Judicial Council Overrides Press Objections to New E-File Rules

     The Judicial Council on Friday overrode objections from California's newspapers and open government groups that said a "definitional sleight of hand" had been slipped into proposed electronic filing rules with the apparent intent of delaying access to public records.
     In adopting the objectionable rules by unanimous vote, the Judicial Council added on to a list of moves made by California's court bureaucracy that are criticized by legislators for shutting the door to open government.
     Those measures include a bill to tack a $10 fee onto every file request made by a journalist and anyone not a party to a case. The bill was proposed by the Judicial Council and shot down by the Legislature earlier this month, after Assembly member Bob Blumenfield lectured court administrators on wasteful spending.
     The Legislature then included a provision in the state budget requiring the Judicial Council and its committees to open their meetings to the public. After lobbying by California's Chief Justice Tani Cantil-Sakauye, Governor Jerry Brown on Thursday "blue penciled," or eliminated, that transparency provision.
     "The veto is a mistake," said Blumenfield, the powerful chair of the Assembly budget committee. "The public has a right to know the decisions affecting access to justice and the inner workings of an entire branch of government."
     In Friday's vote, the Judicial Council adopted rules proposed by the council's technology committee, rules that were debated and formulated in secret sessions, precisely the sessions that Blumenfield and the Legislature sought to open up.
     The press groups objected to the proposed electronic filing rules because they could be ripe for exploitation by local court officials to delay access to court records until they are "officially filed," meaning "processed and reviewed" by court workers, a series of bureaucratic tasks that can take weeks. By that time, the new cases are no longer news.
     For the Los Angeles Times, Karlene Goller wrote to the council, "The suggestion that the public's and press' ability to access judicial records can be delayed until a document is deemed 'officially filed' is inconsistent with well established constitutional principles."
     The press groups objecting to the rules' tricky set of definitions included the Bay Area News Group, the California Newspaper Publishers Association, The Press Democrat Media Company, Courthouse News Service, Californians Aware and the First Amendment Coalition.
     "The Judicial Council should not countenance the definitional sleight of hand when the public's access to court records -- a right that is fundamental to the transparency of the judicial branch of our government -- is at issue," wrote Rachel Matteo-Boehm, Roger Myers and Katherine Keating with Bryan Cave on behalf of the press groups.
     The press comment added, "The proposed rule change would thus give court administrators unbridled discretion to delay press and public access to fundamentally public records until administrators decide such access is appropriate -- even if it is days or weeks after the 'filed' date."

The Vote
     On Friday, council members voted to adopt all the rule changes the press had warned about.
     "They did not address our request to clarify the rules to say they are not designed to affect public access and the written response to the press groups continued to suggest the fundamentally unconstitutional notion that a new filing is not public until it's processed," said Matteo-Boehm.
     The technology committee that proposed the e-filing rules is also the committee that pushed the now-defunct Court Case Management System, recently seeking to pour more money into the cumbersome software. The CCMS project cost the state a half-billion dollars before it was halted at the direction of California's Legislature.
     The two projects, CCMS and e-filing, are intertwined in California. The two courts that are pushing e-filing, Orange County and San Diego, are among the very few California courts that adopted the controversial software.
     In his testimony Friday before the Judicial Council, technology committee chair Justice Terence Bruiniers answered the criticism from the press saying, "The reality is that paper filings that come over the counter will sit on a desk in a back office waiting for a clerk to have the time to be able to review and file those and put them in the public record."
     Newly filed cases are indeed normally placed on a desk to be processed.
     But journalists currently have access to the new actions on the day they are delivered to the court in many California courts including the superior courts of Los Angeles, San Francisco, Alameda, Contra Costa, San Mateo, Bakersfield, Fresno -- and formerly in Orange County.
     Bruiniers continued, "It is interesting that Orange County's experience with mandatory e-filing indicates that some of the filings were turned around in under two hours -- 22% of the filings. Most of their filings are completed within 24 hours."
     The statement that most filings were processed within 24 hours is correct for Thursday, the day before Bruiniers spoke. But it is not correct over time.
     When a case is electronically filed in that court, as determined by its file stamp, it is sorted into an electronic bin, not unlike paper filings that go to desks. A court worker must then process them, a set of tasks that in the cumbersome CCMS takes longer than processing a paper case in a simple case management system.
     Just like paper on a desk, the cases in the electronic bin tend to pile up and the time it takes to make those cases available stretches to a week at times. A log of cases that were made available on Friday June 21st, for example, shows that the great majority had been filed on June 14th and 17th, representing a delay in access of four and five court days.
     But in the days just before the council meeting, said a reporter who covers Orange County, the staff appeared to be making a strong effort to catch up.
     "This is their pattern," said Joanna Mendoza who reports for Courthouse News. "They start falling behind and then somebody pays attention and they get caught up. From past experience, it will stay this way one or two weeks and it will slowly drift back to 48 hours."
     "It's never consistent," she added. "That's what makes it so hard to cover. Orange County is like a roller coaster."
     Still referring to Orange County, Bruiniers said, "There is no distinction between internal or external users." Standing alone, that statement is incorrect.
     "In other words," he added, "once they are filed, the media has access at the same time that any bench officer has access to those files." That statement is correct in that judges appear to experience the same delay as journalists.
     But judges are not the only internal users. The staff has access to the new cases in the electronic bin where they are delivered. Court workers must have immediate access to newly filed cases in order to process them.
     Journalists, including Courthouse News, have asked for access to that bin -- an access provided to the press in state courts outside California -- and Orange County's clerk has refused.
     Bruiniers continued, "So, e-filing would provide far greater and more convenient and more immediate access to these files than any of the courts that don't have e-filing can currently provide."
     That statement is incorrect. It is in fact the other way around.
      Courts that require e-filing for some or all cases, San Diego and Orange County, generally delay press access from one to three days, sometimes longer, based on logging over the past year.
      In contrast, courts that call for paper filing and do not permit e-filing, in Los Angeles, San Francisco, Alameda, Contra Costa, Fresno, San Mateo and Bakersfield, consistently provide journalists with same-day access to the newly filed cases -- on the same day they are filed, in other words, on the day they cross the counter into the court.

News Not History
     Years ago, prior to electronic filing and other electronic processes such as scanning documents, and prior to its adoption of CCMS, Orange County also provided journalists with access to the new cases on the day they were filed, allowing for fresh news coverage of new legal disputes.
     When the court began to delay access, journalists among the group of papers that covered the court, the L.A. Times, the Orange County Register, Courthouse News Service and City News Service, noted the immediate decline in press coverage of new actions. Most reporters abandoned coverage of the new filings, as a result.
     "We're in the news business, not the history business," said Milt Policzer, a journalist who has covered Los Angeles Superior Court for 30 years for a range of news organizations, including the Daily Journal and Courthouse News.
     "News, in general, is supposed to be reported as promptly as possible for intelligent reaction," he added. "We don't want to learn that a dictator has been overthrown two days after it happened. Lawsuits may not be quite as dramatic, but if you have a stake in them, you're going to want to know immediately."
     The rules adopted by the Judicial Council dance around the notion that the public record is not public until court officials deem it be -- by scanning it, typing an electronic docket, or simply putting it in a stack on a desk, a set of procedures that take days in general and ironically much longer for some of the most newsworthy cases.
     A survey of cases filed in Ventura, for example, showed that over the last year delays on routine cases varied from one day to a week over all, while delays on big cases, such as environmental challenges, a class action against a pharmaceutical manufacturer, water rights disputes and a recent class action over recorded phone calls, ran to a month or more.
     Ventura is another CCMS court, like Orange County and San Diego.
     In their written comments objecting to the new e-filing rules, the press groups said, "At best the proposed changes are confusing without serving any meaningful function. It appears the true purpose of introducing the concept of an 'officially filed' document into the Rules of Court is to provide the administrators with justification for denying public access to records that have been 'filed,' under the long-understood meaning of that term, until after they have been "officially filed."
     The e-filing rules acknowledge that court documents are public as soon as they are filed. Rule 2.254(c) says, "An electronically filed document is a public document at the time it is filed unless it is sealed."
     But then rule 2.250 (b)(7) amends the definition of electronic filing to say, "This definition concerns the activity of filing and does not include the processing and review of the document and its entry into the court records, which are necessary for the document to be officially filed."
     Further rule 2.253(b)(1)(7) says, "Any document that is received electronically must be processed ... to be filed as an official court record."
     In attacking those definitions inserted into the e-filing rules, the press groups said they were open to exploitation by local officials resisting public access.
     "It appears the primary -- and perhaps sole -- purpose of the 'officially filed' concept is to justify arguments by court administrators that the public has no right to access a court record until court staff deem it fit for public viewing," said the press comments.
     "Rights fundamental to the democratic process -- like the right to know what goes on in the courts -- are meaningless if they can be disregarded when they become inconvenient," their comment concluded. "As history has taught us, rushing forward without taking the time to assess how these systems will actually work for all concerned is quite likely to result in a system that is worse rather than better."