(CN) — The Oregon Attorney General is flying low in her effort to avoid the knock-on effect of a First Amendment ruling in Vermont that permanently enjoined state clerks from cutting off access to new complaints.
The ruling in Vermont is made more powerful by the fact that local court rules placed an affirmative duty on the clerk to review new filings for confidential information. U.S. District Judge Christina Reiss referred to Vermont’s isolation at the conclusion of her ruling in favor of the media.
Courthouse News then submitted that additional authority to U.S. District Judge Youlee Yim You, who is hearing a First Amendment challenge in Oregon based on nearly identical facts to those in the Vermont case.
Oregon Attorney General Ellen Rosenblum then claimed that Courthouse News “had falsely informed” the judge in Vermont that Vermont was the only one in the nation to require an independent review for confidentiality by the clerk.
In fact, it is the only state to impose that duty on the clerk. It does so through the Vermont Rules for Public Access, Rule 3(b), which impose a duty of “complementary responsibility” on the clerks to screen for confidentiality.
The duty is complementary with the filer. The other state courts place the duty to review for confidentiality solely on the filer of a document, and not on the clerk.
A second state used to impose a duty by court rule on the clerk to review. That was in Florida, where the Florida Supreme Court abolished the rule in July because of its devastating effect on public access.
Thus it is the Oregon officials who are not playing straight with the facts in federal court.
Such tactics are unusual from government lawyers. But they were also used by the Vermont Attorney General’s office which, without success, challenged the credibility of Courthouse News.
The current argument before Judge You in Oregon is whether a document submitted to the clerk is a record to which the First Amendment right of access applies. The Oregon Attorney General has moved to dismiss the Courthouse News complaint on the grounds that a new complaint is not an official record until after clerical docketing, a position that has not been taken up by any judge to consider the access issue.
Referring to the controlling Supreme Court authority on the right of access, Jon Fetterly with Bryan Cave argued in a reply filed Friday, “Under that test (not currently before this Court), Defendant has the burden of demonstrating how its interests ‘would be impaired by immediate access.’”
Oregon will have difficulty making that argument with the steady accumulation of courts that are giving press or public access on receipt, including Vermont which also on Friday implemented a new system of automatic access to new complaints upon their receipt, while using the same e-filing software system as Oregon.
The test for First Amendment access was put forward succinctly by Reiss in her opinion enjoining the Vermont clerks:
“Although some courts have sought to impose a bright-line rule for permissible delay, here the focus must be on whether any delay is appropriate because any restriction on the First Amendment right of access must have ‘sufficient justification.’ As the Second Circuit has observed, when a governmental entity contends that the ‘limited denial of access’ is insubstantial, it ‘begs the question of whether there was a sufficient factual basis for denying access at all.’"
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