I have sometimes thought of the many clerks who battle against press access as Uruk-hai, the uber-orcs bred in the basement of the evil wizard Sauron’s castle in "The Lord of the Rings." But that comparison is of course unfair.
It is true that the bureaucrats who fight access are created in the bowels of the court bureaucracy and come armored in a coat of impunity, and when they retire, another similar bureaucrat simply steps into their place and fights on. They fight behind lawyers paid by the public, and defeat does not affect them.
But like many generalities, this one does not account for the variations among people and among civil servants. There are individual clerks who have indeed been gracious and helpful, acting firmly in favor of public access to the records they watch over.
And those good clerks have found a way to give access to court records when the news in them is fresh, when they are filed, at the time of receipt.
I am reminded of all this by the battle of Austin.
In going over the history of our reporting on Travis County District Court, I found, through my own experience there, and that of our bureau chief, that the former clerk regularly fixed access problems in the transition from paper to electronic.
“We would hit a technology bump, access would go down, and we would talk about it with Amalia. And then there was a solution and access would be fine,” said our bureau chief.
Like so many courts, Travis County’s court began switching from paper to electronic records almost two decades ago. And like just about everywhere, first it was scanning which set access back. And then it was e-filing which, perversely, also set access back.
But with each transition, from scanning to voluntary e-filing to mandatory e-filing, Clerk Amalia Rodriguez–Mendoza would meet with our bureau chief and come up with a protocol that allowed reporters to see new cases when they arrived at the court, before all the clerical work was done.
But all that ended in 2015.
That’s when a new clerk came into power. Unlike the old clerk, the new clerk refused to consider any access policy that did not involve first finishing all the clerical processing before reporters could look at the new filings. She expressed sympathy over the resulting delays in access, but simply lamented her lack of staff and pointed out that she was cross-training,
The result of her policy is pretty stark.
Only 14% of the new cases can be seen without delay in Travis County District Court. Nearly half, 47%, are blacked out for three days or more.
By then the news they contain is stale, stale, stale. If the news were like a baguette — and they share a number of characteristics — then the baguette would be hard as a rock.
One example we are pointing to is a civil action over an incident in November of last year when a man threw a Molotov cocktail at the headquarters of the Austin Democratic Party.
Well, that petition, as the complaints are called in Texas, is a news story.
But, filed on Thursday and held back until Monday, it was four days old by the time we could see it. At that point, it was seriously old news.
Time, I am learning more and more, is the key to all this. The passage of time destroys news value, but it also weighs on litigation to stop the destruction.
We filed a First Amendment complaint over the Austin delays a year ago. The clerk — this is now a matter of routine — tried to knock us out early with a motion to abstain, arguing that federal courts should simply give up their jurisdiction to decide First Amendment issues in favor of the state courts.
About ten months later, the motion was denied on the recommendation of Magistrate Judge Susan Hightower. She ended her ruling against abstention and in favor of plaintiff Courthouse News by quoting from a Kansas federal judge’s 1945 decision: “We yet like to believe that wherever the Federal courts sit, human rights under the Federal Constitution are always a proper subject for adjudication, and that we have not the right to decline the exercise of that jurisdiction simply because the rights asserted may be adjudicated in some other forum.”
So here we are, a year after the case was filed, back on the litigation train.
And a big part of that litigation, as it is in all these First Amendment cases, is telling the story.
It’s the story of how courts and their clerks since time beyond my memory gave the press access to new filings as soon as they crossed the counter. And then how, in the switch to electronic filing, a core of state court clerks banded together to fight against public access under the banner of “practical obscurity” — the nutty belief that public records should be hard to find. So those folks, well, they kind of are Uruk-hai, and they have caused a tremendous amount of First Amendment destruction.
But then there was Amalia. And she was great.
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