SAN FRANCISCO (CN) – A group of press and open government groups in California are backing a court transparency bill recently introduced by state Senator Leland Yee requiring that court administrators give the public and news reporters prompt access to newly filed public documents.
The bill, now pending in the state Senate, seeks to remedy a steady deterioration in press access to California’s trial courts. It is backed by the California Newspaper Publishers Association, Courthouse News Service, the First Amendment Coalition and Californians Aware.
“Delays in public access have unfortunately become epidemic,” said Yee from San Francisco. “SB 326 will help rekindle some light on the actions of courts and lawsuits that greatly affect the public.”
Delays ranging from days to weeks have become common as court administrators impose long waiting periods between the time a court accepts a new filing and the time it can be seen by press and public, keeping the court’s new matters in the dark.
“The courts have invested millions in technological solutions to expedite the massive flow of information through the courts,” said Tom Newton, General Counsel of the California Newspaper Publishers Association.
“Unfortunately, there is evidence this public expenditure has slowed the public’s access to its courts and Senator Yee’s bill intends to make certain these changes work to the public’s benefit,” said Newton.
At the same time that courts are imposing such delays, the Internet has increased the speed of the news cycle to where it can be “measured with an egg timer,” said Rachel Matteo-Boehm, with Holme Roberts and Owen, who represents Courthouse News.
The result of the barriers put in place by administrators has been decreased press coverage of court matters, she said. The delays serve to put the news on hold until it become “old news” that is of little public interest.
Orange County Superior Court is an example of a trial court that used to provide traditional press access on the day new cases were filed, said news reporters. When they had that access, reporters for the Orange County Register and the Los Angeles Times checked new matters every day.
But now the court holds the documents back for one day to two days or more while the court scans and processes new matters, and places them online for sale. As a result, reporters for those two major dailies in Southern California no longer check the new filings.
“In an era when most news cycles are instantaneous, vital information about court proceedings is often not made public for days or weeks,” said Peter Scheer, Executive Director of the First Amendment Coalition, a non-profit free speech organization. “This bill is necessary to restore to the people of California the information they need to monitor legal developments as they happen.”
Milt Policzer, a journalist for Courthouse News Service, has covered Los Angeles Superior Court for 30 years. “We’re in the news business,” he said, “not the history business.”
“News, in general, is supposed to be reported as promptly as possible for intelligent reaction,” said Policzer. “We don’t want to learn that a dictator has been overthrown two days after it happened. Lawsuits may not be quite as dramatic, but if you have a stake in them, you’re going to want to know immediately.”
Court administrators in California regularly argue that public access costs money, and they have no money.
In a letter sent this week from the Judicial Council to Yee, the central administrative body for California’s courts said the bill would “add many millions of dollars of cost to court operations.”
But proponents of the court transparency bill point to Riverside County Superior Court where same-day press access was provided by the court’s executive officer, Sherri Carter, without affecting that courts’ budget, primarily by shifting staff schedules.
“It is a matter of will,” said Bill Girdner, the editor of Courthouse News. “Carter comes from the federal courts where access is granted on a same-day basis in every one of the four federal districts in California. So she knew it was quite possible to do. It took her three weeks to open that court to same-day, public access in a court where we had been stonewalled for years.”
The background primer on Yee’s bill, prepared by the Holme Roberts firm, also notes the irony in the poverty argument used by court administrators. Those same administrators gave themselves a 3.5% retroactive raise that went into effect this year, and are currently spending nearly two billion dollars on an IT system called the Court Case Management System, that, according to a recent state audit, has been rejected by 47 out of 58 county courts in California.
The Court Transparency Bill, SB 326, would ensure same-day access to new matters, whether they are filed in paper form or electronically. The particular means of providing access would be left to the individual courts.
“The bill would require the rule to provide for newly filed or lodged court records to be made available for public inspection at the courthouse no later than the end of the day on which those records are received by the court,” says the text of SB 326.
Going back in time, same-day access to public documents was commonplace and traditional in California’s courts when daily newspapers regularly sent reporters to the courthouse at the end of the day to check on the day’s new filings. That traditional access has deteriorated, said Girdner with Courthouse News, as administrators have pushed the press back off the documents.
“What we have seen is that court administrators, particularly in the CCMS courts, are taking a hard line about access, ignoring or endlessly delaying requests to work out a system for same-day review of the court’s new matters, and using fake arguments, like cost and security” said Girdner. “It’s almost as though they think the records belong to them and not to the public.”
In answer to complaints about that decline in access, California’s court bureaucrats appear to be taking a confrontational stance, inviting the press to file a legal challenge if its members feel aggrieved.
“Legal recourse is available to the press if appropriate access is denied,” said a comment from a committee of court administrators made late last year, in answer to complaints about deteriorating press access.
The backgrounder for the bill notes that court administrators are also not above playing games with words and legal concepts in order to deny public access. Court bureaucrats now claim, for example, that new filings that come across the counter and are stamped as filed should really be considered “pre-filed” until the bureaucrats decide they can be seen by others.
“A committee of California court executives recently took the incredible position that a document received by a court is not ‘filed’ with the court and thus is off limits to the public until some undetermined date when that document has been fully processed by court staff.,” said the backgrounder. “The public’s right of access to court records is too important to permit such games of semantics.”
The letter from the Judicial Council sent to Yee this week argues that delays in access may be caused by scanning which “promotes the objective of public access.”
But Policzer noted that Los Angeles Superior Court, which is roughly ten times larger than any other court in the state, scans its documents and provides same-day access to news reporters, while a smaller court such as Orange County Superior Court scans and sells the documents, but does not provide same-day access.
Girdner pointed out that what the Judicial Council is calling “public access,” most people would call “sales,” in that many of the courts are in fact charging for online access.
The letter from the Judicial Council argues, in addition, that is “inappropriate to subject those records to unsupervised review before the court has entered sufficient information to protect the accuracy of the record.”
However, said the bill’s backers, news reporters in a big courts such as those in San Francisco, Los Angeles, Riverside, San Jose and Oakland regularly review the new court matters on the day they are filed, showing that it is practical for a big court to provide the access required in the court transparency bill.
The bill is currently assigned to the Senate Judiciary Committee with the first hearing on the bill expected next month
When introducing the bill to the legislature, Senator Yee summed up its purpose: “Delays in accessing court documents are contrary to the fundamental right of public access and the ability for journalists and others to know what transpires each day in our courthouses.”