Courthouse News Service v. Michael Planet

Filing 71

RESPONSE filed by Defendant Michael Planetto Request for Judicial Notice #67 (Naeve, Robert)

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Robert A. Naeve (State Bar No. 106095)
Erica L. Reilley (State Bar No. 211615)
Nathaniel P. Garrett (State Bar No. 248211)
[e-mail]
JONES DAY
3161 Michelson Drive, Suite 800
Irvine, CA 92612.4408
Telephone: [phone]
Facsimile: +1.949.553.7539
Attorneys for Defendant
MICHAEL PLANET

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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COURTHOUSE NEWS SERVICE,

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Plaintiff,
v.
MICHAEL PLANET, in his official
capacity as court executive
officer/clerk of the Ventura County
Superior Court,
Defendant.

Case No. CV-11-08083-R(MANx)
Assigned for all purposes to
Hon. Manuel L. Real
DEFENDANT’S RESPONSE TO
PLAINTIFF’S REQUEST FOR
JUDICIAL NOTICE
Date:
Time:
Judge:

August 18, 2014
10:00 a.m.
Hon. Manuel L. Real

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VSC agrees that this Court can (and should) take judicial notice of the

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statutes and rules cited in CNS’s Request to Take Judicial Notice, ECF No. 67

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(“RJN”). See generally, Lamar v. Micou, 114 U.S. 218, 223 (1885) (“The law of

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any State of the Union, whether depending upon statutes or upon judicial opinions,

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is a matter of which the courts of the United States are bound to take judicial notice,

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without plea or proof”).

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However, VSC respectfully submits that this Court should not take judicial

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notice of the erroneous legal conclusions CNS makes regarding these authorities.

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As established in the chart appended as Exhibit “A” to this Response, the
Defendant’s Response To Plaintiff’s RJN

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authorities upon which CNS relies establish the total absence of a history or
experience of same-day access for a number of related reasons:
(1)

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recognizes or even mentions a purported right of access to new

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complaints before they are processed, secured, and filed for public

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None of the authorities upon which CNS relies establishes,

viewing (“same day access”).
(2)

Virtually all of the authorities upon which CNS relies recognize

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only a right of “reasonable access” to state court files. For

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example, Ohio provides that the court clerk need only “respond to

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[a public record] request within a reasonable amount of time.”

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Ohio Rules of Superintendence, Rule 45(b). Similarly, Rhode

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Island only requires access to be provided “at such reasonable time

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as may be determined by the custodian thereof.” R.I. Gen. Laws §

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38-2-3(a).
(3)

Most of the authorities upon which CNS relies recognize that
requests for court records may be delayed or denied if, as is the rule

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in Arizona, they “create an undue burden on court operations” or

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“substantially interfere with the “functions of the court.” Ariz. Sup.

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Ct. R. 12. Virginia law also provides that “[a] public agency may

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make reasonable rules to prevent disruption of operations, to
preserve the security of public records or documents, and to protect

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them from damage.” 1 Va. Code § 316(j); see also id. § 17.1-208

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(prohibiting the inspection of public records in a manner that “will,

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in the determination of the clerk, interfere with the business of the
office or by its reasonable use by the general public.”).

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Defendant’s Response To Plaintiff’s RJN

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(4)

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Most of the authorities upon which CNS relies establish some type
of reasonable time and manner restrictions upon access. Texas, for

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example, permits a response to a request for court records to be

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made “[a]s soon as practicable -- and not more than 14 days” after

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the request. Tex. R. Judicial Admin., Rule 12.1. New York, too,

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mandates only that a records access officer respond “within five

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business days of the receipt of a request for access to a record.”

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N.Y. Ct. R. § 124.6.

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In sum, it is no understatement to say that the First Amendment access right CNS

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seeks to establish in this case would invalidate the court document access laws in

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virtually all of the 50 states.

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Moreover, CNS’ RJN omits a number of states from its survey. So that the

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Court may have a complete and accurate survey of the states’ public access laws,

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the chart appended as Exhibit B to this Response contains a brief summary of those

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states CNS chose not to discuss for an obvious reason: these states’ public access

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laws do not support CNS’ position.

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Dated:

August 4, 2014

JONES DAY

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By: /s/
Robert A. Naeve
Attorneys for Defendant
MICHAEL PLANET

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Defendant’s Response To Plaintiff’s RJN

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EXHIBIT “A”

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CNS’s RJN Argument as to Each
State

VSC’s Response to Plaintiff’s RJN
Argument

Alabama Code § 36-12-40: “Every
citizen has a right to inspect and
take a copy of any public writing of
this state, except as otherwise
expressly provided by statute.”
(ECF No. 67 Ex. 1.)

1.
The cited law does not recognize or
create a right of same-day access to civil
complaints.

Alaska Administrative Rule 37.5:
Provides for public access to court
records in a manner that, among
other things, “maximizes
accessibility to court records” and
defines “court record” to include
“any document ... collected,
received, or maintained by the court
system in connection with a
particular case.” Admin. R.
37.5(a)(1)(A) & (c)(1) & (2). (ECF
No. 67 Ex. 2.)

1.
The cited rule does not recognize or
create a right of same-day access to civil
complaints.

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2.
In Alabama, custodians of public
writings are not required to permit
examination of writings where to do so
would “unduly interfere or hinder the
discharge of the duties of such officer.”
Holcombe v. State ex rel. Chandler, 240
Ala. 590, 597 (1941).

2.
Instead, Alaska court administrators
need only “ensure that all members of the
public upon request will be given
reasonable access and opportunity to
inspect such public records . . . .” Alaska R.
Admin. 37.5(f). The Alaska Guidelines for
Inspecting and Obtaining Copies of Public
Records define what is reasonable: “[A]
case file must be made available for
inspection to a member of the general public
within one working day after the request is
made.” Alaska Court System Office Of The
Administrative Director, Guideline for
Inspecting and Obtaining Copies of Public
Records V(B)(1). However, “[i]f a case file
is checked out of the clerk’s office, is being
processed by the clerk's office, or cannot be
located,” the clerk’s office must respond
“no later than five working days after the
request is made,” and must indicate
“whether the records are accessible to the
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Defendant’s Response To Plaintiff’s RJN

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CNS’s RJN Argument as to Each
State

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public, and if so, when and where inspection
may take place or copies may be obtained.”
Id. Guidelines V(B)(1), V(C) & V(D). See
Def.’s Req. for Judicial Notice (“Def.’s
RJN”), Ex. 1 (Alaska Court System Office
Of The Administrative Director, Guidelines
for Inspecting and Obtaining Copies of
Public Records).

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VSC’s Response to Plaintiff’s RJN
Argument

Arizona Supreme Court Rule
123(c)(1): “Historically, this state
has always favored open
government and an informed
citizenry. In the tradition, the
records in all courts and
administrative offices of the Judicial
Department of the State of Arizona
are presumed to be open to any
member of the public for inspection
or to obtain copies at all times
during regular office hours at the
office having custody of the
records.” As further provided in
subsection (b)(16)(B), “case
records” are defined to include “any
record that is collected, received, or
maintained by a clerk of court in
connection with a judicial
proceeding,” and subsection (d)
provides that “[a]ll case records are
open to the public except as may be
closed by law, or as provided in this
rule.” (ECF No. 67 Ex. 3.)

1.
The cited rule does not recognize or
create a right of same-day access to civil
complaints.

Arkansas Supreme Court
Administrative Order 19: Court
records “will be available for public
access in the courthouse during
regular business hours established

1.
The cited law does not recognize or
create a right of same-day access to civil
complaints.

2.
Arizona Supreme Court Rule
123(f)(4) provides that requests for records
may be delayed or denied if they “create an
undue burden on court operations because
of the amount of equipment, materials, staff
time and other resources required to satisfy
the request,” or “substantially interfere with
the functions of the court,” among other
limitations on public access. Crucially, the
rule also requires that upon request for
inspection of records, the court custodian
must “provide the records in a reasonable
time” based on certain enumerated factors.
Id. Arizona’s rule therefore expressly does
not provide any same day right of access to
court records.

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2.
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Arkansas Supreme Court
Defendant’s Response To Plaintiff’s RJN

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CNS’s RJN Argument as to Each
State

VSC’s Response to Plaintiff’s RJN
Argument

by the court.” For purposes of the
Order, a “court record” is defined in
Section III(A)(1) to include “any
document... collected, received, or
maintained by a court, court agency
or clerk of court in connection with
a judicial proceeding.” (ECF No.
67 Ex. 4.)

Administrative Order 19, § IX(A) requires a
response to requests for access to records
only “within a reasonable period of time.”
Moreover, the commentary to the rule states
it “is not the intent of the order” to impose
the “additional access” or to require
electronic access to public records after the
court’s regular hours. The rule does not
guarantee same day access to court records.

California Rule of Court 2.550(c):
“Unless confidentiality is required
by law, court records are presumed
to be open.” Under subsection
(b)(1) of the rule, “record” is
defined as “all or a portion of any
document, paper, exhibit, transcript,
or other thing filed or lodged with
the court,” and “lodged” is defined
as “a record that is temporarily
placed or deposited with the court,
but not filed.” (ECF No. 67 Ex. 5.)

1.
The cited law does not recognize or
create a right of same-day access to civil
complaints.

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3.
CNS also fails to cite California Rule
of Court 2.250(B)(7), which confirms that
documents are not “officially filed” until
they have been processed and reviewed, and
entered into a court’s records. See Def.’s
RJN, Ex. 4.

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2.
CNS fails to cite California
Government Code § 68150(l) and California
Rule of Court 2.500(a), which require that
court records be made “reasonably
accessible.” See Def.’s RJN, Exs. 2, 3.
California recognizes that the right to
inspect public records may be denied “when
necessary to prevent interference” with the
operations of the relevant public office.
Bruce v. Gregory, 65 Cal. 2d 666, 677
(1967).

Colorado Chief Justice Directive
05-01 & Public Access to Court
Records Policy §§3.10, 4.10(a)(1):
Defines a “court record” to include
“any document... collected,
received, or maintained by a court

1.
The cited law does not recognize or
create a right of same-day access to civil
complaints.
2.
The stated “purpose” of the Colorado
Chief Justice Directive 05-01 is “to provide
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Defendant’s Response To Plaintiff’s RJN

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CNS’s RJN Argument as to Each
State

VSC’s Response to Plaintiff’s RJN
Argument

or clerk of court in connection with
a judicial proceeding” and provides
that, with certain enumerated
exceptions, “[i]nformation in the
court record is accessible to the
public.” (ECF No. 67 Ex. 6.)

reasonable access to court records while
simultaneously ensuring confidentiality in
accordance within existing laws, policies
and procedures.” (ECF No. 67 Ex. 6.) In
fact, the Colorado Supreme Court has noted
“access to court-maintained files involves a
fragile balance between the interests of the
public and the protection of individuals who
are parties to cases in court.” Gleason v.
Judicial Watch, Inc., 292 P.3d 1044, 1049
(2012).

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3.
CNS fails to cite section 24-72-303 of
the Colorado Criminal Justice Records Act,
which permits the custodian of records
“three working days” to make a record
“available for inspection” if it is “is in active
use or in storage[.]” Colo. Rev. Stat. § 2472-303. See Def.’s RJN, Ex. 5.

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Connecticut Civil Superior Court
Rule § 11-20A(a): “Except as
otherwise provided by law, there
shall be a presumption that
documents filed with the court shall
be available to the public.” (ECF
No. 67 Ex. 7.)

1.
The cited law does not recognize or
create a right of same-day access to civil
complaints.

Florida Constitution, art. I, § 24:
“[E]very person” has a
constitutional right of access to

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The cited laws do not recognize or
create a right of same-day access to civil

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2.
Connecticut has embraced the
common law principle that the right to
public access to any court document “never
has been absolute, nor has it extended to
all documents filed with the court. The
public does not have a presumption of
access to documents that do not bear
directly on the courts’ adjudicatory
functions.” Rosado v. Bridgeport Roman
Catholic Diocesan Corp., 292 Conn. 1, 45
(2009).

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Defendant’s Response To Plaintiff’s RJN

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CNS’s RJN Argument as to Each
State

public records, “specifically
complaints.
includ[ing] the legislative,
2.
CNS fails to cite Florida Rule of
executive, and judicial branches of
government...” (ECF No. 67 Ex. 8.) Judicial Administration 2.420(m), which
provides that responses to requests for court
Florida Rule of Judicial
records “shall be made in a reasonable
Administration 2.420(a): The
manner.” See Def.’s RJN, Ex. 7.
“public shall have access to all
3.
The Florida Supreme Court has held
records of the judicial branch of
government,” except as provided in that “the press has no constitutional, first
amendment, right of access to the taking of
certain enumerated exceptions.
pretrial depositions in a criminal case and
(ECF No. 67 Ex. 9.)
the right of access to depositions did not
accrue until they were filed with the clerk
of the court.” Palm Beach Newspapers, Inc.
v. Burk, 504 So. 2d 378, 379 (Fla. 1987).
Georgia Uniform Superior Court
Rule 21: “All court records are
public and are to be available for
public inspection unless public
access is limited by law or by the
procedure set forth below.” (ECF
No. 67 Ex. 10.)

1.
The cited law does not recognize or
create a right of same-day access to civil
complaints.

Idaho Court Administrative Rule
32(d): “[P]leadings” are among the
court records “subject to
examination, inspection and
copying.” (ECF No. 67 Ex.11.)

1.
The cited law does not recognize or
create a right of same-day access to civil
complaints.

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VSC’s Response to Plaintiff’s RJN
Argument

2.
No Georgia court rule speaks to the
timing of public access to court documents
in any fashion, let alone require same day
access. In fact, Georgia’s Open Records
Act provides: “Agencies shall produce for
inspection all records responsive to a request
within a reasonable amount of time not to
exceed three business days of receipt of a
request.” Ga. Code § 50-18-71. See Def.’s
RJN, Ex. 8.

2.
Idaho Court Administrative Rule
32(a)(11) states that public access to court
records will only be provided in a manner
that “[a]voids unduly burdening the
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Defendant’s Response To Plaintiff’s RJN

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CNS’s RJN Argument as to Each
State

ongoing business of the judiciary.” (ECF
No. 67 Ex.11.) Moreover, Rule 32(f)
permits a ten day period for responses to
requests for access to certain compiled
public records. Id. That certain records
may be subject to at least a ten day delay
indicates Idaho embraces no policy of
providing same day access to public records.

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VSC’s Response to Plaintiff’s RJN
Argument

Illinois Compiled Statute 705 ILCS
105/16(6): “All records, dockets
and books required by law to be
kept by [clerks of court] shall be
deemed public records, and shall at
all times be open to inspection
without fee or reward, and all
persons shall have free access for
inspection and examination to such
records, dockets and books, and also
to all papers on file in different
clerks’ offices and shall have the
right to take memoranda and
abstracts thereto.” (ECF No. 67 Ex.
12.)

1.
The cited law does not recognize or
create a right of same-day access to civil
complaints.

Indiana Administrative Rule 9(A):
“[G]overns public access to ... court
records” and is intended to
“[p]romote accessibility to court
records.” “Court records” are
defined in subsection (C)(1) & (2)
to include “any document...
collected, received, or maintained
by a court, court agency or clerk of
court in connection with a particular
case.” (ECF No. 67 Ex. 13.)

1.
The cited law does not recognize or
create a right of same-day access to civil
complaints.

2.
This statute does not mandate access
to judicial documents until they are part of
the court record. See People v. Pelo, 384
Ill. App. 3d 776, 781 (2008) (right of access
does not attach to “unedited [criminal]
evidence deposition” because it “has not
been submitted into evidence and has not
been played in open court.”).

2.
Indiana Administrative Rule
9(A)(2)(k) provides that the rule seeks
to“[a]void unduly burdening the ongoing
business of the judiciary.” Commentary to
the rule also provides that public access
rights should “[t]ak[e] into account public
policy interests that are not always fully
compatible with unrestricted access.”

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Defendant’s Response To Plaintiff’s RJN

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CNS’s RJN Argument as to Each
State

VSC’s Response to Plaintiff’s RJN
Argument

Louisiana Constitution, art. 12, § 3:
“No person shall be denied the right
to observe the deliberations of
public bodies and examine public
documents, except in cases
established by law.” (ECF No. 67
Ex. 14.)

1.
The cited law does not recognize or
create a right of same-day access to civil
complaints.

Michigan Court Rule 8.119(H)(1):
“Unless access to a case record or
information contained in a record is
restricted by statute, court rule, or
an order entered pursuant to subrule
(I), any person may inspect that
record and may obtain copies ...”
Subsection (A) states the rule
“applies to all records in every trial
court,” and “records” is defined in
subsection (D)(1)(d) to include “all
pleadings ... filed in the action.”
(ECF No. 67 Ex. 16.)

1.
The cited law does not recognize or
create a right of same-day access to civil
complaints.

2.
CNS fails to cite Louisiana’s Public
Records Act, La. Rev. Stat. §§ 44:33, which
expressly states that if the public record
requested is not immediately available then
Louisiana Code of Civil Procedure the custodian has three business days within
Article 251(A): The clerk of the
which to provide it. See Def.’s RJN, Ex. 14.
court “shall permit any person to
“The purpose of the Public Records Act is to
examine, copy, photograph, or make keep the public reasonably informed, while
a memorandum of any of these
at the same time balancing the public’s right
[court] records at any time during
of access against the public interest of
which the clerk’s office is required protecting and preserving the public records
by law to be open.” (ECF No. 67
against unreasonable dangers of loss or
Ex. 15.)
damage, or acts detrimental to the integrity
of the public records.” Revere v. Canulette,
715 So. 2d 47, 53 (La. Ct. App. 1998).

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2.
Rule 8.119(H)(2) specifically
authorizes individual courts to “make
reasonable regulations necessary to protect
its public records and prevent excessive
and unreasonable interference with the
discharge of [the court’s] functions[.]”
3.
CNS fails to cite Michigan Trial
Court Case File Management Standards §
1.1.6, which sets forth detailed procedures
for providing public access to court records;
no mention is made of same-day access or
any other time restriction. See Def.’s RJN,
Ex. 18.
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Defendant’s Response To Plaintiff’s RJN

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CNS’s RJN Argument as to Each
State

VSC’s Response to Plaintiff’s RJN
Argument

Minnesota Rules of Public Access
to Records of the Judicial Branch
3(5) & 4: Define “case records” to
include “all records of a particular
case or controversy” and further
provide that “[a]ll case records are
accessible to the public” except for
records falling into certain
enumerated categories. (ECF No.
67 Ex. 17.)

1.
The cited law does not recognize or
create a right of same-day access to civil
complaints.

Missouri Supreme Court Operating
Rule 2.02 & 2.03(c): “Records of
all courts are presumed to be open
to any member of the public for
purposes of inspection or copying
during the regular business hours of
the court having custody of the
records”; “case records” include “all
records relating to a specific case or
controversy.” (ECF No. 67 Ex. 18.)

1.
The cited law does not recognize or
create a right of same-day access to civil
complaints.

2.
CNS fails to cite Minnesota Rule of
Public Access to Records of the Judicial
Branch 7, which provides that the custodian
of records shall respond to requests for
records “as promptly as practical.” (ECF
No. 67 Ex. 17.)

2.
CNS fails to cite Missouri Supreme
Court Operating Rule 2.08, which provides
that the custodian of records must respond
to requests for records only “as promptly as
practical.” See Def.’s RJN, Ex. 20.

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Defendant’s Response To Plaintiff’s RJN

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CNS’s RJN Argument as to Each
State

VSC’s Response to Plaintiff’s RJN
Argument

Montana Constitution, art. 2, § 9:
“No person shall be deprived of the
right to examine documents or to
observe the deliberations of all
public bodies or agencies of state
government and its subdivisions,
except in cases in which the demand
of individual privacy clearly
exceeds the merits of public
disclosure.” (ECF No. 67 Ex. 19.)

1.
The cited law does not recognize or
create a right of same-day access to civil
complaints.

Montana Code Ann. §§ 2-6101(2)(a), 2-6-102(1): “Every
citizen has a right to inspect and
take a copy of any public writings
of this state”; “public writings”
covered by the code include
“judicial” records. (ECF No. 67 Ex.
20.)
Nebraska Rule of Court § 1-804:
“Information in a court record is
accessible to the public unless
prohibited by this policy or
applicable laws.” (ECF No. 67 Ex.
21.)

2.
CNS cites Cox v. Lee Enters., 723
P.2d 238, 240 (Mont. 1986), for the
proposition that a complaint is a public
document covered by the cited provisions.
But nothing in either Montana’s Code or
Constitution sets forth the timing of public
access rights, let alone mandates any sameday access right policy.

1.
The cited law does not recognize or
create a right of same-day access to civil
complaints.
2.
CNS fails to cite Nebraska’s Public
Records Act, which provides the custodian
of records four business days to respond to
records requests. Neb. Rev. Stat. § 84-712.
See Def.’s RJN, Ex. 23.
3.
CNS also fails to cite Nebraska Rule
of Court 1-809(C), which expressly permits
the Court to respond to a “request for access
to information” not on the same day as the
request but instead merely “within a
reasonable time.” See Def.’s RJN, Ex. 24.

Nevada State Supreme Court Rules, 1.
The cited law does not recognize or
Part 7, Rules 1(3) & 2(2)(a): “All
create a right of same-day access to civil
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Defendant’s Response To Plaintiff’s RJN

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CNS’s RJN Argument as to Each
State

VSC’s Response to Plaintiff’s RJN
Argument

court records in civil actions are
available to the public, except as
otherwise provided in these rules or
by statute”; “court record” includes
“[a]ny document, information,
exhibit, or other thing that is
maintained by a court in connection
with a judicial proceeding.” (ECF
No. 67 Ex. 22.)

complaints.

New Hampshire Constitution, pt. 1,
art. 8: “Government ... should be
open, accessible, accountable and
responsive. To that end, the public’s
right of access to governmental
proceedings and records shall not be
unreasonably restricted.” (ECF No.
67 Ex. 23.)

1.
The cited law does not recognize or
create a right of same-day access to civil
complaints.

New Jersey Court Rules 1:38-1 &
1:38-2: “Court records and
administrative records as defined by
R. 1:38-2 and R. 1:38-4 respectively
and within the custody and control
of the judiciary are open for public
inspection and copying except as
otherwise provided in this rule.

1.
The cited law does not recognize or
create a right of same-day access to civil
complaints.

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

2.
CNS cites Associated Press v. State,
888 A.2d 1236, 1245 (N.H. 2005), as
recognizing that the cited Constitutional
provision, together with a provision
providing for a free press, creates a public
right of access to court records. But CNS
does not cite any New Hampshire rule
addressing the timing of any public access
right to court records. In fact, the Report of
the New Hampshire Supreme Court Task
Force on Public Access to Court Records
has recommended the institution of a ten
day opportunity for “affected persons” to
request a limit on public access rights,
including with respect to “pleading[s].” See
Def.’s RJN, Ex. 25.

2.
New Jersey Court Rule 1:38-1
provides that “[c]ourt records and
administrative records are available only in
the form in which they are maintained or
- 13 -

Defendant’s Response To Plaintiff’s RJN

1
2
3
4
5
6

CNS’s RJN Argument as to Each
State

VSC’s Response to Plaintiff’s RJN
Argument

Exceptions enumerated in this rule
shall be narrowly construed in order
to implement the policy of open
access to records of the judiciary”;
“court records” include “pleadings.”
(ECF No. 67 Ex. 24.)

indexed by the Judiciary,” which implies the
records may be processed before any public
right of access adheres.

New Mexico State Court Rules 1079, 2-112, 3-112, 5-123, 6¬114, 7113, 8-112, 10-166 and 12-314:
Together provide for public access
to court records of the various state
courts in New Mexico. Each rule
provides that “[c]ourt records are
subject to public access unless
sealed by order of the court or
otherwise protected from disclosure
under the provisions of this rule.”
“Court records” are defined in each
rule to mean any “document,
paper,... or other material filed or
lodged with the court.” (ECF No.
67 Ex. 25.)

1.
The cited law does not recognize or
create a right of same-day access to civil
complaints.

New York Court Rule § 216.1(a)(b): “[A] court shall not enter an
order in any action or proceeding
sealing the court records, whether in
whole or in part, except upon a
written finding of good cause,
which shall specify the grounds
thereof”; “‘court records’ shall
include all documents and records
of any nature filed with the clerk in
connection with the action.” (ECF

1.
The cited law does not recognize or
create a right of same-day access to civil
complaints.

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

3.
New Jersey’s Open Public Records
Act provides only that a “custodian shall
promptly comply with a request to inspect,
examine, copy, or provide a copy of a
government record.” N.J. Stat. § 47:1A-5.
See Def.’s RJN, Ex. 22.

2.
Commentary to Rule 1-079 specifies
that it does not “address the manner in
which a court must provide public access to
court records.” (ECF No. 67 Ex. 25.)

2.
CNS fails to cite New York
Administrative Rules of the Unified Court
System, Rule 124.6, which provides that a
records access officer shall respond “within
five business days of the receipt of a request
for access to a record.” See Def.’s RJN, Ex.

- 14 -

Defendant’s Response To Plaintiff’s RJN

1
2

CNS’s RJN Argument as to Each
State

VSC’s Response to Plaintiff’s RJN
Argument

3

No. 67 Ex. 26.)

26.

4

North Carolina General Statute §
7A-109(a): Records maintained by
the clerk “shall be open to the
inspection of the public during
regular office hours, and shall
include civil actions, special
proceedings, estates, criminal
actions, juvenile actions, minutes of
the court, judgments, liens, lis
pendens, and all other records
required by law to be maintained.”
(ECF No. 67 Ex. 27.)

1.
The cited law does not recognize or
create a right of same-day access to civil
complaints.

Ohio Rule of Superintendence
45(a): “Court records are presumed
open to public access.” (ECF No.
67 Ex. 28.)

1.
The cited law does not recognize or
create a right of same-day access to civil
complaints.

Oklahoma Statute, Title 51 §§
24A.3(2) & 24A.5: “All records of
public bodies and public officials
shall be open to any person for
inspection, copying, or mechanical
reproduction during regular
business hours”; “[p]ublic bod[ies]”
includes “court[s].” (ECF No. 67
Ex. 29.)

1.
The cited law does not recognize or
create a right of same-day access to civil
complaints.

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

2.
CNS fails to cite North Carolina’s
Public Records Act, N.C. Gen. Stat. § 1326(a), which only requires custodians of
public records to permit documents to be
inspected “at reasonable times” and to
provide the documents “as promptly as
possible.” North Carolina has thus
expressly rejected any same day public
access right. See Def.’s RJN, Ex. 21.

2.
Far from guaranteeing any same day
access right, Ohio Rule of Superintendence
45(b) provides that the court clerk need only
“respond to [a public record] request within
a reasonable amount of time.”

2.
CNS fails to cite the Oklahoma
statute which provides, “A public body must
provide prompt, reasonable access to its
records but may establish reasonable
procedures which protect the integrity and
organization of its records and to prevent
excessive disruptions of its essential
functions.” Okla. Code, Title 51 § 24A.5(5)
(emphasis added). See Def.’s RJN, Ex. 28.

- 15 -

Defendant’s Response To Plaintiff’s RJN

1
2
3
4
5
6
7

CNS’s RJN Argument as to Each
State

VSC’s Response to Plaintiff’s RJN
Argument

Oregon Revised Statute §§
192.410(4)(a) & 192.420: “Every
person has a right to inspect any
public record of a public body in
this state;” “public record” includes
“court records.” (ECF No. 67 Ex.
30.)

1.
The cited law does not recognize or
create a right of same-day access to civil
complaints.

8
9

3.
CNS also failed to cite Or. Rev. Stat.
§ 192.440, which requires that a response to
a request for public records shall be made
“as soon as practicable and without
unreasonable delay.” See Def.’s RJN, Ex.
30.

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

2.
CNS fails to cite Or. Rev. Stat. §
192.430, which requires only “proper and
reasonable opportunities for inspection and
examination” of public records. See Def.’s
RJN, Ex. 29.

Rhode Island General Law §§ 382-2(1) & 38-2-3(a): “[A]ll records
maintained or kept on file by any
public body, whether or not those
records are required by any law or
by any rule or regulation, shall be
public records and every person or
entity shall have the right to inspect
and/or copy those records at such
reasonable time as may be
determined by the custodian
thereof”; “agency” or “public body”
“means any executive, legislative,
judicial, regulatory, or
administrative body of the state, or
any political subdivision thereof .”
(ECF No. 67 Ex. 31.)

1.
The cited law does not recognize or
create a right of same-day access to civil
complaints.

South Dakota Codified Laws §§
15-15A-1 & 15-15A-2: Provide for
public access to court records in
order to “[m]aximize[] accessibility

1.
The cited law does not recognize or
create a right of same-day access to civil
complaints.

2.
Rhode Island only requires access to
be provided “at such reasonable time as
may be determined by the custodian
thereof.” Moreover, subdivision (e)
expressly disclaims any same day public
access right because it provides the
custodian ten business days within which
inspection of records must be permitted.
R.I. Gen. Laws § 38-2-3. See Def.’s RJN,
Ex. 32.

- 16 -

Defendant’s Response To Plaintiff’s RJN

1
2
3
4

CNS’s RJN Argument as to Each
State

VSC’s Response to Plaintiff’s RJN
Argument

to court records.” (ECF No. 67 Ex.
32.)

2.
CNS fails to cite S.D. Codified Laws
§15-15A-14, which provides: “Upon
receiving a request for access to information
the court will respond within a reasonable
time regarding the availability of the
information and provide the information
within a reasonable time.” See Def.’s RJN,
Ex. 33.

Texas Rule of Civil Procedure
76a(1): “[C]ourt records are
presumed to be open to the general
public and may be sealed” only
under certain circumstances; “court
records” include “all documents of
any nature filed in connection with
any matter before any civil court,”
with certain enumerated exceptions.
(ECF No. 67 Ex. 33.)

1.
The cited law does not recognize or
create a right of same-day access to civil
complaints.

Vermont Rules for Public Access
to Court Records §§ 3(b) & 4:
“Except as provided in these rules,
all case and administrative records
of the Judicial Branch shall be open
to any member of the public for
inspection or to obtain cases”; “case
record” includes “any judicial
branch record pertaining to a
particular case or controversy.”
(ECF No. 67 Ex. 34.)

1.
The cited law does not recognize or
create a right of same-day access to civil
complaints.

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

2.
CNS fails to cite Texas Rule of
Judicial Administration 12.1, which
provides that responses to a request for court
records must be made “[a]s soon as
practicable -- and not more than 14 days”
after the request.” See Def.’s RJN, Ex. 36.

2.
CNS fails to cite Vermont Rule for
Public Access to Court Records 6(f), which
provides that “[t]he record custodian shall
act on a [court records] request promptly
within the time limits set” by statute. (ECF
No. 67 Ex. 34.) That statute, 23.
Vt.
Stat. tit. 1, § 318, requires the custodian to
“promptly produce” the requested record,
but also permits the custodian to delay
providing a record if it “is in active use or
in storage and therefore not available for
use at the time the person asks to examine
it.” See Def.’s RJN, Ex. 39.
3.
- 17 -

Another Vermont statute, Vt. Stat. tit.
Defendant’s Response To Plaintiff’s RJN

1
2

CNS’s RJN Argument as to Each
State

1, § 316(j) states that “[a] public agency
may make reasonable rules to prevent
disruption of operations, to preserve the
security of public records or documents,
and to protect them from damage.” See
Def.’s RJN, Ex. 38.

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

VSC’s Response to Plaintiff’s RJN
Argument

Virginia Code § 17.1-208: “Except
as otherwise provided by law, any
records that are maintained by the
clerk of the circuit court shall be
open to inspection by any person
and the clerk shall, when requested,
furnish copies thereof subject to any
fee charged by the clerk pursuant to
§ 17.1-275, except in cases in which
it is otherwise specially provided by
statute.” (ECF No. 67 Ex. 35.)

1.
The cited law does not recognize or
create a right of same-day access to civil
complaints.

Washington Revised Code,
General Rule 31(c)(4), (d)(1): The
“public shall have access to all court
records, except as restricted by
federal law, state law, court rule,
court order, or case law”; “court
record” includes “[a]ny document...
or other thing that is maintained by
a court in connection with a judicial
proceeding.” (ECF No. 67 Ex. 36.)

1.
The cited law does not recognize or
create a right of same-day access to civil
complaints.

West Virginia Code § 51-4-2:
“The records and papers of every
court shall be open to the inspection
of any person, and the clerk shall,
when required, furnish copies
thereof, except in cases where it is
otherwise specially provided.”
(ECF No. 67 Ex. 37.)

1.
The cited law does not recognize or
create a right of same-day access to civil
complaints.

2.
CNS fails to quote to that portion of
Va. Code § 17.1-208 which prohibits the
inspection of public records in a manner that
“will, in the determination of the clerk,
interfere with the business of the office or
by its reasonable use by the general
public.” (ECF No. 67 Ex. 35.)

2.
CNS fails to cite Wash. Rev. Code,
General Rule 31(a), which states that
“[a]ccess to court records is not absolute and
shall . . . not unduly burden the business of
the courts.” See Def.’s RJN, Ex. 41.

2.
CNS fails to cite W. Va. Code § 29B1-3(3), which permits the custodian of
records to “make reasonable rules and
regulations necessary for the protection of
the records and to prevent interference
- 18 -

Defendant’s Response To Plaintiff’s RJN

1
2

CNS’s RJN Argument as to Each
State

3

with the regular discharge of his or her
duties.” See Def.’s RJN, Ex. 40.

4

3.
CNS also fails to cite W. Va. Code §
29B-1-3(4), which gives records custodians
five business days to furnish copies of
public records. See id.

5
6
7
8
9
10
11

Wisconsin Statutes 19.32(1) &
19.35: Provide for access to public
records, including the records of
“any court of law.” (ECF No. 67
Ex. 38.)

12
13
14

16
17
18
19
20
21
22
23
24
25
26

28

1.
The cited law does not recognize or
create a right of same-day access to civil
complaints.
2.
CNS fails to Wis. Stat. § 19.35(4)(a),
which only requires responses to requests
for records to be made “as soon as
practicable and without delay[.]” See
Def.’s RJN, Ex. 42.
3.
Wisconsin’s Attorney General has
opined that the state’s “public records law
does not require response within any
specific time, such as ‘two weeks’ or ‘48
hours. . . . . What constitutes a reasonable
time for a response to any specific request
depends on the nature of the request, the
staff and other resources available to the
authority to process the request, the extent
of the request, and related considerations.
Whether an authority is acting with
reasonable diligence in responding to a
particular request will depend on the totality
of circumstances surrounding that request.
[Citation.].” See Def.’s RJN, Ex. 43
(Wisconsin Department of Justice,
Compliance Outline: Wis. Stat. §§ 19.3119.39, Sept. 2012).

15

27

VSC’s Response to Plaintiff’s RJN
Argument

Wyoming Rules Governing Access
to Court Records 2(c) & 3: “Court

1.
The cited law does not recognize or
create a right of same-day access to civil
- 19 -

Defendant’s Response To Plaintiff’s RJN

1
2
3
4
5
6
7
8
9
10
11
12

CNS’s RJN Argument as to Each
State

VSC’s Response to Plaintiff’s RJN
Argument

records are presumed to be open to
public access during the regular
business hours of the court, except
as provided herein or otherwise
provided by law”; “court records”
include “any document or
information collected, received, or
maintained by a custodian in
connection with a specific case or
judicial proceeding.” (ECF No. 67
Ex. 39.)

complaints.
2.
CNS fails to cite Rule 4 of the
Wyoming Rules Governing Access to Court
Records, which provides that, “[u]pon
receiving a request for access to court
records, the custodian shall respond within a
reasonable time regarding the availability of
the records, and shall provide or deny access
thereto within a reasonable time. Court
records shall be provided at a time and in a
manner that does not unreasonably
interfere with other business of the courts.”
See Def.’s RJN, Ex. 44.

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 20 -

Defendant’s Response To Plaintiff’s RJN

1

EXHIBIT “B”

2
3

CNS also fails to cite the court rules of a number of other states that similarly

4

fail to establish, recognize or even mention a purported right of same-day access.

5

So that the Court may have a complete and accurate survey of the states’ public

6

access laws, the following chart contains brief summary of those states CNS chose

7

not to discuss for an obvious reason: these states’ public access laws do not support

8

CNS’ position.

9
10
11

State

Relevant Statute or Rule Regarding the Timing of
Public Access to Court Records

Delaware

1.
Delaware does not recognize or create a right
of same-day access to civil complaints.

12
13

2.
Delaware Chancery Court Rule 5.1 provides
that court records “shall be available for public
access” without placing any timing requirements
upon the custodians of those records. See Def.’s
RJN, Ex. 5.

14
15
16
17

Hawaii

18

2.
Hawaii Court Records Rules, Rule 10.4
requires that the Clerk shall make public records
available “within a reasonable time, subject to the
court’s . . . priority use of the record,” and only
requires notice to the Requester if the record not been
provided within ten business days. See Def.’s RJN,
Ex. 9.

19
20
21
22
23
24
25
26
27
28

1.
Hawaii does not recognize or create a right of
same-day access to civil complaints.

Iowa

1.
Iowa does not recognize or create a right of
same-day access to civil complaints.
2.
Chapter 22 of the Iowa Code addresses public
access to court records, and does not set forth any
timing requirements, let alone same day access to
civil complaints. See Def.’s RJN, Exs. 10, 11 (Iowa

- 21 -

Defendant’s Response To Plaintiff’s RJN

1

State

2

Code §§ 22.2, 22.4).

3
4

Kansas

5

7
8
9
Kentucky

11
12

14
Maine

16
17

1.
Maine does not recognize or create a right of
same-day access to civil complaints.
2.
Maine Administrative Order JB-0520(III)(A)(1), effective July 1, 2014, sets forth a
specific timetable for those seeking “records related
to cases”:

18
19
20

1-5 names within 5 working days
6-10 names within 30 working days
11-15 names within 45 working days
16-20 names within 60 working days
21+ names to be determined by the Clerk
and/or Senior Service Center Associate

21
22
23
24

See Def.’s RJN, Ex. 15. No same day access right is
provided, as even for one record the rule permits a
five business day response time.

25
26
27

1.
Kentucky does not recognize or create a right
of same-day access to civil complaints.
2.
Kentucky’s Open Records Act permits a three
day window within which a custodian may provide a
public record if the document is “in active use.” Ky.
Stat. § 61.872. See Def.’s RJN, Ex. 13.

13

15

1.
Kansas does not recognize or create a right of
same-day access to civil complaints.
2.
Kansas Stat. § 45-218(d) expressly disclaims
any same day access rights, and provides instead that
“[e]ach request for access to a public record shall be
acted upon as soon as possible, but not later than
the end of the third business day following the date
that the request is received.” See Def.’s RJN, Ex.
12.

6

10

Relevant Statute or Rule Regarding the Timing of
Public Access to Court Records

Maryland

1.
Maryland does not recognize or create a right
of same-day access to civil complaints.

28
- 22 -

Defendant’s Response To Plaintiff’s RJN

1

State

2

2.
Maryland Rule of Procedure 16-1002(b)(i)
provides that the records open to inspection include
only those that have “been docketed or recorded and
indexed.”

3
4
5

See Def.’s RJN, Ex. 16.

6
7

Massachusetts

8

10
11
12
13
14
15
Mississippi

17

19
20
21
22

24
25
26
27

1.
Mississippi does not recognize or create a right
of same-day access to civil complaints.
2.
Mississippi’s Public Access Law, Miss. Code
§ 25-61-5, which applies to court records, provides
that access to documents must only be provided “in
accordance with reasonable written procedures
adopted by the public body concerning the cost,
time, place and method of access[.]” See Def.’s
RJN, Ex. 19.

18

23

1.
Massachusetts does not recognize or create a
right of same-day access to civil complaints.
2.
Massachusetts has announced that “[t]he
public’s presumptive right of access is subject to
reasonable limitations as to time and place that
clerk-magistrates may impose to avoid disrupting the
orderly functioning of their offices or courtroom
proceedings, to protect the physical security of court
records, and to guarantee equal access to all
inquirers.” Massachusetts District Court Department
of the Trial Court, A Guide to Public Access, Sealing
& Expungement, § I(1)(6) (emphasis added). See
Def.’s RJN, Ex. 17.

9

16

Relevant Statute or Rule Regarding the Timing of
Public Access to Court Records

North Dakota

1.
North Dakota does not recognize or create a
right of same-day access to civil complaints.
2.
North Dakota Supreme Court’s Administrative
Rule 41(3)(b)(2) provides that “[u]pon receiving a
request for access to information, the clerk of court
must respond as promptly as practical.” See Def.’s
RJN, Ex. 27.

28
- 23 -

Defendant’s Response To Plaintiff’s RJN

1

State

Relevant Statute or Rule Regarding the Timing of
Public Access to Court Records

Pennsylvania

1.
Pennsylvania does not recognize or create a
right of same-day access to civil complaints.

2
3
4

2.
Pennsylvania’s “Right-to-Know” law provides
that the “time for response [for public records] shall
not exceed five business days.” 65 Pa. Code §
67.901. See Def.’s RJN, Ex. 31.

5
6
7

South Carolina

8
9

2.
South Carolina Clerk of Court Manual Rule
1.13 does not provide any same day right of access,
but merely instructs that “information filed in the
Clerk of Court offices . . . are public records which
may be viewed on request.” See Def.’s RJN, Ex. 34.

10
11
12
13

Tennessee

14

16
17
18

20
21
22
23
24
25
26

1.
Tennessee does not recognize or create a right
of same-day access to civil complaints.
2.
Tennessee’s Open Records Act provides: “In
the event it is not practicable for the record to be
promptly available for inspection, the custodian
shall, within seven (7) business days” respond to the
request or provide the document. Tenn. Code § 107-503(A)(1)(B). See Def.’s RJN, Ex. 35.

15

19

1.
South Carolina does not recognize or create a
right of same-day access to civil complaints.

Utah

1.
Utah does not recognize or create a right of
same-day access to civil complaints.
2.
Utah’s Government Records Access and
Management Act requires a response to a request for
court records “no later than 10 business days after
receiving a written request, or five business days after
receiving a written request if the requester
demonstrates that expedited response to the record
request benefits the public rather than the person.”
Utah Code § 63G-2-204(1) (emphasis added). See
Def.’s RJN, Ex. 37.

27
28
- 24 -

Defendant’s Response To Plaintiff’s RJN