A federal judge soon will decide whether the public should have immediate access to new civil cases filed in Maine’s electronic court records system.
Court officials argued Wednesday that up to four business hours of processing time is necessary and allowed under the law. The Portland Press Herald, the Kennebec Journal, the Morning Sentinel, the Sun Journal and the Bangor Daily News said even that waiting period is unconstitutional and not needed in other states.
“What is the right?” U.S. District Judge Nancy Torresen asked during the hearing. “Is it just the right of access to a civil complaint, or is it the right of access to a civil complaint immediately upon … receipt by the court?”
Courthouse News Service, a national outlet that reports on civil court proceedings, filed a lawsuit in February to challenge a rule that would allow civil cases in Maine’s electronic court records system to be kept from public eye for weeks or even months after they are filed. The companies that own the newspapers also are plaintiffs in the lawsuit.
Less than three weeks after the complaint was filed, the courts changed direction. A spokeswoman for the Maine Judicial Branch announced that new civil cases would be accessible online after they have been processed by the clerks.
The state then filed a motion to dismiss the lawsuit, saying the issue had been addressed. That motion says any delay between filing and access should be “no more than four business hours except in extraordinary circumstances,” although they cannot know for sure until the system has been fully implemented.
The plaintiffs rejected that argument in a motion for a preliminary injunction, saying the First Amendment should guarantee contemporaneous access to new filings. They also pointed to Georgia and California, which use the same system that Maine is implementing and created a no-cost “press review queue” so people can see electronic filings as soon as they come in.
Torresen heard oral arguments via Zoom on those motions Wednesday. She asked the attorneys about how new filings are processed, what harm might be caused based on the timing of access to those documents, and whether the federal court should weigh in on this issue at all.
Attorney Jeffrey Pyle, who argued on behalf of the Press Herald, the Kennebec Journal, the Morning Sentinel and the Sun Journal, said the delay for processing could prevent the public and the media from accessing a new filing until the next day or even over the weekend. He said 26 new complaints have been filed in the Bangor court since this rule took effect, and nearly a quarter were not available until the next business day.
“That impairs the First Amendment right to know what the courts are doing, to report on the news, to report on the news in a timely fashion when the news is fresh and it is most likely to command public attention,” Pyle said.
Deputy Attorney General Thomas Knowlton, who is representing state officials, said complaints should be processed by the clerks before they are accessible online because they could be rejected for administrative reasons, like not paying the correct filing fee. He compared those new complaints to unopened emails in the clerks’ office.
“The plaintiffs haven’t shown that there is a First Amendment right of access to the documents at the moment they are submitted to the clerk, but even if there was such a right, it is a right to timely and reasonably contemporaneous access, and providing those documents within no more that four business hours constitutes timely and contemporaneous access,” Knowlton said.
At the end of the hearing, Torresen said that she would issue an order as soon as possible but did not provide a specific time frame.
Maine is in a years-long effort to shift court records from paper files to digital ones. In November, Bangor courts became the first to start using the electronic system for filing and viewing cases. Only some civil and family cases are online right now, but eventually, most criminal and civil cases across the state will be.
The news organizations do not seek access to documents that are considered confidential by statute, such as records of mental health civil proceedings. The lawsuit would only affect records deemed to be public.
The plaintiffs filed their complaint in the U.S. District Court in Bangor. The named defendants are Ted Glessner, the state court administrator, and Peter Schleck, the clerk of the Penobscot County Superior Court.
Separate from the lawsuit, public access advocates also have raised concerns that the fees for viewing electronic documents in Maine’s new system provide a barrier to open access. Those fees – $2 for the first page and $1 for each subsequent page – are higher than most states that allow public access to court records online. Maine also agreed to share the profits from those fees with a private company, a clause not included in comparable contracts with other states.
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