A First Amendment complaint filed in Austin’s federal court on the last day of 2020 follows the money extracted from the public record by clerks holding up access until they can make a sale.
AUSTIN, Texas (CN) — Reacting to a history of bureaucratic delays in access to news-making complaints, Courthouse News filed a First Amendment action against Austin’s state court clerk as the year winked out.
The complaint filed in U.S. District Court was made public as soon as it was filed. In sharp contrast — and the reason why the suit was filed — similar petitions brought in state court are held back for one to three days.
By then the news in the new filings, which often involve matters of great public interest, is stale.
“Where news is delayed until the next day or longer, it is devalued by the delay — just as day-old bread is less likely to be consumed, the news in day-old petitions is less likely to be reported and read, because it is ‘old news,’” said the complaint.
In federal courts and in many state courts, ranging from California to New York, Hawaii to Georgia and Utah to Connecticut, access to new records is given to the press and public right away. “It is highly practicable because we have seen it implemented in other jurisdictions where there is a will to do so,” said John Edwards, the lawyer who filed the complaint.
That will is lacking in Austin state court and in many Texas courts, said Edwards. “The main reason is money and the claimed concern over privacy, which is a smokescreen.”
Access delays are endemic in Texas state courts where the clerks and their chosen software company extract big chunks of revenue from the public record. A similar First Amendment action is now proceeding against Houston’s state court clerk, Marilyn Burgess, that is also tied to her practice of holding up access to new filings until she can offer them for sale.
In that Houston matter, the clerk and the court bureaucracy — after “consulting” with their software company — came up with a demand of $200,000 per year, in order to provide access like the federal courts. They claimed that otherwise, timely access could not be provided in Texas state courts, the same access that is provided without charge in many other state and federal courts as a matter of course.
“Contrary to recent claims by Texas court officials, none of those courts have been charged an additional fee by the vendor for putting a press review queue into effect. And none of those court clerks have claimed a duty to read through new filings to check for privacy violations, contrary to court rules placing that duty on the filer,” said the complaint. “Nor have the federal courts, in giving press and public access upon receipt, claimed to have a duty that does not exist, nor have they demanded large cash payments in order to provide constitutionally mandated access.”
Courthouse News is represented by Edwards and Chip Babcock both with the Texas firm of Jackson Walker. The two lawyers gained national attention with their First Amendment defense of Oprah Winfrey after she was sued in the 1990s by Texas cattlemen over remarks on her show about mad cow disease.
Like that case at the time, new civil complaints filed in court often reveal major and newsworthy battles over water rights, free speech, horrendous accidents, elections, explosions and natural cataclysms.
In the old newsrooms in federal and state courts, reporters would troop, often together, over to the clerk’s office to check on the new civil actions filed that day. It was like checking a fishing line. Some days, there was nothing. But other days, there was a hot complaint, and the reporters would take notes, go back to the newsroom and make calls for comment, and write a story on deadline, to be published in newspapers delivered on front porches in the wee hours of the morning.
The advent of the internet has emptied out most of the newsrooms, mainly because of a loss of advertising dollars to social media sites and search engines, but that same new technology brought with it the ability to file those complaints in electronic format, through the internet.
That electronic advance in the court world, which has spread intermittently over the last two decades, made it easier than ever to provide journalists with access to new public filings that generate news. The case filed Thursday by Courthouse News was spotted by the news service’s reporter in Austin on the U.S. District Court’s public access site, within an hour after it was filed.
Yet in the same city, the state court clerk requires that the new cases first be docketed, which means a set of time-consuming clerical tasks, before those new petitions can be seen and reported by the press. Clerks who are challenged about the hold-up commonly trot out the stalking horse of “privacy.” They claim they must review the new filings to see if they should be private.
But at the same time, they regularly disavow that duty which, by court rule, belongs to the lawyer filing the document. In Houston for example, court clerk Burgess has currently posted on her site: “THE RESPONSIBILITY FOR REDACTING OF PERSONAL IDENTIFIERS RESTS SOLELY WITH COUNSEL AND THE PARTIES.”
Likewise, the Austin clerk on her website rejects any claimed duty to review documents for privacy, failing to include privacy in the list of reasons for turning one back. And Texas court rules are explicit in saying that the contents are solely the responsibility of the filing lawyer.
That contradiction between the claimed duty to review for privacy and the simultaneous disavowal of that duty has left open the question: what true reason lurks behind the stalking horse.
“While court clerks have offered up a number of reasons to delay access, perhaps the most important reason is a threat to their revenue for charging for access to the court record,” said Edwards. “The revenue generated from selling court records is an off-budget revenue item. It serves as a powerful reason to preclude on-receipt access because the money is not earmarked for any specific purpose. It’s for anything the clerk wants.”
The complaint notes that the Texas Office of Court Administration is now operating under an agreement with Tyler Technologies, a top-500 corporation in the U.S., where the courts and the corporation split profits from online sales of the public record.
According to the deal signed in 2018, the local court clerks take in the money for copies and the corporation takes in the money for record searches. That search income for Tyler comes in addition to the $19 million per year that Texas taxpayers currently pay the corporation.
The company also charges lawyers every time they file a document, thus setting up a virtual toll booth that takes a fee for public filings going into and coming out of the courthouse. Tyler earns almost all its income from governmental bureaucracies that rent its software. The publicly traded company is valued at $13 billion.
“Today’s action against the district court clerk is an effort to put a halt to the district court clerk’s policy of unnecessarily delaying access to newly filed civil petitions until after administrative processing,” said Edwards representing Courthouse News. “The U.S. Supreme Court and lower federal courts have held that there is a First Amendment right of timely access to court records by the public and press.”
The complaint against the Austin clerk asks for an injunction against the clerk’s process-before-access policy under the First Amendment of the U.S. Constitution and under Article I of the Texas Constitution.
“Defendant’s actions under color of state law, including without limitation the denial of timely access to new civil court petitions and Defendant’s elevation of herself above the news media to a favored position with respect to the publication of public court records, in order to extract income from them,” the complaint concluded, “deprive members of the press, including Courthouse News and by extension its subscribers, of their right of access to public court records secured by the First Amendment to the U.S. Constitution.”