California court administrators are trying to create a new definition for public documents that appears aimed at limiting press access. News and First Amendment groups submitted comments Friday calling the change a semantic "sleight of hand" that undermines fundamental press and public freedoms.
The new definition, slipped into proposed rules for electronic filing, appears intended to deny press access to newly filed controversies until after a series of bureaucratic tasks are completed, a process that can take days or weeks.
Press and First Amendment groups have delivered a lengthy comment to the Judicial Council, the policy-making body for California's courts, attacking the administrators' gambit. Those joining in the comment include the powerful California Newspaper Publishers Association, that counts the Los Angeles Times as a member, in addition to Californians Aware, the First Amendment Coalition and Courthouse News Service.
"It appears the true purpose of introducing the concept of an 'officially filed' document into the Rules of Court is to provide the administrators with justification for denying public access to records that have been 'filed,' under the long-understood meaning of that term, until after they have been "officially filed," wrote Rachel Matteo-Boehm, Roger Myers and Katherine Keating with Bryan Cave on behalf of the press and First Amendment groups.
An officially filed document, according to the proposed rules, is one that has been "processed and reviewed," in other words, worked on by civil servants who create a computer record and run through a host of additional procedures.
In Sacramento's courthouse, those procedures take about six weeks.
"The proposed rule change would thus give court administrators unbridled discretion to delay press and public access to fundamentally public records until administrators decide such access is appropriate -- even if it is days or weeks after the 'filed' date," said the Bryan Cave lawyers.
"The Judicial Council should not countenance the definitional sleight of hand when the public's access to court records -- a right that is fundamental to the transparency of the judicial branch of our government -- is at issue," they said.
The quiet attempt to work a new definition of court records into e-filing rules is consistent with past policy of the Administrative Office of the Courts, whose former director William Vickrey attempted a similar semantic shell game by referring to filed documents as "pre-filed," in order to oppose prompt access by the media.
"In the proposed rules, the dubious notion of a 'pre-filed' document has been replaced with the equally dubious notion of an 'officially filed' document," said the comment from the press corps.
Vickrey and his office came under fire from the Legislature and trial court judges around the state on issues that ranged from financial mismanagement to perceived arrogance.
He retired in 2011, his longtime lobbyist Curt Child was appointed head of operations last year, and the office was said to be reformed.
But the effort to create a new definition for court documents shows little tendency toward reform and instead continues the office's old, restrictive view on public access.
Federal and state court rulings establish that timely access to public documents is part of the overriding First Amendment right. News loses interest to readers as time goes by and news outlets report new matters on the day they happen rather than a day, a week or six weeks later.
"It appears the primary -- and perhaps sole -- purpose of the 'officially filed' concept is to justify arguments by court administrators that the public has no right to access a court record until court staff deem it fit for public viewing," said the press comments. "The access delays that would inevitably result would violate the federal constitutional right of timely access to court records and be contrary to the practices of state and federal courts around the nation."
As an example of hot news tied to a court filing, football player Junior Seau's family sued the NFL on Wednesday in San Diego and the news was reported by national sports pages that same day. But reporters could not get the document from the court because San Diego Superior Court denies access to court documents until they are processed.
That delay is contrary to courthouse traditions. Courts throughout the nation traditionally give journalists access to new filings, such as the Junior Seau matter, on the day they are filed, when the news is hot.
But that tradition has been under attack in local California courts that fell in line with the central administrative office and adopted its financially disastrous software for processing cases at a cost of a half-billion dollars in public money.
Orange County and San Diego are two of the California courts that adopted that cumbersome and now-defunct software, and both courts are now pushing electronic filing of court documents. Orange County, in particular, now requires that lawyers file electronically but nevertheless denies public access for a substantial amount of time while new matters are processed into that old software, called the Court Case Management System.
Rush to Rules
The mandatory e-filing policy in Orange County is the direct result of a bill passed by the California Legislature last summer that OK'd a pilot program and said the experience from the pilot program should shape statewide rules on e-filing.
But the new statewide rules were written and proposed before the pilot program had even started, and now administrators are trying to push them through the courts' policy-making body, the Judicial Council, when the pilot program is less than a month old.
"Assembly Bill 2073 explicitly requires the Judicial Council to adopt mandatory e-filing rules that are 'informed' by a study of the Orange County pilot program," said the press comments. "But instead of following this mandate, the proposed rules were drafted and circulated before the Orange County pilot program even began."
"The prospect of precipitously adopting mandatory e-filing rules is especially troubling in light of the recent debacle over the California Case Management System," the comments continued. "Given the enormous amount of public funds spent on that failed project, caution is essential to ensure that the delays and inconsistencies in public access associated with CCMS do not carry over into the expansion of e-filing."
In obtaining passage of the pilot program legislation, with the help of the central administrative office, Orange County court officials told the legislators that "E-filing makes the court records available faster and sooner to everyone, including the public."
However, reporters who cover Orange County have found that not to be true.
In December, a two-day spot check of paper-filed complaints compared with e-filed complaints showed that the paper cases were actually processed more quickly by a day or two than the e-filed cases, a result that mirrors earlier surveys on the delays in access to e-filed, complex cases, that are often the most important and newsworthy cases.
"After that court implemented e-filing for certain categories of cases, e-filed documents were not typically available until a day or two after their paper-based counterparts were accessible," said the press comments.
When that discrepancy was reported in a news article late last year, Orange County court officials appeared to accelerate the processing of e-filed complaints and the delays went down. But by mid-January, the delay had again increased to two and three days between the time a case is actually "filed" and the time it is "officially filed."
In one of the many aberrations that take place when administrators control press access, the most minor cases, referred to as limited cases, are processed first and appear more quickly for public view than the more important, or unlimited cases, that take much longer.
The press comments by the Bryan Cave lawyers noted that members of the Legislature were told e-filing would be "facilitating public access," while court administrators were instead using the legislation "as a hook to undermine public access."
Press access in the CCMS and now e-filing courts contrasts sharply with traditional press access in California and the nation.
Roughly a decade ago, news reporters in Orange County reviewed newly filed civil cases on the day they were filed at the end of the day, in a wooden box in the records room that was connected to the intake windows for new filings.
A survey of press and public access in courts around the nation, attached to Friday's press group comments, shows that traditional, same-day press access remains the norm in most federal and state courts in the nation. The exceptions, as the survey demonstrates, are precisely those California courts that are rushing to implement electronic filing.
Federal courts, for example, have moved toward electronic filing but at the same time they put in place a host of local variations that preserve traditional, same-day press access.
Some of the federal courts send new filings directly onto public terminals at the courthouse without any processing from court officials, providing nearly instantaneous public access.
Other federal courts provide an electronic in-box that allows the press to review newly filed cases before they are processed, in other words when they are "filed" and before they are "officially filed" in the parlance of the new rules proposed for California.
Along that line, Courthouse News has repeatedly asked officials in Orange County Superior Court to provide the press with access to the electronic in-box for new filings, in order to preserve the old status quo of same-day access for the press. The vendor for the e-filing service in Orange County has said such access is completely feasible, that it is simply a matter of the court's discretion.
But that request has repeatedly been turned down by the Orange County clerk.
Instead, the court's pilot program for e-filing has come accompanied by pre-written rules that, according to the comments from the press groups, appear aimed at justifying the ongoing denial of prompt press access.
"Rights fundamental to the democratic process -- like the right to know what goes on in the courts -- are meaningless if they can be disregarded when they become inconvenient," the press comment concluded. "As history has taught us, rushing forward without taking the time to assess how these systems will actually work for all concerned is quite likely to result in a system that is worse rather than better."