endeavor to influence the quality, reliability, and effectiveness of the third party services via terms of use arrangements so that risks and exposure are mitigated. 

The competitive market for legal information services will continue to innovate with emerging technologies such as AI and analytics. This development cannot and should not be prevented by courts. However, courts do have a responsibility and opportunity to influence the quality and mitigate the risks associated with the use of Court Information needed to create such services. Ultimately, it will be the consumers of the third party commercial services who will determine those that will succeed and those that will fail.”

The document offers eight recommendations (each accompanied by explanatory notes and explanations):

1. Registry of pre-approved third parties
2. Registry to keep key details
3. Reliance (persuasive but not prescriptive) on prior approvals by one court as basis for approval by subsequent court
4. Consistent approach
5. Clear approval process
6. Details to be provided by applicant and collected by court
7. Standard form for Bulk Access Requests
8. Guidelines (23 of which are recommended; some procedural, some substantive, and addressing areas such as privacy, security, interfaces, control and so on)

To my mind, one of the most noteworthy among the suggested guidelines in Recommendation 8 is that courts maintain their own depositories and avoid reliance on third-parties only to find that they have better insight into the Court Information than the court itself. Noteworthy because as many, including me, have previously observed, far too many courts and tribunals rely on CanLII as the point of public access to their judgments. As a consequence, some courts find themselves directing parties interested in bulk access to CanLII because the court’s own versions of judgments aren’t in a collection capable of being shared even if the court was inclined to do it. Nationally*, only 15% of published court judgments are available on a court website, so it’s unclear how many courts are dependent on CanLII for access to their own decisions.

The other side of the pond

An absent or incomplete bulk access regime is not strictly a Canadian issue, nor, thankfully, is promised action. On May 10th, encouraging reports out of the U.K. tell us that “Government considers plans to create national hub for court judgments.” 

“Plans to create the first single comprehensive repository of England and Wales court judgments are being considered by the government, the Gazette understands. Such a service, run by the National Archives, would publish almost every decision made by courts and tribunals, unlike the current selective system run by the British and Irish Legal Information Institute (BAILII).

Data would also be open for bulk research and analysis, including for training artificial intelligence systems to forecast case outcomes.”

While Canada can only dream of nationally-coordinated action on this front, I still come away encouraged that the topic of bulk access is finally taking shape in Canada and carry the hope that someday I can find a new topic to drone about in Slaw and elsewhere.

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*In Quebec, crown-corporation SOQUIJ exists for the purpose of amassing and distributing the judgments of that province’s court and tribunal rulings and its Board of Directors includes representatives of the courts and government. Moreover, bulk access is explicitly provided for through SOQUIJ in addition to its public and professional offerings.