First Amendment advocates criticize draft of new rules granting access to judicial records

Senate Bill X4 13 required that the California Administrative Office of the Courts (AOC) adopt new policies to provide public access to nonadjudicative court records, budget and management information. A 19-page draft has now been released for public comment from the present until October 29. So far First Amendment defenders say there should be no charge for providing documents and that the draft provides an overbroad exemption of “deliberative process” that would too easily block public access. -DB

The Recorder
October 2, 2009
By Cheryl Miller

SACRAMENTO — A proposed Rule of Court governing access to court administrative records would still potentially shield large amounts of information from public scrutiny, despite early complaints from First Amendment groups that the rule is too restrictive.

The 19-page draft rule, written by Administrative Office of the Courts staff, was released to the public Thursday after an early version was circulated among interested parties in recent weeks. The AOC will now accept public comments on the access rule through Oct. 29; the Judicial Council is expected to adopt a final rule by the end of the year.

As drafted, the rule cobbles together pieces of other laws that govern access to records held by local, state and federal agencies. The proposed courts rule says that the public has a right to see judicial administrative records — things like vendor contracts and quarterly financial statements — and that right should be “broadly construed.”

But AOC drafters also argued that the judiciary has a different, less political role than its “sister” legislative and executive branches and can’t always operate with the same degree of openness. So the rule includes 11 broad exemptions that would allow court and branch officials to withhold certain information.

Among the protected documents: records related to “pending or anticipated” claims; complaints against bench officers, including temporary and assigned judges; work e-mail addresses and phone numbers; and anything judicial leaders decide would “discourage candid discussion” within the branch if it was disclosed — the so-called “deliberative process exemption.”

First Amendment advocates have complained since an early draft of the rule was circulated last month that the exemptions are too broad.

“It’s just too easy to resort to” the deliberative process exemption, said Peter Scheer, executive director of the First Amendment Coalition. “That is easily capable of being expanded to a major, major loophole.”

But in a preamble to the proposed rule, AOC drafters argue that the same established state and federal case law that protects the decision-making process in other branches of government should apply to the judiciary as well.

The latest draft rule still contains another provision opposed by First Amendment groups and media representatives. Courts and the AOC would be allowed to recover their document search and production costs from “commercial” information seekers. Non-commercial requesters would receive two free hours of staff search time before incurring costs.

The provision is a sharp departure from the California Public Records Act, which specifically forbids agencies from charging for anything more than copying costs.

AOC drafters say the courts just don’t have the money right now to absorb the costs of providing documents.

“This whole concept of charging for search time is one that is completely alien to California law governing access to public records,” Scheer said.

If the courts are truly unable to afford record retrievals then the law should only allow them to recover costs for a limited period of time — say, one year, Scheer said.

Earlier this year the Legislature ordered the judiciary to adopt new rules governing public records access after labor unions and others complained that they could not obtain budget documents from the branch.

The AOC has been working on the new rule with media lawyers, First Amendment advocates, legislative staff and labor groups in recent months.

A copy of the proposed rule can be found on the courts’ Web site at

Copyright 2009 Incisive Media US Properties, LLC.