Battle for Access: Opposition Tactics

In writing about our long war for access to court records, I sometimes forget to mention the obvious, that this conflict is played out under the aegis of the First Amendment.

That first right in the Bill of Rights comes first for a reason. It is one of the main foundation stones of a democratic republic, because it promotes discourse and participation in a government whose authority derives from the informed consent of the governed.

Advocating for prompt access to new court records is part of that great stone. That is because when clerks hold up access, the news in the records disappears into the sea of time past. It disappears from public view.

And thus that first right is damaged.

Over the years, I have tried to figure out why federal judges and federal clerks are overall quite reasonable about requests for access. And why, without our prompting, the federal courts on their own set up a system that lets the public see new e-filed documents automatically and immediately upon their receipt.

And why getting the same access in state courts usually becomes a battle.

Plenty of state court clerks have been helpful and thoughtful in granting access, including here in California, those in Kern and Fresno, Santa Barbara and San Luis Obispo, Monterey and Los Angeles. But 11 years of litigation and roughly $30 million in attorney fees have been spent by our news service, not against any federal court clerk, but solely against state court clerks who have not seen the First Amendment as a guiding principle.

So why is that. Why the difference.

I have heard more than one judge say that clerks opposing public access seem to think they “own” the documents. But that is more of an accurate observation than an explanation. 

In the years of litigation, starting in Houston in 2009 and ongoing now in Orange County, California, I have puzzled over the reason why. And the only theory I have come up with is that controlling the public record is what makes the clerk important.

Because individual state court clerks fight against press access with every trick in the book. The two main tactics — there are quite a number — are to scare and to hide.

Scare the judges and hide the delays.

The scare consists of telling judges the press might see sealed cases. We have had access to federal e-filed cases the moment they are received for more than a decade.

We have not seen a sealed case yet.

That is because the software sends sealed cases on a non-public path. In some courts, sealed cases must be filed the old-fashioned way, in paper.

The second main tactic of the clerks is to temporarily ramp up the speed of administrative work so the numbers don’t look as bad. The tactic consists of hiding the delays until the pressure is off.

I keep coming back to my testimony earlier this year in the Eastern District of Virginia because statements made under oath in an elevated witness box, with a federal judge looking at you from ten feet away, are words forged in the furnace of truth.

BY MR. HIBSHER: Q. But what about sealing the complaint? Are complaints ever filed with motions to seal?

A. Yes, they are.

Q. And how are they handled by the clerks?

A. They’re set aside. They’re separated.

Q. And are you fighting to see those complaints which are accompanying motions to seal?

A. Certainly not. I respect the general principle that some cases are sealed. I understand that. They’re not public.

….

BY MR. HIBSHER: Q. You mentioned that Courthouse News has filed a total of eight similar cases in federal courts against local courts. Does that include this case?

A. It does.

Q. Seven others?

A. Yes.

Q. Were they all — were all seven others fully litigated?

A. No. Two of them were settled right off the bat as soon as we filed the complaint.

Q. Did the defendants in those cases enter into consent injunctions?

A. Yes, they did.

Q. And what was the effect on access to those courts when Courthouse News first filed the complaints in those cases?

A. The clerks reacted by speeding up processing. They would try to improve their statistics.

Q. And has Courthouse News obtained court-ordered injunctions in any of the seven cases?

A. Yes. We’ve obtained injunctions, I believe, in four.

Q. And has Courthouse News ever been denied an injunction by a federal district judge?

A. Yes, once.

THE COURT: Well, in the case that you were just denied the injunction, what case was that.

THE WITNESS: It was Orange County, Your Honor. Orange County in California.

THE COURT: Is that one of the reported cases that have been settled?

THE WITNESS: The judge ruled against us. He denied our motion for summary judgment.

By Mr. HIBSHER: In Yamasaki, a case that you lost, did access improve in that court once you filed the lawsuit?

A. Remarkably so. They were processing very quickly and had most of the cases in by the first — by the same day or the next day. Almost all of them.

Q. And what happened when the court granted the defendant clerk summary judgment in Yamasaki?

A. They rolled back. They went back to three days past, and some cases a week back. They relaxed.

Q. Now, Mr. Girdner, given that the defendants have improved access in recent months, what is the necessity for relief in this case?

A. So the courts don’t roll backwards as I’ve seen many times before. So they don’t slow down and start delaying access again.

Q. And is that your fear here?

A. Oh, certainly is.

Thank you, Mr. Girdner. Your witness.

The Orange County ruling in the Yamasaki case was reversed by the Ninth Circuit earlier this year.

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More stories and columns on the Virginia trial:

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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Read the Schaefer trial transcript:  Volume 1   Volume 2   Volume 3   Volume 4

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