New Texas court access system raises old information demons

By Kelsey Jukam
Courthouse News Service
Originally published Sept. 15, 2017

AUSTIN – The checkerboard of public access in Texas courts was the focus of a conference on freedom of information earlier this week that included a bureau chief, a local clerk, a legislator and a state high court clerk.

In the face of political headwinds from elected court clerks, who see a goldmine in the records, the Texas Supreme Court clerk is now moving to unify public access throughout the Texas courts. A key part of the campaign is the engagement by the high court’s Office of Court Administration of a Plano-based tech company to develop a statewide online database called “re:SearchTX.”

Earlier this year, a core of clerks joined by a few Texas legislators tried to push a bill through the Texas Legislature that would have preserved the current balkanized system. But the bill died in the state Senate after opposition from the high court, the press and others.

The Freedom of Information Foundation Texas analyzed the underlying conflicts in a conference called’ “Transparency = Real News” held Thursday in Austin.

Texas Supreme Court Clerk Blake Hawthorne said he believed that state court clerks, lawmakers and the court have the same goal but there remain “some differences in how to get there.”

He said the court’s information technology committee has discussed keeping certain cases – like divorce or adoption cases – offline, which should address some privacy concerns.

“I think it’s important for people’s confidence in the court system that they are able to see our work, they’re able to see what both sides argue,” Hawthorne said.

In question and answer period, attorney Paul Watler of Jackson Walker addressed Texas clerks who, in the transition to a new technology, have cloaked their documents in obscurity and delay.

“There are federal court rulings from both Texas and California that recognize a First Amendment right of access in the public and the press to complaints to petitions filed that attaches immediately at the time that it’s accepted not after it’s been processed,” Watler said.

Watler represented Courthouse News in a 2009 challenge to Houston clerk Loren Jackson who, fresh off an election win, kicked the press out from behind the counter and made reporters wait up to three days while his staff processed new cases. The Democratic candidate had campaigned on the slogan, “Get online not in line.”

U.S. District Judge Melinda Harmon in the Southern District of Texas granted an injunction against Jackson, ordering him to give news reporters access to the new actions on the day they are filed, with exceptions in some categories such as filings that need to be seen immediately by a judge.

Last year, U.S. District Judge S. James Otero in the Central District of California ruled along the same lines, enjoining the clerk in Ventura, California, from withholding the new cases from the press while he processed them, a decision the clerk and the California Supreme Court’s rulemaking body, the Judicial Council, have appealed.

And in another ruling last year, U.S. District Judge Edgardo Ramos in the Southern District of New York enjoined the state court clerk in Manhattan from withholding the new electronic filings while he processed them.

“These cases I’m referring to rejected that the processing alone is a significant enough interest to override the First Amendment interest in access,” Watler told the panel.  Noting the clerks’ stated concerns with “privacy,” he added, “There’s also the issue of access, of public access to information, and that right of access attaches immediately. How has that been weighed in the district clerks’ considerations.”

Sharena Gilliland, district clerk for Parker County, a suburb of Dallas, answered, “And you’re absolutely right, as soon as we get something filed then you’re absolutely entitled to copy, to view it, to take the copy with you without a delay in processing. If you come into the office you can get the record immediately.”

Also  on the panel, Madison Venza, the southern bureau chief for Courthouse News, said it does not work that way.

“Even when reporters physically visit courthouses to obtain records they frequently encounter delays,” said the bureau chief. “Every day I send a reporter down the street to the Travis County state court to report on new records filed that day. These records are not online but viewable at the courthouse.  His access fluctuates each day due to processing delays.  Some days he might see 70 percent of things filed in a given day and other days only 30 percent.  The access is not immediate in most counties.”

Gilliland lobbied for the clerks’ bill and has pushed hard on the issue of privacy, relying on a Supreme Court rule that says personal identifiers should not be put online. “What we see in our courts, essentially it’s everyone’s worst day,” Gilliland said. “You’re having a really bad day if you’re involved in a lawsuit or a criminal action. From a clerk’s perspective, these are our neighbors, so privacy – it’s one thing for court records to be public, it’s another thing for them to just be available worldwide.”

Seated on the panel with the bureau chief and the clerk was the legislator who had carried a bill to wrest control of court filings away from the high court, State Rep. Travis Clardy, R-Nacogdoches.

“We want transparency, we want the openness of the records but the liability – that’s a real concern,” Clardy said. He was also concerned with “judicial voyeurism,” a concept he did not explain.

“Frankly,” said Clardy, “I have no desire through this process to assist the up-and-coming TMZs of the media world.”

During the legislative session in the spring, Clardy introduced House Bill 1258, which would have allowed counties to “opt in” to the re:SearchTX system with the authorization of the county or district clerk and approval of the county commissioner’s court.  The bill died in the Texas Senate.

“It seems to me if we rush to make this transparent we run the risk of demeaning or degrading the value of the court system,” Clardy said.

But with the advent of e-filing, said Venza, many Texas courts have retreated on public access. “All 254 counties have completely separate systems as far as how you can look at the documents,” the bureau chief told the panel.

She pointed to Houston and Tarrant County outside Dallas as courts that continue provide access to all the cases filed during the day on the day they are filed. But 0utside those two courts, “There has been a regression in press and public access to documents since courts transitioned from paper filing to e-filing.”

“Dallas County used to have fantastic access when the documents were paper-filed,” Venza added. “Delays since e-filing can be one to four days.”

The federal courts, including all four federal courts in Texas, have set up “auto-access” systems that provide reporters and the public access upon receipt. As soon as a filing crosses the electronic threshold into the court, it becomes public.

Responsibility for keeping personal identifiers out of court documents falls squarely and entirely on the filing lawyers, as it does in the vast majority of state court systems. Documents under seal are generally filed in paper form.

An increasing number of state courts are joining with the federal courts in sticking to the traditional system of access upon receipt, as they switch over to e-filing. They include courts in Alabama, Arkansas, Connecticut, Georgia, Mississippi, New York, Nevada and Utah.

Bureau chief Venza pointed to the frequent use of something known as an electronic inbox.  In electronic form, it mirrors the wooden or plastic press bin into which paper complaints used to be dropped for press inspection as soon as they crossed the counter. Journalists are given a login to access the electronic inbox and can view read only files before any processing takes place, she told the conference, noting that 22 out of 24 New York counties that accept e-filed documents have set up inboxes that allow for access upon receipt.

The prompt access allows reporters to stay on top of the news as it happens and to recognize trends affecting the state as a whole. A uniform system for accessing court records would make it easy for reporters to quickly look at newsworthy documents, and could help cut down on the spread of “fake news,” Venza said, as false rumors and hearsay could be more effectively fact-checked and discredited.

“Fast and open access to government records allows journalists to provide comprehensive coverage of what’s going on,” she added. “It’s best if we can report the news as it’s happening.”