Access to Public Information
Bubon v. Russia
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The United States Court of Appeals for the Third Circuit reversed the decision of the District Court and denied Philadelphia Bail Fund and Merry Reed the right to access verbatim records of the bail hearings in the Philadelphia Municipal Court. The case concerns the Supreme Court of Pennsylvania’s state-wide rules and the Philadelphia Municipal Court’s local rules that prohibit attendees of criminal court proceedings from electronically recording them. Philadelphia Bail Fund challenged the rules as violating its First Amendment rights, claiming that the rules prevented it from making audio recordings of preliminary arraignments in the Municipal Court. While the lower court ruled that Philadelphia District Court must either create or release verbatim recordings or allow Bail Fund to make its own recordings (thereby extending First Amendment right to access to include such recordings), the Appellate Court held that doing so violates judicial precedents and amounts to making the law. In arriving at its decision, the majority noted that the Bail Fund’s First Amendment right of access was not meaningfully interfered with in the absence of verbatim records. The case is pending appeal for an en banc rehearing before the Appellate Court.
The Appellee in the case, Philadelphia Bail Fund, is a non-profit organisation dedicated to fairness in state criminal justice system. It operates an initiative called Philadelphia Bail Watch, which sends volunteers into bail hearings to observe and report on what they see, using the information gathered by those volunteers to produce public reports aimed at educating citizens and government officials about Philadelphia’s bail practices.
Typically, preliminary arraignments (also known as bail hearings) take place before an Arraignment Court Magistrate, who is tasked with determining the decision to release and conditions, if any, with respect to a person arrested and brought before the court. The bail hearings are kept open to the public with a caveat that the transcripts of the hearings will not be made by the court. While the bail hearings are recorded for ‘internal review purposes’, they are not made available to the public. All other documentation, including court documents related to the hearings, bail bonds, criminal complaints, hearing subpoenas and appeal reports are available for public access.
In June 2019, Philadelphia Bail Fund’s Director requested Philadelphia Municipal Court to permit audio recording of bail hearings for purpose of public dissemination. This request was denied by the Presiding Judge. In response, the Bail Fund filed a complaint on July 17, 2019 contesting that the ban on audio-recording bail hearings violated its First Amendment right to access public documents. Accordingly, it sought a declaratory judgment that the two Pennsylvania court rules and a Philadelphia Municipal Court Arraignment Court Magistrate rule, insofar as they prohibited the public from audio-recording criminal proceedings, violated its right of access to court proceedings under the First Amendment.
By a decision dated February 25, 2020, the District Court issued an order granting summary judgment in favour of the Bail Fund, holding that the prohibition indeed violated the First Amendment by depriving the Bail Fund of an opportunity to create a comprehensive record of the proceedings. The District Court stayed the enforcement, however, for a period of 45 days to allow Municipal Court an opportunity to cure its constitutional violation and allow access to official transcripts and recordings to the public. On account of COVID-19, the parties agreed for an extended stay until June 9, 2020. Meanwhile, the Arraignment Magistrates filed an appeal to reverse and remand the decision of the District Court.
Before the Appellate Court, it was argued by the Arraignment Magistrates that a right to make audio recordings of courtroom proceedings was not available to the Bail Fund, as the Constitution grants them rights only to the extent of accessing courtroom proceedings and observe/access documentation arising from those proceedings. Extending right of access into a right to require creation of audio recordings was, therefore, beyond the ambit of the First Amendment.
On the contrary, Philadelphia Bail Fund contested that the right to seek audio recordings was not an “unfettered” right but was only an extension of its First Amendment right to access, primarily since there was no verbatim documentation of proceeds available to them and it was impossible for its volunteers to document every point in the hearings. It further averred that the available records were inadequate for exercise of its rights as they lacked essential information, including arguments made by the parties’ as well as the magistrate’s reasoning. On these grounds, the alleged rules were contested to be unconstitutional.
By a decision dated September 29, 2020, the Appellate Court reversed the decision of the District Court and remanded the case. Philadelphia Bail Fund subsequently filed a petition for an en banc hearing which was granted by the Appellate Court in a recent decision dated January 11, 2021. The Court also vacated the Appellate Court judgment dated September 29, 2020 and has scheduled the en banc rehearing on May 19, 2021.
Justice Greenberg delivered the majority opinion of the United States Court of Appeals for the Third Circuit on behalf of Justice Phipps and himself. The principle question before the Court was whether the alleged rules impeded its First Amendment right of access by precluding Philadelphia Bail Fund from obtaining a verbatim record of the bail proceedings.
Applicable legal basis
Pennsylvania Rule of Criminal Procedure 112(C) prohibits the public from making ‘stenographic, mechanical, [or] electronic recording[s]’ of any criminal proceedings. In addition, Pennsylvania Rule of Judicial Administration 1910(B) provides that ‘judges shall prohibit broadcasting, televising, recording or taking photographs in the courtroom’. Furthermore, the Local Arraignment Court Magistrate Rule 7.09 directs bail magistrates, in particular, to ‘prohibit broadcasting, televising, recording, or taking photographs in the Courtroom’.
The First Amendment of the US Constitution – which guarantees certain freedoms such as religion, expression, assembly, and the right to petition – does not expressly protect the right of access to court proceedings and records. However, the Supreme Court has established through its case law a qualified constitutional right for the press and public to attend criminal proceedings. Among other reasoning, the Supreme Court has fundamentally held that the right ‘protect[s] the free discussion of governmental affairs’ [Globe Newspaper Co. v. Superior Ct., 457 U.S. 596 (1982), cited p. 5], plays an essential role in ‘effective judicial administration’ through public scrutiny and criticism [Sheppard v. Maxwell, 384 U.S. 333 (1966), cited p.5 ], and is particularly important in criminal prosecutions, which are of ‘the high[est] concern and importance to the people’ [Richmond Newspapers Inc. v. Virginia, 448 U.S. 555 (1980), cited p. 5]. While the Supreme Court has made clear that “the public’s right to information encompasses modes of compiling such information beyond mere attendance of proceedings” [p. 6], the right of access is not a narrow one. Rather, the Court has recognised many different modes or forms of access that may fulfil this right, so long as the sources of information ‘beyond in-person attendance … are capable of broader dissemination and… accurately capture[s] the actions of the third branch of government’ [p. 7].
The right to audio-record hearings and the creation of ‘new’ documentation
In its ruling dated February 25, 2020, the District Court primarily considered whether the Bail Fund was entitled under First Amendment to audio-record hearings in absence of official transcripts or recordings by the Municipal Court. In arriving at its decision, the District Court deconstructed the right of public access to criminal trials to mean a ‘right to listen and take notes and to disseminate and publish what is observed’ [p. 10, District Court Order]. Citing United States v. Antar 38 F.3d 1348 (1994), it reasoned that access to transcripts in a live judicial proceeding was equivalently critical to the right to be present to hear and observe courtroom proceedings. While it took note of an array of judgments in other circuits that have denied the First Amendment right to audio-record court proceedings, it dismissed them as significantly differing in facts. The Court also highlighted that in a majority of cases referenced by the Arraignment Magistrates denying the First Amendment right, the existence of an official reporting system or the availability of transcripts were important reasons to disallow public to make recordings (unlike the present case, where no such documentation existed). Consequently, the Court deemed a public right of ‘meaningful access’ as an essential component of First Amendment right to public access of bail hearings [p. 23. District Court Order] and declared the aforementioned state and local rules unconstitutional, insofar as they prohibited public to audio-record bail hearings.
At the Appellate Forum, the Court responded to the averments made before the District Court in negative, noting that the lower court concerned itself with an analysis of precedents that restricted access to documentation already in existence, while the dispute really was with respect to creation of new documents or audio-recordings. This contention – whether the right of access included an affirmative requirement on the judiciary to create or allow creation of verbatim records of its proceedings – was not mandated by judicial precedents. Directing the Municipal Court to do so, in view of the Court, would amount to making a new law as well as broadening the First Amendment right of access.
Interestingly, the District Court had relied on Whiteland Woods v. Township of West Whiteland, 193 F.3d 177 (1999) to establish a nexus between right of access and right to audio-record the proceedings. However, the Court of Appeals disregarded this connection, declaring that Whiteland Woods only considered whether a real estate developer’s First Amendment right of access was infringed when it was prohibited from videotaping a planning commission meeting and did not stand for a proposition that court must create/allow creation of verbatim records of their proceedings. There, the Court determined that the videotaping ban did not meaningfully interfere with the First Amendment right of access as the public had an alternative means of compiling a comprehensive record [p. 12].
While Philadelphia Bail Fund contested the Court’s interpretation of Whiteland Woods by inferring that the creation of verbatim documentation was an essential prerequisite to a ‘comprehensive record’ in itself, the Court held that their argument failed on two counts. First, it failed to uphold the standard of ‘meaningful interference’ (i.e. whether the Rules meaningfully interfered with the public’s ability to inform itself about the bail hearings) as the Bail Fund’s volunteers were able to conveniently attend hearings and take handwritten notes. In addition, the documentation in relation to bail hearings (bulk data information, criminal complaints and access to online dockets) were available to the public as well. Secondly, the Bail Fund also made an error to equate ‘comprehensive record’ with ‘verbatim record’. In essence, the Court noted, ‘…just because something may be a good policy does not mean that it rises to the level of a constitutional right’ [p. 14].
Justice Krause’s dissent
In a dissenting opinion, Justice Krause noted the gravity of the error in the majority ruling, which ‘reflected a fundamental misunderstanding of the First Amendment’ and had alarming ‘consequences for public discourse and confidence in government institutions’ [p. 15]. Essentially, she contested that the majority’s metaphysical inquiry into the limitations of First Amendment disregarded the right to comprehensive and accurate information, as well as the evidence in hand which exhibited a meaningful interference with the Bail Fund’s right of access. In her view, the majority strayed from the focus on the effect of government restrictions on access to comprehensive information and confused a constitutional violation with the remedies available to redress the same. Notably, public’s right to information encompasses modes of compiling such information beyond mere physical attendance and so, absence of a publicly available transcript interfered with their right to a comprehensive and verifiable record.
On specific grounds, Justice Krause disapproved of majority’s analysis of Whiteland Woods case by citing that availability of alternative means (such as stenographic and audio recordings) was essential to the compilation of comprehensive records in that case. In the absence of such, videotaping would have provided a uniquely valuable source of information [p. 35]. Furthermore, she also rejected the majority’s simplistic argument that the Bail Fund erroneously equated ‘comprehensive record’ with ‘verbatim record’. This theory, as she noted, failed to consider what is required for an ‘accurate’ and ‘comprehensive’ record (in consonance with the District Court’s analysis). Finally, she also claimed that the majority’s assertion that the right of access is limited to documentation already in existence conflated the First Amendment right with its common-law cousin (i.e. right of access to judicial records). Most importantly, the common-law right focuses on the public’s ability to inspect and copy judicial records, as against the First Amendment right which seeks to protect public awareness and participation. Since the former is narrower than the First Amendment right, the majority’s emphasis on it was misplaced.
Even though the dissenting opinion by Justice Krause prescribed a broader view of First Amendment right of access, her views were nevertheless dismissed by the majority as baseless. The Court responded to the dissent by noting that the Bail Fund already maintained access to a mass of information, except a specific kind of information – verbatim record (which was the sole focus of the case). Accordingly, the case was remanded but the decision stands vacated in view of the en banc rehearing scheduled on May 21, 2021.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision of the Court of Appeals restrains freedom of expression. As Justice Krause notes, the First Amendment right of access serves vital interests: it not only protects free and informed discussion of government affairs, but also ensures that citizens are able to participate effectively and contribute to nation’s self-governance processes. The First Amendment right of access, thus, implies public’s right to access constitutionally protected discussion of governmental affairs. It seems illogical, therefore, to limit such access only to the courtroom. By denying Philadelphia Bail Fund a right to verbatim records of the court proceedings – particularly those that are criminal in nature – the Appellate Court’s ruling restricts free circulation of information and ideas, falls short of ensuring uninhibited, robust and widely open debate on public issues and deprives liberty to its citizens.
The impact of this ruling is even more pertinent given its criminal justice context, where off-the-record appeals are immediately available following what are typically very short bail proceedings. The lack of access here only further injures the ability of the press and the public to witness, document and criticize any judicial errors – even more crucially so, when the criminal proceedings may lead to the deprivation of one’s liberty.
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