Judge Grants CNS Same-Day Access to Filings

     HOUSTON (CN) – A federal judge on Tuesday signed a permanent injunction granting Courthouse News same-day access to legal filings in Harris County Court and assessed attorney fees of $253,000 against Harris County Clerk Loren Jackson. U.S. District Judge Melinda Harmon found that “none of the justifications for delays presented by defendants during the course of these proceedings were sufficient to constitute a compelling or overriding interest that would overcome plaintiff’s First Amendment right of access.”

     Judge Harmon added: “There is an important First Amendment interest in providing timely access to new case-initiating documents.”
     The Harris County District Clerk is “permanently enjoined from denying plaintiff and all of its officers, agents, and employees same-day access to, and ability to download, print, or obtain a hard copy of, all petitions and case-initiating documents in civil cases (excluding family cases), filed and received by the Harris County District Clerk between 12:00 a.m. midnight and the time the Harris County District Clerk’s Office closes,” except for particular circumstances, such as emergencies, which are described in the injunction.
     Judge Harmon also granted CNS $253,416.69 in attorneys’ fees and expenses.
     In granting a preliminary injunction against the county and the clerk last year, Harmon said the defendants’ attitude “can best be described as indifferent, irresponsible and even recalcitrant.”
     That attitude, the judge noted, was illustrated by the clerk’s argument that delays of three to nine business days in providing access to newly filed matters were “slight” and “reasonable.”
     “In the context of the Defendants’ past stubbornness,” said the judge in a 7-page order issued Friday, “their verbal assurances that they have complied with the preliminary injunction and that the case is moot are not persuasive, nor are their representations enforceable.”
     Courthouse News Service won a preliminary injunction against Clerk Jackson and his office earlier this year over the clerk’s progressive destruction of previously excellent access for journalists at the court, an access used by the Houston Chronicle and Courthouse News to review court filings.
     Jackson and officials in his office first ordered reporters to stay behind the counter, thus preventing them from asking individual clerks for newly filed documents. The clerk then progressively cut back the number of new documents the clerk’s employees would gather for reporters, until it was down to less than 10 percent of the new matters.
     For the large bulk of the news, reporters were forced to wait up to nine court days, by the clerk’s own admissions.
     “The First Amendment to the United States Constitution prohibits use of any law `abridging the freedom … of the press.’ It requires a presumption of openness of both the courtroom and court files, ” the judge wrote in granting a preliminary injunction against Jackson this summer. “It is clearly in the public interest to enjoin Defendants’ conduct.”
     The clerk has since delayed in providing discovery and then moved to dismiss, claiming the preliminary injunction was moot because he was posting the new cases online. That process required substantially more work by people in the clerk’s office as opposed to simply returning the previous physical access to journalists.
     “Moreover,” the judge said, “electronic access makes plaintiff’s task of determining which newly filed documents are not on line more difficult.”
     The clerk’s office has in the meantime gone into the publishing business, by summarizing the documents through posting docket entries and then selling the attached documents at the price of one dollar per page.
     In her recent order, the judge also pointed out that the clerk’s office could easily roll back on the electronic access now provided in complying with the court’s preliminary injunction.
     “Without declaratory and permanent injunctive relief, plaintiff would have no protection from future access delays because they might occur not simply from an outright change in policy, but surreptitiously from a mere relaxation of effort by court personnel and the piling up of newly filed petitions.”
     Therefore, said the judge, the matter is capable of repetition while evading review and it is also reasonable to expect that the delays would come back.
     “Accordingly,” said the judge, “the Court orders that the motion is DENIED.”
     She also rejected Jackson’s request for a protective order and gave him 20 days to answer discovery requests.

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