Covid-19 Transparency and Oversight
ACCESS TO COURTS: FEDERAL
U.S. Administrative Office of the Courts
After monitoring varying remote access procedures in federal courts, the First Amendment Coalition on April 2 urged the U.S. Administrative Office of the Courts to ensure the press and public had adequate access to public proceedings and records. On March 31, a notice published by the office indicated some uncertainty about whether the public and press would have access to criminal proceedings held by teleconference or videoconference. “With respect to the possible use of teleconference and videoconference technology to provide the public and the media with access to criminal proceedings, the Administrative Office of the U.S. Courts is evaluating this issue in light of Federal Rule of Criminal Procedure 53 and the CARES Act and will be providing additional guidance in the near future.”
As FAC’s letter to Director James C. Duff states, “The Supreme Court has held the First Amendment protects the right of public access to court proceedings because ‘a major purpose of that Amendment was to protect the free discussion of governmental affairs,’ and thus, the right of access is an essential part of the First Amendment’s guarantee to ‘ensure that the individual citizen can effectively participate in and contribute to our republican system of self-government.'”
UPDATE: On April 3, the U.S. Administrative Office of the Courts released an update, “Judiciary Provides Public, Media Access to Electronic Court proceedings.”
ACCESS TO COURTS: CALIFORNIA
Statewide Campaign for Court Access
FAC and a coalition of allies launched a statewide campaign to preserve public access to California’s trial courts after our investigation found numerous barriers to access across the state. We sent letters to the presiding judges of all 58 of California’s trial courts to advocate for public and press access to proceedings, including the use of remote technology, to prevent unlawful secrecy amid the pandemic. The campaign led to positive results in numerous counties where our investigation identified barriers to access.
Lawsuit against California Superior Court
On June 26, 2020, FAC and ACLU California affiliates filed a federal civil rights lawsuit against the Kern County Superior Court to enforce the public’s right of access to hearings and trials. The First Amendment lawsuit led to improved access, including audio live-streaming.
California Judicial Council Advocacy
On June 15, we called on judicial leaders to “put a stop to widespread secrecy that has occurred throughout the coronavirus pandemic and ensure the public and press have access to hearings and trials as required under the First Amendment and California law.”
In a detailed letter, FAC, Public Justice and all three California affiliates of the American Civil Liberties Union cite:
- Nine general orders and rules that unconstitutionally barred the public from accessing judicial proceedings;
- Instances when courts failed to provide the public access to remote technologies used to conduct hearings;
- Relatives of criminal defendants being turned away from courthouses when they attempted to observe hearings, with no alternative access provided; and
- Representatives of FAC and the ACLU being denied access to civil and criminal proceedings in multiple courts, with no alternative access provided.
On March 25, FAC and 10 other advocacy organizations called on the California judiciary to recognize and enforce the public’s First Amendment right of access to court proceedings as court operations began to change in response to the COVID-19 pandemic.
The letter to California Chief Justice Tani Cantil-Sakauye, chair of the Judicial Council, makes a number of recommendations about free access to telephonic hearings, making records available online and more.
Additional Superior Court Advocacy
The First Amendment Coalition on March 25 urged Santa Clara Superior Court to reconsider its order banning the public from proceedings and recommended a number of steps to remove barriers to access.
UPDATE: On April 27, the court announced remote public access to proceedings.
More on public access to Santa Clara Superior Court:
- Read ACLU of Northern California’s letter
- Read Public Justice’s letter
- Read the court’s response
- In the news: Justice with no one watching? Bay Area courts grapple with public access | Mercury News
ACCESS TO RECORDS: CALIFORNIA
In response to the COVID-19 pandemic, some government agencies in California have stopped processing requests made under the California Public Records Act. In a March 23 letter, FAC and SPJ NorCal wrote that there is no legal basis for that extraordinary step. The California Public Records Act, Gov. Code § 6250, et seq., remains the law of the land, and Article I, section 3(b)(1) of the California Constitution provides that, “The people have a right of access to information concerning the conduct of the people’s business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.”
SAN FRANCISCO SUNSHINE ORDINANCE
FAC joined a coalition of media and transparency groups urging San Francisco Mayor London Breed to restore all aspects of the city’s open-government provisions, some of which she suspended after the city declared an emergency due to the coronavirus pandemic.
The April 17 letter to Mayor Breed sent by the Northern California Chapter of the Society of Professional Journalists and a group of local and national organizations comes after the city suspended indefinitely key provisions of the voter-enacted Sunshine Ordinance. While some disruption to government services is understandable, the coalition notes the importance of transparency during a time when the government’s role in daily lives is greater.
OPEN LETTER ON TRANSPARENCY: NATIONAL
FAC joined the National Freedom of Information Coalition and 130 other organizations nationwide in a letter to federal, state, tribal and local public institutions raising concerns about transparency and access to meetings and records as these institutions respond to the coronavirus public-health crisis. The March 20 letter reads: “At all times, but most especially during ties of national crisis, trust and credibility are the government’s most precious assets. As people are asked to make increasing sacrifices in their daily lives for the greater good of public health, the legitimacy of government decision-making requires a renewed commitment to transparency.”
FAC is offering free webinars on open-government and free speech topics. Hear from First Amendment lawyers, journalists and more about accessing public information, government meetings and the courts amid the coronavirus emergency. RSVP for upcoming programs and view videos of past sessions.
Live From the Internet: It’s SCOTUS. A Discussion about the Future of Court Access Post Pandemic
Featuring U.S. District Judge Jeremy Fogel (ret.) in conversation with David Snyder. (May 19, 2020)
Accessing Public Meetings in California Amid the Coronavirus Pandemic (April 30, 2020)
Fighting for Public Records Amid the COVID-19 Crisis (April 16, 2020)
Sign up to receive invitations to FAC’s free programs.
SAMPLE REPLY LETTER: PUBLIC RECORDS ACT
FAC and the Freedom of Information Committee of the Society of Professional Journalists Northern California chapter published a new tool to help push back if government agencies cite COVID-19 as a reason to delay processing a request for records. The following is a template for a letter you can use to generate a response to any entity in California that has refused to process a request made under the California Public Records Act citing delays related to COVID-19.