A federal judge in Idaho made a series of key findings late Thursday that advance a Courthouse News attack on a statewide policy of denying access to new complaints until they are no longer news.
The Idaho courts director, Sara Omundson, had moved to dismiss the case. She argued that the federal courts should defer to the state courts even on First Amendment issues. At the same time, Courthouse News moved for an injunction.
U.S. Chief Judge David Nye denied both motions.
But he also laid out a road map and suggested a speeded-up schedule for getting to a decision. In a sense he set the scenery in place with a small garden of legal holdings.
The legal environment for his opinion is the Planet III decision two years ago by the Ninth Circuit, which has jurisdiction over Idaho. In that mother of all access battles, which lasted a decade, a panel of Ninth Circuit judges ruled in favor of Courthouse News and affirmed an injunction against the Ventura clerk’s withholding policy — which was the same as the withholding policy now followed by the Idaho director.
That policy is often called “no-access-before-process” and it means the press and public are not allowed to see new filings until the clerical has done clerical work called processing.
“Like the parties in Planet III, the parties in this case do not dispute the materials in question have historically been available to the public in Idaho and both agree that public access to these types of documents is important,” wrote Nye in a 29-page ruling.
“Also like the parties in Planet III, however, the parties here dispute when this right attaches and whether any delays in ‘processing’ are acceptable,” Nye continued.
These two observations set the table for application of the Planet III test of an access restriction, a test based on the 1983 Supreme Court holding called Press Enterprise II. In that case, brought by a Riverside, California, newspaper, the high court set out a method of analysis that has held fast over four decades.
A court must first decide if the access in question is traditional and serves a public purpose, often referred to as “history and logic.” Once that is established, the government has a problem — it must show an “overriding interest” supporting the restriction and the restriction must also be “narrowly tailored.”
By ruling that the complaints have been historically available and that access is important, Nye’s opinion pushed the Idaho access battle into the terrain of the second part of the test: overriding interest and narrow tailoring. Courthouse has prevailed in cases with nearly identical facts against other state courts because the restriction — the blackout for processing — is not narrowly tailored.
There are alternatives less restrictive than a blackout.
The clerks can, for example, give public access while they do their clerical work. In essence, the clerks can do their thing while the press does its thing.
The vendor used by Idaho for its e-filing software, Tyler Technologies, gives the clerk an option to give access at the time a new complaint is submitted rather than after it is processed. Courts in California, Nevada and Georgia use that option. Given that à la carte option within Tyler’s software, the Idaho director cannot argue she has no less restrictive alternatives.
A repeated line of attack from the clerks when defending a no-access-before-process policy is that nothing in the law requires “immediate” access to the newly filed records, a point conceded by the lawyers for this news service. Judge Nye said he agrees with that point.





