Trial court records that are routinely made available to the public and press could be delayed for weeks if the Judicial Council of California accepts an innocuous looking proposed change in its Rules of Court.

Under the proposal, an (electronic) e-filing would not be considered filed, and therefore available to the public, when initially received. Instead, it would first have to be processed and reviewed by any number of bureaucrats before being designated “officially filed,” a process of indeterminate length.

In a letter to the council, the California Newspaper Publishers Association, the First Amendment Coalition, Californians Aware and Courthouse News Service complained that changing the designation of when a document was officially filed was simply meant to “provide administrators with justification for denying public access to records.”

They called it a “definitional sleight of hand.”

Opponents of the wording change say it is a transparent attempt to deny timely public access, a violation of the U.S. Constitution. The press groups said the change is “confusing,” serves no “meaningful function” and conflicts with already existing state legislation on court records.

The Judicial Council said that the change was minor, really affected nothing and should be ignored.

The Judicial Council is under a state mandate to adopt e-filing rules by July, but critics say Assembly Bill 2073 directed that the rules be “informed” by an Orange County pilot program, which is still underway. Electronic filings are becoming more common as courts upgrade their technological capabilities, requiring new rules for new procedures.

Critics of the council said the e-filing wordplay was a continuation of longstanding policies to limit public access to court documents. They cite an effort in 2010 by William Vickrey, former director of the council’s administrative arm, to redefine newly-arrived documents as “pre-filings,” thus delaying their availability until review and reclassification as “filings.”

A survey by Courthouse News Service of courthouses around the nation using e-filing and traditional paper filing found same-day press access the norm. The exceptions the news service did find were in California. In Orange County Superior Court, the e-filing pilot program is capable of providing same-day access to documents, according to its vendor, but the news service says it is regularly denied that access.

–Ken Broder  

To Learn More:

Press Groups Attack Public Access Shell Game by Court Bureaucrats (by Bill Girdner, Courthouse News Service)

Letter to Judicial Council of California (California Newspaper Publishers Association, First Amendment Coalition, Californians Aware and Courthouse News Service) (pdf)