If you request a public record from a court, say a 16 page court filing on a medical marijuana case, that is going to cost you nearly $30. For a record that already exists in a database.
Until recently I'd assumed Thurston County was a special case. That our clerks office was one of the few charging outrageous fees for public records. But, because of a bill passed in 2005, every county clerk in Washington State is required to establish a paywall to digital public records.
|Being able to read a 16 page public document shouldn't cost almost $30.|
Court funding in 2005
SB 5454 was introduced to the legislature in January after years of discussions and meetings by judges and other court officials throughout Washington. The Board for Judicial Administration established a task force on court funding in 2002. At that point, judges had complained that local governments routinely stripped courts of funding when times got tight.
The idea was to give local and other courts more stable and dedicated funding. After just over two years of meetings, the end result was a bill that increased existing fees established a long series of new fees for citizens interacting with the courts.
One of the fees included being able to access county clerk records:
For preparing a certified copy of an instrument on file or of record in the clerk's office, for the first page or portion of the first page, a fee of five dollars, and for each additional page or portion of a page, a fee of one dollar must be charged. For authenticating or exemplifying an instrument, a fee of two dollars for each additional seal affixed must be charged. For preparing a copy of an instrument on file or of record in the clerk's office without a seal, a fee of fifty cents per page must be charged. When copying a document without a seal or file that is in an electronic format, a fee of twenty-five cents per page must be charged. For copies made on a compact disc, an additional fee of twenty dollars for each compact disc must be charged.
Certified copy for lawyers vs. non-certified for me
I highlighted the passages up there that I consider important for this discussion. The fee for a "certified" copy many be high, but that is because there is an extra level of human review for those copies. Only certified copies of court records can be used in courts, so lawyers accessing those records need to have them looked at by a clerk official before they're deemed certified.
On the other hand, non-certified digital versions (which can't be used in court and are only informational) have a fee of 25 cents per page. This is where the paywall to public records goes up.
Let's take a step back and talk about what sort of records we're talking about. Clerk records include any sort of action or filing with a local court. These could be a lawsuit filed against your town's largest employer. It could be a court order against an elected official. These are the raw data or an entire portion of our government, and they are hidden behind a special paywall that no other public record in Washington is allowed to use.
Like the Thurston County Clerk's office, many county clerks maintain a database of all clerk records. If you made a similar request to a non-court government agency with a similar database, the Washington Administrative Code strongly suggests that "(t)he agency cannot attempt to charge a per-page amount for a paper copy when it has an electronic copy that can be easily provided at nearly no cost."
PRA vs. Common Law
As surprising as it may sound, court records are not covered under the Public Records Act. That said, "common law right of access to judicial records is well recognized in this country." This means, that while no legislation exists specifically allowing public access to these kinds of public documents, enough traditional and case law exists to assume there is a right.
That said, there obviously isn't enough of a right to make it easy for citizens to access their own court records. You should have to pay almost $30 to read a 16 page court filing in a case regarding statewide ballot initiative.
The fix is easy. All we need to do is drop the fee for non-certified copies of court records that already exist in a digital format.
This wouldn't exactly be a hit to the budget of county clerks throughout the state. When I contacted my clerk last summer, I learned that while it cost $60,000 to maintain the entire records system, requests only brought in about $40,000. And, just over a quarter of those documents came through the sytsem's online database (or ecommerce system).
Even if half of the e-commerce documents were non-certified, then it would be a very small portion of the income coming from citizens literally looking to read a public document. The vast majority of the fees would be from lawyers or other folks looking for useable in court certified documents.