BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
SB 326 (Yee)
As Amended April 25, 2011
Hearing Date: May 3, 2011
Fiscal: Yes
Urgency: No
TW
SUBJECT
Court Records: Public Access
DESCRIPTION
This bill would require the Judicial Council of California to
adopt a rule or rules of court to require courts to provide
public access to case-initiating civil and criminal court
records, as defined, by no later than the end of the day on
which those records are received by the court.
BACKGROUND
Courts have long held that the public has a right of access to
court records. The California Supreme Court stated that "it is
a first principle that the people have the right to know what is
done in their courts." (In re Shortridge (1893) 99 Cal. 526,
530.) Public access is necessary because "if public court
business is conducted in private, it becomes impossible to
expose corruption, incompetence, inefficiency, prejudice, and
favoritism." (Estate of Hearst v. Trustees of Hearst
Testamentary Trust (1977) 67 Cal.App.3d 777, 784.)
The right of public access to court records begins when the
court record is filed with the court. (Bank of America National
Trust & Savings Association v. Hotel Rittenhouse Associates
(1986) 800 F.2d 339, 345.) Further, "Ýw]hile the courts have an
inherent right to control their own records, preclusion from
public inspection is permitted only upon a showing that
revelation would tend to undermine individual security, personal
liberty, or private property, or injure the public or the public
good." (Copley Press, Inc. v. Superior Court (1992) 6
(more)
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Cal.App.4th 106, 111.)
Although the public has a well-founded right of access to court
records, the author reports increasing delays in public access
to court records, with some courts apparently delaying public
access to as much as one month for newly filed complaints.
This bill, sponsored by Californians Aware, Courthouse News
Service, and the First Amendment Coalition, would require the
Judicial Council of California to adopt a rule or rules of court
to require courts to provide public access to case-initiating
civil and criminal court records, as defined, by no later than
the end of the day on which those records are received by the
court.
CHANGES TO EXISTING LAW
Existing law , the California Constitution, declares the people's
right of access to information concerning the conduct of the
people's business. (Cal. Const., art I, sec. 3.)
Existing law provides that, unless access is otherwise
restricted by law, court records shall be made reasonably
accessible to all members of the public for viewing and
duplication in paper or electronic form. (Gov. Code Sec.
68150(l).)
Existing law provides that court records sealed by court order
are not open to public inspection. (Cal. Rules of Court, rule
2.550.)
Existing law provides that, unless confidentiality is required
by law, court records are presumed to be open. (Cal. Rules of
Court, rule 2.550.)
This bill would define "case-initiating civil and criminal court
records" to mean: (1) any complaint or petition filed in an
unlimited civil case; (2) any petition for writ of review; and
(3) any indictment, information, or complaint in felony and
misdemeanor criminal actions. This definition would include
both electronic and nonelectronic records.
This bill would provide that "case-initiating civil and criminal
court records" does not include records sealed or proposed to be
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sealed by court order and are confidential under existing law,
including but not limited to, certain juvenile court records,
adoption records, child custody pleadings, and child and spousal
support enforcement records.
This bill would require the Judicial Council to adopt a rule or
rules of court to require courts to provide public access to
case-initiating civil and criminal court records on the same day
on which these records were filed in either paper or electronic
form.
COMMENT
1. Stated need for the bill
The author writes:
ÝT]he problem to be remedied is a drastic and widespread
deterioration in the timeliness of public access to court
records. In the case of newly filed civil complaints, a delay
in access effectively hides from the public the fact that a
new lawsuit has been initiated.
These delays in access are an obvious matter of concern to the
news media, who are deprived of the ability to inform other
interested members of the public on the business of the courts
while it is still newsworthy. They are also a problem for the
parties to the proceeding, who may not be able to learn about
a court filing that directly impacts them until they receive
service of the filing days - or even weeks - later. And
delays in access may also impact those in the business and
legal community who may be indirectly affected by a legal
proceeding.
Finally, delays in access hinder the public's ability to
oversee the activities of an important branch of government
while those activities are still current, thus impairing the
self-government that is so essential to the functioning of our
democratic form of government.
Courthouse News Service, a sponsor of this bill, writes:
Courthouse News has directly experienced the deterioration of
timely access to the civil court record. Its reporters make
regular (in many cases, daily) in-person visits to courthouses
throughout California to review newly filed civil complaints
and determine which ones merit news coverage. When Courthouse
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News has encountered access delays, its first step has always
been to try to resolve those delays through cooperative
discussions with court staff. In the past, these efforts have
worked well, usually leading to solutions that ensured that
interested persons could review and report on new civil
complaints in a timely manner without imposing any significant
cost or burden on courts.
In the last few years, however, Courthouse News has seen a
fundamental shift in the landscape. Procedures that
traditionally promoted timely access are unceremoniously
dismantled or scaled back. And while Courthouse News has
continued its attempts to resolve these problems through
discussions with court staff, these efforts are becoming
increasingly unproductive. Repeatedly, a solution reached
after months of work with a particular court administrator
disintegrates as soon as he or she leaves the court, and the
delays return. Other courts have simply refused to improve
access altogether.
2. Providing same-day public access to court records
This bill would require courts to provide access to
case-initiating civil and criminal court records on the same day
on which the court records were filed with the court. Existing
law provides the public with reasonable access to court records.
(Gov. Code Sec. 68150.) However, "reasonable access" is not
defined under existing law. Proponents of this bill argue that,
while some courts are providing same-day access to court
records, many other courts have failed and refused to provide a
system whereby the public has access to court record information
in a timely manner. The sponsors report that courts are
claiming that the use of electronic technologies for filing
court actions and modernizing access to court records have in
many instances increased delays in access to such
case-initiating court records.
The Judicial Council, an opponent of this bill, states that the
same-day access provision of this bill "would be completely
unworkable for the courts, particularly given the judicial
branch's current fiscal situation, and would actually impede
public access to court records. . . . SB 326 sets a standard for
access that cannot be achieved without a significant increase in
court staffing to accomplish this objective. . . . Requesting a
court record filed minutes before the court closes to be
available to the public that same day at the courthouse is
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simply a logistical impossibility."
The author argues that the courts in years past have simply
placed the day's court records "in a designated media bin that
reporters would check at the end of the day as part of their
regular courthouse news beat." However, some courts now claim
they are unable to provide immediate access to court records
through the media bin process. Proponents of this bill argue
that one cost-effective way to provide same-day public access to
newly filed court records is to require the filing parties to
provide an additional copy of the documents being filed, which
would be placed into a bin for public access.
That proposed alternative raises several logistical and other
issues, however. Existing law requires court records to be
created and maintained in a manner that ensures accuracy and
preserves the integrity of the records throughout their
maintenance, and these court records must be indexed for
convenient access. (Gov. Code Sec. 68150.) The Judicial
Council argues that existing law requires newly filed court
records to be created and maintained properly, and providing a
bin with copies of these records for the public's review and
potential disintegration of these court record copies
contravenes the public's access to the complete records. Many
courts are understaffed and would be unable to provide
additional staff to supervise the court records copy bin to
police the public's review of the records.
Further, copies of documents that are confidential by operation
of law must be flagged and separated from court records that
would be placed in the public review bin. Most importantly,
requiring filing parties to provide an additional courtesy copy
to be placed into a public review bin "would be unduly
burdensome for litigants and thereby diminish access to justice
Ýand] would impose significant workload burdens for courts to
manage this flow of paper."
The proponents of this bill reiterate that the public has a
constitutional right to access court records, regardless of how
the court manages to provide such access. They point to a
recent court case that held that a court failing to provide
access to newly-filed case-initiating court records was in
violation of the party's constitutional rights, which
constitutes irreparable harm. (Courthouse News Service v.
Jackson (S.D. Tex. 2010) 38 Media L. Rep. 1894.) The Jackson
court entered a permanent injunction and final judgment
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providing that the Harris County District Clerk's Office was
enjoined from denying Courthouse News with all petitions and
case-initiating documents in civil cases filed and received by
the clerk's office between midnight and the time the clerk's
office closes (5:00 p.m. Central Standard Time, Monday through
Friday), except in the following circumstances:
(1) where the filing party is seeking emergency relief, such
as a temporary restraining order, the document has been
sealed or deemed confidential;
(2) where the clerk's office is in critical staffing mode or
completely closed for business due to inclement weather,
building evacuation or other emergency;
(3) where a party has electronically filed a case-initiating
document with a third-party provider but the document has
not been received by the clerk's office;
(4) where a case-initiating document has been rejected for
lack of a filing fee and immediately returned to the filing
party; and
(5) where other extraordinary circumstances outside the
control of the clerk's office make compliance literally
impossible. (Id. at pgs. 3-4.)
Proponents of this bill argue that the provision of this bill
that would provide same-day public access to court records is
already being followed by a number of courts, and this bill,
which is consistent with what other courts such as the Jackson
court are determining as constitutional, is necessary to make
sure the public has access to court records in all state courts.
In order to address the concerns that the "same-day" access
provision of this bill is unworkable and impractical, the
committee may wish to consider the following amendments, which
provide a more realistic approach to providing same-day access.
Further, after full implementation of the California Case
Management System, the courts should be able to provide timely
public access to case-initiating civil and criminal court
records more easily and quickly.
Suggested Amendments :
1. On page 4, strike lines 17 through 28.
2. On page 4, on line 17 insert:
68181. (a) The Judicial Council, in consultation with
stakeholder groups, shall adopt, within 18 months of
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enactment of this Act, a rule or rules of court to require
courts which have fully implemented the California Case
Management System to provide, to the extent possible and
practicable, the public with same-day access to
case-initiating civil and criminal court records.
3. Limited definition of court records to be made publicly
available under the provisions of this bill
This bill would require courts to make case-initiating civil and
criminal court records publicly accessible in either paper or
electronic form. Exempt from the definition of case-initiating
civil and criminal court records are documents that are sealed
or proposed to be sealed by court order or are confidential by
operation of existing law. Existing law provides that documents
under seal or requested to be under seal and court records made
confidential by operation of law are to be withheld from public
access. (Cal. Rules of Court, rule 2.550.) Examples of
confidential records to which public access is restricted by law
are records of the family conciliation court (Fam. Code Sec.
1818(b)), juvenile court records (Welf. & Inst. Code Sec. 827),
and search warrant affidavits sealed under People v. Hobbs
(1994) 7 Cal.4th 948.
As introduced, this bill did not provide restrictions for sealed
and confidential documents that are withheld from public access
under existing law. The Los Angeles County District Attorney's
Office expressed concern over this lack of restrictions, but
stated its support of the bill as long as the bill was amended
to exempt sealed and confidential court records from the
provisions of the bill. The Judicial Council also expressed
concern over the unlimited right of public access to court
records under the introduced bill. Although this bill has been
amended to provide protections under existing law for sealed and
confidential records, the Judicial Council remains opposed to
this bill because the court clerks, in addition to the other
existing intake procedure requirements, would have to determine
whether the document being filed was a document falling under
the definition of a case-initiating document, which would
further slow down the intake procedure and add additional
burdens to the already strained court system.
Support : California Newspaper Publishers Association; Los
Angeles County District Attorney's Office
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Opposition : Judicial Council of California
HISTORY
Source : Californians Aware; Courthouse News Service; First
Amendment Coalition
Related Pending Legislation : None Known
Prior Legislation : None Known
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