Existing law requires the Judicial Council to adopt rules to establish standards and guidelines for the creation, maintenance, reproduction, and preservation of court records, to ensure the accuracy and preserve the integrity of the records, and ensure that the public can access and reproduce the records. Existing rules of court require that all records be made reasonably available to the public except those that are sealed by court order or made confidential by law.

This bill would require a court to make public court records that are maintained in an electronic format available to the public for inspection and copying at a courthouse during hours when the courthouse is open to the public. The bill bill, commencing January 1, 2025, would require a court to provide to the public remote access to all public court records about in civil cases, except as specified, including registers of actions, calendars, and indexes, that are maintained by the court in an electronic format, as specified. The bill would prohibit a court that provides the public with remote access to these records from charging a fee to search for, download, or copy public court records. The bill would authorize those records, except that a court would be authorized to charge a fee to a commercial user user, as defined, for viewing, searching, duplicating, downloading, or printing public court records in an electronic format. The bill would require the Judicial Council, by January 1, 2026, to develop a rule of court establishing authorize the Judicial Council to adopt statewide commercial user fees or a process for courts to use in developing commercial user fees.

Existing law requires the Judicial Council to adopt rules to establish standards and guidelines for the creation, maintenance, reproduction, and preservation of court records, to ensure the accuracy and preserve the integrity of the records, and ensure that the public can access and reproduce the records. Existing rules of court require that all records be made reasonably available to the public except those that are sealed by court order or made confidential by law.

This bill would require a court to make public court records that are maintained in an electronic format available to the public for inspection and copying at a courthouse during hours when the courthouse is open to the public. The bill would require a court to provide remote access to all public court records about civil cases, including registers of actions, calendars, and indexes, that are maintained by the court in an electronic format, as specified. The bill would prohibit a court that provides the public with remote access to these records from charging a fee to search for, download, or copy public court records. The bill would authorize a court to charge a fee to a commercial user for viewing, searching, duplicating, downloading, or printing public court records in an electronic format. The bill would require the Judicial Council, by January 1, 2026, to develop a rule of court establishing statewide commercial user fees or a process for courts to use in developing commercial user fees.

SENATE COMMITTEE ON APPROPRIATIONS

Senator Anthony Portantino, Chair

2023 - 2024 Regular Session

AB 1758 (Committee on Judiciary) - Court records: fees

Bill Summary:

AB 1758 would require a court to make public records that are maintained in an electronic format available to the public for inspection and copying and it would require a court to provide remote access to all public court records about civil cases that are maintained by the court in an electronic format, as specified.

Fiscal Impact:

General Fund costs pressures in the low tens of millions to backfill lost revenue to specified superior courts (General Fund). Minor and absorbable costs to the Judicial Council in order to adopt a Rule of Court to assign commercial user fees. See Staff Comments for additional detail.

Background:

California’s Constitution and the California Public Records Act (CPRA) provide the public with broad access to public records. The CPRA defines "public records" as "any writing containing information relating to the conduct of the public's business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics." Although the judicial branch is exempted from the CPRA, courts have held that there is a common law right of access to court records where there is a legitimate public interest in the records that is not outweighed by other factors, and that any limitation on access to judicial records must be narrowly interpreted.

Proposed Law:

• Requires a court to make public court records maintained in an electronic format available to the public, in either electronic or paper form, for inspection and copying at a courthouse during hours when the courthouse is open to the public, unless otherwise prohibited by law.
• Requires a court to provide remote access to all public court records about civil cases that are maintained by the court in an electronic format, except as provided.
• Authorizes a court to provide the public with remote access to the records by means that include, but are not limited to, an internet website maintained by the court or a third party on behalf of the court.
• Exempts a court from providing access to documents in either of the following circumstances:
  • It is not reasonably feasible for the court to make the records available by remote means because the court lacks either the resources or the technical capacity to do so; or
  • The record is about one of the types of civil cases listed in the California Rules of Court as a type of civil case to which a court may not provide remote access.
• Prohibits a court that provides the public with remote access to the records described above, from charging a fee to search for, download, or copy public court records.
  
• Authorizes a court to charge a fee to a commercial user for viewing, searching, duplicating, downloading, or printing public court records in an electronic format.
• Requires the Judicial Council, by January 1, 2026, to develop a rule of court establishing statewide commercial user fees or a process for courts to use in developing commercial user fees.
• Defines terms for purposes of this bill including “commercial user,” “court record,” and “public court record.”

Related Legislation:

• AB 2962 (Comm. On Judiciary, 2022) was substantially similar to this bill. AB 2962 was held on this Committee’s suspense file.
• SB 1262 (Bradford, 2022) would have required the clerk of the superior court to keep publicly accessible electronic indexes of defendants in criminal cases that may be searched and filtered based on a defendant’s driver’s license number or date of birth, or both. SB 1262 was vetoed.

Staff Comments:

According to the Judicial Council (JCC), 16 out of the 58 superior courts currently provide online access to civil case records. Nine of those courts require a user to pay a fee to access civil court records. The revenue generated from these fees are significant and ongoing. The JCC reports that in the three most recent years for which revenue figures are available, the courts that have implemented cost-recovery fees have collected an average of $18.7 million per year. If AB 1758 is enacted, those courts could require additional funding for ongoing maintenance and security of the existing systems. To the extent fees are charged to commercial users, as permitted by AB 1758, revenue loss may be offset to an unknown degree.

-- END --

8SENATE JUDICIARY COMMITTEE

Senator Thomas Umberg, Chair

2023-2024 Regular Session

Bill No: AB 1758 (Author:Committee on Judiciary)

Version: March 2, 2023

Hearing Date: June 27, 2023

Fiscal: Yes

Urgency: No

AMConsultant:

SUBJECT

Court records: fees

DIGEST

This bill requires a court to make public court records that are maintained in an electronic format available to the public for inspection and copying at a courthouse during hours when the courthouse is open to the public. The bill requires a court to provide remote access to all public court records about civil cases that are maintained by the court in an electronic format, as specified. The bill prohibits a court that provides the public with remote access to these records from charging a fee to search for, download, or copy the records. The bill authorizes a court to charge a fee to a commercial user for viewing, searching, duplicating, downloading, or printing public court records in an electronic format, and requires the Judicial Council, by January 1, 2026, to develop a rule of court establishing statewide commercial user fees or a process for courts to use in developing commercial user fees.

EXECUTIVE SUMMARY

Access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state, as provided by both the California Constitution and statue. It has come to the attention of the author that some courts charge the public to access court records posted online in an electronic format. This policy acts as an impediment to the public being able to effectuate this fundamental right. To address this deficiency, the bill requires a court to provide remote access to all public court records about civil cases maintained by the court in an electronic format, and prohibits the court from charging the public a fee to search for these records. In order to strike a balance, the bill allows courts to charge commercial users fees for accessing those records. This bill is a reintroduction of AB 2962 (Committee on Judiciary, 2022), which passed this Committee but was ultimately held in the Senate Appropriations Committee.

The bill is author sponsored. It is supported by California News Publishers Association, the Consumer Attorneys of California, and the First Amendment Coalition. There is no known opposition.

PROPOSED CHANGES TO THE LAW

Existing law:

• 1. Provides, pursuant to the California Constitution, that the people have the right of access to information concerning the conduct of the people’s business, and, therefore, the meetings of public bodies and the writings of public officials and agencies are required to be open to public scrutiny. (Cal. Const. art. I, § 3 (b)(1).)
  2. Requires a statute that limits the public’s right of access to be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest. (Cal. const. art. I, § 3(b)(1).)
  3. Requires a statute to be broadly construed if it furthers the people’s right of access, and narrowly construed if it limits the right of access. (Cal. const. art. I, § 3(b)(1).)
  4. Governs the disclosure of information collected and maintained by public agencies pursuant to the California Public Records Act (CPRA). (Gov. Code §§ 7920.000 et seq.)

1. Provides that all public records are accessible to the public upon request, unless the record requested is exempt from public disclosure. (Gov. Code § 7922.525.)
2. Defines “public records” as any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics. (Gov. Code § 7920.530.)
3. Defines “public agency” as any state or local agency. (Gov. Code § 7920.525(a).)
4. Defines “state agency” as every state office, officer, department, division, bureau, board, and commission or other state body or agency, except those agencies provided for in Article IV (except Section 20 thereof) or Article VI of the California Constitution. (Gov. Code § 7920.540.)
   1. Requires that, unless otherwise prohibited by law, any agency that has information that constitutes an identifiable public record not exempt from disclosure pursuant to this division that is in an electronic format shall make that information available in an electronic format when requested by any person. (Gov. Code § 7922.570.)
   2. Requires that the cost of duplication of an electronic record to be limited to the direct cost of producing a copy of a record in an electronic format. (Gov. Code § 7922.575(a).)
   3. Provides the requester is required to bear the cost of producing a copy of the record, including the cost to construct a record and the cost of programming and computer services necessary to produce a copy of the record, when either of the following applies:
5. in order to comply with the CPRA the public agency would be required to produce a copy of an electronic record and the record is one that is produced only at otherwise regularly scheduled intervals; or
6. the request would require data compilation, extraction, or programming to produce the record. (Id. at (b).)
   1. Authorizes trial court records to be e created, maintained, and preserved in any form or forms of communication or representation, including paper, optical, electronic, magnetic, micrographic, or photographic media or other technology pursuant to the rules adopted by the Judicial Council. (Gov. Code § 68150(a).) 
7. Requires the Judicial Council to adopt rules to establish the standards or guidelines for the creation, maintenance, reproduction, or preservation of court records, including records that must be preserved permanently. The standards or guidelines shall reflect industry standards for each medium used, if those standards exist. The standards or guidelines shall ensure that court records are created and maintained in a manner that ensures accuracy and preserves the integrity of the records throughout their maintenance. (Id. at (c).)
8. Requires these court records to be made reasonably accessible to all members of the public for viewing and duplication as the paper records would have been accessible, unless access is otherwise restricted by law. (Id. at (l).)
9. Requires reasonable provisions to be made for duplicating the records at cost. Cost consist of all costs associated with duplicating the records as determined by the court. (Ibid.)
   1. Provides for courts to charge the following fees related to court records.
10. Fifty cents per page to cover the cost of preparing copies of any record, proceeding, or paper on file in the clerk’s office.
11. One dollar per page, in addition to the fee for the certificate, for comparing with the original on file in the office of the clerk of any court, the copy of any paper, record, or proceeding prepared by another and presented for the clerk’s certificate.
12. Fifteen dollars for each search of records or files conducted by a court employee that requires more than 10 minutes. (Gov. Code § 70627.) 
    1. Defines “court record” as consisting of the following:
13. all filed papers and documents in the case folder, but if no case folder is created by the court, all filed papers and documents that would have been in the case folder if one had been created;
14. administrative records filed in an action or proceeding, depositions, transcripts, including preliminary hearing transcripts, and recordings of electronically recorded proceedings filed, lodged, or maintained in connection with the case, unless disposed of earlier in the case pursuant to law; or
15. other records listed under subdivision (g) of Section 68152. (Gov. Code § 68151(a).)

This bill:

1. Requires a court to make public court records maintained in an electronic format available to the public, in either electronic or paper form, for inspection and copying at a courthouse during hours when the courthouse is open to the public, unless otherwise prohibited by law.
2. Requires a court to provide remote access to all public court records about civil cases that are maintained by the court in an electronic format, except as provided.
3. Authorizes a court to provide the public with remote access to the records by means that include, but are not limited to, an internet website maintained by the court or a third party on behalf of the court.
4. Exempts a court from providing access to documents required by 2), above, in either of the following circumstances:
   1. it is not reasonably feasible for the court to make the records available by remote means because the court lacks either the resources or the technical capacity to do so; or
   2. the record is about one of the types of civil cases listed in the California Rules of Court as a type of civil case to which a court may not provide remote access.
5. Prohibits a court that provides the public with remote access to the records described in 2), above, from charging a fee to search for, download, or copy public court records.
   1. Notwithstanding the above prohibition, authorizes a court to charge a fee to a commercial user for viewing, searching, duplicating, downloading, or printing public court records in an electronic format.
6. Requires the Judicial Council, by January 1, 2026, to develop a rule of court establishing statewide commercial user fees or a process for courts to use in developing commercial user fees.
7. Defines the following for the purpose of this section:
   • 1. “Commercial user” means a person or entity, or any person acting on behalf of an entity, that has viewed, downloaded, or printed at least 100 individual electronic court records during a 12-month period for commercial purposes.
     2. None of the following are considered a commercial user:
        1. An entity formally organized as a nonprofit corporation, including, but not limited to, a nonprofit organization providing legal services to the persons whose records are obtained.
        2. An attorney or law firm that obtains a record about a client.
     3. A person who attests that the records are needed for a scholarly, journalistic, political, or government use.
     4. “Court record” has the same meaning as existing provisions of the Government Code.
     5. “Public court record” means a court record that is not sealed by court order, made exempt from remote public access under the California Rules of Court, or otherwise confidential by law.

COMMENTS

1. Stated need for the bill

The author writes:

AB 1758 ensures that the public will have the same access to electronic court records that they now have to other electronic public records; requiring that the public can search for, download, and copy electronic court records without paying unreasonable fees.

1. Public access to court records posted online
2. Access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state

Access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state. (Gov. Cod § 7921.000.) In 2004, the right of public access was enshrined in the California Constitution (hereafter Constitution) with the passage of Proposition 59 (Nov. 3, 2004, statewide gen. elec.),^[1] which amended the Constitution to specifically protect the right of the public to access and obtain government records: “The people have the right of access to information concerning the conduct of the people’s business, and therefore the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.” (Cal. Const., art. I, sec. 3 (b)(1).) The Constitution mandates that a statute, court rule, or other authority is to be broadly construed if it furthers the people’s right of access, and narrowly construed if it limits the right of access. (Ibid.) Additionally, it requires a statute that limits the public’s right of access to be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest. (Ibid.) Under the CPRA, a public record is defined as any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any public agency regardless of physical form or characteristics. (Gov. Code § 7920.530.) A “state agency” is defined as every state office, officer, department, division, bureau, board, and commission or other state body or agency, except those agencies provided for in Article IV (except Section 20 thereof) or Article VI of the California Constitution.^[2] (Gov. Code § 7920.540.) The CPRA therefore specifically exempts its provisions from applying to the courts.

Even though the CPRA does not specifically apply to court records, the California Supreme Court has held that there is a common law right of access to court records in which there is a legitimate public interest, if not outweighed by strong countervailing reasons, and further noted that “the general principles regarding public access to the records of public entities established in the statutes and [applicable] case law […] continue to apply in the context of court records.^[3]” (Sander v. State Bar of California, (2013) 58 Cal.4th 300, 318-323.) The court has found that the Constitutional provisions related to the people having the right of access to information regarding the people’s business and the mandate that limitation on access be narrowly construed also applies to court records. In Savaglio v. Wal-Mart Stores, Inc., the court stated: “With the passage of Proposition 59 effective November 3, 2004, the people's right of access to information in public settings now has state constitutional stature, grounding the presumption of openness in civil court proceedings with state constitutional roots.” ((2007) 149 Cal. App. 4th 588, 597.) In Sander v. State Bar of California, the California Supreme Court recognized that Article I, § 3 of the California Constitution applies to records of the judicial branch and applied the narrow construction rule to certain State Bar records at issue in that case. (Sander v. State Bar of California, supra at 312-313.)

1. Some courts charge the public to access public court records posted online in an electronic format

Some courts in the state charge the public to access to their public court records which are posted online in an electronic format. The Judicial Council states the reason is to cover costs associated with the creation, maintenance, and management of their electronic systems that allow for public access to those electronic records. According to the Judicial Council, in 2021 almost $30 million dollars was collected by various courts in fees for providing access to electronic records online. The exact number of courts that do this is unclear, as the Judicial Council is unable to provide details about how common the practice is. This issues was encountered first hand by staff of the Assembly Judiciary Committee, sponsor of the bill, when they were searching for Sacramento County court records related to that Committee’s work. Staff were unable to even search for the records they were trying to obtain without paying an initial fee. Under the CPRA, public agencies are prohibited from charging the public more than the “direct cost of producing a copy of a record in an electronic format,” and generally cannot charge for the staff costs of searching for records, redacting nonpublic information, or monitoring the public viewing of records, even though such costs can be substantial. (Gov. Code 7922.575.)

1. This bill is a reintroduction of AB 2962 (Committee on Judiciary, 2022)

This bill is a reintroduction of AB 2962 (Committee on Judiciary, 2022). AB 2962 passed this Committee on a vote of 10 to 0 with amendments to address several issues raised by stakeholders and the Judicial Council. These included:

• extending the date upon which the Judicial Council is to develop a rule of court establishing statewide commercial user fees or a process for courts to use in developing user fees to two years after the bill becomes operative;
• removing provisions that were duplicative of existing law;
• clarifying, consistent with California Rule of Court 2.503, that a court is required to provide remote access to all public court records about civil cases that are maintained by the court in electronic format unless it is not feasible for the court to make the records available remotely due to lack of resources or technical capacity or if they are the types of records specifically listed in the California Rules of Court as records for which remote access is not to be granted; and
• providing that a commercial user does not include an attorney or law firm that obtains a record about a client or a person who attest that the records are needed for a scholarly, journalistic, political, or government use.

All of these amendments are included in the bill that is before the Committee.

1. Statements in support

The Consumer Attorneys of California write in support stating:

Unfortunately, a number of courts in the state charge the public and attorneys representing their clients to access public court records that are posted online in an electronic format, charging fees to search for, download and copy records. They do so, according to the JCC, in order to cover their costs associated with the creation, maintenance, and management of their electronic systems that allow for public access to those electronic records. This seems to directly conflict with the CPRA, under which public agencies are prohibited from charging such fees and from passing on their administrative costs to the public. […]

AB 1758 places reasonable limits on the access to sensitive and personal information within court records. It does not authorize public access to court records that have been sealed by court order or that are confidential by law. Finally, in addition to defining relevant terms, AB 1758 ensures that public court records maintained in an electronic format are available for inspection and copying at a courthouse during hours when the courthouse is open to the public.

The California News Publishers Association and the First Amendment Coalition, supporters of the bill, write:

Unfortunately, the charges levied by some California courts to search for, view and download electronic public court records amount to just such an arbitrary barrier to access clearly public records. For example, some courts charge .50 cents per page to simply view electronic records on Superior Court websites. For journalists who do the important work of informing the public about developments in our courts, such charges are in practical effect a complete barrier to accessing public court records.

When journalists cannot access court records due to excessive fees, our entire state loses. Ready access to court documents is consistent with the First Amendment and long-standing tradition of transparency in our judicial system.

AB 1758 puts important limits on what courts can pass on to the press and public for accessing electronic records remotely, thereby removing real barriers to this important right of access.

SUPPORT

California News Publishers Association

Consumer Attorneys of California

First Amendment Coalition

OPPOSITION

None known

RELATED LEGISLATION

Pending Legislation: None known.

Prior Legislation: AB 2962 (Committee on Judiciary, 2022), see Comment 2), above.

PRIOR VOTES

Assembly Floor (Ayes 79, Noes 0)

Assembly Appropriations Committee (Ayes 15, Noes 0)

Assembly Judiciary Committee (Ayes 11, Noes 0)

**************

1. Prop. 59 was placed on the ballot by a unanimous vote of both houses of the Legislature. (SCA 1 (Burton, Ch. 1, Stats. 2004). ↑

2. The CPRA does specifically provide that an itemized statement of the total expenditures and disbursement of any agency provided for in Article VI of the California Constitution shall be open for inspection. (Gov. Code § 7928.720.) ↑

3. See also City of San Jose v. Superior Court, (2017) 2 Cal.5th 608, 617; American Civil Liberties Union Foundation of Southern California v. Superior Court, (2017) 3 Cal.5th 1032, 1036-37. ↑

ASSEMBLY THIRD READING

ATR Bill Id:AB 1758

Author:(Committee on Judiciary)

As Introduced Ver:March 2, 2023

Majority vote

SUMMARY

Prohibits courts that provide remote access to court records from charging a fee to search for, download, or copy public court records, except to a "commercial user."

Major Provisions

1. Requires a court to make public court records that are maintained in an electronic format available to the public, in either electronic or paper form, for inspection and copying at a courthouse during hours when the courthouse is open to the public, unless otherwise prohibited by law.
2. Requires a court to provide remote access to all public court records about civil cases, including registers of actions as defined by existing provisions of the Government Code, calendars, and indexes, that are maintained by the court in an electronic format, except as provided.
3. Authorizes a court to provide the public with remote access to the records by means that include, but are not limited to, an internet website maintained by the court, or a third party on behalf of the court.
4. Exempts a court from providing access to documents as required by 2) in either of the following circumstances:
   1. It is not reasonably feasible for the court to make the records available by remote means because the court lacks either the resources or the technical capacity to do so.
   2. The record is about one of the types of civil cases listed in the California Rules of Court as a type of civil case to which a court may not provide remote access.
5. Except as provided, prohibits a court that provides the public with remote access to the records described in 2) from charging a fee to search for, download, or copy public court records.
   1. Authorizes a court to charge a fee to a commercial user for viewing, searching, duplicating, downloading, or printing public court records in an electronic format.
6. Requires the Judicial Council, by January 1, 2026, to develop a rule of court establishing statewide commercial user fees or a process for courts to use in developing commercial user fees.
7. Defines the following for the purpose of this section:
   1. "Commercial user" means a person or entity, or any person acting on behalf of an entity, that has viewed, downloaded, or printed at least 100 individual electronic court records during a 12-month period for commercial purposes.
      1. None of the following are considered a commercial user:
         1. An entity formally organized as a nonprofit corporation, including, but not limited to, a nonprofit organization providing legal services to the persons whose records are obtained.
         2. An attorney or law firm that obtains a record about a client.
         3. A person who attests that the records are needed for a scholarly, journalistic, political, or government use.
   2. "Court record" has the same meaning as existing provisions of the Government Code.
   3. "Public court record" means a court record that is not sealed by court order, made exempt from remote public access under the California Rules of Court, or otherwise confidential by law.

COMMENTS

In order to facilitate greater access to public court records that are posted online, this bill prohibits a court from charging the public for access to court records posted online, but allows them to charge commercial users for access to the records.

Background – The California Public Records Act (CPRA). Under the CPRA, public agencies are prohibited from charging the public to "cover costs associated with the creation, maintenance, and management of their electronic systems that allow for public access to those electronic records;" they cannot charge more than the "direct cost of producing a copy of a record in an electronic format." (See Government Code Section 7922.575.) They also—according to case law-- cannot charge the public for the cost to search for records, redact nonpublic information, or monitor the public viewing of records, even though such costs can be substantial. (North County Parents Organization v. Department of Education (1994) 23 Cal. App. 4th 144, 146.) These are the costs of operating public agencies for the core functions they provide to the public in exchange for being funded by the public and recovery is not authorized by the CPRA. (Id. at 148.) Even though the CPRA does not specifically apply to the courts or their records, the California Supreme Court has held that there is a common law right of access to court records in which there is a legitimate public interest, if not outweighed by strong countervailing reasons. The court has found that the Constitutional provisions related to the people's right of access to information regarding the people's business applies to the judicial branch and that any limitation on access to judicial branch records must be narrowly construed.

Fees charged to the public for searching and downloading online records has become a source of revenue for the courts. Some courts in the state charge the public to access public court records that are posted online in an electronic format. According to the Judicial Council of California (JCC), in 2021, 16 counties in the state provided online access to electronic civil case records. Ten of those 16 courts received $22.7 million in fees from individuals who accessed court records during that two-year period. The JCC states that the reason why courts charge fees is to "cover costs associated with the creation, maintenance, and management of their electronic systems that allow for public access to those electronic records." If all 58 trial courts were able to "recover costs" at this rate, the estimated statewide total would be approximately $32 million per year.

To the extent that some courts in California are "recovering" tens of millions of dollars each year for access to their online records, these tens of millions of dollars appear to be completely outside of the state budget process. Neither the collection of fees, nor what they are spent on, is authorized by, monitored, or approved by the state. The state does not know which courts charge these fees and which do not. Depending on the size of the individual court's "recovery" and other cost pressures affecting its budget (and the budgets of other courts that do not charge such fees), the state may wish to consider in the budget process the fact that some courts are recovering significant funds by charging the public for access to their public records.

This bill prohibits the court from charging the public for access to court records posted online, but allows courts to charge commercial users for access to these records. The bill prohibits the courts from charging the public a fee that exceeds the court's direct costs of duplication for public users of the website to search for, download, or copy public court records. The bill strikes a balance by authorizing courts to charge commercial users fees for viewing, searching, duplicating, downloading, or printing public court records in an electronic format. The bill requires Judicial Council to develop a rule of court establishing statewide commercial user fees or a process for courts to use in developing commercial user fees by January 1, 2024. A "commercial user" is defined as a person or entity, or any person acting on behalf of an entity, that has viewed, downloaded, or printed at least 100 individual electronic court records during a 12-month period. Entities formally organized as nonprofit corporations, including, but not limited to, nonprofit organizations providing legal services to the persons whose records are obtained, are not considered commercial users. The distinction allows for individuals to achieve greater access to the courts remotely to the same degree they would in person while continuing to subsidize the maintenance of online infrastructure by charging commercial users.

This policy is in line with recent changes in the federal courts. Amid debate in Congress regarding whether the federal courts should be forced to allow the public free access to online docket searches in the federal court's electronic records system PACER, the Judicial Conference of the United States approved a plan in March 2022 to make PACER searches free for non-commercial users in any future overhauls of the system. It is also worth noting that as of March 29, 2023, the Sacramento Superior Court announced it had discontinued the practice of charging fees for online case record searches and electronic document downloads.

The bill does not require the courts to post any records online, or to make their records available via a website. Rather, if a court chooses to do so, they cannot charge a fee. This makes sense. Not only is it consistent with rules that govern electronic records retained by public agencies (See Section Government Code 7922.575), but also saves time for court personnel who don't have to search for records that are made available for the public to search online.

In light of the fundamental right to access governmental records enshrined in the Constitution, long standing common law principles, and policy of the CPRA to limit public agencies ability to charge the public for access to records, courts should not be charging the public for costs over and above the direct costs to the courts of access and duplication of records—i.e. costs associated with the creation, maintenance, and management of their electronic systems.

According to the Author

AB 1758 ensures that the public will have the same access to electronic court records that they now have to other electronic public records; requiring that the public can search for, download, and copy electronic court records without paying unreasonable fees.

Arguments in Support

In support of this measure, the Consumer Attorneys of California write:

Unfortunately, a number of courts in the state charge the public and attorneys representing their clients to access public court records that are posted online in an electronic format, charging fees to search for, download and copy records. They do so, according to the JCC, in order to cover their costs associated with the creation, maintenance, and management of their electronic systems that allow for public access to those electronic records. This seems to directly conflict with the CPRA, under which public agencies are prohibited from charging such fees and from passing on their administrative costs to the public.

AB 1758 provides that when a court makes public court records available in an electronic format by means of an internet website maintained by the court, or a third party on behalf of the court, the court shall not charge a fee to copy the records exceeding the court's direct cost of duplication. However, AB 1758 allows courts to charge fees to a "commercial user" of court records—an entity that profits from the use or sale of court records—to view, search for, duplicate, download, or print court records. AB 1758 clarifies that a person who obtains records while representing their clients is not a "commercial user." Our members face many court fees that mount up and they should not be charged a fee for records involving their own cases.

AB 1758 places reasonable limits on the access to sensitive and personal information within court records. It does not authorize public access to court records that have been sealed by court order or that are confidential by law. Finally, in addition to defining relevant terms, AB 1758 ensures that public court records maintained in an electronic format are available for inspection and copying at a courthouse during hours when the courthouse is open to the public.

AB 1758 is an important measure for access to justice for all. For these reasons our organization joins in strong support.

The California News Publishers Association also writes the following in support:

Unfortunately, the charges levied by some California courts to search for, view and download electronic public court records amount to just such an arbitrary barrier to access clearly public records. For example, some courts charge .50 cents per page to simply view electronic records on Superior Court websites. For journalists who do the important work of informing the public about developments in our courts, such charges are in practical effect a complete barrier to accessing public court records.

When journalists cannot access court records due to excessive fees, our entire state loses. Ready access to court documents is consistent with the First Amendment and long-standing tradition of transparency in our judicial system.

AB 1758 puts important limits on what courts can pass on to the press and public for accessing electronic records remotely, thereby removing real barriers to this important right of access.

Arguments in Opposition

No opposition on file.

FISCAL COMMENTS

According to the Assembly Appropriations analysis:

1. Loss of revenue (Trial Court Trust Fund, General Fund) to the courts in the tens of millions of dollars annually. Judicial Council reports that eight trial courts currently charge fees for online access to civil case records. Together, those eight courts recover approximately $18 million annually in online records access fees. Those fees would be prohibited by this bill. Judicial Council reports if $18 million annually is not provided from the General Fund to backfill the costs associated with providing the current online systems, the associated court budgets will be significantly impacted to cover the lost revenue.
2. Costs (Trial Court Trust Fund, General Fund) of an unknown but significant amount to the courts to fulfill the requirements of this bill. Judicial Council estimates costs in the tens of millions of dollars (one-time and ongoing) to implement a system to track commercial users, including IT infrastructure needed by trial courts and personnel costs. Judicial Council's workload to develop a rule of court to establish user fees would be minor and absorbable. Without additional funding from the General Fund to cover the new costs for the judicial branch to implement this bill, this will result in delays in court services and prioritization of cases, and it may impact access to justice.

VOTES

ASM JUDICIARY: 11-0-0

YES: Maienschein, Essayli, Connolly, Dixon, Haney, Kalra, Pacheco, Papan, Reyes, Robert Rivas, Sanchez

ASM APPROPRIATIONS: 15-0-1

YES: Holden, Megan Dahle, Bryan, Calderon, Wendy Carrillo, Dixon, Mike Fong, Hart, Lowenthal, Mathis, Papan, Pellerin, Sanchez, Weber, Ortega

ABS, ABST OR NV: Robert Rivas

UPDATED

VERSION: March 2, 2023

CONSULTANT: Alison Merrilees and Manuela Boucher / JUD. / (916) 319-2334 FN: 0000463

Date of Hearing: May 10, 2023

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Chris Holden, Chair

ABPCA Bill Id:AB 1758

Author:(Committee on Judiciary) – As Introduced Ver:March 2, 2023

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill requires, unless it is not reasonably feasible or disclosure is otherwise prohibited, a court to provide remote access to all public court records from civil cases. If a court provides remote access to public court records, this bill prohibits the court from charging a fee to search for, download, or copy court records, except to a commercial user, as specified.

FISCAL EFFECT:

1. Loss of revenue (Trial Court Trust Fund, General Fund) to the courts in the tens of millions of dollars annually. Judicial Council reports that eight trial courts currently charge fees for online access to civil case records. Together, those eight courts recover approximately $18 million annually in online records access fees. Those fees would be prohibited by this bill. Judicial Council reports if $18 million annually is not provided from the General Fund to backfill the costs associated with providing the current online systems, the associated court budgets will be significantly impacted to cover the lost revenue.
2. Costs (Trial Court Trust Fund, General Fund) of an unknown but significant amount to the courts to fulfill the requirements of this bill. Judicial Council estimates costs in the tens of millions of dollars (one-time and ongoing) to implement a system to track commercial users, including IT infrastructure needed by trial courts and personnel costs. Judicial Council’s workload to develop a rule of court to establish user fees would be minor and absorbable. Without additional funding from the General Fund to cover the new costs for the judicial branch to implement this bill, this will result in delays in court services and prioritization of cases, and it may impact access to justice.

COMMENTS:

1. Author’s Statement. According to the author:

AB 1758 ensures that the public will have the same access to electronic court records that they now have to other electronic public records; requiring that the public can search for, download, and copy electronic court records without paying unreasonable fees.

1. Background. California’s Constitution and the California Public Records Act (PRA) provide the public with broad access to public records. Although the judicial branch is technically exempted from the PRA, courts have held that there is a common law right of access to court records where there is a legitimate public interest in the records that is not outweighed by other factors, and that any limitation on access to judicial records must be narrowly interpreted. Currently, 16 superior courts provide online access to civil case records. As discussed above, eight of those courts require a user to pay a fee to access civil court records. Judicial Council reports that these fees cover costs associated with the creation, maintenance, and management of the online systems that provide court records to the public.

This bill would require a court to make all public court records from civil cases available online, unless it is not reasonably feasible for the court to provide online access or the records are from civil cases that may not be accessed remotely under the California Rules of Court. The bill also prohibits a court that provides remote access to records from collecting fees to search for, download, or copy public records. However, a court may continue to collect fees from a commercial user, which is defined as someone acting on behalf of an entity who has viewed, downloaded, or printed at least 100 records during a 12-month period for commercial purposes, excluding nonprofit organizations, law firms obtaining records about clients, and people accessing records for scholarly, journalistic, political, or government use.

Analysis Prepared by: Annika Carlson / APPR. / (916) 319-2081

Date of Hearing: April 11, 2023

ASSEMBLY COMMITTEE ON JUDICIARY

Brian Maienschein, Chair

ABPCA Bill Id:AB 1758

Author:(Committee on Judiciary) – As Introduced Ver:March 2, 2023

PROPOSED CONSENT

SUBJECT: Court records: fees

KEY ISSUE: IN ORDER TO PROMOTE PUBLIC ACCESS TO THE JUDICIAL SYSTEM and its records, SHOULD COURTS BE PROHIBITED FROM CHARGING FEES FOR REMOTE ACCESS TO COURT RECORDS that are posted online, INCLUDING Any FEE TO SEARCH FOR, DOWNLOAD, OR COPY PUBLIC COURT RECORDS?

SYNOPSIS

In 2004, the right of the people to have access to information regarding the conduct of state business, including meetings of public bodies and communications of public officials was enshrined in the California Constitution with the passage of Proposition 59: “The people have the right of access to information concerning the conduct of the people’s business, and therefore the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.” (Cal. Const., art. I, sec. 3 (b)(1).) Under the California Public Records Act (CPRA), a public record is defined as any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any public agency regardless of physical form or characteristics. Even though the CPRA does not specifically apply to court records, the California Supreme Court has held that there is a common law right of access to court records in which there is a legitimate public interest, if not outweighed by strong countervailing reasons, and further noted that “the general principles regarding public access to the records of public entities established in the statutes and [applicable] case law […] continue to apply in the context of court records.” (Sander v. State Bar of California, (2013) 58 Cal.4th 300, 318-323.) Some courts in the state charge the public to access their public court records which are posted online in an electronic format. The Judicial Council states the reason is to cover costs associated with the creation, maintenance, and management of their electronic systems that allow for public access to those electronic records. According to the Judicial Council, in 2021 almost $30 million dollars was collected by various courts in fees for providing access to electronic records online.

This bill prohibits the court from charging the public for access to court records posted online, but allows courts to charge commercial users for access to these records. In light of the fundamental right to access governmental records enshrined in the Constitution, long standing common law principles, and policy of the CPRA to limit public agencies ability to charge the public for access to records, courts should not be charging the public for costs over and above the direct costs to the courts of access and duplication of records—i.e. costs associated with the creation, maintenance, and management of their electronic systems. This bill is supported by the California News Publishers Association, Consumer Attorneys of California, and First Amendment Coalition and has no opposition on file.

SUMMARY: Prohibits courts that provide remote access to court records from charging a fee to search for, download, or copy public court records, except to a “commercial user.” Specifically, this bill:

1. Requires a court to make public court records that are maintained in an electronic format available to the public, in either electronic or paper form, for inspection and copying at a courthouse during hours when the courthouse is open to the public, unless otherwise prohibited by law.
2. Requires a court to provide remote access to all public court records about civil cases, including registers of actions as defined by existing provisions of the Government Code, calendars, and indexes, that are maintained by the court in an electronic format, except as provided.
3. Authorizes a court to provide the public with remote access to the records by means that include, but are not limited to, an internet website maintained by the court, or a third party on behalf of the court.
4. Exempts a court from providing access to documents as required by 2) in either of the following circumstances:
   1. It is not reasonably feasible for the court to make the records available by remote means because the court lacks either the resources or the technical capacity to do so.
   2. The record is about one of the types of civil cases listed in the California Rules of Court as a type of civil case to which a court may not provide remote access.
5. Except as provided, prohibits a court that provides the public with remote access to the records described in 2) from charging a fee to search for, download, or copy public court records.
   1. Authorizes a court to charge a fee to a commercial user for viewing, searching, duplicating, downloading, or printing public court records in an electronic format.
6. Requires the Judicial Council, by January 1, 2026, to develop a rule of court establishing statewide commercial user fees or a process for courts to use in developing commercial user fees.
7. Defines the following for the purpose of this section:
   1. “Commercial user” means a person or entity, or any person acting on behalf of an entity, that has viewed, downloaded, or printed at least 100 individual electronic court records during a 12-month period for commercial purposes.
      1. None of the following are considered a commercial user:
         1. An entity formally organized as a nonprofit corporation, including, but not limited to, a nonprofit organization providing legal services to the persons whose records are obtained.
         2. An attorney or law firm that obtains a record about a client.
         3. A person who attests that the records are needed for a scholarly, journalistic, political, or government use.
   2. “Court record” has the same meaning as existing provisions of the Government Code.
   3. “Public court record” means a court record that is not sealed by court order, made exempt from remote public access under the California Rules of Court, or otherwise confidential by law.

EXISTING LAW:

1. Provides, pursuant to the California Constitution, that the people have the right of access to information concerning the conduct of the people’s business, and, therefore, the meetings of public bodies and the writings of public officials and agencies are required to be open to public scrutiny.
   1. Requires a statute that limits the public’s right of access to be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.
   2. Requires a statute to be broadly construed if it furthers the people’s right of access, and narrowly construed if it limits the right of access. (Cal. Const. art. I, Section 3(b)(1).)
2. Governs the disclosure of information collected and maintained by public agencies pursuant to the California Public Records Act (CPRA). (Gov. Code Sections 7920.00 et seq. Unless otherwise stated all future references are to the Government Code.)
   1. Provides that all public records are accessible to the public upon request, unless the record requested is exempt from public disclosure. (Section 7922.525.)
   2. Defines “public records” as any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics. (Section 7920.530.)
   3. Defines “public agency” as any state or local agency. (Section 7920.525.)
   4. Defines “state agency” as every state office, officer, department, division, bureau, board, and commission or other state body or agency, except those agencies provided for in Article IV (except Section 20 thereof) or Article VI of the California Constitution. (Section 7920.540.)
3. Requires that, unless otherwise prohibited by law, any agency that has information that constitutes an identifiable public record not exempt from disclosure pursuant to this division that is in an electronic format shall make that information available in an electronic format when requested by any person. (Section 7922.570.)
4. Requires that the cost of duplication of an electronic record to be limited to the direct cost of producing a copy of a record in an electronic format. (Section 7922.575.)
5. Allows a public agency to charge for the cost of producing a copy of the record, including the cost to construct a record and the cost of programming and computer services necessary to produce a copy of the record, only when either of the following applies:
   1. In order to comply with the CPRA the public agency would be required to produce a copy of an electronic record and the record is one that is produced only at otherwise regularly scheduled intervals; or
   2. The request would require data compilation, extraction, or programming to produce the record. (Section 7922.575 (b)(1) - (2).)
6. Authorizes trial court records to be created, maintained, and preserved in any form or forms of communication or representation, including paper, optical, electronic, magnetic, micrographic, or photographic media or other technology pursuant to the rules adopted by the Judicial Council. (Section 68150 (a).) 
   1. Requires the Judicial Council to adopt rules to establish the standards or guidelines for the creation, maintenance, reproduction, or preservation of court records, including records that must be preserved permanently. The standards or guidelines shall reflect industry standards for each medium used, if those standards exist. The standards or guidelines shall ensure that court records are created and maintained in a manner that ensures accuracy and preserves the integrity of the records throughout their maintenance. (Section 68150 (c).)
   2. Requires these court records to be made reasonably accessible to all members of the public for viewing and duplication as the paper records would have been accessible, unless access is otherwise restricted by law. (Section 68150 (l).)
   3. Requires reasonable provision to be made for duplicating the records at cost. Cost consist of all costs associated with duplicating the records as determined by the court. (Section 68150 (l).)
7. Provides for courts to charge the following fees related to court records.
   1. Fifty cents per page to cover the cost of preparing copies of any record, proceeding, or paper on file in the clerk’s office.
   2. One dollar per page, in addition to the fee for the certificate, for comparing with the original on file in the office of the clerk of any court, the copy of any paper, record, or proceeding prepared by another and presented for the clerk’s certificate.
   3. Fifteen dollars for each search of records or files conducted by a court employee that requires more than 10 minutes. (Section 70627.) 
8. Defines “court record” as consisting of the following:
   1. All filed papers and documents in the case folder, but if no case folder is created by the court, all filed papers and documents that would have been in the case folder if one had been created;
   2. Administrative records filed in an action or proceeding, depositions, transcripts, including preliminary hearing transcripts, and recordings of electronically recorded proceedings filed, lodged, or maintained in connection with the case, unless disposed of earlier in the case pursuant to law; or
   3. Other records listed under subdivision (g) of Section 68152. (Section 68151 (a).)
9. Provides that a judicial branch entity may impose on all requests a fee reasonably calculated to cover the judicial branch entity's direct costs of duplication of a record or of production of a record in an electronic format under subdivision (i). The fee includes:
10. A charge per page, per copy, or otherwise, as established and published by the Judicial Council, or as established by the judicial branch entity following a notice and comment procedure specified by the Judicial Council, representing the direct costs of equipment, supplies, and staff time required to duplicate or produce the requested record; and
11. Any other direct costs of duplication or production, including, but not limited to, the costs incurred by a judicial branch entity in retrieving the record from a remote storage facility or archive and the costs of mailing responsive records. (Cal. Rules of Court, rule 10.500(e)(4)(B).)
12. Provides that in the case of requests for records for commercial use, a judicial branch entity may impose, in addition to the fee in 9), above, a fee reasonably calculated to cover the actual costs of staff search and review time, based on an hourly rate for salary and benefits of each employee involved. (Id. at (e)(4)(C).)
13. Defines for purposes of 10), above:
    1. "Commercial use" means a request for a use or purpose that furthers the commercial, trade, or profit interests of the requester or the person on whose behalf the request is being made. A request from a representative of the news media that supports its news-dissemination function is not a request for a commercial use. (Id. at (e)(4)(D)(i).)
    2. "Representative of the news media" means a person who regularly gathers, prepares, collects, photographs, records, writes, edits, reports, or publishes news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public for a substantial portion of the person's livelihood or for substantial financial gain. (Id. at (e)(4)(D)(ii).)

FISCAL EFFECT: As currently in print this bill is keyed fiscal.

COMMENTS: In order to facilitate greater access to public court records that are posted online, this bill prohibits a court from charging the public for access to court records posted online, but allows them to charge commercial users for access to the records. According to the author:

AB 1758 ensures that the public will have the same access to electronic court records that they now have to other electronic public records; requiring that the public can search for, download, and copy electronic court records without paying unreasonable fees.

Background – The California Public Records Act. In 2004, the right of the people to have access to information regarding the conduct of state business, including meetings of public bodies and communications of public officials was enshrined in the California Constitution with the passage of Proposition 59: “The people have the right of access to information concerning the conduct of the people’s business, and therefore the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.” (California Constitution, Art. I, Sec. 3 (b)(1).) The Constitution also mandates that statutes, court rule, or other authority are to be broadly construed if it furthers the people’s right of access, and narrowly construed if it limits the right of access. (Ibid.) Additionally, a statute that limits the public’s right of access must be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest. (Ibid.) Under the California Public Records Act (CPRA), a public record is defined as any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any public agency regardless of physical form or characteristics. (Section 7920.530.) A “state agency” is defined as every state office, officer, department, division, bureau, board, and commission or other state body or agency, except those agencies provided for in Article IV (except Section 20 thereof) or Article VI of the California Constitution. (Section 7920.540.) As Article VI of the Constitution addresses the Judicial Branch, the CPRA therefore specifically exempts its provisions from applying to the courts.

Under the CPRA, public agencies are prohibited from charging the public to “cover costs associated with the creation, maintenance, and management of their electronic systems that allow for public access to those electronic records;” they cannot charge more than the “direct cost of producing a copy of a record in an electronic format.” (See Section 7922.575.) They also—according to case law-- cannot charge the public for the cost to search for records, redact nonpublic information, or monitor the public viewing of records, even though such costs can be substantial. (North County Parents Organization v. Department of Education (1994) 23 Cal. App. 4th 144, 146.) These are the costs of operating public agencies for the core functions they provide to the public in exchange for being funded by the public and recovery is not authorized by the CPRA. (Id. at 148.)

Even though the CPRA does not specifically apply to the courts or their records, the California Supreme Court has held that there is a common law right of access to court records in which there is a legitimate public interest, if not outweighed by strong countervailing reasons, and further noted that “the general principles regarding public access to the records of public entities established in the statutes and [applicable] case law […] continue to apply in the context of court records.” (Sander v. State Bar of California, (2013) 58 Cal.4th 300, 318-323.) The court has found that the Constitutional provisions related to the people’s right of access to information regarding the people’s business applies to the judicial branch and that any limitation on access to judicial branch records must be narrowly construed. In Savaglio v. Wal-Mart Stores, Inc., the court stated: “With the passage of Proposition 59 effective November 3, 2004, the people's right of access to information in public settings now has state constitutional stature, grounding the presumption of openness in civil court proceedings with state constitutional roots.” ((2007) 149 Cal. App. 4th 588, 597.) In Sander v. State Bar of California, the California Supreme Court recognized that Article I, Section 3 of the California Constitution applies to records of the judicial branch and applied the narrow construction rule to certain State Bar records at issue in that case. (Sander v. State Bar of California, supra at 312-313.)

Fees charged to the public for searching and downloading online records has become a source of revenue for the courts. Some courts in the state charge the public to access public court records that are posted online in an electronic format. According to the Judicial Council of California (JCC), in 2021, 16 counties in the state provided online access to electronic civil case records. Ten of those 16 courts received $22.7 million in fees from individuals who accessed court records during that two-year period. The JCC states that the reason why courts charge fees is to “cover costs associated with the creation, maintenance, and management of their electronic systems that allow for public access to those electronic records.” If all 58 trial courts were able to “recover costs” at this rate, the estimated statewide total would be approximately $32 million per year.

This issue was encountered first hand by staff of this Committee, when searching for Sacramento County court records related to the Committee’s work. Staff was unable to even search for the records they were seeking without paying an initial fee.

As mentioned above, public agencies are prohibited by the CPRA from charging the public more than the “direct cost of producing a copy of a record in an electronic format.” (See Section 7922.575.) The CPRA “necessarily contemplates that staff time will be used to process record requests.” (State Bd. of Equalization v. Superior Court (1992) 10 Cal.App.4th 1177, 1183.) If and when public agencies need additional funds to, for example, “cover costs associated with the creation, maintenance, and management of their electronic systems that allow for public access to those electronic records,” they must request funds from the state via the state budget process.

Since realignment of the courts in 1997, many court responsibilities, including funding of most court operations, have been shifted (or realigned) from the counties to the state. Chapter 850, Statutes of 1997 (AB 233, Escutia and Pringle), commonly referred to as the Lockyer–Isenberg Trial Court Funding Act of 1997, gave the Legislature the authority to appropriate all of the funding for trial courts in the annual state budget. Previously, the Legislature only appropriated state General Fund support and fine and penalty revenue, but not funds provided by counties. In addition, the Judicial Council was given the authority to allocate appropriated funds to individual trial courts. The expectation was that the state would support any future increases in the costs to operate trial courts. (See Legislative Analyst’s Office, “Completing the Goals of Trial Court Realignment,” (Sept. 28, 2011), available at https://lao.ca.gov/reports/2011/crim/trial-court-realignment/Trial_Court_Realignment_092811.aspx.)

To the extent that some courts in California are “recovering” tens of millions of dollars each year for access to their online records, these tens of millions of dollars appear to be completely outside of the state budget process. Neither the collection of fees, nor what they are spent on, is authorized by, monitored, or approved by the state. The state does not know which courts charge these fees and which do not. Depending on the size of the individual court’s “recovery” and other cost pressures affecting its budget (and the budgets of other courts that do not charge such fees), the state may wish to consider in the budget process the fact that some courts are recovering significant funds by charging the public for access to their public records.

Commercial users of court records and fees they pay for access to court records. The financial hurdle imposed by some courts by means of fees to search for and download records undoubtedly creates a financial hurdle for some court users, especially low-income and pro se litigants. However, not all of those who wish to access and download are unable to shoulder the costs of frequent or extensive searches.

Some entities, just as journalists and academic researchers, access court records for commercial purposes that provide a clear public benefit. Others profit from the collection, aggregation, and sale of data and records about the public, including court records, for solely commercial purposes. Data brokers (aka information brokers, data providers, and data suppliers) are companies that collect data themselves or buy it from other companies (like a credit card company), crawl the internet for useful information about users – legally or otherwise – and aggregate that information with data from other sources (e.g. offline sources). Examples of these sources include social media; web history; online and offline purchase history and warranty information; credit card information; and government records, including records of civil and criminal court system involvement.

Whereas most government records of interest to data brokers—such as driver’s license and motor-vehicle records, census data, birth certificates, marriage licenses, voter-registration information—is not accessible online (and may not be accessible, even in person), court records are accessible and the fact that they are online makes them, in theory, far easier to search and access than if they were only available at the courthouse. While electronic records of most civil cases are available – either at the courthouse or online – records of criminal cases generally are not. (See Rule 2.503(c)(5), 2023 California Rules of Court, accessible at https://www.courts.ca.gov/cms/rules/index.cfm?title=two&linkid=rule2_503.)

The CPRA does not differentiate among those who seek access to public information (e.g., a requestor who is a commercial entity, intending to use the material obtained for commercial purposes, and a private party who seeks public information). (State Bd. of Equalization, supra, 10 Cal.App.4th at p. 1191.) In State Bd. of Equalization, the court refuted any interpretation of the CPRA that would give less deference to commercial users, as opposed to private parties, but held that access to bulk records by commercial users may be circumscribed by reasonable conditions regarding format and price. (Ibid.) However, the courts do draw a distinction. For example, Rule 2.503 (f) provides, “The court may only grant electronic access to an electronic record when the record is identified by the number of the case, the caption of the case, or the name of a party, and only on a case-by-case basis. This case-by-case limitation does not apply to the court's electronic records of a calendar, register of actions, or index.” Rule 2.503(g) provides, “The court may provide bulk distribution of only its electronic records of a calendar, register of actions, and index. "Bulk distribution" means distribution of all, or a significant subset, of the court's electronic records.” The Advisory Committee Comment about these rules states the following:

Subdivisions (f) and (g). These subdivisions limit electronic access to records (other than the register, calendars, or indexes) to a case-by-case basis and prohibit bulk distribution of those records. These limitations are based on the qualitative difference between obtaining information from a specific case file and obtaining bulk information that may be manipulated to compile personal information culled from any document, paper, or exhibit filed in a lawsuit. This type of aggregate information may be exploited for commercial or other purposes unrelated to the operations of the courts, at the expense of privacy rights of individuals.

Other Rules of Court similarly distinguish between requests for records for “commercial use” and for non-commercial use. For example, Rule 10.500 (e)(4)(B) allows a court to “impose on all requests a fee reasonably calculated to cover the judicial branch entity's direct costs of duplication of a record or of production of a record in an electronic format” including a charge per page and “[a]ny other direct costs of duplication or production, including, but not limited to, the costs incurred by a judicial branch entity in retrieving the record from a remote storage facility or archive and the costs of mailing responsive records.” For commercial users, however, under Rule 10.500 (e)(4)(C), the court may impose, in addition to the regular fee, a fee reasonably calculated to cover the actual costs of staff search and review time, based on an hourly rate for salary and benefits of each employee involved.”

Given the unique nature of court records as both a vital tool for litigants and as a commodity for commercial use, this distinction seems reasonable and appropriate. However, ordinary members of the public (or journalists and researchers) should not be treated or assumed to be commercial users and charged accordingly.

This bill prohibits the court from charging the public for access to court records posted online, but allows courts to charge commercial users for access to these records. The bill prohibits the courts from charging the public a fee that exceeds the court’s direct costs of duplication for public users of the website to search for, download, or copy public court records. The bill strikes a balance by authorizing courts to charge commercial users fees for viewing, searching, duplicating, downloading, or printing public court records in an electronic format. The bill requires Judicial Council to develop a rule of court establishing statewide commercial user fees or a process for courts to use in developing commercial user fees by January 1, 2024. A “commercial user” is defined as a person or entity, or any person acting on behalf of an entity, that has viewed, downloaded, or printed at least 100 individual electronic court records during a 12-month period. Entities formally organized as nonprofit corporations, including, but not limited to, nonprofit organizations providing legal services to the persons whose records are obtained, are not considered commercial users. The distinction allows for individuals to achieve greater access to the courts remotely to the same degree they would in person while continuing to subsidize the maintenance of online infrastructure by charging commercial users.

This policy is in line with recent changes in the federal courts. Amid debate in Congress regarding whether the federal courts should be forced to allow the public free access to online docket searches in the federal court’s electronic records system PACER, the Judicial Conference of the United States approved a plan in March 2022 to make PACER searches free for non-commercial users in any future overhauls of the system. It is also worth noting that as of March 29, 2023, the Sacramento Superior Court announced it had discontinued the practice of charging fees for online case record searches and electronic document downloads.

The bill does not require the courts to post any records online, or to make their records available via a website. Rather, if a court chooses to do so, they cannot charge a fee. This makes sense. Not only is it consistent with rules that govern electronic records retained by public agencies (See Section 7922.575), but also saves time for court personnel who don’t have to search for records that are made available for the public to search online.

A final note about fees charged by the courts for copies of public records. There continues to be a disparity in existing law between the amount that public agencies are authorized to charge the public for copies of public records and the amount that courts charge the public for copies of court records. While the CPRA authorizes an agency to charge a fee covering its “direct costs of duplication” or a statutory fee (Section 7920.515), which for state agencies is generally set at ten cents ($0.10) per page, courts have statutory authority to charge 50 cents ($0.50) per page. (Section 70627 (a).) The Legislature may wish to consider whether it is reasonable for the courts to charge the public a fee that is five times the amount that a state agency charges for providing the same service to the public.

In light of the fundamental right to access governmental records enshrined in the Constitution, long standing common law principles, and policy of the CPRA to limit public agencies ability to charge the public for access to records, courts should not be charging the public for costs over and above the direct costs to the courts of access and duplication of records—i.e. costs associated with the creation, maintenance, and management of their electronic systems.

ARGUMENTS IN SUPPORT: In support of this measure, the Consumer Attorneys of California write:

Unfortunately, a number of courts in the state charge the public and attorneys representing their clients to access public court records that are posted online in an electronic format, charging fees to search for, download and copy records. They do so, according to the JCC, in order to cover their costs associated with the creation, maintenance, and management of their electronic systems that allow for public access to those electronic records. This seems to directly conflict with the CPRA, under which public agencies are prohibited from charging such fees and from passing on their administrative costs to the public.

AB 1758 provides that when a court makes public court records available in an electronic format by means of an internet website maintained by the court, or a third party on behalf of the court, the court shall not charge a fee to copy the records exceeding the court’s direct cost of duplication. However, AB 1758 allows courts to charge fees to a “commercial user” of court records—an entity that profits from the use or sale of court records—to view, search for, duplicate, download, or print court records. AB 1758 clarifies that a person who obtains records while representing their clients is not a “commercial user.” Our members face many court fees that mount up and they should not be charged a fee for records involving their own cases.

AB 1758 places reasonable limits on the access to sensitive and personal information within court records. It does not authorize public access to court records that have been sealed by court order or that are confidential by law. Finally, in addition to defining relevant terms, AB 1758 ensures that public court records maintained in an electronic format are available for inspection and copying at a courthouse during hours when the courthouse is open to the public.

AB 1758 is an important measure for access to justice for all. For these reasons our organization joins in strong support.

The California News Publishers Association also writes the following in support:

Unfortunately, the charges levied by some California courts to search for, view and download electronic public court records amount to just such an arbitrary barrier to access clearly public records. For example, some courts charge .50 cents per page to simply view electronic records on Superior Court websites. For journalists who do the important work of informing the public about developments in our courts, such charges are in practical effect a complete barrier to accessing public court records.

When journalists cannot access court records due to excessive fees, our entire state loses. Ready access to court documents is consistent with the First Amendment and long-standing tradition of transparency in our judicial system.

AB 1758 puts important limits on what courts can pass on to the press and public for accessing electronic records remotely, thereby removing real barriers to this important right of access.

REGISTERED SUPPORT / OPPOSITION:

Support

California News Publishers Association

Consumer Attorneys of California

First Amendment Coalition

Opposition

None on file

Analysis Prepared by: Alison Merrilees and Manuela Boucher-de la Cadena / JUD. / (916) 319-2334