(CN) – The biggest court in the nation, Los Angeles Superior Court, opened a media portal Monday that gives journalists access to new court filings as soon as they are electronically received.
“Quick access to court filings is essential for journalists to do their jobs,” said David Snyder, executive director of the First Amendment Coalition. “Reporters are in the business of providing the public with current news. So quick access is really critical for reporters to do what they do, which is to inform the public about what is happening in the court system.”
All four federal district courts in California follow the same policy, making new filings public as soon as they are received by the court clerk. In addition, three e-filing state courts in California now give the same upon-receipt access to journalists.
The media access portal’s Monday opening came on the same day that the Los Angeles court switched to mandatory electronic filing of complex cases. The mandatory e-filing policy broadens to include all civil filings at the start of the new year.
Use of the new portal is based on an agreement with members of the media that says, “LASC will allow access through MAP to civil data and documents, including complaints of unlimited jurisdiction that have been received from a litigant but not yet processed.”
Those terms track a 2016 federal ruling in Los Angeles by Judge James Otero where he wrote, “A qualified First Amendment right of timely access to such complaints attaches when new complaints are received by a court.”
In the 30-page ruling, he prohibited the Ventura court clerk from “refusing to make newly filed unlimited civil complaints available until after such complaints are ‘processed’ – i.e., the performance of administrative tasks that follow the court’s receipt of a new complaint.”
“That ruling gets it right,” said Snyder. “There is a First Amendment right to access to records that are filed in court and that right attaches when the records are first filed. Any delay is a denial of the right. If you have a right to see those records in the abstract and you don’t actually see them, you are being denied that right.”
The ruling, however, was appealed to the Ninth Circuit Court of Appeals by California’s Judicial Council, the state court rule-making agency. Lawyers for the council argued that Otero’s decision imposed an administrative burden on the courts and that new cases should not be public until a clerk looked them over.
Oral arguments on that appeal were heard in August by Ninth Circuit judges Kim Wardlaw, Mary Murguia and Randy Smith. The court’s ruling is now pending.
Caitlin Vogus, staff attorney with The Reporters Committee for Freedom of the Press, said Monday’s opening of a media portal in Los Angeles confirmed the argument by the press in the Ninth Circuit saying access on receipt is entirely feasible.
“We think it’s extremely important that public and press have timely access to court filings,” said Vogus. “The reason is because the purpose of the First Amendment right to access to court records is to allow the public to monitor what’s going on in our judicial system. The press acts as a surrogate for the public.”
The promised access through the portal in Los Angeles Superior replicates the access journalists had in the past to new paper filings in big courts in the United States, including Los Angeles Superior. The LA court covers a region of 10 million people and it is the biggest court of them all.
“Timely access allows the press to provide the most accurate and complete news to the public,” said Vogus. “Until they can actually look at the document, they don’t have the full story. That’s why a lot of news outlets post court documents so the public can read the source documents.”
Two decades ago, journalists on the court beat in Los Angeles would descend from the second-floor press room down to the ground-floor records room at the main courthouse on Hill Street downtown, where they checked out “the cart.”
The cart was a set of gray metal shelves on wheels that held the new civil complaints filed that day. The cart’s folders included cases filed right up until the filing window closed at 4:30. Reporters requested copies of the news-making cases up until 4:45.
Reporters for The Los Angeles Times, City News Service, the Los Angeles Daily Journal, UPI and the Los Angeles Herald Examiner looked through the cart’s load every day and on most days it generated news.
The new portal is the electric reincarnation of the old cart. On its first day, however, it ran into problems.
“We were told we would get same-day access,” said Milt Policzer, who covered Los Angeles Superior for the Herald Examiner and now reports for Courthouse News. “So far it’s not happening. But they may be working out the kinks.”
A visit to the portal shows it is providing a list of cases that have just been received, as promised by its terms. The portal lists the first plaintiff and defendant, much like an old-fashioned intake log kept by a counter clerk. But the accompanying link opens only the first page of the document, which is inadequate for reporting.
If the site was to function as promised, said Policzer, the access would be better than the old cart.
“It would be better, much simpler and easier,” he said. “All we have to do is call them up on the screen rather than go through paper folder after paper folder. In theory we would also get them faster because we would get them just after they are filed instead of waiting until the end of the day, all good things. If it works.”
A spokesperson for Los Angeles Superior said the court’s tech staff were working on the problem and should have it fixed it by Tuesday evening.
The huge court’s media portal falls with a splash into a two-decade timeline of conflict over press access in the electronic era.
In converting to e-filing, the federal courts stayed true to traditional press access where journalists saw newly filed paper documents just after they crossed the counter. Federal trial courts opened up the newly filed complaints and subsequent filings as soon as they hit the court’s server, moments after they were sent electronically by the filing party.
The federal documents can be reviewed for free at the courthouse, and online, they can be seen after registering and paying a per-page fee.
“Delay in access to public records is problematic,” said Snyder with the First Amendment Coalition. “The public has a right to access records once they are on file with the court. The right attaches from the moment a document is filed in court. If a document – a pleading, or a complaint – is filed and it sits in a kind of purgatory for weeks before anybody can see it, the right of the press and public to see what’s happening in their court system is infringed.”
But many state courts took the opportunity of the e-filing transition to push the press back from the virtual counter, down the line past a series of administrative tasks called “processing.” The resulting delays put a cloak around the court filings until the daily news cycle had passed and, as a result, largely killed the ability of the press to report on the news contained in those filings.
Over the last decade, federal judges in Texas, New York, Illinois and California enjoined state court clerks from holding back the court documents while they processed them, but many state clerks continued to withhold the new cases for processing.
In California a small group of court clerks began pushing for e-filing more than a decade ago, and they remained militant in arguing that they and they alone decide when a case becomes public.
One line of the press challenge to that policy ran through the court clerk in Ventura and resulted in a 2014 opinion by Ninth Circuit Judge Kim Wardlaw, saying a right of access attached to the newly filed complaints. The subsequent 2016 summary judgment by Judge Otero found the right of access attached at the time of the clerk’s receipt of the new filing.
“In the modern news environment, court policies that delay access to judicial records can amount to a complete denial of meaningful access, because ‘old news’ does not receive the same level of public attention as timely news, and thus may not be published at all,” said a brief in the California litigation, filed by media coalition that included The New York Times, Los Angeles Times and The Associated Press.
But those California rulings did not settle the matter.
This summer a federal judge in Orange County distinguished Otero’s ruling and refused to enjoin the court clerk for Orange County Superior who was also withholding newly filed complaints for processing.
The clerk argued that he needed to check for private information before he could make new filings public. The news media answered that he had easy alternatives for protecting private information, including the old-fashioned method of bringing sealed or confidential papers to the courthouse in a closed envelope.
But Judge Andrew Guilford decided that withholding the new cases until the following day does not violate the First Amendment. Courthouse News submitted evidence that the clerk withheld most of the more important cases, those filed as “complex,” for longer periods of time – two days and more, by which time the news is clearly stale.
The Orange County ruling has also been appealed to the Ninth Circuit where written briefs are currently pending. After the lower court gave the clerk a pass, press access to all unlimited cases slipped further to the current point where only a few cases are available on the day they are received and more than a third are withheld for at least two days.
The First Amendment Coalition and The Los Angeles Times have submitted a letter to the court outlining their concerns about several issues, including the monitoring and recording of the portal’s use.
Snyder with the coalition pointed to a provision of its user agreement that conditions use of the portal on “legitimate news reporting.”
“You can’t condition access to public records on what you consider legitimate news gathering activity,” Snyder said. “What is legitimate news gathering?”
Still, Snyder said the portal is a step in the right direction. “Some of the conditions are problematic, but the broader idea that the public and press should have access at first filing is a good one,” he said
Reporting from the main courthouse in Los Angeles, Policzer said, “If it works, we’ll be doing jigs in the pressroom.”