Which is the best model for charging for access to court records: a rest stop, a bus pass, or a bake sale?
What (if anything) should the judiciary charge for public access to records, and how should that decision be made? That question is now squarely facing the federal courts and Congress.
I have blogged periodically about the 2016 class action lawsuit alleging that the federal courts overcharged users for access to its electronic public records system (known as PACER), and used the surplus to fund a variety of internal projects. Last spring, a federal district judge granted partial summary judgment to the defendants as to liability, but concluded that some of the project funding had indeed exceeded Congressional authorization. The decision is now on appeal.
Although no decision will be coming for a while, a number of recent events have returned the case to the public eye. In late January, several prominent, retired federal judges filed an amicus brief arguing that the courts should not charge any fees for public access to court records. That brief led to a story in the New Republic entitled “The Courts Are Making a Killing on Public Records.” All the while, the five-week federal government shutdown forced the courts to use up all of their “rainy day” resources and put them on the verge of operating without funding, illustrating the relative financial fragility of the courts as an organization.
I take as a given that the federal court system, as a whole, is committed to providing public access for all. But it is also a given that on an organizational level, the court system feels an obligation to protect its core activities from environmental disruption, including financial disruption. The current lawsuit provides an excellent illustration of the underlying tension between those values, and also suggests a solution. More below. Continue reading “The PACER class action and the problem of court funding”
The Indian Express reports:
Ushering in more transparency in the judiciary’s work, the Supreme Court on Wednesday gave its nod to live-streaming of court proceedings, saying this will bring more accountability and enhance the rule of law.
A bench of Chief Justice of India Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud, in two concurring judgements — one by CJI Misra and Justice Khanwilkar and other by Justice Chandrachud — said: “We hold that the cause brought before this court by the protagonists in larger public interest deserves acceptance so as to uphold the constitutional rights of the public, and the litigants in particular.”
Delving into the benefits of allowing this, Justice Chandrachud said, “Above all, sunlight is the best disinfectant.”
India gets it. When will we be able to say that of our Supreme Court?
The Criminal Bar Association in the United Kingdom has offered tentative support for placing cameras in the courtroom, in part as a means to tamp down “aggressive” behavior by barristers. The organization added that any introduction of cameras must be done carefully so as to shield (as necessary)the identity of victims.
The sentiments were echoed by the Transparency Project, a group which campaigns to improve the clarity of family courts. The group also noted its skepticism that courtroom cameras would control aggressive lawyering.
Protecting the identities of witnesses, victims, and jurors has long been a sticking point for the introduction of courtroom cameras. But these issues have exist–and would continue to exist–in any open court setting. As the recent ugliness surrounding the Manafort trial has shown, judges are up to the task of protecting the identities of jurors and witnesses as needed on a case-by-case basis.
The Missouri Supreme Court is allowing expanded access for media tools in its courtrooms, including live Tweeting, electronic note taking, and expanded camera use beyond a single “pool camera.” The updated provisions are the first major change since 1995.
Individual judges will still have the final say over media access in any particular case.
Judge Vincent Gaughan, who is presiding over a high-profile case involving the police shooting death of teenager Laquan McDonald, ordered that the attorneys for both sides file all motions and briefs directly with him. Late last week, the Illinois Supreme Court disagreed with Gaughan’s policy, ordering the judge to stop requiring the sealing of all documents.
The media covering the case is understandably pleased with the ruling.
The U.S. Court of Appeals for the D.C. Circuit will begin live audio streaming of its oral arguments when its new term commences in September. Chief Judge Merrick Garland made the announcement. D.C. joins several other circuit courts that have recently embraced streaming technology in the interest of improved transparency.
I wonder if anyone at One First Street is paying attention.
In the wake of the Bill Cosby retrial, which was not televised due to a ban on cameras in Pennsylvania state courts, the Scranton Times-Tribune has editorialized:
[T]he fundamental premise of the United States is that it is a nation of laws — the notion that the law applies to everyone and that no one is beyond its reach. Yet the state government and in most cases, the federal government, regularly take passes on the opportunity to demonstrate that philosophy as it unfolds in the real world of the courtroom.
When a cultural figure like Cosby or a high-ranking public official, like former state Attorney General Kathleen Kane, or an important civic issue such as taxation or gerrymandering ends up in court, cameras should be there to bring citizens into the courtroom to observe the process and watch history as it happens.
Courts long resisted cameras on grounds that they would be disruptive. But technology long ago resolved that problem. Pennsylvania and federal courts should allow televised trials and other proceedings. Doing so would enhance civics education at a time when it is sorely needed.
Meanwhile, UC Berkeley Dean Erwin Chemerinsky has made a similar argument with respect to the U.S. Supreme Court.
Not every courtroom needs a camera, and not every case or hearing is appropriate for public broadcast. But blanket prohibitions on cameras, especially with respect to cases of broad public interest, are increasingly difficult to justify.