First Amendment: Never ending war

After ten years of legal combat, the Ninth Circuit affirmed a First Amendment decision saying the right of access attaches upon the filing of a court document. Even so, the judiciary establishments in Oregon and Idaho continue the fight against public access at the time of receipt.

The resistance by clerks to traditional access, even within the Ninth Circuit, comes against a backdrop, an ideological setting. That backdrop was painted by the Conference of State Court Administrators, founded in 1953 and comprised of the top state court administrator in each of the 50 states.

As an organization, COSCA considered the basic question of whether the force of the Internet should be used to keep the tradition of open courts or, alternatively, to throttle public information.

The group developed model guidelines in 2002 that hewed to the tradition of access when court documents crossed the counter. The guidelines adopted a policy that “maximizes accessibility to court records.”

Section 3.1 of the guidelines defined “court record” as “Any document, information, or other thing that is collected, received, or maintained by a court or clerk of court in connection with a judicial proceeding.”

Section 3.2 defined public access as “’Public access’ means that the public may inspect and obtain a copy of the information in a court record.”

Those guidelines were presented after being developed during the preceding two years when David Byers, director of Arizona’s Administrative Office of the Courts, was president of the COSCA. The same director, twenty years later, OK’d an electronic inbox put for new court filings throughout Arizona.

During his COSCA leadership, the person in charge of the policy committee was the director of Utah’s court administration, Daniel Becker. Utah now also provides public access to e-filed complaints when they are received.

But in the decade after those model guidelines were set out, a movement antagonistic to those principles has emerged. The split between the two camps was described in a paper by the Council for Court Excellence, a Washington D.C. nonprofit:

“Thus, a dichotomy in the development of rules governing public access to electronic court files rests on two conflicting views of privacy:

“1. One view has been described as ‘public is public’ and recommends generally broad and unrestricted access to all court files— paper and electronic.”

“2. The contrasting approach aims to limit public access to electronic files both to parallel the way the public must use the paper files, by visiting the courthouse and using a computer terminal there (labeled ‘practical obscurity’) and by restricting certain major areas of court files.”

The council paper published in 2017 described the obscurity zeitgeist in a footnote: “’Practical obscurity’ … refers to the idea that even though some information may be public… the information is obscure because it is not easily accessible.”

In a letter to the attendees of the 2013 COSCA conference, when the practical obscurity philosophy was surging, I noted the results of a survey of state judges on the issue at the heart of the conflict.

The survey asked, “Do judges favor delayed access to court records over immediate access?” A strong plurality, 43%, had answered “no” to that question. In other words, they favored “immediate access” to court records. A lesser 32% said they favored delay. A total of 705 judges answered the question.

“Courthouse News agrees with the great majority of the more than 700 judges who said the court record should remain presumptively open to public access, and access should not change based on whether records are paper or electronic,” I wrote at the time.

“We also agree with the big plurality of judges in favor of immediate access to court records, and the six out of seven who say access policy should not be subject to individual interpretation.

The letter sent to all those attending the conference pointed to the PACER model as one that follows the principles and preserves traditional access to public court records.

“The federal model differs from state models that depart from those principles, that use technological change to undermine traditional access, that in the name of progress are marching backwards — through redaction, preferential access, private monopolies on the record, delays that kill news coverage, and e-filing rules that seek to reinvent the definition of filing and give clerks wide latitude to withhold public access.”

The divergence from the model COSCA principles has only increased since then, and flourishes even now within the Ninth Circuit.

Categories / Civil Rights, Media, Op-Ed