Amid ‘Sunshine Week,’ darkness persists in state public records law

As advocates for public access to government information celebrated “Sunshine Week,” five Pennsylvania news outlets, represented by Reporters Committee attorneys, sued the York County Clerk of Courts for infringing on their constitutionally protected rights to access judicial records, moving last week for a preliminary injunction to halt the clerk’s obstructive practices.

The lawsuit, filed in federal court in Pennsylvania, alleges that the policies recently implemented by Clerk of Courts Daniel Byrnes violate the Pennsylvania Constitution and the U.S. Constitution by impeding the public’s presumptive right of access to judicial records.

Specifically, Reporters Committee lawyers argue that staff members within the Clerk’s office are unlawfully redacting non-confidential documents without authorization, failing to ensure these redactions are narrowly tailored, and delaying or denying access to judicial records. The Clerk of Courts is an elected position in the county, responsible for maintaining a record of the docketing and events associated with 8,000 to 9,000 criminal cases per year for the York County Court of Common Pleas.

The lawsuit cites examples of journalists at the represented news organizations requesting judicial records, only to receive a slim percentage in a timely fashion, with days of delays, heavy redactions or outright denials to the majority of the requests. In many instances, the redactions were not requested by the parties or the court, but rather were imposed by the clerk’s office, in violation of the U.S. and Pennsylvania Constitutions. The media outlets claim this difficulty in obtaining judicial records is caused directly by the policies and practices of the York County Clerk of Courts, and is a consistent pattern throughout many of their ongoing records requests of the clerk’s office.

Further, the suit alleges that the clerk’s office is obstructing the public’s ability to view judicial records filed with the court, eliminating the previous access to electronic copies through public computer terminals in the courthouse and charging improper fees for electronic copies of records.

This lawsuit is not alone. Courthouse News Service recently filed a First Amendment complaint against federal court clerks in Maryland, arguing the office of the state clerk’s policies and practices are blocking online access to newly filed complaints — denying access, at times for days, until clerks have completely docketed the files. The complaint argues that this policy, which is not similarly implemented in any other state or federal court, is in violation of the First Amendment.

As this newsletter has highlighted, public access to government records is essential for public oversight and promotes accountability. For that reason, Reporters Committee attorneys have recently fought for public access to information, including records that showed how former President Trump’s name got on COVID-19 relief checks and documents that uncovered the government’s mischaracterization of civilian casualties from drone strikes in the Middle East.

Nevertheless, government officials are harnessing evolving technology to evade public records laws in new ways. In one recent instance, a district attorney found Texas Attorney General Ken Paxton violated his state’s open records law by withholding his email and text message records surrounding his morning speech in Washington, D.C., on Jan. 6, 2021.

Shining a light on evasions of public records law is prompting concrete reform. For instance, this newsletter recently covered media reports of Maryland Gov. Larry Hogan’s use of a disappearing messages app to shield his communications from public records law. Now the Maryland legislature is attempting to change the definition of public record to include “any written, electronic, or recorded audio or video communication” in a new amendment to its public records act. City council members in Washington, D.C., followed suit, unanimously approving a measure aimed at preserving WhatsApp messages under the Freedom of Information Act to combat the potential for automatic deletion of government conversations on the app.

Sunshine Week may be over, but we will continue to track these developments.

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The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with Stanton Foundation National Security/Free Press Legal Fellow Grayson Clary and Technology and Press Freedom Project Legal Fellow Gillian Vernick.