A proposal under consideration in California would significantly limit access to public information by levying a $10 fee any time anyone—including members of the public and the media—wants to look at a court case record in person.  While EFF is certainly sympathetic to the budgetary woes facing all levels of government in California, this measure would trade transparency, citizen engagement and the power of a free press for a short-sighted fiscal stop-gap. On the whole, such a fee would do little to fix institutional spending problems while inflicting massive damage to the public trust.

As many media agencies have reported, and perhaps most in-depth by the Courthouse News Service, the state’s judicial branch and California Gov. Jerry Brown’s office crafted the proposal in secrecy and buried it in a “trailer bill,” or a piece of legislation that articulates the nuts and bolts of the state budget with little public discussion. The judiciary has seen $1.2 billion in state funds slashed since 2008, but the California Department of Finance states that "the amount of revenue this proposal will bring is impossible to estimate." That’s because it’s unclear whether it would raise money at all. It’s likely that people will stop requesting case files altogether rather than shell out for the fees.

The proposal amounts to a tax on the watchdogs who hold the powers-that-be accountable.  Courthouse News estimates that in San Francisco—where EFF is based—journalists review up to 70 case files a day. Therefore, journalists would need to come up with up to $700 a day to review the same amount of records.  To put it in more concrete terms of accountability:

The cost to inspect all lawsuits filed against the San Francisco Police Department in San Francisco Superior Court over the last two years would be at least $130.

The cost to inspect all lawsuits filed against Google in Santa Clara County Superior Court would be approximately $150.

The cost to inspect all lawsuits filed against Facebook in San Mateo County Superior Court would be approximately $230.

Those may be small amounts to corporate legal counsel, but very few news organizations would be able to afford to maintain their current level of legal reporting. That means fewer reports on civil rights violations, corporate malfeasance, government waste, criminal prosecutions—all issues that are crucial to maintaining a just society, not to mention the balance of justice within the courts themselves. The fees would also be prohibitively expensive for citizen watchdogs, public-interest law firms, and student researchers who require access to large amounts of case files on a regular basis.  Making matters even worse: the state’s companion proposal would double the fee for copying court files from 50 cents to $1 per page.

That’s on top of what taxpayers already pay to support the justice system, from the salaries of judges and clerks to courthouse construction. These are our documents; we paid for the system that allows them to exist, and our right to access them is constitutionally protected.

EFF isn’t alone in opposing this effort.  The First Amendment Coalition, Californians Aware and the California Newspaper Publishers Association (CNPA) have each expressed their fury over the proposal, while the Communications Workers of America’s Newspaper Guild is circulating an online petition. Assembly member Bob Wieckowski, the chair of the Assembly’s Judiciary committee, and Steven Jahr, Administrative Director of the Courts for California, have both stated they think it’s a bad idea.

“I’m really concerned because [the proposal gets at] our basic idea of the role of the courts,” Wieckowski told Courthouse News. “That’s our sense of democracy, and you’re limiting it to people who are rich and who can pay for that. I don’t want that.”

An attorney for the CNPA also questioned the fundamental legality of the proposal.

“The public and the press have a right to access to adjudicative court records under the First Amendment of the U.S. Constitution,” Rachel Matteo-Boehm told the website. “The notion of conditioning that access on the ability to pay—and we are talking about potentially large sums of money here—strikes me as presumptively unconstitutional.”

This proposal applies specifically to hard copies, since California has yet to implement a statewide online case management system (although it blew half-a-billion dollars trying). However, access to court records—whether digital or physical—is an issue that cuts to the heart of the open-government movement.  In 2008, Internet activist Aaron Swartz downloaded and publicly released 2.7 million documents from the federal judiciary’s PACER system, which would’ve otherwise cost citizens hundreds of thousands, if not millions, of dollars to download independently at a rate of 8 cents per page (and which has since been increased to 10 cents per page). Swartz’s action was in response to a call to action by transparency advocate Carl Malamud (Public.Resource.Org) who has long fought to improve access to the legal system, or as he calls it, "the operating system of our society." Other efforts such as RECAP have made inspecting federal court documents cheaper and easier by allowing users to share what they download from the U.S. Courts website. 

As novelist and essayist Arnold Bennett once wrote, “The price of justice is eternal publicity.” Justice is not served when a citizenry is separated from the judicial branch by a steep paywall.

EFF calls upon the state of California to find another way.