April 8, 2015
Administrative Office of Pennsylvania Courts
Attention: Public Access Committee
1515 Market Street, Suite 1414
Philadelphia PA 19102
Dear Judge Cohn Jubelirer, Judge Murphy and the AOPC Public Access Committee Members:
The Pennsylvania Freedom of Information Coalition is pleased to submit these comments on the Administrative Office of Pennsylvania Court’s proposed public access policy concerning official records of the appellate and trial courts. We commend the committee for the hard work that went into drafting this proposed policy; it is a thoughtful attempt to standardize access to judicial records in the Commonwealth.
About the Pennsylvania Freedom of Information Coalition
Before we address our concerns with the proposed policy, we wanted to give you a brief overview of the Pennsylvania Freedom of Information Coalition.
Now celebrating its tenth anniversary, the Pennsylvania Freedom of Information Coalition has as its mission to ensure that all people have full access to Pennsylvania state and local government records and proceedings. Such access fosters responsive, accountable government, stimulating civic involvement and building trust in government.
To accomplish its goals, the PaFOIC engages in a wide range of activities, including providing training to lawyers and laymen, facilitating an ongoing public forum for over 6,000 people on issues relating to access, maintaining a website at www.pafoic.org that gets thousands of hits each month and provides the public with a wealth of information on transparency, publishing the PaFOIC Quick Guide to the Right-to-Know law that is updated regularly by distinguished First Amendment attorneys and was downloaded 2,453 times in 2014, and acting as the public’s advocate in matters relating to the people’s right to know by submitting amicus briefs and comments such as these, providing legislative testimony, and acting as an expert in the media and beyond.
This year, the PaFOIC has expanded our focus to include the practical challenges underlying access: government record digitization and record retention policies and practices. Working in close partnerships with state and local governments and grant-making organizations, the PaFOIC aims to elevate governmental best practices of record management. We are also planning an “open records certification” program for local and state government officials who serve as their agencies open records officers, giving them the training they so often lack in performing this critical government function.
We were particularly impressed with the explanatory report issued with the proposed public access policy although we were disappointed that the AOPC did not include on the committee a representative who could speak for the public’s interest in access.
The explanatory report got to the heart of the challenge at hand: “the Constitution and the common law presumption of openness has to be carefully weighed against relevant practical and administrative considerations” and “striking the right balance isn’t easy.”
We begin our comments with our recognition of the bedrock First Amendment and common-law rights of the people to access court records. With very limited exceptions, for any court record to be sealed or held outside of public view, the First Amendment requires advance public notice and an opportunity to be heard. It then allows sealing only in limited circumstances, with the party seeking sealing required to meet certain very high burdens of proof.
In addition to our worries over what appears to be an insinuation of unilateral judicial and administrative discretion in contravention of these long-settled principles which we will address in the specific comments below, the PaFOIC’s overarching concern with the proposed public access policy is that the concept of “practical obscurity” appears to have been elevated to a goal for our digital future rather than a relic of our paper-reliant past.
It is axiomatic – even in the Right-to-Know law, which is not rooted in a Constitutional guarantee of access as is the right to access judicial records – that if a record is public, it is public in all formats. The move by the AOPC towards uniformity is laudable and critical for the smooth administration of justice in the 21st century. But allowing different standards for physical and virtual access is a mistake that will cause more problems than it solves.
One concept that we were pleased to see in the explanatory report and would urge you to include in the final public access policy, however, is the placement on the litigants and their counsel of the onus of filing only that information they want to be publicly disclosed. This is consistent with our adversarial court system and is another long-standing principle of American jurisprudence.
We have several specific comments on the proposed public access policy.
- In Section 4 A, the rule says the custodian “may” require a written request. The comments indicate that only if a request is complex or lengthy would a written request be required. The PaFOIC would not support a blanket grant of discretion to court personnel to require written requests but would be fine if such a requirement could be imposed for requests for multiple records or records from multiple cases. What we do not want to see if the over-formalization of the request process which has for three hundred years been very local and personal in nature and undoubtedly will continue to be so for the majority of litigants, lawyers and others.
- Section 5 does not provide any deadlines or timeframes to court personnel to respond to a request. Even under the Right-to-Know law, which is not the result of a Constitutional guarantee of access, government officials know exactly how long they have to respond and what happens if they are late.
- Similarly, in Section 5, it is unclear what remedies are available to the party denied access. The commentary suggests that it would be “consistent with applicable legal authority” but the rule itself is silent. Moreover, the rule does not give the requester any guidance as to who the parties are to such an appeal.
- Section 6 is vague and troubling in the sense that it sets a maximum copying charge but indicates that the courts may impose other kinds of fees. The rules does not, however, say what those costs could be and whether they are capped or subject to any standards. The PaFOIC is concerned that the AOPC is contemplating the allowance of fees for searching for records and for time spent copying or downloading records. These kinds of expenses are an unacceptable tax on access and contradicts the Constitution’s nearly absolute guarantee of access.
- In Section 7 A 5, minors’ names and birthdates are included in the definition of Confidential Information. With the exception of birth records and specific kinds of dependency, Orphan’s Court, and adoption proceedings, there is no basis in Pennsylvania law for such a blanket exclusion. The explanatory report provides examples from three other jurisdictions that restrict access to minor names and birthdates – Alaska, North Dakota and West Virginia. In the open records context, none of these three states are comparable to the level of access provided by Pennsylvania’s current Right-to-Know law. Here, a child’s existence is not a secret.
- Also, in Section 7 C the AOPC seems to contemplate the possibility of a double filing system which is discussed at greater length in the explanatory report. As we said earlier, in theory, placing the burden on litigants and their counsel to evaluate what information to include in public filings is a great idea. But if in practice this creates a dual filing system and a secret docket, the PaFOIC would be opposed.
- Section 7 F vaguely alludes to the court’s power to order filings to be closed or sealed. This seems to create a system in which the court and its administrators are advocates for litigants or may even act in a protective capacity, when the bulk of our judicial system is set up on the adversarial model.
- Section 8 contemplates the mechanics of filing documents that are confidential by law under cover of a “Confidential Documents Form.” However, in subsection F, the court is given the power to seal documents improperly submitted and even to impose sanctions for failure to comply. This also flouts the long-settled role of the judiciary as the arbiter of conflicts rather than the advocates for parties. The burden should be on the litigants and their counsel to ensure that legally confidential records are maintained properly.
- Section 9 B reflects a change in current law regarding incapacity proceedings. The law currently provides that the alleged incapacitated person or her counsel must request proceedings and related files be closed. The rule as stated in the proposed policy disregards the clear legislative language and by judicial policy renders all of these proceedings private. The PaFOIC opposes this on both substantive grounds – it is not necessary to proactively close every proceeding of this kind — and on the basis of separation of powers – the judiciary here oversteps its authority.
- Section 9 H is perhaps the most harmful provision in this proposed policy. Even under the Right-to-Know law, which is not rooted in the state or federal Constitution, the government agency requesting nondisclosure itself bears the burden of proving in each instance the harm posed by the release of a specific record. Here, the AOPC gives the court administrator and the Chief Justice the power to declare whole classes of records off limits with none of the procedural or substantive due process protections that this kind of state action should trigger. The PaFOIC strenuously opposes this provision of the proposed policy.
- Section 10 makes the false distinction between physical and virtual access. If a record is not public by law, then it is not public. If a record is otherwise public, the manner in which it is accessed should be the determinative factor in its availability. As we said earlier, allowing different standards for physical and virtual access is a mistake that will cause more problems than it solves. Jurors’ names are without question public records under v. Long, 922 A.2d 892 (Pa. 2007). The other records specifically mentioned in the proposed policy and comments are also public (transcripts once filed with the court, In Forma Pauperis petitions, records filed with appellate courts). In these instances, there is no legal basis for withholding remote access if the records would be otherwise available virtually.
Development of Educational Tools and Training
We were very glad to see that you propose in the explanatory report a partnership to help develop the educational tools that will be needed after the adoption of the final public access policy.
The Pennsylvania Freedom of Information Coalition is the only citizen-focused, non-industry specific transparency group in the Commonwealth and we eagerly volunteer to assist the AOPC and this Committee with this and anything else you may need you work through this process.
Once again, thank you for your hard work and service on this important initiative. We are grateful to have the opportunity to comment and hope that we may be helpful to you in the future.
Corinna Vecsey Wilson, Esq.