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Accessing Court Records—New Rules & Case Updates

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Accessing Court Records—New Rules & Case Updates

In this one hour course, attorney Charles “Chuck” Dalziel, will take a deep dive into the current statutes and recent decisions that affect access to various types of court records. We will discuss how the U.S. Constitution and various federal statutes extend to the right to access court records depending on they type of case you are dealing with, including the limitations on using and obtaining juvenile court records. This course will also provide an overview on how to obtain court records and review relevant caselaw in this area.

Transcript

- [Chuck] Hello, this is Chuck Dalziel from Marietta, Georgia. Today, we're gonna talk about accessing court records. We're gonna talk about new rules and case updates that apply to court records, and actually, the new rules that have been experienced by somebody like me, who's been practicing for 43 years, art of it. Most of the filing that is done now in court cases, particularly civil cases, I'm more familiar with that, but I think also in criminal cases as well, most of the filing is done electronically now. And so, whereas, you know, we might have a discussion about this 25 years ago, where we're talking about getting in the car and driving over to the courthouse, going to the clerk's office of the appropriate court, asking them to give us a file. Maybe there's a line of people in the file room, wanting, you know, their files. A lot of people pro se in that room, it could take a long time to even get the files. And then what you would do, that was the big use of the paperclip back then because what they would ask you to do, is paperclip the documents that you wanted, you know, copied in a group. And then it was, actually, a pretty good profit center for the clerk's offices, 'cause sometimes they charge you 10 cents a page, or maybe even 25 cents a page for the copies. But now, this electronic filing system that we have, like in state court and federal court, the access is actually from your desk, primarily, using either PACER, which is the federal system, or the systems that your particular state has. And I just did some work on a situation in Chicago, or outside of Chicago and I realized that up there, the way they it divided is that, they have judicial districts. And so, each judicial district has made, sort of, their determination about how they're going to allow people to access their court records electronically. But in Georgia it's kind of a per county, or maybe even per court decision. And we have two vendors, Peach Court and Odyssey, which is based in Texas. And the company that actually runs Odyssey, is called Tyler Technologies. Those are the two big electronic court record providers, in Georgia, that I'm aware of. And the decision is made as I understand it, by the particular court, whether they'll use PACER or Odyssey. And then, what you end up doing is setting up an account, you know, with, of course, with PACER, if you want to look at the records in the federal court. And then, you know, you set up an account with Peach Court and also with Odyssey. And then, in some instances, you know, like in a magistrate court for example, they might not be participating in either PACER or Odyssey. So, you have to set up a separate account with that court. And then, in some cases, when you wanna print, the easiest way to get to the printing, is actually to go to the court's website and they have a judicial record search thing there. And so, sometimes, in order to pay that court, you have to have an account with that court. But the access to court records, is pretty free and easy these days. And one of the things that's been eliminated about it, when I was a undergraduate student and I was employed at a law firm and I did several different tasks, a couple of these tasks we'll talk about later. But one of the tasks I did was I was a courthouse runner and by then, I was a lot thinner than I am now and I could run a 10K, in under 20 minutes. So, when I started working as a lawyer in Atlanta, I did the courthouse run, where the lawyers that I worked with, many times, in the four years that I was at a big firm, between 1980 and 1984. And you know, that was because you had to get the documents to the court by the deadline. And a deadline of course, you know, was like 4:30, 4:45, 5:00, something like that. And many times I was given the document to file in the federal court, at like 4:52 PM, to get there at five and the court was a mile away. So, that was pretty interesting. But another lawyer or another paralegal, actually in the firm that was a lot smarter than me, he got friendly with some of the people in the clerk's office and the clerk's office people, they had a stamper, that's what you were after was a stamper. Entry that said that you filed the document on the date that it was due. And so, what this guy did was get a couple of the people that were in the clerk's office to put their stampers in the purse when they left on Friday afternoon, and he would meet him at a bar and they would stamp the documents in there. So, big changes when we're talking about new rules, we got big changes about how we access court records. What we're gonna talk about first is the source of access to court records, the right of access, both not- This is not talking about the access of the litigants, this is actually talking about the access to the general public and the press. Okay, so, the United States Constitution, there is a First Amendment right that's recognized, of access to court records. And the reason that that is, is our government is built on popular sovereignty. You know, government by the people, or the people and therefore people have an overarching right to observe court proceedings and to access records of court proceedings. And a lot of this, actually, arises from the English common law. This idea of access to court proceedings, really, is really not talking so much about access to the records back then, but access to the proceedings themselves. Because, you know, around the time of the , actually, that was kind of how you developed a jury system and the eligible land owning males, I guess you would say, you know, came together, when court was needed and they had, sort of, a quasi jury system in which these people would actually decide, you know, cases of controversies, what to do, you know? And so, obviously they had access because they were participants. And so, that is sort of the foundation, underneath the First Amendment right, has been recognized of access to court records. Okay. The principal advocate for this, around the time of the constitution, was James Madison. And he generally is regarded, as the principal architect of the Constitution. And he advocated for open government, in rather colorful terms. This is actually been quoted, you know, by numerous internet sites, arguing for more access for the press. But it's also been quoted in a couple of Supreme Court decisions. His statement was a popular government, without popular information. Okay, so, we have a contrast there, between the government of the people, okay? So, this is talking about the information to the people. So, a popular government without popular information, meaning that the populist doesn't have the information. "Or the means of acquiring it, is but a prologue to a farce or a tragedy. Or perhaps both. Knowledge will forever govern ignorance. And a people who mean to be their own governors, must arm themselves with the power which knowledge gives. In a similar vein, he asserted that the advancement and diffusion of knowledge, is the only guardian of true liberty." And again, that's because the people, you know, they need not walk in darkness and just be ruled by people who keep them in the dark. So, the only guardian of true liberty, meaning, actually the only way to keep the country stable, is to make sure that the people, who were the ultimate sovereigns have the knowledge. Okay, at one time, you know, this is many years ago, but at one time, the press was respected and regarded, as a fourth branch of government, the fourth estate. Now we would say today, that that's mostly by itself, that nobody else regards them that way, but that wasn't a case in the seventies. And so I'm gonna talk a little bit about some Supreme Court decisions, that talk about constitutional rights to information, access to information for the public, that sort of talk about this. And actually, what the participants in these cases portray themselves as, is very interesting, you know, in comparison to what they might portray themselves as today. Okay, so this case, Houchins versus QED Inc, involved the jail, in Alameda county, California. And the TV station wanted to go into the county jail, where the person allegedly committed suicide and the sheriff blocked them. And what they wanted was free access to the jail, so they could, kind of, go wherever they wanted and investigate whatever they wanted, inside the jail. And the sheriff said, no, no, no, no. The only people that we let in, are the people that participated in the scheduled tours. And the scheduled tours only went to certain areas, not the areas that they were concerned about, regarding the suicide. Okay, so, because of that, QED sued the Sheriff Houchins and asked for an injunction. Usually you can't have a mandatory injunction. So, the way that they, a mandatory- I mean, you can't have an injunction today, commands people to do things. So, they didn't ask for an injunction, you know, forcing him to give him access to the jail. What they did, was they asked for a preventative injunction, or a, you know, barring him from doing something. And what he was gonna be barred from, I should say, was denying them access to the jail. So, both the district court and the Ninth Circuit, ruled in favor of the TV station. So, the Supreme Court grants the sheriff's petition for served and the TV station argues, that there's a constitutionally guaranteed right to gather the news. And the basis of that, the TV station said, was that the press is necessary to have an informed public as a safeguard against misgovernment. Particularly prisons and jails, shouldn't be able to seal their facilities from the press because that in the dark in the prison, that's a area where you'd have a likelihood of misgovernment, prisoner beatings, you know, excessive punishments, complete vulnerability of the prisoners to the guards, et cetera. Okay, so this is only a seven judge opinion, both Marshall and Blackman did not participate. So, it's only seven judge opinion. So, Chief Justice Warner Burger writes, the majority opinion is really just four judges. Three of the judges concurs and I mean, Burger and two others, is what I mean. Concur in the opinion that he wrote and there's three dissenting opinions. And basically, what Burger is saying is not- There's really not this constitutionally guaranteed right, specifically for the press to gather the news. And that's because the media's not a substitute for or an adjunct of government. And what he was talking about here was that, you know, there was a lot of other people above the sheriff, inside the government, who could perform this function, that the press was, like, trying a commandeer for themselves, which was that the, you know, the county commissioners or, you know, there was probably an organization, that the state of California had, that sort of, regulated jails and there there's a lot of different government agencies that could perform dysfunction that the media was trying to seize for itself. And to make it sort of palatable in making his decision, he said, well you know, the courts are ill equipped for prison administration and so if we are ill-equipped for prison administration, so is the press, you know? And so, that was sort of the baseline of this decision. The press was saying, well, you know, in a lot of instances we were allowed to go ahead and communicate information that we'd obtained about particular situations, but Burger basically ruled that, or his opinion rule, that this case is about acquisition of information, actually getting into the jails to get the information. And even though there was precedent that was favorable to the press, the prior cases did not hold, that the press has special right of access to the information. And what they're saying is, they don't have any bigger right of access to the information, than the public itself. And so, in this previous case in 1972, Branzburg versus Hayes, it had been ruled that the First Amendment does not guarantee the press of constitutional rights, special access to information not available to the public. And it is specifically ruled, that newsmen have no constitutional right of access to scenes of crime or a disaster, when the public is excluded. You know, so you can imagine, for example, these fires that they have in California now and they have these evaluation orders and they don't want anybody at all in the areas where the fires are. And so, obviously, because that makes such nice pictures on TV, the TV people want to get inside those areas, but they have no constitutional right, to get inside of those areas, if the public itself is excluded. Okay, in this Houchins case, the media was basically arguing that they're the best at discovering malfeasance in public institutions, as opposed to some of these other bodies that I talked about before, okay? But the issue then is, if they have a superior right to access information than the public. So, they're actually in a situation where they have better access than the public, then what they can actually do is conceal some of their own information. So, the concealing would sort of move from the sheriff, the jailer, to the press and then, you know, if like, if they wanted to hate on, you know, certain politicians, they could use the information. If they wanted to display mercy to certain politicians, they could hold back the information. And, obviously that sounds very contemporary. That's something that's extremely contemporary now, where there's so much information out there, about what the press doesn't go after, doesn't disclose, doesn't pursue. So, in the opinion of the majority of the Supreme Court, if the press was going to have special access, you would have to have a law passed by Congress, that would recognize that right. John Paul Stevens wrote the dissenting opinion and he basically took the press's side, saying that the information gathering is entitled to some measure of constitutional protection. Although he really didn't articulate exactly where the line would be drawn. But he's basically saying, that the public has to have confidence in government actions, okay? There's two responses to that. There really aren't in the opinion, but the whole intent of the TV station, was to erode the confidence in government actions, number one. And number two, the press doesn't really have a unique role in giving the public confidence in government actions. And so, some of these arguments, that the press made in this case, these are all, you know, sort of, in the or right around the Watergate era and that sort of thing where, you know, you have movies that make reporters be heroes and stuff like that. And so, some of these arguments that the press were making, were sort of in the context of that historical situation, which is really not existence today. Okay. All right, they do have a constitutional right of access, that's mutually shared with the public, the press does. And so, it depends on the type of case, all right? The right to attend criminal trials exists for the press and the public and the right on this side of the board is more extensive than it is on the civil side of the board. And so, the historical access, this is what I was mentioning before, there was public access to trials all the way back before the Norman's invaded England in 1066. And so, that's the source of the constitutional right. And in contrast, the Supreme Court has never chosen to answer the question of whether the press and public have a constitutional right to access civil trials. And there's been a lot of limits actually put on access to information in civil trials. I do a lot of non-compete work myself. And so, we had a lot of trade secret issues, for example. Where actually things like account statements, that people had with a brokerage firm or customer lists, or things like that, were brokerage firm trade secrets. And you know, in the technology world today, you know, both in, well, you know, the trade secrets, that's where you're actually keeping the information secret to your company, as opposed to patents, you know, where you expose the information and then you actually charge people a royalty to use it. But in these trade secret cases, there's actually been orders that have been entered, that specifically are intended to deny access of non litigants to the information. And I actually have a proposed confidentiality order on my desk, that I haven't responded to as we speak, that's about 17 pages long. And it has a very extensive protocol, about if you're gonna give anybody, who's not a party to the case, access to the information, they have to acknowledge the order and they have to acknowledge exactly what the order requires them to do. In part, what it would do would be, either to ask- Either to require, excuse me, the party that received the information, pursuant to the order, either to return it to the party who had the trade secret interest, or to destroy it and you know, not further possess it. Okay. We have the criminal side, we had a civil side, we also have juvenile side, okay? So, there's an odd tug of war about this, okay? The juvenile courts were only begun in one state, in Illinois, in 1899, okay? Before that, generally, the law was that the age of criminal responsibility was seven years of age. So then, people who are seven years of age or older, are being prosecuted as criminals, okay? So, in Illinois they decided that it would be better if they had a juvenile court, okay? And the juvenile judge was seen as a protective father for these wayward children. And the juvenile benefited from not being dealt with in a regular court because of the confidentiality of the proceedings. So, the juvenile was not publicly branded a criminal, or a criminal defendant, okay? And so, this was in a progressive era, where they were actually thinking that doing it this way would help the child become less wayward, is basically the way to put that. Or, you know, the child could improve, if he wasn't put in prison. And so, the juvenile courts spread all over the country, in the early half of the 19 hundreds, like wildfire. But, like everything, juvenile courts had upside and downside. And their downside was, that they had a power to send a juvenile to some kind of state home for children, until they were 21 years of age, which is the age of majority then. And that was without due process. They didn't get the due process protection set criminal Scott, okay? And here, when I say the ends of the road, these are the two extremes. Juvenile court between criminal court, okay? Juvenile proceedings were held in constitutional, over 40 states, over the objection that they didn't provide due process, juvenile proceedings were intended, primarily for rehabilitation, was the argument. And so, since they're intended for rehabilitation, they don't need, the defendants or the juveniles, they don't need the common law, or excuse me, the due process protections, that they would have in a criminal case. And the state is actually carrying, or the child, in a state institution, that's where the trial was, was is that going to be in the best interest of the child. The juveniles not according to procedural due process protections because the state was gonna care for the, child by putting the child in a state institution. That word it says, state cared for the, it should say child, by putting child in a state institution. Sorry about that. Okay, so on the other side, the juveniles being institutionalized in this youth home for a long period of time against the child's will and also the will of the parents. You know, nobody, no juvenile judge is saying, hey parents, you wanna send this kid off? And so, the whole basis for the not criminal thought, was that the child had not yet been emancipated. And so, they didn't have the same rights that adults had, they had no right to liberty. And basically, what was transparent actually, in these proceedings, was that they were, basically, substituting the state, as a substitute for the ineffective parents. And so, the lack of due process and procedure, both the lack of process for the child and also the lack of the procedure for the parents, leads to unfair institutionalization. The parents aren't heard, the child goes off to the institution and the decisions often arbitrary and the reasons for decision are not available, because of the confidentiality. She can't really do anything about what the judge does. Okay, so, in that situation, we had In Re Gault in 1967 and what that was, was a 15 year old kid, he'd been in trouble before, now he makes an obscene phone call and this is a misdemeanor, with the maximum two month sentence in the criminal system. But what happened was, the juvenile court, he was actually arrest, or taken into custody, by the juvenile court, before the parents even knew where they were. Where he was, I mean. And so, that's why they filed a habeas position. And because habeas corpus, generally means, bring us the body, bring us him, so that we can get him in front of a judge, at a hearing and gain his release, okay? Because what had happened was that, for a match on two months sentence offense, he basically got a six year term at the juvenile farm. And so, the Supreme Court held the juveniles are entitled to the full scope of constitutional rights. The criminal defendants are entitled too. Okay, so this decision was good for the criminal defendants, who were juveniles I should say, but it wasn't so good for those who wanted access in the juvenile court, barred or prohibited. So, now these people who are juvenile parties, in juvenile court, because of their transactions, or trans aggressions, they don't have the confidentiality that they once had. So, now after Gault, the juvenile is entitled to notice of hearing, a right to invoke a privilege of self-incrimination, the right to counsel, the right to have the proper rules of evidence applied, the right to confront witnesses, against the juvenile cross-exam and actually to have a record taken down of the court proceedings, by a court reporter, with the transcript available. None of which was allowed in the juvenile court. And so, before Gault. And so, you know, that was a recipe, you know, for some very strange results, like the result that Gault got, okay? And what ended up happening was, that even before this Gault decision in 1967, you know, the social scientists community, which had previously pushed for the juvenile proceedings, now they saw juvenile proceedings without due process, as counterproductive, as the unfairness, the inability of the child to stand up for himself. He's just like, sort of, a pawn in the hands of the juvenile judge. And the juvenile itself, that now the social scientists are saying, we thought this was rehabilitative, but now it's actually really creating resentment against the system, in the juveniles who are subject to it. And so, it boosts recidivism of crime in the juveniles, if you do it this way. And basically, what Gault did, actually, is refer specifically, I'm not kidding, I put this on the screen. Gault said that the current juvenile system, is a kangaroo court. And so, in light of that, they required juveniles to receive all constitutional rights, which meant that the press and public gained access, okay? So, the press and the public, theoretically, are happy about the fact that these juvenile proceedings, for juvenile crimes, maybe some of the juvenile crimes are extremely outrageous, you know, like rapes and murders and stuff like that. Now the juveniles can't keep that hidden from the press. And so, what happened was, there was a huge juvenile crime surge, in the late eighties, 1990s. Now it's kind of returned here in the Atlanta area at least. And so, now, instead of the 1967 crime, with the obscene phone call, you know, law enforcement is for sure dealing with rights from other assaults by juveniles. And so, what has ended up happening, is in a lot of these situations, there is still people out there who want to bar public access to the information about these situations, particularly the rapes. And who is that? That is the victim, okay? Because the victim is actually somebody we haven't talked about, that's had an interest in the privacy about these types of situations. And so, there was a rape trial involving juvenile victims, up in Boston, and the Boston Globe kind of said, we don't care about the victim's rights, we're insisting on access, you know, to full bore facts in this rape trial, involving the juvenile victims. And so, this one went to the Supreme Court, under the name Globe Newspaper versus Superior Court, and the court said there has to be a balancing interest and basically said that per se closure of these juvenile proceedings, involving these spectacular crimes, per se closure was unconstitutional. And also per se access was unconstitutional. And so, there has to be a balancing test, a balancing of interest of the victims and the press and the defendants, to determine, and the public, to determine whether there's a constitutional right to report for the newspaper. And in this situation, what had happened was, the judge in the Superior Court in Massachusetts, had issued a per se closure order and the Supreme Court in 1982, ruled that that per se closure order was unconstitutional and left the public and the press, with sort of an uncertain situation now, because now there's a balancing of interest test that would apply, okay? The responding party here I'm talking about, is actually the juvenile. And so, sometimes, the juvenile might say, well, on the balancing test, in my mind, I think that I got undergo more risk as a human being, if my crimes are disclosed to the public, as a result of these juvenile proceedings, I don't think that them being public you know, thereby acquiring, you know, rights of other people to opine, on whether I was treated fairly. I don't think that that is whether they're actually gonna be opining on, they're gonna actually be opining about me being a, you know, menace to society because of my crimes. And so, the responding party, in a lot of these cases, is saying, well, yeah, we want them closed. And that would be despite the commercial interest of the president obtaining the information and including it in their public cases. That's, you know, despite all these heroic arguments that they might earlier in Houchins about why the press needs information. The real reason that they want the information, is that I'll, have better copy to put in the publications that they make. So, this case is called US versus Three Juveniles. And this is in the first circuit court of appeals. The court upheld the closure order, where the juveniles really wanted their juvenile proceedings to be closed. The juveniles- So, they said that the closure order, generally, would've been unconstitutional, but for the fact that the juveniles had a bigger interest than either of the press or the public and they were charged with white supremacist hate crimes. This is actually a different case. They were charged with white supremacist hate crimes. In this US, the three juveniles case, the first circuit in 1995. Remember, we just taught about the rape case that was 1982. So, and that one was in front of the Supreme Court. So, now we're in the first circuit in 1995, with people charged with white supremacist hate crimes. And basically, like, if they're under 18, like, they're 17 years old, they're saying, well, if the fact that I'm a white supremacist hater doing hate crimes, if that's disclosed, that's gonna ruin my life forever. So, we don't want it disclose that we did this. And so, there's actually a federal statute that's involved, where a juvenile is charged with a federal crime. And this statute governs federal detention and disposition of juveniles charged with delinquency. And the statute actually contains rules of confidentiality that are actually laid out in 18 USC 5032 and 5038. This statute was passed in 1938 and that was still at a point where the progressive ideas about judicial proceedings and the fact that the judicial proceedings are not- Juvenile proceedings, excuse me, are not seeking punishment, they're seeking rehabilitation. And so, that's why we get all these confidentiality rules, in 5032 and 5038. And so, the juveniles were recognized by the First Circuit in this case, as having a constitutional right tied to the resulting public access, so they could ask for due processes and those sorts of things. But if they did that then that meant that there was public and private access to the proceedings. But they could also, in the First Circuit's view, choose to forego whatever accountability to press presence might impose on the court, so that the proceedings could be closed because of their choice not to have my white supremacist activities publicly known. And this is something, that is very significant in this regard, though however, that federal statute is not preemptive, it doesn't preempt state law. So, in most cases, state statutes in case law, are going to prevail in criminal court proceedings. And that's particularly because, most of the volume of, you know, criminal and juvenile proceedings, would be in state courts. The case law in Georgia is very favorable to access, both for profit media access and otherwise. And the newspaper chains and families have been very pushy about this. You know, that's one of the best ways, you know, earlier, before now, all the newspapers are going to seed, but you know, before you had the Cox family that owns the Atlanta Journal constitution, they're now making a lot more money on Autotrader than they were or than they are on the paper now. But like the Hearst family, the Cox family owns New York Times, Jeff Besos, owns Washington Post, they want this access, you know, so that they'll have copy to print is basically what it is. All right, so the court in the seventies, in considering whether there was a special constitutional right for the press to have access to the information, they asked the question, who is the press, okay? And so, that was one of the things is, if we're gonna give this right, who are we gonna give it to? Because quote the fourth estate, you know, there were traditional newspapers, that claimed to be within that. Then there were also a lot of other people. Well now, with the explosion and the internet, it's much, much murkier now, who the press is. And so, you won't really have, you know, kind of, going forward, a very strong argument, that the press has a unique constitutional right to access to the information because it's very difficult to identify, even more difficult to identify, who the press is is now. And so, the traditional newspaper or TV now, they certainly couldn't credibly claim special access. Now, going to the state law, Georgia law ceases the presence of public and press at trials and the ability of the press and public to obtain court records, as central to the integrity of the courts. And there are several different cases that have held that, Atlanta Journal versus Long, actually related to the court records. That was in 1988. That's really, kind of, not necessary anymore, with the public nature of court records today. Then you had pretrial records and that was in RW Page Corp versus Lumpkin. That was in 1982. And in Munoz versus a ALM, which is American Law Media, it was ruled that they had access to the post-trial records. And now we have rule 21 of the rules for the Superior Court and that provides that all this is talking, about both civil and criminal. All court records are available for public inspection, unless public access is limited by law, or by clear necessity. And so, you know, generally, particularly like for politicians before, you know, where other people, who the public might have an interest in their property and assets and that sort of thing, you know, have a divorce settlement agreement, it's turned into a court order. And in the eighties and nineties, it was very easy for a party to a divorce to get their divorce settlement agreement at the very least, if not other documents as well, sealed, so that nobody can see them. But nowadays, that's almost impossible to decide, despite privacy issues. But what is potentially sealable is, like, a crime that you might have committed, where you went under first offender status, or then there's also some other ways, where you can actually get, you know, several years after the crime that you committed, you can either get it expunged, your record expunged, where it doesn't show up on your record at all, or you can get it sealed. And the idea is that, people who committed crimes long ago, maybe they've been rehabilitated, maybe they just, you know, committed crimes at a different stage of their life, but now they want to be, you know, productive members of society. And the actual fact that they have a criminal record, might actually be a barrier to their ability, you know, to get jobs, et cetera, et cetera. So, you know, now used to be that there was a very large number of states, that barred felons from voting, and now there's a very strong push, now to allow felons to vote. And the idea that the records are public, they are, that idea is kind of fading now. At least in a special situation where, people who kind of want to go on with their lives and don't have an extensive record, can actually get crimes removed from their record, or they can get them sealed. I've actually done the sealing part myself, for certain people who are particularly professionals. Professionals who are generally subject to character type requirements for the professional services that they're gonna provide. If that's the case, it's not really all that great, if you're that person, to have some kind of criminal record, that people can obtain, you know, very easy. Like, I have a membership with Lexus Nexus and I have, you know, public records application in that program, that I can use where I can check public records. And so, what I was really using it for, was really just to find people's addresses, when I was wanting to sue them. But now I've realized that it includes criminal record information, it includes judgment information, it includes all kinds of records, that formally would've been very difficult to discover. When I was in the law office in the seventies, I was go check title to properties by looking at indexes and books of deeds and that sort of thing, actually in a vault that, like a bank vault, that the clerk had in the clerk's office. And now, those same records are electronically available and even the, like I said, the criminal records, even the records of judgements, you don't have to go into the courthouse, to look at lien books. You can actually just, you know, get that type of information from lots of vendors. So, the change that we've had in this regard, has actually created a lot of private business opportunities. So, now we're gonna go through how to obtain records and what I'm gonna do here, is actually talk more about collateral efforts to obtain records besides just going, you know, online or going to the courthouse and accessing public court files. Now we're gonna talk more about records of other agencies and first we're gonna talk about the Federal Freedom of Information Act. You hear Freedom of Information Act requests a lot, but you might not be familiar with the procedure about that. And so, this is a very high priority, this access to records thing now. And so, under the FOIA, the various federal agencies all have a webpage that specifically devoted to their Freedom of Information Act responsibilities. And so, they have people that are actually designated as responders to Freedom of Information Act requests. And in many instances, if you go to that particular webpage, for that particular agency, they actually have a foreign that's particularized for their agency, for you to make your request. And so, they make it very easy, you know, for you either to print the form, or electronically fill in the form, you know, so that you can make the request. And the policy behind this is, we're gonna ensure that we have informed citizens and we are thinking that informed citizens are vital to the functioning of a democratic society. And again, because we have popular sovereignty, the citizens need to be properly informed, so that they can elect people who will actually perform their duties in a way where the society will function to its best level. Okay, so, I'm gonna talk to you very briefly here, about how to use the Freedom of Information Act, per the freedomofinformation.gov website, okay? And so, there's actually, this is a landing page. So, if you actually go to this site, what you're gonna see is, you're gonna see, kind of, a three prong, excuse me, approach that they want you to file, before you make the Freedom of Information Act request. And what they are saying is, like, you can do a plain language search, at foa.gov/search.html and you can actually search all across, all federal government agencies at once, about the issue that you're interested in. 'Cause you know, when you're going in, you probably don't know, number one, how many agencies there are in the first place, and number two, which agency might cover the issue that you wanna make the request to. And so, you know, they just don't want you to, like, make a random request to an agency that quote can't help you. They want you to make it to the right agency, right? So, once you get the initial results, to this very general search, you can drill down on the results and then identify the right agency to request the information from. There's actually another site, that's called usa.gov and it lists, not only does it contain the information about federal agencies, it lists all the agencies alphabetically. On this website, they say that, you know, there's over a hundred government agencies and that's why they're trying, or how they're trying to convince you to do research before you request. But if you actually go to this website, the agencies are listed alphabetically and a lot of these that they're listed, I'm assuming are sub entries, sub agencies, because there's way, way, way, way more than a hundred. There's like, I don't know, three to four or 500, something like that, mind boggling. There's like, 15 entries, 20 entries, under each letter of the alphabet. And so, it's a lot more than a hundred. But on the same site also, if you wanna see how extensively governed we are, you can also go on the same site and obtain relatively detailed information on state and local government. So, like, I looked at my town, they had everybody that was elected, everybody that was appointed, you know, it was like 60 or 70 different people that they identified, where my small town of 16,000 people, you know, who were part of the government. And so, this is sort of a treasure trove, usa.gov, you know, for information about people who are filling specific positions in the government. And of course, you wouldn't be directing the Freedom of Information Act request, to anybody but a federal agency. But this is still good information to have and good knowledge that's out there and available. Okay, so, they say even if you can't find- Well, no, no, no, they, what they say is, is that they think a lot of times, you'll find the information, regarding the federal agency that you want, without having to make the Freedom of Information Act request. But if you do wanna make one all it has to be in writing and reasonably describe the records you see, you don't have to use the form. Although, you know, that would probably make it easier. They'll also respond to emails though for information under the Federal Information Act situation. The request should be choice specific agency. The timing of the response is gonna depend on the complexity of the request. And this is a contrast to the Georgia session. They're saying that the presentative response time, is three days, okay? But it's a lot longer in the federal government. And the way it works is, the first thing that they do is, they do a search themselves, for the records that you want. And then what they're gonna do at that point, is come back and say, okay, well if you want all these records, it's gonna cost you X dollars for the research that we have to do over two hours. And the production of pages is, that's more than a hundred. In a lot of instances, what they do is, they have the incentive to tell you that what you want is gonna cost a lot of money, to try to get you to narrow the request. And they do, the way I read it here was, they do suggest that you narrow the request, but a lot of times it's because it makes it easier on their end, you know, to make a purported complete response, okay? You do have a situation where you could ask them to spend several hours, they could say, well, you know, you might wanna narrow that request. You say, no, not really. They could come back and say, we didn't find any responsive records, but you owe us for the time that we spent looking for the records. And you know, everybody would ask for a fee waiver, if they could particularly line of that. But unless you could convince the agency that your receipt will help educate the public, as opposed to, you won't get your fee waiver. Regarding the requests for records about people, if you're gonna ask for a records about a particular third party, the easiest way to get them and the easiest way to evade claims of confidentiality and of interest and stuff like that, would be to have an authorization, that the third party gave you, for the rest of the record. And if you want records about yourself, that aren't in the possession of the federal agency, you have to certify your identity under oath, to receive records. And when I looked at this, that's what that said, actually, if you wanna get your own IRS records, you have to verify your identity, through an extensive process, that requires two forms of identification and all this other jazz. So, it might be even more extensive, under the Freedom of Information Act now. Okay, there are records that they won't give you. The records they won't give you, are records of ongoing criminal investigation, where the subject is unaware of the investigation. They won't give you informative records, if the informant status has not been officially confirmed. And they won't give you records on foreign intelligence, or counterintelligence. If they don't give you the records, you can appeal in a very unstructured way. You could just say, I didn't get what I wanted and I'm appealing by email or letter. And then, there'll be a higher independent review, of whether you get the records or not. Now, we go to the state record, the Georgia Urban Records Act, it's at 50-18-70. It applies virtually every unit of government in Georgia and sometimes the hospitals, if they're fulfilling the duties of local government hospital authorities. And so, you know, like, you're looking at WellStar, for example. Well, WellStar is actually operating under the authority of the Cobb Hospital authority, as it pertains to Kennestone. And so, in one of my situations, even though they looked private, they were still open to a Georgia Open Records Act request. Okay. So, in the panel statute, what is presumed is that, they're going to email you the records. In Georgia, what you do is, you pay for the agency to find, organize, redact, and produce the records at 10 cents a page. So, I had a case where I wanted an employment record on the guy that was an employee of this city of Kennesaw. And that's actually what happened, is they responded to requested in three days. They said, you know, this is the amount of records that we have and if you want copies of the records, you know, we'll produce them, but it's gonna cost you X dollars to get them. And so, the quickest way to do it, was for me to drive from Marietta to Kennesaw, just pick up the records, so they wouldn't charge me to send them to them send- They wouldn't charge me, for them to send them to me. And so, that was the quickest way to get it. But also, you know, your physical presence, you know, if you're saying, well, I'm coming to get them at such and such time, you get them, which actually works pretty good. Okay. We also have access to government meetings. We have an open meetings law, that applies to almost every state, or local government entity. And it's at OCGA 50-14-1. The meetings have to be open, they have to give prior notice of a specific date, time, and location of the meeting. They have to publish an agenda for these meetings. And then after it's over, they have to do a quick summary of what happened at the meeting. And then, they make that available and then they follow that with full meeting, full minutes, excuse me, which are made official by the particular board, by voting them as being created the next meeting. All right, so, you would say, well gosh, you know, the people on these local government entities, they can't do anything without it being open. Well, there is a in run on that and that's called the executive session. And so, what they'll say is, okay, well, we have our lawyer here, the board attorney, the agency attorney, whomever, we have the board attorney here, and we need to talk about this, in an attorney-client privilege way. So, because it's privileged, you know, we have a big incentive then, to declare an executive session with the attorney and that creates a privilege bar, to having to produce the proceeding, or the records of the proceedings of that. So, that's a good way to shield information from the public, by doing things in executive session. Okay, there are things that aren't subject to the Georgia Open Meetings law. One of them is hospital peer review proceedings and others, meetings of the Boards of Pardons and Parole, staff investigations, like these are employment situations, inspections of physical facility or property by the board. Where no official business is conducted. Like, you know, the board commissioners of Cobb County might go to some public park, or the doll, or the animal control office, or something like that. They don't have to do minutes for that. The board could attend statewide regional meetings, as a group. They don't have to do minutes for that, or if the board is meeting with the federal government, or if they're just an, an event. Okay, so, there are a few cases that concern access to judicial records that are frequent. And one of them is, Callahan versus United Network of Organ Sharing. And this outfit, United Network, they control who gets the transplant of organs. And so, this is a nationwide body. And so, some of the people who were on this board, you know, were, I guess easiest way to put this, is corny headed liberals. And so, Alexandria Glazier, this member, she says the, what she's talking about is southern states, you know, who have different populations and poverty levels than other states. And so, she says, the fact that some states do better than others in preventing preventable deaths and providing healthcare insurance coverage and access means, you're a dumb blank for living there. And so, what that meant, is that she didn't want to send the available transplant organs to, you know, these states that had the populations, but also, you know, like, some of these states are not fully expanding Medicaid, like Georgia. And so she's saying, well, we shouldn't send our transplant organs to those states, okay? And so, as a part of the consequence of that, black patients were being placed on liver transplant wait list at a much lower rate and you know, they rationalized that, this board did, by saying, well, you know, if they're in that state, they're in an inferior place to send the donated livers, is what we're talking about here. And so, you know, if she says that naturally, then, you know, if there a controversy occurs, a matter of lawsuit occurs about it. She wants to keep the embarrassing and possibly illegal communication secret. And Judge Totenberg, in the federal court, district court in the northern district of Georgia, she unsealed some of the emails that had been filed. The opponents had actually come into possession of these emails, you know, some other way and they'd actually attached to the briefing on a motion. Some of these emails that said these embarrassing things. So, if they're actually attached to a motion, it seems obvious that they're judicial records, okay? And the 11th Circuit was asked nonetheless, to reverse the order, that Judge Totenberg made, unsealing these records. And the 11th Circuit said, well, you know, once the cat is out the bag, we're not gonna put the cat back in the bag. So, if they inappropriately filed sealed records, these parties that had attached it to the motion, thereby filing them in the judicial record, the remedy was not to reseal them, it was to actually have the other side's lawyer sanctioned for doing so. And then, in this Chicago Tribune versus Bridgestone case, what we have here, is Bridgestone is claiming that the way that they produced tires, involves confidential information and their tires would separate, the rubber would separate from the metal, you know, wire that was in the tires and caused accidents, according to this lawsuit. And so, the Chicago Tribune wanted to have records that had been allowed to be marked as attorneys and judges eyes only in discovery. The Tribune wanted to assert a constitutional right to access those documents and under the local rules, they've been placed in a special envelope, in the actual paper file of the court. And the 11th Circuit said, well no Tribune, your constitutional right can be thwarted, by federal rule of civil procedure 26C. The documents were being protected for good cause, while the litigation was ongoing, okay? And so, the Tribune could could still say, well, the safety of the public's at risk here judges. And so, what ended up happening was, that the 11th Circuit decided that Judge Alaimo had to make one of these balancing tests, okay? And he had to take more of a balance of the interest of keeping them secret in the court case, versus you know, the public safety interest that the press was asserting. And so, they did say that, if you have documents that are filed with discovery motions, that they're more protected, than if you had motions for summary judgment, or other motions that are made to actually have the court ruling on the merits in your favor, those will be less protected, okay? In this case, this guy Broward, calls himself Broward Bulldog. This is 2019 and he's actually trying to force the Department of Justice to produce other documents that he says they didn't produce yet. And basically, the agency wins on summary judgment, if they could prove beyond a material doubt, that they conducted a reasonable search, where the claim exemptions the court had a proper record to determine the validity of the exemptions and the record included enough fascial basis for the court to make the decision and rendered, which was that you can get summary judgment and you don't have to produce any more records, okay? This is very brief now, that we're gonna talk about, this is talked about, what I talked about at the start. Now the routine access to court records, is a largely self-help system. And now courts, in many cases, if you actually go to these vendor sites that they use in a lot of business, you don't have to pay for the records. That's for the case, when you're a party. In other cases, you know, you do have to pay if you're a non-party to get that. And so, all of these vendors, people who are non-party, so the case can still sign up to get records, they can still get alerts on the cases that are emailed to them, when new filings are made. And so, they can keep their access current to these files. And so, you set up an account, with an electronic filing vendor and they'll segregate cases that involve the person who remains an account with them. So, you can easily access the records and the Supreme Court of Georgia and Georgia Court of Appeals have it set up nicely, so that if you're an attorney, they actually have a page you can go, where it says, view my cases and filings. And then, there's a website called gsccca.org, three Cs, where you can look at for these deed records, liens, plats, UCC filings, and other records that I used to have to go to the courthouse, to look at in the vault. And I have been told, like in Aiken, South Carolina, for example, or up in Concord, North Carolina, that I had to go actually physically to the courthouse, to look at the records on a computer terminal there and then ask for records. That was also the case, I think, on the Rockdale State Court in Georgia. Their website said they had to do it that way. And finally, the probate records, they're public too, but the way to access them is less uniform. So, generally, you have to actually go directly to the county probate court, maybe on the online site to get them, or you could also get them from vendors. So, we have a very comprehensive system of getting the state court records. The federal government has actually, for their courts, established a public access to court, electronic records system's, called PACER, and you can establish an account with them. You're not even billed to look at the records, unless your usage exceeds $30 and a quarter and the usage is $10 a page. There's actually something that has come up, where class action was filed against PACER and the United States is actually paying 125 million to users. The general award in that class action, is gonna be $350. And then, if you have a patient account and you're an attorney, you also have to have a CMECF account for filing. You have to be admitted with that particular court to file. So, that's it. Appreciate you taking the time to listen to me about this very important issue and we will see you next time for another program. Thank you.

Presenter(s)

CDJ
Charles Dalziel, JD
Principal
Dalziel Law Firm

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