New rule allows public access to administrative records of California courts

The California Judicial Council approved a new Rule of Court this week giving the public a right of access to administrative records of Superior and Appellate courts and the Administrative Office of the Courts. The rule will be in effect January of next year and is modeled after the California Public Records Act. -DB

Legislative Bulletin
California Newspaper Publishers Association
Commentary
December 16, 2009

At its meeting in San Francisco yesterday, the California Judicial Council approved on a voice vote a new Rule of Court to provide the public with a right of access to the administrative records of Superior and Appellate courts and the Administrative Office of the Courts. The rule, which becomes effective January 1, 2010, is modeled after the California Public Records Act. Here is the report prepared by Judicial Council staff on the proposed rule and the council’s press release announcing the rule’s adoption.

CNPA and many others, including Governmental Affairs Chair and Los Angeles Times Deputy General Counsel Karlene Goller, the First Amendment Coalition and Californians Aware, legal counsel of the Senate and Assembly Judiciary Committees, Assembly Speaker and Senate President pro Tem, have been working as part of a special Judicial Council committee to draft the new rule. In addition to these formal meetings, CNPA staff met several times with representatives of the Judicial Council and California Judges Association to help negotiate two big issues and several finer points of the rule.

The proposed rule has been substantially amended since it was first proposed in September and in many ways is now consistent, in principle if not actual language, with the CPRA. Following is a summary of the key provisions of the proposed rule as well as CNPA staff’s observations:

Application

The rule applies only to judicial administrative records. The public already has a First Amendment right of access to records associated with cases and this proposed rule does not affect the public’s ability to access those records. The proposed rule applies only prospectively to electronic mail and text messages – expressly recognizing that email and text messages created after Jan. 1 are presumptively subject to public disclosure unless an exemption applies.

Access

Like the CPRA the proposed rule provides the public with the ability to both inspect and copy administrative records. It also imposes a duty on the courts to segregate exempt from non-exempt info and to help a requester identify records that may be responsive to a request. The time periods for responding to a request are identical to the CPRA.

Fees

This contentious issue was resolved in favor of CNPA and its members after months of negotiation. With shrinking budgets, furlough days and no funding for this new mandate, Superior Court judges and clerks strongly supported a fee-for-records approach and adamantly opposed adopting the CPRA’s direct cost of duplication provision. This approach would have allowed the courts to charge non-commercial requesters a fee, after two hours of work on the request, representing all the costs of gathering, reviewing, redacting, and otherwise preparing the records for inspection or copying. On the other side, CNPA, FAC, Cal Aware, the legislative staffers and union representatives argued with equal vigor that the proposed high fees for access would impose a palpable chilling impact on access by all except the well-heeled.

In light of the strong opposition to the high fee approach, Judicial Council staff presented the council with the fee-for-records proposal and an alternative proposal that would, for non-commercial requesters, track closely with the CPRA approach and only allow recovery of the direct costs of duplication. Commercial requesters, in both approaches, is defined to not include media requesters.

After a lengthy discussion, the council adopted the direct cost of duplication version, with the proviso that it will be reviewed in two years to determine the impact of requests on trial courts. The rule specifies that non-commercial requesters can only be charged the direct cost of duplication (established as a $.10 per page charge) and the costs, if any, of retrieving a requested record from a remote storage facility or archive and for mailing the record. Commercial requesters would pay all costs associated with searching for, retrieving and reviewing the requested records. Requests from media would not be considered commercial requests. This option also permits individual courts to establish a different fee representing the direct costs of duplication if it can demonstrate the $.10 per page fee is insufficient. The alternative provision would create a $1.5 million fund in the Administrative Office of the Courts from which local courts could seek reimbursement for costs in excess of those established by the provision, although the Council had a lengthy discussion about returning to the legislature to seek a direct appropriation for the increased costs.

Exemptions

Many of the exemptions in the proposed rule are consistent with those that exist in the CPRA.

Deliberative Process

As originally proposed, the rule would have presumptively exempted any records that would disclose the court’s decision-making process unless the public interest in disclosure clearly outweighed the interest in non-disclosure – a reversal of the CPRA balancing test. At CNPA’s urging, the rule eliminates the original language in favor of the CPRA balancing test (the public interest in non-disclosure clearly outweighs the public interest in disclosure). Application of the privilege is limited to the facts of the specific request for records. A drafter’s note is added to declare the Council’s intent that the provision shall be interpreted consistent with existing deliberative process privilege cases (i.e., Times Mirror v. Sup. Ct, CFAC v. Sup. Ct. and Wilson v. Sup. Ct). Staff believes the final language is the best solution short of removing any reference in the Rule to the privilege.

CNPA and the access coalition were able to effect many other changes in the proposal to make it consistent with the CPRA, including, for example: the definitions of “records” and “writings,” the time limits for compliance with a request, access to electronically held records, the preliminary draft, personnel records and agency-created software exemptions.

Obviously, the proposal is not perfect. Keeping in mind that the Judicial Council has been tasked with creating a rule of court to govern its own conduct, staff believes everyone involved has worked in good faith to create a rule that will secure substantial new rights for the public and one that is worthy of newspaper support. For more information about the new rule please contact Tom Newton at 916.288.6015 or tom@cnpa.com or Jim Ewert at 916.288.6015 or jim@cnpa.com.

Copyright 2009 California Newspaper Publishers Association

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