[The original was on the letterhead of Martin Kassman,
Attorney at Law.]
August 3, 1998
By Fax (415-396-9358) and Mail
Judicial Council of California
c/o Kady von Schoeler
Administrative Office of the Courts
303 Second St., South Tower
San Francisco, CA 94107
Re: Access to Electronic Records (Cal. Rules of Court, rule 897),
Proposal No. S98-18
Dear Members of the Judicial Council:
The Society of Professional Journalists, Northern California
chapter ("SPJ"), has authorized me to respond, on its
behalf, to the Court Technology Committee's revised proposal
regarding access to electronic records. The Society of
Professional Journalists is the nation's largest, oldest and most
broadly based association of journalists. It concentrates on
promoting the highest traditions of journalism and American
society: freedom of information, ethical journalism, diversity in
journalism, and professional education for journalists. The
Northern California chapter is a cornerstone of the national
organization; for the past three years, it has been named
"Chapter of the Year" by the national Society.
SPJ does not agree with the Court Technology Committee's
proposal. In our opinion, the Committee has gone too far in
accommodating the objections of those who oppose electronic
public access to court records. The current proposal eliminates
much, if not all, of the public information value of the proposal
that the Committee circulated for public comment in 1997.
"Pilot Project"
The most serious problem with the latest proposal is that it
does not guarantee any public access to electronic court
records. It leaves it to individual trial courts to decide
whether they wish to voluntarily participate in a pilot project.
Many public officials, who understand the positions of trust
they hold, scrupulously respect citizens' right and need to
monitor the institutions that are operated with their tax
dollars. Unfortunately, the collective experience of SPJ's
members teaches us that far too many government employees regard
public requests for information as, at best, distractions from
other work perceived as more important and, at worst, as
intrusions upon their workplace affairs by outsiders.
Given this experience, and in light of the special burdens
that consolidation will put on California's trial courts in the
next few years, we believe it unlikely that any significant
number of trial courts will volunteer to assume the extra burdens
of both providing public access to electronic records and
preparing the evaluation report required by proposed Rule 897(b).
Even the original proposal was, in our opinion, overly
permissive in allowing a court to deny electronic access on the
basis of the court's own determination that it lacked sufficient
resources. The new proposal -- with its elimination of a
procedure for appealing the denial of access and its stated
purpose to "preclude challenges to the court's
discretion" -- leaves those who seek electronic access with
nothing but the faint hope that government employees who, in
large part, already perceive themselves as overburdened will
volunteer to take on new responsibilities.
No Access to Appellate Courts, Judicial Council or AOC
The new proposal limits the pilot project to trial courts. The
Committee does not offer any explanation for the elimination of
access (provided in the original proposal) to electronic records
of the Judicial Council and the Administrative Office of the
Courts. The only explanation provided for denying access to
appellate court records is that the new proposal "[e]xcludes
electronic access to nonpublished appellate opinions and thereby
supports current policy prohibiting citation of such
opinions."
Unpublished opinions are, in fact, a prime example of the kind
of information that should be made available to the public in
electronic form. Precisely because unpublished opinions do not
appear in the official or unofficial advance sheets, they are
difficult and costly for journalists and scholars to obtain. As
you know, the California Rules of Court generally prohibit
reliance in legal briefs on unpublished opinions. Electronic
access obviously would not change that rule. It would, however,
assist those who wish to study them for the important information
they yield about the operations of our appellate courts.
Please indulge the author of this letter in employing a
personal example: I recently cited and discussed several
unpublished opinions in a legal newspaper article about
California appellate courts' treatment of large punitive damage
awards. (Kassman, Punitive Awards Thriving on Appeal,
The Recorder (Jan. 20, 1998) p. 1.) The use of unpublished
opinions was indispensable in demonstrating the article's point.
I was fortunate enough to have the kind help of knowledgeable
attorneys who supplied me with relevant unpublished opinions;
however, with electronic access, I could have performed my
journalistic task more efficiently and perhaps more
comprehensively.
It is not uncommon for an unpublished opinion to make
"hard news." For example, only a few days ago, one of
my former colleagues wrote about an appellate court's criticism
the previous day -- in an unpublished portion of an opinion -- of
a highly controversial employment discrimination ruling by
another court. (Ward, Friction Shows in Age Bias Ruling,
The Recorder (July 28, 1998) p. 3.) Readers who wished to peruse
the entire criticism, in context, were out of luck unless they
were willing to take the time and trouble necessary to obtain a
paper copy from the Court of Appeal. Electronic access to the
Court of Appeal's public records -- including the unpublished
portion of that opinion -- would have made it much easier for
interested readers to fully inform themselves.
One could reasonably argue that the California Supreme Court
and the courts of appeal -- important policymaking bodies whose
decisions profoundly affect the lives of all Californians -- are
even more worthy of study by journalists, scholars and interested
members of the public than the trial courts. Public access to the
electronic records of the appellate courts -- just as to those of
the trial courts -- has powerful potential as an
information-gathering tool. We urge the Council to provide for
electronic access to all of California's courts.
No Access to Records in Criminal, Family Law or Probate
Cases
The original proposal would have provided access to electronic
records in all types of cases. The new proposal excludes access
"in cases involving criminal law, family law, child support,
juvenile law, mental health, or probate." The Committee's
explanation is that there were concerns regarding privacy
interests in family law cases and regarding unspecified
"legal restrictions on dissemination of certain data in
criminal case files."
The Committee's cryptic description of the objections that
informed its decision provides little basis for a response. We
can only point out that, so far as we know, no one has proposed
providing public electronic access to records that are not
available to the public on paper at the courthouse. If family law
or criminal case files contain sensitive information to which
public access should -- under current privacy law and public
information law -- be denied, then courts should use existing
procedures to seal that information and make it unavailable both
on paper and electronically.
Any public case information kept by the courts in electronic
form should be made available to the public electronically. In
light of recent events, there is surely no need to belabor the
point that members of the public -- and, therefore, journalists
-- have a significant, often intense, interest in criminal and
family law cases. So do scholars.
To cite two hypothetical examples, electronic records of
criminal cases could provide essential information in a
journalistic or scholarly study of the effects of the Three
Strikes laws. Electronic records of family law cases could assist
in a study of whether fathers (or mothers) are prevailing in
child custody disputes more often than before. These are
obviously legitimate, even important, potential uses of the kind
of information to which the Committee now seeks to deny
electronic access. They are also the kinds of projects which --
because of the time, expense and tedium involved in compiling
paper records -- might be all but impossible without electronic
access.
Negative Implication
Finally, we wish to briefly express concern about what we feel
may be an unintended consequence of the proposed rule. By
instituting a "pilot project" for electronic access and
so narrowly defining the project's scope, the rule could be
construed as an implied prohibition on courts' voluntary
provision of electronic access to information not covered by the
project. If the rule is to be adopted in its now-proposed,
restrictive form, we would urge the Council to at least add an
explicit disclaimer of any intention to prohibit electronic
access that individual courts may choose to provide.
Conclusion
The Society of Professional Journalists, Northern California
chapter, takes strong exception to the changes the Court
Technology Committee has made to its original proposal for public
access to electronic court records. The Council should enact a
rule requiring all of California's courts to provide public
access to electronic records in all types of cases.
Sincerely,
MARTIN KASSMAN