Proposed Search Fee Threatens Access to Public Court Records

     (CN) - A bill written by California's Administrative Office of the Courts would impose a $10 fee on every court file requested by a journalist, a fee that would inevitably limit access to public documents.
     "It would be intolerable for a journalist and for press coverage in general," said Terry Francke of the open government group Californians Aware. "The rate that you're talking about is absolutely prohibitive."
     Judges and court clerks conceded that the fee would apply to nearly everyone who wants to look at a court file, including journalists who regularly review a large number of files in covering a courthouse.
     "If you asked for 10 files and you're a reporter, it's probably going to be $100 in that situation," said Santa Clara County's head court clerk, David Yamasaki.
     Sonoma's Presiding Judge Rene Chouteau added, in reference to the press corps, "You may have a problem there."
     The fee has been put forward by the courts' central administrative office as part of trailer bill, legislation that rides in the wake of the overall budget bill and receives little public deliberation. The trailer bill procedure has been used by the court administrative office in the past and brought intense controversy within the judiciary.
     "Putting this in a trailer bill is going to strike most people as a deliberate attempt to lowball it," Francke said.
     According to the bill, a $10 fee would be levied for "each name, file or other information for which a search is requested." The sole exception is for a person who is a party in the case where a file is requested.
     The broad language of the trailer bill amends an earlier section of the state government code that applied a $15 fee to searches that took over ten minutes, tying the fee to the amount of work involved. It was rarely invoked because it normally takes less than ten minutes to retrieve a file.
     "This approach completely ignores the public's role in being able to see how the system operates," said Jim Ewert, general counsel for the California Newspaper Publishers Association, a group that includes 850 California newspapers, large and small, from the Los Angeles Times, San Francisco Chronicle, Sacramento Bee and San Jose Mercury News to the Fremont Argus, Lodi News-Herald, Santa Cruz Sentinel and Bakersfield Californian.

Closed Committees
     The idea for the fee rose through a series of committees closed to the public.
     A working group of seven judges and seven clerks took up the idea from suggestions by individual courts, passed it along to an ad hoc committee of judges and clerks who pushed it along to a legislative policy committee made up of judges and one clerk. All those committees were closed. That last one wrote a report on proposed "efficiencies" that was summarized in non-specific terms before the Judicial Council, which is open to the press.
     The report was not debated or voted on by the council.
     The language imposing the fee was then pushed by bureaucrats in the courts' administrative office over to those in the governor's finance department who then sent it over to the Legislature as a bill that is hooked to the budget. Trailer bills proceed in a group through the Legislature's budget committees and become part of a furious round of horse trading that accompanies the budget's passage.
     "This is an issue to follow and it's an issue we're vetting," said Anthony Matthews, a spokesman for the office of Assembly member Bob Blumenfield, chair of the Assembly Budget Committee.
     "I'm really concerned because that goes back to our basic idea of the role of the courts," said Assembly member Bob Wieckowski, D-Fremont, who chairs the Assembly Judiciary Committee. "That's our sense of democracy, and you're limiting it to people who are rich and who can pay for that. I don't want that."
     Along its complex and closed path, the fee idea morphed into something different than originally proposed.
     The original idea from the working group of seven judges and seven clerks was to match the fee to the amount of staff work involved, Chouteau of Sonoma Superior Court said. "The exact language was not something we had discussions about. The discussion revolved around the fact that the fee had to be reasonably related to the services provided."
     But when the legal services office within the Administrative Office of the Courts finished drafting the specific words of the trailer bill, it no longer tied the fee to the amount of work on a search -- the time element in the old law had been deleted. Instead, the language tied the fee to the number of files provided, regardless of time spent.
     Court files are normally kept on shelves behind clerks at a records room counter, and generally take minutes to provide. Older files are often moved to archival storage. So a few files close by can take a few minutes to find while a single file in archives generally takes much longer to track down.
     A lobbyist for the Administrative Office of the Courts, Donna Hershkowitz, worked with the original working group of judges and clerks that came up with the fee idea. Her name is familiar to many judges in the state in connection with another trailer bill, proposed in 2008, that would have taken away the presiding judges' power to manage their courts and choose their head clerks.
     Described by a leading judge as "the dark-of-night trailer bill to subvert the local control of trial courts," the gambit brought a furious reaction from trial judges and a four-year quest to find who had authored the language. Last year, Hershkowitz's name was tied to the trailer bill by a member of the Judicial Council, but she was not said to be the bill's drafter.
     Analyst Andi Liebenbaum, also with the lobbying arm of the administrative office, said the trailer bill is aimed a "data miners," a term that is not included or defined in bill.
     She described someone who asked for a list of conservatorship petitions, adding that the information is potentially dangerous and can lead to abuse. "Because they're public records, we can't say no, but until we change the law to make it so a lot of this info isn't gettable by the public," she said, "there are people -- crackpots -- who are going to go to a court and try to take advantage."
      A number of people involved in the process said court officials from Placer, Tulare and Fresno counties pressed the idea of changing the old search fee of $15 after 10 minutes.
     Placer County's head clerk Jake Chatters said the fee has less to do with data miners than with administrative simplicity. Chatters came from the Sacramento clerk's office where his boss was directly employed by the central administrative office.
     "The original reason it came up had to do with the ambiguity of the current law and the difficulty in handling the fee," said Chatters. "We don't keep a timer or stop watch for staff to determine, 'Was it a 14 minutes or 15 minutes?'"

`You May Have a Problem'
     The new fee of $10 fee would be assessed for every file or other "information" that is asked for. Its broad language falls on the press, public, researchers and anyone, other than someone directly involved in a lawsuit, who wants to look at records at a courthouse in California.
     For example, a traditional part of a journalist's work on the courthouse beat is to check the new filings at the end of the day, looking for news. In past years, journalists could often go behind the intake counter to do that part of their job. But most California courts now require that journalists ask a clerk for the new filings, often stacked up near the intake counter.
     In San Jose's superior court, for example, journalists look over a stack of 30-40 new cases filed on any given day.
     In San Francisco, that number rises to 60-70.
     "If someone wanted to pull a file, that would constitute a search," Yamasaki in San Jose said. "We would look in our case management system and find where the case is located. In the last reading of the version it says. 'each name, file for which a search is requested.' It's probably just as it reads, anybody who asks for a name or file would be required to pay that particular fee."
     Asked if the proposed fee would be charged to journalists reviewing new filings, Yamasaki answered candidly, "That's a good question."
     "So here's what happens," he later added. "The way it's written doesn't draw a distinction between who the person is. Unfortunately, if you asked for 10 files and you're a reporter it's probably going to be $100 in that situation."
     Reviewing a stack of the approximately 40 cases filed on a given day in the San Jose court would thereby result in a daily fee of $400 -- which adds up to roughly $100,000 a year. In San Francisco, the fee would rise to $700 a day -- which adds up to roughly $180,000 a year.
     "You may have a problem there," said Judge Chouteau from Sonoma. "I'm not sure we can discriminate against people asking for the records."
     Arguments in favor of the fee often rely on anecdotal accounts of data miners, but the group is not defined in the legislation and has proved amorphous in the various accounts of malfeasance that generally have to do with seeking financial gain.
     Researchers, for example, search court records for debt, eviction and probate records, on behalf of background check companies and landlords. But the fee is not limited to that or any other group.
      "Who supposedly is causing this problem by extraordinary demands for look up? I don't know who they're referring to," said Francke with Californians Aware. "They have to be distinguished from organizations or individuals whose only reason for getting the information to report something to the public at little or no cost."
     The other main argument for the fee is that court budgets have been cut to the bone and courts need the money. But the fee's backers have not estimated any amount that would be generated by the fee and its principal effect would inevitably be to cut back on requests to see court records.
     Critics of the fee point also out that the records have already been paid for by California residents through their taxes.
     "These records have already been paid for by the public once," Ewert with the California Newspaper Publishers Association said. "The taxpayers pay the salaries of all the people in the court clerk's office that organize, categorize and take care of these documents."
     Chouteau in Sonoma's court disagreed with that argument.
     "It's not taxation, it's payment for a service," the judge said. "The tax dollars go to Sacramento and the general funding for the courts has been dramatically reduced. If the funding hadn't been decreased, some of these fees might not be necessary."

The Orange County Connection
     Among those involved in the process of coming up with the trailer bill proposal, officials from the Orange County courts had a key role.
     The original working group that recommended the idea was chaired by Orange County's presiding judge, Tom Borris. Orange County's head clerk Alan Carlson, who has close ties to the central administrative office, and Orange County Judge Linda Marks were members of the ad hoc committee that was next up the line and vetted the idea.
     Orange County court officials have also been involved in a series of initiatives that limit and monetize press and public access to court documents.
     The court's officials were early promoters of the Court Case Management System, a highly controversial and now defunct software pushed by the central administrative office, a software that was labor intensive and consistently resulted in access delays. Orange County has also been a pioneer in selling records online, and the court is now running an e-filing pilot project based on legislation pushed by the central administrative office.
     As part of that pilot project, the court and the administrative office have proposed rules that create a new "officially filed" definition for court documents. In that proposed definition, a document only becomes officially filed after a set of bureaucratic tasks are finished, a process that takes days or weeks.
     In Orange County, that process culminates when documents are put online for sale at a price of $7.50 to $40.
     Press and open government groups say the new rule appears intended to deny press access to newly filed controversies until long after they are actually filed. In a lengthy comment, the news organizations said that, used to deny access, the altered definition would cause a "fundamental change in access to court records" and would violate the federal constitutional right of access to government proceedings under the First Amendment.
     The 109-page comment was written by Rachel Matteo-Boehm, Roger Myers and Katherine Keating with Bryan Cave on behalf of the California Newspaper Publishers Association, the First Amendment Coalition, Californians Aware and Courthouse News Service. Joining in the comments were the Bay Area News Group, the Press Democrat Media Company and the Los Angeles Times.
     In line with the earlier initiatives out of Orange County and the administrative office, the current trailer bill's $10-per-file fee would have a negative effect on press and public access to the courts, according to the newspaper representatives.
     Judge Borris noted that his court provides for press coverage of new cases without a fee. "In Orange County, we have a place the media can go to see all the cases for that day that they were filed," he said. "Here, because of the pilot project on e-filing, within two hours, it's posted to a particular location, at least for civil cases, for free."
     Unlike big courts such as Los Angeles and San Francisco, new complaints filed in Orange County cannot be seen on the day they are actually filed, which is the date on which they are stamped as filed.
     Orange County's new cases take one to three days, sometimes longer, to show up on computer terminals at the courthouse, first in the form of a docket summary, followed within two hours by an image of the full complaint. At that point, the documents are also online for sale. The media can then see them without paying a fee on screens in a large common room at the court, shared by the media, researchers, attorney services and the public at large.
     Borris also said that in the event a person knew a file's case number, then one would be able to walk to a clerk's desk and ask for it. "The way I'm reading it is there's no search if you know exactly the case number," he said. "If you have the case name and number, you should be able to go to a clerk's desk and they won't charge you for it."
     That view was contradicted by other members of the working group. Yamasaki, for example, said a request for a file by case number or any other means would trigger the fee. The words of the trailer bill make no exception for searches by case number.
     Borris added that another way to combat the problem of large search requests is to sell the information directly to companies who, for example, sell background checks. He added that the purpose of the fee is to drive people away from the clerk's counter or have them pay for the time it takes to find a file.
     "Orange County puts all of our cases on CDs and we sell them to anybody who wants to buy them and those companies search through for a particular name for someone who applied for a particular job," said the judge. Referring to the $10 search fee, Borris added, "It's trying to drive people away from the clerk's counter, and having them pay for the service of the clerks having to do all the work, in this time when courts are laying off employees."
     The court has already have been largely successful in that effort.
     A former background checker in Orange County, the type of researcher often described as a data miner, said that in years past roughly 15 background researchers checked the court's records every day. Now there is only one left.

'Courts Are Not a Private Enterprise'
     The push to make money from court records has prompted newspaper representatives, open government advocates and journalists to point out that the records in fact belong to the public and that the courts are constitutionally required to remain open public institutions.
     "The public and press have a right of access to adjudicative court records under the First Amendment to the U.S. Constitution," said Matteo-Boehm who also represents Courthouse News. "The notion of conditioning that access on the ability to pay - and we are talking about potentially large sums of money here - strikes me as presumptively unconstitutional."
     "It is also totally contrary to the bedrock principles, in our country, of open court proceedings and the nature of our court system as a branch of government," she added. "The public should be encouraged to observe the court system through review of the court record, as opposed to discouraged through the imposition of high fees."
     Ewert with the California Newspaper Publishers Association added: "It's not their records, it's the public's records. This approach completely ignores the public's role in being able to see how the system operates."
     "They have created this one size fits all approach to the detriment of the public in attempting to go further than the purported problem," he continued. "I understand their plight but their approach is wrong headed because it completely ignores and makes more difficult the public's role in the judicial process."
     Linda Petersen, a writer and editor with the Society of Professional Journalists, argued that the courts are public institutions and charging $10 to look at a court file runs counter to that fundamentally open character of American government.
     "The courts are not a private enterprise," said Petersen who chairs the society's Freedom of Information Committee. "This is an effort to produce funds for their budget, and that is not how government should work."
     "There's no way to single out a group and make them pay for a perceived abuse of the system without hurting everyone else in the process," she concluded. "When costs become prohibitive, then ordinary citizens or reporters can't have access to the operation of our government. It really does have a negative effect on people's ability to know what our courts are doing."