By Anne Lowe
FREE PRESS– The California Judicial Council's new guide to the law of public access to court records, now in preparation, can be a great opportunity to increase the transparency of the often-secretive California court system, comments veteran journalist Bill Girdner for Courthouse News Service.
The proposed Trial Court Records Manual says that keeping the record is a "fundamental role" of the courts, and I agree with that.
But I would go further. The record is also a fundamental element of our democracy. It provides a window into the working of an open government that is "of the people, by the people and for the people."
The beat of a courthouse journalist traditionally included a daily review of the record, because, as every lawyer knows, a minority of what takes place in a courthouse is done in a courtroom.
The majority of the work is done through the written documents that make up the record.
Journalists cover that larger part of the court's work by checking what can best be described as a set of catch basins for documents, the new filings for that day, the subsequent filings for that day and the judgments or rulings.
Over the last twenty years in California, the ability of journalists to check those catch basins has been steadily squeezed by individual courts, limiting where journalists can go, the times they can check and what they can see.
That drip-by-drip erosion of access includes kicking journalists out from behind the counter, taking away grace periods at the end of the day that allow review of late matters, requiring that journalists review electronic images of paper-filed cases, then limiting the number of screens, requiring that journalists stand on a daily basis in long lines to see the record, limiting the number of documents they can see and requiring that they go to the end of the line.
It includes a current proposal in one court to charge search fees to see the record, recent attempts to close press rooms early in another court, the failure to include press rooms in the most recently built courthouses, and, most importantly, interposing clerical processes that delay access to the record for days.
Those impediments to access have been compounded in a series of big courts in California by a complex and time-consuming case management system that delays access further.
Some courts then dribble docket information onto the Internet, while still withholding the documents from journalists. When news reporters are finally allowed to see the record, its value as news has been thoroughly gutted.
The ongoing set of conflicts between the press and California court administrators over access to the record can be compared to a long-running battle where the administrators make incursions into press access and where the press fights back successfully in some cases but loses in more, with the overall outcome that press access in California's trial courts has deteriorated substantially over the years.
The result that I have seen is fewer news stories involving the trial courts, less information coming out of those courts to the public, less access not only to the documents but also to the judges and officials of the court, and a greatly more insular and less responsive bureaucracy within the state courts.
The trend in the relationship between courts and the public and the press is symbolized by the architecture of more recent court construction that places a floor-to-ceiling wall, with windows of thick glass, between members of the public and their employees at the court.
As compared to the open counters used in earlier court construction where those who worked at the court face-to-face with lawyers, journalists and others, across an open counter, the courts are becoming fortresses.
The drafting of the California Trial Courts Manual is an opportunity to stop the slow suffocation of press access in California's courts and make a clear statement that the court record is indeed the public record and must be kept open and accessible to the press in a prompt and thorough manner.