Relativity

There are revolutions and then there are counter-revolutions.

 I am talking about the digital revolution and how it brought sunlight into many American courts, and how it also brought a reaction. The open nature of our court system is something that we, including me, assume as the natural state of a democracy.

But it is not necessarily so. Courthouse News has been looking into coverage of courts in Europe. So, through our reporter and legal contacts, I was checking on France. But public records as obvious and important as court rulings have a lid on them in France, available, from what I can tell, only to guild members.

France is clearly a democracy, albeit one evolved from an all-powerful monarchy where L'Etat, the central state, still seems to have its fingers in almost every aspect of daily life. But all that liberté, égalité and fraternité does not extend to their courts.

Back here at home, it is a true, fundamental, society-wide revolution that is in the process of transforming almost every document, transaction, photograph and form of communication, even thought, into electronic form.

To cope with that upheaval, a group of court folks called the Conference of State Court Administrators published guidelines in 2002. At the time, the conference was led by idealists who believed that electronic records could bring sunlight into the courtroom.

“This policy is based on two fundamental principles: 1. Court records are presumptively open to public access. 2. Public access should not change depending upon whether access is remote or at the courthouse,” said the guidelines.

To drive home the point, the authors added, “The objective of these guidelines is to provide maximum public accessibility.” And furthermore, any restriction should be “narrowly tailored to serve the interests in open access.”

But then came the counter-revolution.

It was undertaken with a rallying slogan called “practical obscurity” voiced by clerks and a few judges. “He was talking to the whole conference,” said bureau chief Ryan Abbott referring to Vermont Justice John Dooley.

“He was explaining the concept of practical obscurity. He said if you wake up in the middle of the night and you see police lights at your neighbor’s house, you should not be able to go over to your laptop and do a search and find out why the police are there. But the information is public, so you should be able to get access to it. But it should not be that easy.”

Abbott was sitting in the main lecture hall at the College of William and Mary with another bureau chief, Adam Angione, at the 2013 COSCA conference. They also heard from a California clerk who was later a defendant in one of our First Amendment cases. The clerk started out saying, “I love the phrase ‘practical obscurity.’”

Bureau chief Abbott picked up: “I remember Alan Carlson was saying, ‘We got a guy in Southern California who wants everything right away.’ Adam was tapping me on the shoulder. ‘That’s us.’”

While the practical obscurity mantra did not make a lot of sense, in that paper records were in fact highly accessible, the mantra served as cover for a set of specific access restrictions that clerks then imposed: public access delayed until new pleadings were redacted; remote access limited to lawyers and government officials; public access restricted to the courthouse during limited hours. Courthouse News has spent nearly two decades and millions of dollars fighting those children of the dogma.

Compare the reaction in federal court.

Many federal judges were familiar with the paper tradition of access in American courts where journalists could look over new court pleadings when they crossed the clerk’s counter.

Speaking from the 8th Circuit bench, Judge Bobby Shepard remembered how it worked: “There was a time when — and some in this room may remember it — when you took a pleading to the courthouse and the clerk stamped it physically and it went into different bins and it was available immediately.”

Early in the e-revolution, I met with the U.S. clerks in Chicago and St. Louis, both pioneers in the move to electronic filing. Both quickly worked out ways to return old-fashioned access in the new age, one through the court’s own website, the other through press terminals in the clerk’s office.

Over time, almost all federal courts moved to public access at the time a pleading is submitted, through PACER online. There was no counter-revolution.

So now let’s go to Colorado where a well intentioned idea for opening up the courts became law, allowing any member of the public to ask that a hearing be livestreamed. A form must be filled out with the names and email addresses of lawyers in the case.

The Courthouse News reporter in Colorado used the form successfully in two cases simply by filling in the names of the lawyers and their email addresses.

But a superior court judge has now interpreted the form to require separate service on the parties, presumably through a process server. That will result in fewer livestreaming applications because of the cost.

In such big and little ways does sunshine or shade come into the courts.

But we have to remind ourselves that these conflicts over public access take place in the American courts where the field is extraordinarily open and unobstructed compared to the rest of the world.