Courthouse News Service (CNS) is (again) suing to block court administrators from deliberately withholding filed documents from the press. CNS has sued several other state court systems over the same misbehavior by clerks and the administrators overseeing them.
Last summer, CNS — which obviously relies on prompt access to maintain its reporting edge — obtained a precedential ruling from the Fourth Circuit Court of Appeals that affirmed public access begins when the document is filed, not whenever clerks decide to provide access or finally place it on the docket. That ruling — which stems from a lawsuit CNS filed in Virginia — covers four states: Maryland, North Carolina, South Carolina, and Virginia.
Texas is not one of the states covered by this published decision. But Texas court administrators are definitely jerking CNS around. So, CNS has sued. As Bill Girdner reports for Courthouse News Service, the Texas courts gave the impression they were interested in improving public access to documents. But then things went all government and nothing happened.
Two years ago, a Texas committee of clerks and judges considered improving press access to their courts. A lawyer for this news service along with the editor answered questions for about an hour.
At the end of the meeting, the committee decided to form a subcommittee to consider the issue. But nobody wanted to chair the subcommittee. So a chair was never appointed and the subcommittee never met.
So, it’s the clerks making the rules and their oversight doing nothing to correct it. Both are at fault and it’s the public being cut out of what’s supposed to be constitutionally-guaranteed access. Despite digitization of documents being near-instantaneous at this point in time, and every court system in America participating in electronic filing and docketing, some bad actors are still pretending it’s a process that takes hours, if not days, to complete.
The defendants in the action are court clerk Velva Price in Austin and statewide director Megan Lavoie with the Office of Court Administration. They are following a policy widely labeled as “no access before process.”
That means that the clerks will not let press or public see new cases — a longtime source of news — until they are docketed. That administrative work can and does take days. In Travis County District Court, Austin’s state court, the clerk blocks access for 85% of the cases past the day of filing and 48% for three days or more, while similar delays are encountered in other Texas courts.
The software used to process filings provides two other options, both of which provide near-instantaneous access to filings. For reasons that won’t fully be explained until testimony begins, this court has chosen to use the one option that ensures delays.
CNS is seeking an injunction. And it won’t be put off by any of the expected defenses, like the need to redact personal info (that’s required of people filing documents by state law), fully process filed documents (the only “processing” is the scanning of physical documents), or the bizarre argument raised in CNS’s lawsuit against Idaho court clerks: that documents aren’t “filed” until they’re “reviewed”… even if this “review” process somehow manages to take several days.
CNS’s lawsuit [PDF] quotes a federal judge’s dismantling of this rationale during oral arguments in another of its legal actions.
THE COURT: Tell me how it works if a plaintiff’s lawyer on Friday afternoon files a complaint — well, submits a complaint under your argument, and that’s the last day of the statute of limitations, but the case isn’t actually filed until Monday when it’s reviewed. Have they lost their statute of limitations argument?
[Idaho court administrator] MS. DUKE: No. I don’t believe anything in the rules provides that, Your Honor.
THE COURT: So it is filed when it’s submitted?
MS. DUKE: Well, it’s been provided to the court, and we have the specific provision that indicates that it’s effectively accepted with a three-day window for corrections to be made.
[…]
THE COURT: I guess my real question is, is that so for some purposes, the complaint is deemed filed when it is submitted to the court? But for other purposes, including today’s argument, you’re saying it’s not filed until it’s been reviewed and accepted?
Inconsistency (read: self-serving intellectual dishonesty) isn’t going to fly when the Constitution’s on the line. There’s really no defense for the actions of this certain Texas court, which has decided to utilize software created for the purpose of providing faster public access to filed documents to deliberately delay access to filed documents. There’s little doubt CNS will ultimately prevail. The real injustice is that CNS will have to shell out thousands of dollars to fight for its rights (and the public’s rights) while Texas taxpayers pay thousands of dollars for their government to argue against respecting the public’s rights.
