Taken to the Cleaners

It’s never a good deal for Americans when a court clerk partners up with a private corporation to exploit the court record. But sometimes the deal is really bad.

Art by Carlos Ayala

When a state court clerk teams up with a private vendor to exploit the public record, it all looks good at the beginning. The clerk will make a bundle and the vendor will make out too.

But really, one of them is the patsy.

We at Courthouse News have lately been looking at Texas where clerks are fighting against press access like a dog guarding a bone. They surely make some extra money selling court records, but the state is getting taken to the cleaners.

Courthouse News bureau chief Adam Angione has been looking at the yearly sums paid by the people of Texas to its home state corporation Tyler Technologies, capitalized at $13 billion.

“So all in all, Texas has paid Tyler $148 million from 2014 – 2021 and will pay another $98 million through 2027,” he emailed. “A quarter-billion dollars in 14 years.”

That money is being paid to lease software that lets lawyers file their documents over the internet instead of over the counter. The second half of the e-filing duo, the electronic docket, is not part of the Texas deal.

I compare that massive figure to the amount paid by San Francisco Superior for its electronic file manager, the engine of an e-filing system: $342,000. And they own it.

Texas, on the other hand, is renting.

Over those 14 years, the payment ratio of the two deals is 730:1.

That is called being taken to the cleaners.

So Courthouse News has been fighting against a grand theft of access that took place under cover of the transition to electronic filing. We have asked those purloiners of traditional access to return it — by setting up an electronic press queue where the press corps can review the new civil cases when they cross the virtual counter, just as we did, since time out of mind, with paper cases.

The electronic press queue mimics the wooden press box that stood on the clerk’s counter in state and federal courts where new paper filings were put as they crossed the counter.

But I have never quite told the origin story of the electronic press queue.

We stumbled across it in Clark County Superior Court in Las Vegas. The court had moved over to e-filing in 2010. It had been a good court for paper access with a requirement that two copies of new complaints be filed, one to be placed in a press box when the complaint crossed the counter, in other words, on receipt.

At some point in 2011, an icon appeared on the public terminals in the Clark Superior clerk’s office, titled “Court Daily,” a play on a newspaper title. We never knew which member of the clerk’s staff was behind the Court Daily.

But that anonymous civil servant had in the electronic world perfectly mimicked the access we had in the paper world — as the new cases crossed the counter. And it opened our eyes. It gave the press access to the new e-filed cases as soon as they were received, when they still had only transaction numbers.

So the land of small software companies is strewn with carcasses of those that tried to get into the business of working with the courts, and either died or were eaten. In Las Vegas, the little company that put the Court Daily in place was called Wiznet and, shortly after the press queue showed up, it was eaten.

For a while, Tyler, the buyer, was either neutral or somewhat favorable to the press queues, offering them as an option to transparency-minded clerks. Other software companies did the same. And traditional, on-receipt access to e-filed complaints — already the rule in federal courts — spread to state courts in Connecticut, New York, Georgia, Alabama, Utah, California, Washington, Hawaii and, coming soon, Arizona.

But there’s is not much money in transparency. Tyler pivoted in 2018 to the business of selling access to the public record. With that pivot, the attitude changed.

Texas signed a contract with the Plano-based company in that year to begin mutual exploitation of the Texas court record through a portal called “re:SearchTexas,” splitting income between the company and the courts, the clerks getting the copy fees and Tyler getting the money from paid searches of the database.

Since then, the company has done its all to undercut press queues in Texas and other states, using a variety of tactics, but most commonly by demanding large yearly payments from any state that has the gall to consider a press queue. I have witnessed those tactics in Texas, Massachusetts, New Mexico and North Carolina.

The sales folks are not subtle. In state after state, they repeat the figure of $200,000 per year to any court official asking about better press access. At first, we couldn’t figure out where the number was coming from. Because we knew that the setup cost for the queue was zero. The program was already written. Press queues were installed in California and Georgia as “tickets” under the court’s overall contract. No charge.

But after looking at the contract in Maine, we spotted the $200,000 number. It is the minimum amount the state must pay to Tyler — in order for Maine to share income from exploitation of its own court record. Oh, and by the way, that’s an exclusive. The local courts are not allowed to provide online access themselves, they must do it through the Tyler search portal.

For the first two years of the deal, the Maine courts must pay $200,000 each year to Tyler. And in the third year, Maine gets to share income with Tyler 50-50. But if the Maine courts were to suddenly be struck by the notion that an access fee of $2 for the first page and $1 each for the following papers works as a barrier to public record access by news reporters and the citizens of Maine, ah, well the partner in charge would have to see about that.

Because the contract says that if the page fee were to change, well then, “renegotiation of payment terms may ensue.”

So that can be the only reason why the head court administrator would say, in a federal affidavit, that if First Amendment access were given to the Portland Press Herald or the Bangor Daily News, then the administrative office would have to pay “on the order of tens to hundreds of thousands of dollars — under the contract with its vendor.”

You see. He’s stuck inside the cleaners.

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