Ben Rosenfeld is the sort of litigator that many young attorneys start out hoping they’ll become: He defends political activists, victims of police misconduct, and injured bicyclists. Many of his clients have little to no money, meaning Rosenfeld only gets paid if he wins. It also means that when courts charge for access to documents, it undermines his ability to research the legal landscape — and threatens his ability to keep assisting low-income clients.
In April, the Alameda County Superior Court quietly began charging $1 per page to view most of its legal documents online. Although the price drops to 50 cents after the fifth page, and the total cost for any document is capped at $40, those costs add up quickly when Rosenfeld is studying similar cases to determine which legal arguments are most likely to help his client. “It caught me by surprise,” he said. “I represent almost exclusively indigent plaintiffs in civil-rights cases, and it’s my responsibility to do everything I can to try to limit my clients’ costs.”
In response, Rosenfeld launched a petition urging the court to reconsider its fees, which are ten times higher than the cost of accessing files in the federal court’s system, PACER. In the petition, hosted at MoveOn.org, Rosenfeld contends that the fees might violate the Sixth and Fourteenth Amendments of the Constitution, which protect citizens’ right to counsel, due process, and access to justice.
The new, higher fees may also violate a citizen’s First Amendment right to access public documents, which includes court documents, according to David Greene, a staff attorney with the Electronic Frontier Foundation.
“Any time you impose a fee or other barrier to access, that’s going to have some effect on those First Amendment rights,” said Greene, who is studying how different courts charge for files. The high fees affect “the public’s ability to monitor litigation and access the historical record,” he added.
Because of statewide budget cutbacks over the past several years, California’s courts are hurting financially. In the past six years, the legislature and the governor have slashed more than $1 billion from the state court system. Fifty-one courthouses have shuttered, while others have cut public-service hours and self-help centers. California Supreme Court Chief Justice Tani Cantil-Sakauye has repeatedly asked the legislature to restore and increase court funding, to little avail. Governor Jerry Brown’s 2014-15 budget included $105 million more for the courts compared to the previous year — but still falls short of the $2.6 billion that Cantil-Sakauye estimates they need.
The cuts have threatened citizens’ access to justice, Cantil-Sakauye said in a January statement. “Californians rely on a fully functioning court system to protect their Constitutional rights, secure protective orders, resolve child custody issues and settle business disputes.”
Meanwhile, California law requires that courts make records available to the public in some form. For many years, the only way to access them was to visit a courthouse and thumb through the files in person. Many courts charged a fee only if you wanted to copy a file. As courts have begun offering documents online, many have started charging fees just to look at documents. The state Judicial Council, which oversees the courts, allows each court to set its own fees for online access, as long as the fees only cover the cost to provide the service.
Although the Judicial Council has attempted to create a unified document-access system for California’s courts, those plans were halted in 2012 because of funding shortfalls. Currently, just a handful of courts — in Orange, Sacramento, San Diego, San Joaquin and Ventura counties — run on the system. The rest maintain their own, and each one charges different fees.
Alameda County’s new fee structure is among the highest, comparable with Los Angeles County Superior Court, where a ten-page document runs $7.50, and larger documents can cost a maximum of $40. Los Angeles also charges $4.75 per name search — even if you make a typo. Alameda County’s name-search fee is $1 per query. Sacramento County Superior Court launched a fee structure similar to Alameda County’s in July.
State funding cuts prompted Alameda County to begin charging for document access, said Leah Wilson, the executive officer of the Alameda County Superior Court. Her budget has been slashed 30 percent in the past five years, leading to layoffs, furloughs, and reduced public services, she said.
“Sound governance necessitates the implementation of comprehensive cost-recovery strategies,” Wilson said. “The new fees do help to alleviate the difficult budget situation caused by declining state funding.”
Alameda County doesn’t charge for everything: Brand-new lawsuits are free to view for the first five days. Other judicial branches, including the California Courts of Appeal, can access any court filing without paying. People can also continue to view documents for free at the courthouse, Wilson said.
Alameda County’s fees are based on the cost of setting up and maintaining the online system, Wilson explained. That includes a one-time cost of $240,440 for the programmer who set it up, $200,000 for a full-time court staffer to oversee it and another $102,500 for website maintenance, according to documents she provided. Alameda County plans to re-examine the fees in May 2015 and will consider reducing them at that time, she said.
After Alameda County rolled out the new fees, Wilson hosted a meeting with the Alameda County Bar Association to explain them. But “her explanation didn’t make a lot of sense to people,” said Thomas Peele, who is co-chair of the Northern California chapter of the Society of Professional Journalists’ Freedom of Information Committee and an investigative reporter for Bay Area News Group. “There’s a lot of skepticism that it costs the court $1 per page or $1 per search.”
The fees are likely to pose barriers for journalists, particularly freelancers, whose editors push them to keep costs down, Peele said. A year ago, while investigating for-profit colleges, Peele spent $60 on a selection of court filings. That same search would now cost much more online, where researchers can’t pick and choose which pages they want to keep, he said.
“There’s no other way to look at this: It will compromise the ability for journalists to use court files in their work,” Peele said.
After studying how several California courts assess fees, Greene is skeptical that they’re just recouping their costs. “It seems what every court is doing, is they are trying to recover the cost of setting up and maintaining the entire e-filing system through these fees. I don’t blame the individual courts. … They’re being told to do something and not being given any money to do it.”
San Francisco County Public Defender Jeff Adachi, who signed Rosenfeld’s petition, took issue with the idea of backfilling court costs while limiting public access. He believes charging for documents creates a two-tiered system that shuts poor people out: “It runs contrary to the idea of government transparency by making it harder for the press and watchdog organizations to view files. Ultimately, these records belong to the public,” Adachi said.
Wilson said it isn’t true that the system favors the wealthy, because indigent litigants representing themselves don’t have to pay.
But that doesn’t help attorneys like Rosenfeld who represent the indigent. “We shouldn’t be solving the court’s budgetary woes on the backs of poor people,” he said. “It reeks of gross injustice, and it costs the court a lot of confidence on the part of the public.”