BILL ANALYSIS Ó
SB 326
Page 1
Date of Hearing: June 21, 2011
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
SB 326 (Yee) - As Amended: May 10, 2011
PROPOSED CONSENT
SENATE VOTE : 39-0
SUBJECT : Court Records: Public Access
KEY ISSUE : IN ORDER TO INCREASE TIMELY ACCESS TO COURT RECORDS,
SHOULD COURTS THAT HAVE IMPLEMENTED THE STATE CASE MANAGEMENT
SYSTEM PROVIDE THE PUBLIC WITH SAME-DAY ACCESS TO CERTAIN COURT
RECORDS, TO THE EXTENT POSSIBLE AND PRACTICAL?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
This bill, sponsored by Californians Aware, Courthouse News
Service and First Amendment Coalition, requires the Judicial
Council, in consultation with stakeholder groups and within 18
months of the date of enactment of this bill, to adopt a rule of
court to require courts that have fully implemented the
California Case Management System (CCMS) to provide to the
public, to the extent possible and practicable, with same-day
access to specified court records. 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 for as much
as several weeks for newly filed complaints. This bill should
help improve timely access to court records. The bill is
supported by, among others, American Federation of State, County
and Municipal Employees, AFL-CIO and the California Newspaper
Publishers Association. There is no known opposition.
SUMMARY : Requires the Judicial Council to adopt a rule of court
regarding same-day access to specified court records.
Specifically, this bill :
1)Requires the Judicial Council, in consultation with
stakeholder groups, to adopt, within 18 months of the date of
enactment of this bill, a rule or rules of court to require
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courts that have fully implemented CCMS to provide the public,
to the extent possible and practicable, with same-day access
to case-initiating civil and criminal court records.
2)Defines "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. Includes both electronic and
nonelectronic records. Does not include records sealed or
proposed to be sealed by court order or otherwise
confidential, including, but not limited to, certain juvenile
court, adoption, and family law records.
3)Provides that the Legislature specifically recognizes the
importance of timely access not just to case-initiating civil
and criminal court records, but to all court records and
documents. Provides that nothing in this bill or in the rule
or rules of court to be adopted pursuant to this bill may be
construed to limit or otherwise negatively affect the public's
right of timely access to court records as a general matter.
EXISTING LAW :
1)Declares the people's right of access to information
concerning the conduct of the people's business. (Cal.
Const., Article I, Section 3.)
2)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. (Government Code Section 68150(l).)
3)Provides that, unless confidentiality is required by law,
court records are presumed to be open. Provides that court
records sealed by court order are not open to public
inspection. (Cal. Rules of Court, Rule 2.550.)
COMMENTS : 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
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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
Cal.App.4th 106, 111.)
This bill, sponsored by Californians Aware, Courthouse News
Service, and the First Amendment Coalition, requires the
Judicial Council to adopt a rule of court requiring courts that
are using CCMS to provide the public, to the extent possible and
practicable, with same-day access to case-initiating civil and
criminal court records.
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 for as much as several weeks for newly filed complaints.
Writes the author:
Delays in public access to case-initiating documents have a
special significance because those documents are the means
by which the public becomes aware that the powers of the
judiciary have been invoked with respect to a particular
controversy or crime. However, the use of electronic
technologies for filing court actions and modernizing
access to court records have in many instances had the
unintended consequence of increasing delays in access to
those case-initiating court records.
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 new 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 controversy that directly
impacts them until they receive service of the filing days
- or even weeks - later. And delays in access may also
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impact those in the business and legal community who may be
indirectly affected by a new 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.
Getting news about what is happening in California's courts
even a day late is not qualitatively different from getting
stock quotes a day late. Delays make the information less
useful, and hurt the public's ability to react
appropriately to it. Given the fundamental role that an
informed public plays in the healthy functioning of our
government, this decline in timely information about our
courts is a serious problem for Californians.
This Bill Seeks to Provide Same-Day Access to Certain Court
Records : Existing law provides the public with reasonable
access to court records, but "reasonable access" is not defined.
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.
While the author and the proponents no doubt would prefer a bill
that requires same-day access to all court records, the bill,
recognizing the courts' fiscal constraints, requires the
Judicial Council, in consultation with stakeholder groups, to
adopt, within 18 months of the date of enactment of this bill, a
rule of court that requires courts that have fully implemented
the CCMS to provide, to the extent possible and practicable,
with same-day access to case-initiating civil and criminal court
records. Given the acknowledged problems with CCMS, it is not
at all clear when, or even if, CCMS will be implemented in all
counties. Thus, it remains to be seen when the mandates of the
rule required by this bill will go into effect in most courts.
However, when it does, this bill will help increase timely
public access to court records.
The Judicial Council is neutral on the bill as amended, writing
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that the "council recognizes the importance of timely public
access to court records. The only issue has been establishing
reasonable parameters for providing such access. In its current
form, SB 326 strikes a balance and will require timely public
access without placing undue burdens on the courts that must
provide this access."
ARGUMENTS IN SUPPORT : In support of this bill, 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
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.
REGISTERED SUPPORT / OPPOSITION :
Support
Californians Aware (co-sponsor)
Courthouse News Service (co-sponsor)
First Amendment Coalition (co-sponsor)
American Federation of State, County and Municipal Employees
(AFSCME), AFL-CIO
California Newspaper Publishers Association
SB 326
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California Protective Parents Association
Center for Judicial Excellence
Pacific Media Workers Guild
Opposition
None on file
Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334