The Portland Press Herald and the Sun Journal have joined a new federal lawsuit challenging a rule that allows civil cases in Maine’s electronic court records system to be secret for weeks or even months after they are filed.
Courthouse News Service, a national outlet that reports on civil court proceedings, filed the complaint Wednesday in U.S. District Court in Bangor. The companies that own the Press Herald, Kennebec Journal, Morning Sentinel and Sun Journal are also plaintiffs in the lawsuit.
The news organizations argue that delaying access to new cases violates the First Amendment, which guarantees the press and public the right to review and copy such records, including civil complaints. They have asked the court to grant a preliminary injunction to block the rule while the case moves forward.
“While not all new civil cases have broad significance, they are often of great importance to individuals in the community served by the courthouse, by the parties and their lawyers, as well as to other businesses, communities, and individuals whose business operations or matters of a personal nature may be affected by the lawsuit,” William Girdner, the editor and publisher of Courthouse News, said in a declaration filed with the complaint. “Delaying access to complaints for days or weeks after they are filed is contrary to basic principles of open government and contrary to the interest of the public in knowing that a legal battle has begun and what that battle is about. Technology should be used to illuminate the halls of government, not to darken them.”
Amy Quinlan, a spokeswoman for the Maine Judicial Branch, said Wednesday that she could not answer questions about the case. The named defendants are Ted Glessner, the state court administrator, and Peter Schleck, the clerk of the Penobscot County Superior Court.
Maine is in a years-long process of shifting court records from paper files to digital ones. In November, Bangor courts became the first to start using the electronic system for filing and viewing cases. Only some civil and family cases are online right now, but eventually, most criminal and civil cases across the state will be.
The Judicial Branch finalized the rules for electronic filing last summer. That document says no civil case will be accessible to the public until three business days after the clerk’s office receives proof of service. Plaintiffs typically have 90 days to serve a defendant, so a case could be hidden from the public eye for that entire time.
Maine is the only state with such a rule, the court filing says. Vermont implemented a similar requirement in 2017, and that state’s top court quickly rescinded it after a similar legal challenge by Courthouse News.
“The decision by Maine courts to deny the public and the press timely access to civil records is unconstitutional,” said Cliff Schechtman, the executive editor of the Portland Press Herald. “And the federal courts have consistently ruled that limiting such access to the press infringes our First Amendment rights.”
The rule has never existed for paper filings in Maine courthouses.
“The public has long had access to paper records the instant they are docketed in our courts, enabling the press and the people to monitor activities in our civil courts in real time,” said Judy Meyer, the executive editor of the Sun Journal, the Kennebec Journal and the Morning Sentinel. “That access must not be altered just because we move from paper to electronic filing. Public access to court records is what is important, not the medium of those records.”
It is not clear why the courts put the rule in place. Quinlan said Wednesday that she could not answer that question. In 2019, the Maine Freedom of Information Coalition objected to a draft version of the rule in written comments to the Maine Supreme Judicial Court. Attorney Sigmund Schutz, who wrote that letter and is now representing the Maine news organizations in their lawsuit, said he never received a response or heard any justification for it.
The news organizations are not seeking access to documents that are considered confidential by statute, such as records of mental health civil proceedings. The lawsuit would only affect records deemed to be public.
“Why are you slowing down the free flow of information about what Maine courts are up to?” Schutz said Wednesday. “That’s what this case is about.”
Separate from the lawsuit, public access advocates have also raised concerns that the fees for viewing electronic documents in Maine’s new system provide a barrier to open access.
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