Proposal for Access to Court Admin Information: 4

Our overview comments appeared here last week and our conclusions are posted separately below.  The following shows the actual language
of the rules, followed by any comments on meaning or effect. Any
links or italics in the text of the rules are inserted for explanatory
purposes and are not part of the rule.

(j) Public access disputes

 (1) Disputes under this rule with a superior court about access to budget and management information are subject to the process described in rule 10.803.

See that rule below. "Budget and management information" refers to the kind of mainly financial information that is already open to the public under Rule 10.802 because it is deemed relevant to courts' bargaining with employee organizations.

 (2) For all other disputes under this rule, any person may institute proceedings for injunctive or declarative relief or writ of mandate in any court of competent jurisdiction to enforce his or her right to inspect or to receive a copy of any judicial administrative record under this rule. 

 (3) Whenever it is made to appear by verified petition that a judicial administrative record is being improperly withheld from disclosure, the court with jurisdiction thereof will order the judicial branch entity to disclose the records or show cause why it should not do so. The court will decide the case after examining the record, in camera if appropriate, papers filed by the parties, and any oral argument and additional evidence as the court may allow.

 (4) If the court finds that the judicial branch entity’s decision to refuse disclosure is not justified under this rule, the court will order the judicial branch entity to make the record public. If the court finds that the judicial branch entity’s decision was justified, no disclosure will be compelled and the court will issue an order supporting the decision.

 (5) An order of the court, either directing disclosure or supporting the decision of the judicial branch entity refusing disclosure, is not a final judgment or order within the meaning of section 904.1 of the Code of  Civil Procedure from which an appeal may be taken, but will be immediately reviewable by petition to the appellate court for the issuance of an extraordinary writ. Upon entry of an order under this subdivision, a party must, in order to obtain review of the order, file a petition within 20 days after service on him or her of a written notice of entry of the order or within such further time not exceeding an additional 20 days as the court may for good cause allow. If the notice is served by mail, the period within which to file the petition will be increased by 5 days. A stay of an order or judgment will not be granted unless the petitioning party demonstrates it will otherwise sustain irreparable damage and probable success on the merits. Any person who fails to obey the order of the court will be cited to show cause why he or she is not in contempt of court. 

(6) The court will award court costs and reasonable attorney fees to the plaintiff should the plaintiff prevail in litigation filed under this subdivision. The costs and fees will be paid by the judicial branch entity and will not become a personal liability of any individual. If the court finds that the plaintiff’s case is clearly frivolous, it will award court costs and reasonable attorney fees to the judicial branch entity. 

All these provisions are virtually verbatim borrowings from the enforcement provisions of the California Public Records Act, applicable to non-judicial government records, in the following Government Code Sections:

6258. Any person may institute proceedings for injunctive or declarative relief or writ of mandate in any court of competent jurisdiction to enforce his or her right to inspect or to receive a copy of any public record or class of public records under this chapter. The times for responsive pleadings and for hearings in these proceedings shall be set by the judge of the court with the object of securing a decision as to these matters at the earliest possible time.

6259. (a) Whenever it is made to appear by verified petition to the superior court of the county where the records or some part thereof are situated that certain public records are being improperly withheld from a member of the public, the court shall order the officer or person charged with withholding the records to disclose the public record or show cause why he or she should not do so. The court shall decide the case after examining the record in camera, if permitted by subdivision (b) of Section 915 of the Evidence Code, papers filed by the parties and any oral argument and additional evidence as the court may allow.

(b) If the court finds that the public official's decision to refuse disclosure is not justified under Section 6254 or 6255, he or she shall order the public official to make the record public. If the judge determines that the public official was justified in refusing to make the record public, he or she shall return the item to the public official without disclosing its content with an order supporting the decision refusing disclosure.

(c) In an action filed on or after January 1, 1991, an order of the court, either directing disclosure by a public official or supporting the decision of the public official refusing disclosure, is not a final judgment or order within the meaning of Section 904.1 of the Code of Civil Procedure from which an appeal may be taken, but shall be immediately reviewable by petition to the appellate court for the issuance of an extraordinary writ. Upon entry of any order pursuant to this section, a party shall, in order to obtain review of the order, file a petition within 20 days after service upon him or her of a written notice of entry of the order, or within such further time not exceeding an additional 20 days as the trial court may for good cause allow. If the notice is served by mail, the period within which to file the petition shall be increased by five days. A stay of an order or judgment shall not be granted unless the petitioning party demonstrates it will otherwise sustain irreparable damage and probable success on the merits. Any person who fails to obey the order of the court shall be cited to show cause why he or she is not in contempt of court.

(d) The court shall award
court costs and reasonable attorney fees to the plaintiff should the plaintiff prevail in litigation filed pursuant to this section. The costs and fees shall be paid by the public agency of which the public official is a member or employee and shall not become a personal liability of the public official. If the court finds that the plaintiff's case is clearly frivolous, it shall award court costs and reasonable attorney fees to the public agency.

Procedurally speaking, accordingly, it should be no more difficult, time-consuming or costly to sue for access to withheld judicial administrative records than to do so for any other state or local records under the California Public Records Act.

Rule 10.501.  Maintenance of budget and management information

(a) Maintenance of information by the superior court 
Each superior court must maintain for a period of three years from the close of the fiscal year to which the following relate: 
 (1) Official documents of the superior court pertaining to the approved superior court budget allocation adopted by the Judicial Council and actual final year-end superior court revenue and expenditure reports as required in budget procedures issued by the Administrative Office of  the Courts to be maintained or reported to the council, including budget allocation, revenue, and expenditure reports; 
 (2) Records or other factual management information on matters that are within the scope of representation as defined in Government Code section 71634 unless distribution is otherwise precluded by law; and 
 (3) Records or other factual management information on other matters referred to in Government Code section 71634 unless distribution is otherwise precluded by law.

 (b) Maintenance of information by the Administrative Office of the Courts 
The Administrative Office of the Courts must maintain for a period of three years from the close of the fiscal year to which the following relate: 
 (1) Official approved budget allocations for each superior court; 
 (2) Actual final year-end superior court revenue and expenditure reports required by budget procedures issued by the Administrative Office of the Courts to be maintained or reported to the council that are received from the courts, including budget revenues and expenditures for each superior court; 
 (3) Budget priorities as adopted by the council; and
 (4) Documents concerning superior court budgets considered or adopted by the council at council business meetings on court budgets. 

These provisions are already in place under an existing rule that has been renumbered as 10.501. By contrast, neither the California Public Records Act nor any other general statute applicable to executive branch or local government records contains a retention schedule applicable to all agencies.  But one hedge against deliberate destruction of court administrative or CPRA-covered records is found in the following Government Code Sections:

6200. Every officer having the custody of any record, map, or book, or of any paper or proceeding of any court, filed or deposited in any public office, or placed in his or her hands for any purpose, is punishable by imprisonment in the state prison for two, three, or four years if, as to the whole or any part of the record, map, book, paper, or proceeding, the officer willfully does or permits any other person to do any of the following:
(a) Steal, remove, or secrete.
(b) Destroy, mutilate, or deface.
(c) Alter or falsify.

6201. Every person not an officer referred to in Section 6200, who is guilty of any of the acts specified in that section, is punishable by imprisonment in the state prison, or in a county jail not exceeding one year, or by a fine not exceeding one thousand dollars ($1,000), or by both such fine and imprisonment.

Rule 10.803.  Information access disputes—writ petitions (Gov. Code,  § 71675)
 
(a) Availability 
This rule applies to petitions filed under rule 10.500(j)(1) and Government Code section 71675(b). 

 (b) Assignment of Court of Appeal justice to hear the petition 
 (1) The petition must state the following on the first page, below the case number, in the statement of the character of the proceeding (see rule  2.111(6)): 
 
“Writ petition filed under rule 10.500(j)(1) and Government Code section 71675-
—Assignment of Court of Appeal justice required.” 

(2) When the petition is filed, the clerk of the court must immediately request of the Judicial Assignments Unit of the Administrative Office of the Courts Chief Justice the assignment of a hearing judge from the panel established under (e).   (3) If an assignment is made, the judge assigned to hear the petition in the  superior court must be a justice from a Court of Appeal for a district  other than the district for that superior court. 

(c) Superior court hearing 
 (1) The superior court must hear and decide the petition on an expedited basis and must give the petition priority over other matters to the extent permitted by law and the rules of court. 
 (2) The petition must be heard by a judge assigned by the Chief Justice from the panel of hearing judges established under (e). 
 
(d) Appeal 
An appeal of the superior court decision must be heard and decided on an  expedited basis in the Court of Appeal for the district in which the petition  was heard and must be given priority over other matters to the extent  permitted by law and the rules of court. The notice of appeal must state the  following on the first page, below the case number, in the statement of the  character of the proceeding (see rule 2.111(6)): 

 “Notice of Appeal on Writ Petition filed under rule 10.500(j)(1) and  Government Code section 71675-
—Expedited Processing Requested.” 

(e) Panel of hearing judges 
The panel of judges who may hear the petitions in the superior court must consist of Court of Appeal justices selected by the Chief Justice as follows: 
 (1) The panel must include at least one justice from each district of the Court of Appeal. 
 (2) Each justice assigned to hear a petition under (c)(2) must have received training on hearing the petitions as specified by the Chief Justice.

Rule 10.803, already in existence, is amended to apply to lawsuits seeking either "budget and management information" or any other administrative records sought under the proposed rules. Rule 10.803 addresses one of the first questions that will occur to most observers of the new access rules: How do you sue the court system for its own records?  The answer is: Have the case heard by judges with as little personal stake as possible in the outcome.  For example, when the Sacramento Valley Mirror in the north Sacramento Valley sued the local superior court earlier this year for documentation of the remodeling costs of a judge's chambers—a good example of how the new rules might be used, but actually brought under the current, more limited rules—a justice of the Fifth District Court of Appeal heard the case, sitting as a trial judge, and ruled in the newspaper's favor.