A First Amendment Disease: Restrictionism

Art by Carlos Ayala

Restrictionism should be seen as a virus attacking the First Amendment.

It has developed a couple mutations but its core DNA is the belief by court clerks that access to electronic records must be restricted.

I saw the symptoms as I watched a Wyoming court committee’s public meeting last week, in a state where they are still early in the jump to electronic speed.

To the committee’s credit, the meeting was open and swathed in a set of written principles that said, “Wyoming citizens have a constitutional right of access to court records.”

But the following discussion revolved almost entirely about limiting that access. One committee member said, “That’s what the clerks want to know, that someone is addressing access security.”

So the Wyoming courts are setting up an “access security matrix,” using Florida as their guiding light. A judge from Orlando defended her state’s access matrix, and one of the Wyoming committee members said, “Let’s copy Florida a little bit.”

Amazing is an over-used word, but the fact that any state would look for inspiration to the public access mess in Florida is indeed amazing.

The day before the meeting I looked at access to court records in Orlando where Disney World is located. The clerk had just released to the public a suit against Walt Disney Resorts saying a monorail door trapped a tourist’s leg.

Since when I was a rookie reporter I have thought such suits reveal the seam between the real world and Disney’s fantasy alternative.  This particular complaint was filed July 17th and was released to the public on September 23rd, two months later.

As a result, the complaint has lost all news value. It has entered the realm of history.

The Florida courts are bottling up public records throughout the state, as we pointed out in a Tour de Florida report describing abysmal public access from Key West all the way up to Tallahassee.

Here is a sample: “In the morning, the bureau chief drove through a terrain of woodlands and open fields to Hamilton County Circuit Court. He entered a small courthouse and found his way to the clerk’s counter. In response to a request to see recent civil complaints, the counter clerk looked puzzled and referred him to the processing clerk.

“She explained that she processes new filings once a day and the docket can then be reviewed online. She said images of documents are ‘mostly on demand.’ She explained that a security matrix allows judges and clerks to see the documents right away but members of the public and reporters must request that the documents be ‘unlocked.’”

That is the security matrix in its raw essence. It allows court officials to see new court records right away but locks them to reporters and the public who must ask for them to be checked and unlocked. The clerk was describing restrictionism in full flower.

So why in the quirky world of court administration, why even in that world, would someone think that a state 2,000 miles away is the model system for e-filing and public access. Especially when right next door to Wyoming is a state with a well-developed electronic filing system and excellent public access.

The courts of Utah, like the federal courts and a growing number of states, give the press and public first-rate, unrestricted First Amendment access — at the moment of receipt by the court.

Why would Wyoming look 2,000 miles away in order to march backwards on court transparency and into a security matrix that is anathema to an open court system. Why take as its guiding light a state that, bar none, is the worst state in the nation for First Amendment access to court records.

It is because of restrictionism.

The philosophy that access to public court records must be “secured” has crept into the officialdom of the state courts like a disease creeps into a populace. The super-spreader event of this contagion was a series of yearly conferences of state court administrators held in Williamsburg in the middle of the last decade.

The binding philosophy of those conferences was “practical obscurity,” the notion that access to paper records was cumbersome and therefore they were hard to see. So it followed, in the minds of the administrators, that access to electronic records should be equally difficult.

From that overriding belief, you get Florida. Where local court clerks controlling their fiefdoms have shut access down so hard that two months can go by while documents are held in the “access matrix.”

Florida represents restrictionism at its full height, and, like a teeter totter, Florida also represents First Amendment access to court records at its lowest point. There is no reason for any clerk, any official, in any court, to copy Florida.


More stories and columns on the First Amendment fights:

The Public Is Thems That Pays  *  Clarity  *  The Quest  *  Two Judges and the Williamsburg Ghost  *  First Amendment Bright Line in the Digital Age  *  National Press Corps Enter First Amendment Fray to See Court Filings on Same Day * U.S. Judge Slaps Virginia Clerks With $2 Million Fee Award in First Amendment Case * E-Filing and the First Amendment  *  Matter of Choice   * The Dicta: Guesswork About Press Access  *  Presumption and Fact: The Ask for Access  *  ‘CNS’s View’ Accurately Told  *  Access Solution: The E-Inbox  *  Access Law in the Electronic Age  *   Bread and News  *   Flip Side of Court Tech  *   First Amendment Right to See Court Documents on Day of Filing  *   Tradition of Same-Day Access  *   The News Cycle

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