Federal judge: Delayed access to court records raises First Amendment concerns

Courthouse News editor sees "nationwide plague"--and he'll get a chance to make his case

It’s been a routine for generations of legal beat reporters: Every weekday afternoon, at courthouses across the United States, a reporter steps behind the records counter and thumbs through the lawsuits filed that day, looking for news.

This custom is endangered, though, and not just because files have moved online, or because there aren’t as many legal beat reporters as there used to be. Many state courts now keep new civil cases out of sight of the press and public for days, and sometimes even weeks, after they’re filed.

“It’s a nationwide plague,” said Bill Girdner, the founder and editor of Courthouse News Service.

But now, a federal trial court in California will have to determine whether the standard delays at a local courthouse are permissible—after a higher court ruled that Girdner’s complaints raise First Amendment concerns.

Based in Pasadena, CA, Courthouse News is a wire service that specializes in civil litigation and covers the courts for both its own website and around 3,000 subscribers, including the Los Angeles Times, The Boston Globe, and other major news organizations.

In 2011, Courthouse News sued the Superior Court of Ventura County, CA, after the court stopped letting the newswire’s local correspondent see every new civil suit on the day it was filed. A federal judge dismissed the case. But Courthouse News appealed, and on April 7 a panel of three Ninth Circuit judges ruled that the trial court had to hear the case.

Circuit Judge Kim McLane Wardlaw’s opinion said the case “presents an important First Amendment question” and thus should be heard in federal court.

“Though the government may sometimes withhold information without violating the expressive rights protected by the First Amendment, the First Amendment right of access to public proceedings—where it applies—is inextricably intertwined with the First Amendment right of free speech,” Wardlaw wrote.

The opinion doesn’t specifically find that Courthouse News is entitled to records access under the Constitution—that’s what the trial court will have to determine. But Wardlaw notes that federal appellate courts “have widely agreed” that the First Amendment right of access “extends to civil proceedings and associated records and documents.”

Michael Planet, the executive officer of the Ventura County court, did not return repeated calls seeking comment. In court filings, he argued that the case revolved around state issues, not the First Amendment, and he said it would be impractical and expensive to provide same-day access to civil filings.

Girdner said he’s heard the same story from court after court. It rings hollow to his ears, because courts for years have found cheap and easy ways to let reporters see the latest civil filings. Some of those methods, like having a clerk print a list of new filings, or letting reporters sift through a box of files before they’re processed, were mentioned by Wardlaw in her ruling.

There’s a pattern in which courts have withdrawn same-day access, Girdner said. They tend to be the ones that have adopted new electronic filing systems.

“E-filing, in theory, is technological progress, and in theory it should advance access,” Girdner said. “But the clerks and the court administrators, not the judges, are often using that transition to change the traditional access that journalists have had, and you have to fight to get it back. The access we’re fighting for is traditional beat coverage access.”

In Ventura County and elsewhere, courts that don’t provide same-day access say they need to withhold new filings until they’re been “fully processed.” That can take a day or two, or it can take as long as two months, which Girdner said was common in Sacramento County until recently.

The typical delay tends to be between one and three days.

Of course, a lawsuit doesn’t have to “fully processed” to be considered filed by the legal system. A case is stamped as soon as it’s filed, and once that happens, it is, in Girdner’s words, “a real case. It’s filed, it’s in the courthouse, and it’s a public record.”

Late last year, while its appeal was under consideration by the Ninth Circuit panel, Courthouse News spent a few weeks tracking how often 13 different courthouses, both state and federal, provided civil records on the day they were filed.

In Kansas City, MO, not one of the 29 state cases filed was shown to Courthouse News on its filing date. The state courthouse in Orange County, CA, provided same-day access 6 percent of the time. On the other hand, three state courthouses—those in Los Angeles, Portland and Chicago—provided same-day access to more than 90 percent of their new filings.

By contrast, all five federal courts that Courthouse News tracked provided same-day access to more than 90 percent of their new filings.

“There is an institution that’s doing it the right way, and that’s the federal courts,” Girdner said.

Federal courts use an e-filing system called Public Access to Court Electronic Records, or PACER. When a lawyer files a document in PACER, it’s immediately visible online to the public, even on a weekend or court holiday.

PACER charges 10 cents per page to view records. That makes it a frequent target of open-government advocates, but as Girdner pointed out, 10 cents per page is much less than many state courts charge to make copies of a file.

“There are plenty of state courts that are charging a buck a page,” Girdner said. And with PACER, a reporter doesn’t have to physically go to the courthouse.

Other journalists, including the California Newspaper Publishers Association, have joined Courthouse News’ battles for immediate access, and the Reporters Committee for Freedom of the Press served as an amicus. But there aren’t many news outlets that are still in the businesses of stalking the courthouse every day. They either outsource that job to Courthouse News, or rely on their sources to let them know when there might be a juicy new case coming.

Bob Egelko, who covers courts for the San Francisco Chronicle, said he thinks courts should make new filings immediately available to the press and the public. But the Chronicle doesn’t monitor all new filings, and waiting a day or even a week to find out about a high-profile case doesn’t change his coverage.

“I personally don’t care that much if I find out about a lawsuit the day after it’s filed, as long as the competition didn’t find out about it yesterday,” he said.

Courthouse News makes its living on up-to-the-minute litigation coverage. For anyone else, Egelko may have a point. If a lawsuit is worth reading about today, does it become any less so tomorrow?

Girdner would say that yes, days-old or weeks-old news is less newsworthy. “There’s a human interest in immediacy, in what just happened,” he says. “Reading yesterday’s news can be interesting, but it’s not as interesting as today’s news.”

But he also sees important principles at stake in courts backtracking on prompt access—and he doesn’t believe they only affect niche outlets like his. “This is a war,” Girdner said in a follow-up interview. “The journalists just don’t know it yet.”

There’s no timetable yet for when the trial court might hear the Courthouse News case. A win by the newswire there would compel only the Ventura County courthouse to change its practices—but the logic and holdings of Wardlaw’s opinion about the First Amendment implications apply across the Ninth Circuit.

Wardlaw’s opinion doesn’t tackle the merits of the case against Ventura County, but Girdner took hope from it anyway.

“You look at the examples she uses to show that it’s very feasible,” he said, “…and one can very fairly conclude that the judge is saying it is feasible, and she would question why it’s not being granted.”

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Tony Biasotti is a freelance writer in Ventura, California. Find him on Twitter @tonybiasotti. Tags: , ,