Maine Newspapers Challenge Rule Concealing Electronic Court Records
A cult-like adherence to the notion of “practical obscurity” for electronic court records is dead. Or is it.
In black and white, Maine’s new restriction on access to electronic court records exposes the tarnished bones of an old battle. It is the most blatant example yet of an American court walking forward on technology and in synchronous motion walking backward on transparency.
A court committee itself operating in secrecy put a new rule in place in December that says nobody can look at electronic court records until three days after they are served. Asked by a reporter how long the blackout period runs, the counter clerk in Penobscot Superior Court in Bangor said, “Ninety days.”
The rule was challenged by Maine’s newspapers, under the sweeping authority of the First Amendment. Filed in U.S. District Court, the new matter was assigned within a couple hours to Judge Nancy Torreson.
Maine is actively moving its courts over from paper to electronic filing of court documents, and Penobscot Superior is the first of them all to switch. The rest of Maine’s courts are still operating in the paper medium and allow reporters to see the new paper filings after they cross the counter.
The long period of secrecy — that can run to three months and then be doubled — only applies to documents filed via the internet. If never served, they remain in oblivion’s closet forever.
“The First Amendment exists in large part to allow the public to discuss what its government is doing,” said Jeffrey Pyle with the Boston-based law firm of Prince Lobel. “The courts are part of the government. They cannot operate in secret or else the courts remove themselves from the transparency and accountability that a true democracy requires.”
He filed the suit asking for an injunction with longtime First Amendment lawyer Sigmund Schutz, partner in the firm of PretiFlaherty based in Portland, Maine.
They represent a group of newspapers including the Portland Press Herald, Maine Sunday Telegram, Kennebec Journal, Morning Sentinel and Sun Journal. They are joined by Courthouse News Service.
On the other side of the action are James Glessner, the head administrator of Maine’s courts, and Peter Schleck, who is head clerk in Penobscot County Superior Court.
Checking the new civil complaints is an age-old part of the reporter’s job on the court beat. The new complaints contain the stuff of news — from political disputes with national importance to small slice-of-life stories that fill the inside pages and are often the most widely read.
In Maine over the last year, civil suits have been filed over ranked-choice voting in the November elections, the state’s refusal to adjust voter registration rules for seniors during the pandemic, the death of a dog trapped in a car as a ferry sank, the collapse of the roof cage of a woman’s Toyota when she hit a moose, a lobster fisherman whose insurer refuses to pay for his boat’s blown-out motor and an incident at the Penobscot Theatre Company where a Mace prop sprayed the real thing on an actor during a live performance.
But the example that shines a Klieg light on the contradictions of Maine’s new rule is a suit brought last week by the Bangor Daily News challenging the state’s policy of redacting police misconduct records.
“Notwithstanding that this is a public lawsuit arguing against the state itself, seeking transparency, the Penobscot Superior Court refuses to grant access to the complaint because service has not been completed — even though the plaintiff announced it on its front page the next day,” said Pyle.
In short, the access restriction, itself born out of secret machinations within Maine’s court bureaucracy, was used to keep secret a lawsuit challenging secrecy.
“None of the active committees seem to be involved in e-filing or public access rules,” said Courthouse News bureau chief Adam Angione, who attended a 2018 task force on access to electronic court records. “The task force would normally be it. But it is no longer active and I can’t find any information about when it might have been discontinued.”
“And the rules were not submitted for comment by the Committee on Media and the Courts,” said lawyer Schutz. “That committee has been out of the loop and mostly dormant for some time.”
The access restriction — Rule 4(A) of the Maine Rules of Electronic Court Systems — was made up by a committee whose name, membership and leadership are unknown and whose deliberations were not public. Such debates over privacy and public access often play out in hardball politics within court committees that leave as little trace as possible.
The secret way of doing the court’s business is common in other state courts, including some within the experience of Courthouse News reporters and lawyers, in California and New Mexico. But Maine has taken privacy to an extreme not seen in the rest of the nation.
“As far as plaintiffs can determine, the state of Maine is currently alone among the states in having a rule of this nature,” said the newspapers’ request for an injunction. “The rule is supported by no legitimate governmental interest.”
Out of the muck of court administrator conferences in Williamsburg during the past decade came the new idea of “practical obscurity,” pushed by a law professor from William & Mary Law School who helped organize the conferences. The logic is hard to follow but it works on the assumption that paper records were obscure because they were held in paper court files — so records on the internet should be that way too.
In fact, records in paper court files were and are easy to search because they are accompanied by a public index or docket in all courts. The notion of practical obscurity has been nevertheless swallowed by court administrators who bring it back up as a justification for denying public access to court records until they no longer have any value as news.
New Englanders were high-profile participants at those Williamsburg conferences in 2013 and 2015, including former Vermont Supreme Court Justice John Dooley who, like many proponents of privacy, had long held government positions before becoming a justice.
The practical obscurity doctrine is commonly described as “discredited” and unworkable. But its basic tenet — that electronic court records should be hard to find — has spread far and wide among the courts of America. Courts that gave journalists on-receipt access to new paper filings now place hurdles in the way of electronic filings in New Mexico, Texas, Missouri, Iowa, Illinois, Minnesota, Ohio, Kansas, Florida and now Maine.
The doctrine also infects individual clerks. Where one will open up online public records when they are received, another will hold back access and kill the news. In California, for example, courts covering 18 million people give the press on-receipt access to new e-filed records. In other words, they are not adherents of practical obscurity.
A recalcitrant few, however, continue to hold out for delay. Two in Santa Cruz and Sonoma were also the subject of a First Amendment action filed by Courthouse News this week and assigned to U.S. District Judge William Orrick III.
But Maine has become the practical obscurity collider, smashing together the notional atoms of privacy and public access. Maine’s 2018 task force eventually came out with conclusions heavily weighted in favor of privacy. A draft rule endorsed by the task force said “reasonable expectations of privacy” might be enough to seal a record.
Contradicting those recommendations, Maine’s Chief Justice, Andrew Mead, has rejected the idea of practical obscurity, calling it a discredited notion. He endorses the principle that paper and electronic records should both be equally open to the public.
And yet, under the aegis of the court he leads, a secret committee promulgated the nation’s most restrictive rule on access, in essence imposing a radical version of practical obscurity in Maine.
“On practical obscurity, I agree with the chief justice,” said media lawyer Schutz. “It is a discredited notion. It belongs in the dustbin of history. I believe you should call a spade a spade. Either there is a justification to keep a record secret or not, it is black and white. There should not be this third category of records that are in name public but in reality a pain the neck to get access to.”
That logic has not been heard by court administrators in the Pine Tree State.
In day-and-night contrast to the Maine rule, the federal courts and a quickly expanding group of state courts provide access to newly filed electronic records on receipt. They include courts in Connecticut and New York in the Northeast and Utah, Nevada, California and Hawaii in the West.
Those courts use a variety of e-filing software packages to give the press and often the public access right away, as soon as a new electronic record is filed, which is when it is received. One of those software packages comes from Texas-based Tyler Technologies.
Courts in California, Nevada and Georgia provide on-receipt access to their new public records by asking Tyler to install a “Press Review Queue,” a program already designed by Tyler which can be put in place in a matter of days. As it happens, Maine is also paying Tyler — $17 million over ten years — for its statewide e-filing conversion. As a result, the state’s court administrators could set up a Press Review Queue by filling out a Tyler form.
But they do not appear so inclined.
The lawsuit puts two principals into another collider, that of the U.S. courts. One principle is the one established in the Ninth Circuit and in federal district courts in Texas, Virginia, California and New York that says the First Amendment right of access attaches on the court’s receipt of a new filing. The other principal is Maine’s which says the First Amendment never attaches to electronic documents filed in Maine.
It will now be up to Judge Torresen to smash those ideas together and see what ruling comes out of the collision.
Meanwhile, back in Bangor, the Penobscot Superior Clerk, Peter Schleck, approached Courthouse News reporter Brenda Herrling to say that he was very sorry but now that a lawsuit has been filed he can no longer let the reporter see the index for new cases, also called the register of actions. The reporter had been regularly checking the register to know which complaints to ask for after service.
In addition to holding back the documents themselves, the clerk will now also hold back the register of actions. Which means the existence of a complaint that is not served will remain hidden for eternity.
“Peter was waiting for me when I arrived. Paraphrase of conversation follows: In light of latest court filings and review of the rules, I will no longer be permitted to see the ROA sheets until proof of service has been docketed,” Herrling said in a note to Angione, her bureau chief. “Then I will have to wait the additional 3 days after docketing to see the complaint. There is a Federal Case that has been filed and so they have to make sure that they are following all the rules. He was friendly and apologetic, but plain in how it will be handled for the foreseeable future.”
She later said the clerk joked that the only new case of interest that day was the complaint filed by the newspapers.
That complaint alleges one count for violation of the First Amendment. It prays for a declaration that Rule 4(A) violates the First Amendment and a preliminary injunction prohibiting the rule’s enforcement.
“Plaintiffs therefore ask this Court to enter a preliminary injunction enjoining Defendants from enforcing the no-access-until-three-business-days-after-service rule, and requiring them to provide immediate public access to newly filed civil actions,” said the newspapers’ motion.
“Technology should be used to shed light on the court system,” it concluded, “not to shield historically open court records from public view.”
By Bill Girdner