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Searching for old-time public access in high-tech courts

A Courthouse News bureau chief found just one fossil remnant of traditional press access in a tour of Florida. A First Amendment lawsuit followed.

(CN) — Since a time that fades far into the past, journalists have searched for news stories by looking over new cases filed in American courts. But as local court clerks switched to the electronic medium, a big group took that age-old access away.

The takeaway was challenged in Florida on Wednesday by Courthouse News in a First Amendment complaint. Filed in federal court in Tallahassee, the action takes on a widespread policy in Florida courts of blocking access to new cases in favor of clerical work, which has no time limit.

In the time before e-filing, Florida had been a good state for journalists covering the courts. They would go behind the clerk’s counter in Miami, Palm Beach, Jacksonville, Orlando, Tampa and other county courts to check the new paper cases as they came in.

In Miami, the Sun Sentinel, The Associated Press and other members of the press shared a desk behind the counter where they looked over and reported on the new legal disputes that had just come in.

Wednesday’s federal action was filed against the Florida Courts E-filing Authority, which controls the e-filing portal. The authority is a committee of court clerks that makes e-filing policy decisions and contracts for the software that runs e-filing in Florida.

The company that does the programming work, Granicus, does the same type of thing for Arizona’s court system. It set up the Arizona e-filing system so it gives old-school access to e-filings when they cross the virtual counter.

The point made in Wednesday’s complaint is that Florida could ask Granicus for the same set-up. But so far the Authority has refused.

“Since time beyond memory, the press in Florida and across the nation reviewed new civil complaints when they crossed the counter and before docketing, or what is now called processing,” said the complaint. “Journalists reviewed new complaints as part of their coverage of the courthouse because complaints often contained news of local and national import.”

The complaint added, “Defendants have the power to provide traditional access, but they have failed to comply with written requests to stop blocking public and press access until clerical processing is complete.”

The result is that by the time journalists can look at the complaints, they contain day-old news and often three-day-old news. And because reporters don’t normally write about three-day-old events, the e-filed complaints disappear into a black hole of bureaucracy.

Along with the Authority, the Broward County clerk is named as a defendant. Tracking delays in that court, reporters found that only 14% of the new cases could be seen on the day they were filed, 44% were held until the next day, another 14% were held back two days and 29% were blocked for three days or more.

“Grounded in the right of free speech, access to civil complaints is fundamental to the press and the public: it is essential to accurate and fair reporting of new civil court actions before they become yesterday’s news and vital to the public’s ability to understand and debate what is occurring in the judicial branch,” said the complaint.

Courthouse News is represented by Carol LoCicero, Mark Caramanica and Daniela Abratt with Thomas & LoCicero, along with Jonathan Ginsberg from Bryan Cave. The LoCicero firm represents a long list of media outlets in Florida.

The Broward clerk is represented by Sidney Calloway with Shutts & Bowen in Ft. Lauderdale and the Authority is represented by Lynn Hoshihara with Nabors Giblin & Nickerson in Tallahassee.

Attached as one of the exhibits in the litigation is a document describing a bureau chief’s search through the Florida courts for a lost tradition: “Mr. Abbott then drove north on a beautiful sunny afternoon to Osceola Circuit Court, where he entered the clerk’s office and found a more chilly environment.”

The Tour of Florida continued, “On the third floor, he was met outside the elevator door by a desk clerk handing out number tickets. The clerk sent him to a windowless room with a TV monitor displaying ticket numbers. His number came up and he went to the designated window to meet a combative clerk. When Mr. Abbott asked how he could inspect new complaints, she answered, ‘You can’t do that.’”

He said he was pretty sure that they were public documents and then the clerk said access was “instantaneous.” But the dockets and the complaints they were tied to were in fact three days old.

The bureau chief did find a complaint online that he wanted to see. The desk clerk “suggested that Mr. Abbott register online for access, but then added that registrants needed to be attorneys. Online, a would-be registrant must indeed include a Florida bar number. And indeed anyone looking online for the records had to include a Florida bar number. Mr. Abbott left without seeing any records.”

As he proceeded north through Florida, the bureau chief visited court after court where the tradition of access had disappeared. Arriving in the town of Yulee, he visited the courthouse where a clerk told him, "We have three days."

"Mr. Abbott left the courthouse without having inspected any new filings, recent or otherwise. On the way to pick up a rental car, his rideshare driver explained to a fellow fisherman that he successfully fishes for smallmouth bass in culverts by the side of the road."

But then he arrived at the big, stately courthouse in Madison County.

“When he started asking questions, a counter clerk called the Court Clerk on a phone, explaining that a reporter wanted to see some new complaints. The Clerk arrived a short time later, shook hands with Mr. Abbott, and brought him over to talk with the lone docketing clerk in the court’s records room, which was filled with large bound volumes of docket ledgers.”

The docketing clerk told him that she kept a handwritten intake log on a yellow pad, listing the date, case number and parties for each new complaint as it comes in. The bureau chief asked her for the most recent case on the intake log. “The clerk walked to a shelf, pulled a paper file, looked over the document inside, and handed it to him."

The court travelogue continued: “The records room in Madison was like a fossil reminder of the excellent paper access once provided in Florida’s courts, and it was the only remaining example of traditional access found by Mr. Abbott on his voyage through the courts of Florida.”

The First Amendment complaint filed on Wednesday hopes to return the public access tradition to Florida’s courts. It was filed in U.S. District Court in Tallahassee and assigned to Chief Judge Mark Eaton Walker.

Unlike the documents filed in state court, the Courthouse News complaint could be seen online as soon as it was filed. Almost all federal courts operate the same way, giving public access to the new filings with a new technology but with old-fashioned timing.

Courthouse News filed a similar legal action Monday in federal court in Baltimore against the court clerks in Maryland. Underpinning both cases is the granddaddy of First Amendment access opinions, the U.S. Supreme Court ruling in Press Enterprise II. The opinion says that once a First Amendment right of access attaches, the government can only restrict access if it can show an overriding interest and it uses the least restrictive alternative.

Clerical processing, or docketing, is not an overriding interest, the complaint in Florida argues, and even if it were, there are alternatives less restrictive than blacking out the complaints. The clerks can, for example, docket after reporters have a look. The ability of the software vendor Granicus to set up the same public access as it set up in Arizona is the best demonstration of a less restrictive alternative.

“Defendants have less restrictive means available to provide the constitutionally required level of access,” said the complaint. “Their conduct of withholding access to complaints is not narrowly-tailored to serve any overriding interest essential to preserve higher values.”

In conclusion, the complaint said, “Defendants’ withholding of access to new civil complaints violates Courthouse News’ First Amendment right of access, just as the policies and practices of the court clerks in Jackson, Tingling, Planet III, Schaefer, and Gabel did.”

That list refers to cases where Courthouse News successfully filed First Amendment actions and won either an injunction or a declaratory judgment plus attorney fees. The action against the Authority likewise asks for an injunction against the access blackout and for attorney fees.

“We’re committed to open courts. Court records are the people’s records,” said attorney LoCicero. “Withholding access equates with denying access. We can’t let that stand.” 

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