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August 18, 2020

The journey is far from over. But the fog hanging over the law of access to electronic court records is lifting And the way forward can be seen.

Bill Girdner

By Bill Girdner

Editor of Courthouse News Service.

After passing through eleven years of litigation on the issue of press access, we have come to a clear spot.

The long journey started in the land of paper. In dense fog, it crossed a broken land of newspaper hulks and voracious scanners, skirmishing bands of lawyers and wandering high priests. It is only now arriving in an electronic land where patches of light are breaking through.

In one of those clearings, individual federal judges and the Ninth Circuit have concluded that the right of First Amendment access to new civil complaints attaches upon filing. 

“Significantly, however, through this litigation, Courthouse News Service established that a First Amendment right of access to civil complaints at the time of filing exists, and that this right is reviewed under the Press Enterprise II standard,” said a Ninth Circuit order filed last month.

On the other side of the country, a judge in the Eastern District of Virginia concluded that access to new civil complaints must be provided on the day of filing where practicable. He also awarded this news service $2 million against hardline clerks who fought press access with every trick in the book.

“The First Amendment requires that such documents be made available contemporaneously with their filing. Contemporaneously means the same day unless that’s not practicable,” said Judge Henry Coke Morgan Jr. after a four-day trial.


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


Those two rulings started their journey in the land of paper. But they ended up in the electronic age where, if you smash them together, they ordain that: the right to access attaches upon filing and it must be granted where practicable.

Channeling Rachel Maddow’s talent for pause and repetition: The right of access attaches upon filing. It must be granted where practicable.

That pair of points represents a clearing in the vast fog of legal argument around the issue of press access to court records. From that clear spot, we go forth into the electronic land.

There, new civil complaints are filed when they are received by the court. Clerk-manned fog machines malfunction in the electronic land because court rules in all state and federal courts say a new complaint is filed when it is tendered or received, which is the same blink-of-an-eye moment.

So that is the next clear space up ahead — time of filing equals time of receipt.

Therefore F = R.

In turn, from Morgan’s order, we know that where it is practicable, access must be granted. Receipt plus practicability equals access.

Therefore R + P = A.

It is right to note that Morgan’s order said contemporaneous means same-day.  That is true and correct in the land of paper where a court closes at 4:30 in the afternoon. In the electronic land, however, the filing window never closes. So there is no logical time for the right of access to attach other than the time of receipt.

Recently however we have seen the ranks of foggers lining up along the hills of Practicability. Those hills are where the false analogies, calumnies and logical stretches are beginning to turn like a hurricane turns ‘round its eye.

To take one of those arguments, would access on receipt interfere with the administration of justice.

The great demystifier on this question is example. The biggest court in the nation, Los Angeles Superior, is a mandatory e-filing court. It gives the press access to the newly e-filed civil complaints upon receipt, through a media access portal.

Courts in a total of eight states do the same. Going from west to east, Hawaii, California, Nevada, Utah, Alabama, Georgia, New York and Connecticut, along with nearly all federal courts, gives access to new e-filings on receipt.

If so many courts provide access on receipt, can it be argued in good faith that it interferes with the administration of justice. It cannot. Because it does not.

Thus the P factor becomes a known quantity. It is practicable in the electronic land to provide on-receipt access to newly filed civil complaints — because so many courts do it.

F = R.

R + P = A

Filing equals receipt. Receipt plus practicability equals access.

The journey is far from over. The new land is still coursed by fog spreaders who have taken over much of the terrain lost by newspapers weakened and diminished from the internet onslaught.

But patches of legal sunlight are breaking out here and there.


More stories and columns on the Virginia trial:

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

Categories / Courts, Media, Op-Ed

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