Covid-19 TRANSPARENCY and OVERSIGHT
ACCESS TO COURTS: FEDERAL
The First Amendment Coalition on April 2 urged the U.S. Administrative Office of the Courts to ensure the press and public continue to have full access to public proceedings as federal courthouses close and hearings take place remotely amid the COVID-19 emergency. 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
The First Amendment Coalition and ACLU California affiliates on June 26, 2020, 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 lawsuit led to improved access, including audio live-streaming.
The First Amendment Coalition and 10 other advocacy organizations on March 25 called on the California judiciary to recognize and enforce the public’s First Amendment right of access to court proceedings as court operations change in response to the COVID-19 pandemic. Courts across California are halting proceedings, restricting access to buildings and holding some hearings telephonically, raising concerns that members of the public and the press, who are exempt from the state’s stay-at-home order, will face insurmountable barriers to accessing. The First Amendment and California law guarantee a public right of access to criminal and civil court proceedings, as well as records relating to those proceedings.
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. This was part of a statewide advocacy campaign, in which FAC, ACLU of Northern California and Public Justice contacted each of the state’s 58 trial courts.
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.”
GOVERNMENT TRANSPARENCY: SAN FRANCISCO
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
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 RESPONSE LETTER: CALIFORNIA 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 overcome barriers to public information. Some state and local entities in California have stopped responding to requests made under the Public Records Act citing the COVID-19 health emergency. The following is a template that journalists and members of the public can use to generate a response to any entity in California that has refused to process a request citing delays related to COVID-19.