January 12, 2015

Smart phones clash with 20th Century courthouse rule

Print More

Every court is its own dominion. And the Clackamas County Circuit Court is unique, so far as I can tell, in its prickliness about technology.

The court’s biggest recent flap involved a reporter who took a cell phone photo of a defendant on the witness stand. The phone was confiscated as unauthorized and court staff feared a crime victim was caught in the shot. But the move that has me head-scratching is a new sign in the records room. This one bans cell phone photos of documents, as well as electronic scanners or apps.

It’s been a while since I found myself in this room full of rolling file cabinets and manila folders. But I recently noticed the sign hanging over the public reading area, pointedly banning the use of cell phone cameras or electronic scanners to copy records. I’d offer a photograph if I could have taken one, but you see my dilemma: that would be illegal.

If you haven’t been in this room before — a photograph sure would be helpful — then you might not know that it doesn’t contain anything sensitive. No grand jury notes in here. On offer instead is the standard day-to-day fare of the courts: procedural documents from divorce decrees and name changes, civil cases and arrest records, to the not-so-occasional eviction or foreclosure.

These same records will very soon be available online through eCourt. So when I learned that the Clackamas County Court doesn’t want people taking pictures or scans of them, the question I really wanted to ask was: Why?

Presiding Judge Robert Herndon says the rule springs from a longstanding ban on cameras, an effort to keep the court’s quaint but narrow hallways free of the cluttering apparatus of the news media. About 15 years ago, when someone bungled and brought a camera into the hall anyway, they caught a woman on film who was at the court to file a restraining order. Her abusive spouse later saw her in the backdrop of a news segment on TV. For all the right reasons, the incident did not go over well. The courthouse ban on cameras has stood solid since.

Herndon says he sees reason to keep the camera ban consistent throughout the courthouse. He wouldn’t want anyone confused. And in an era where obsessive Yelpers have joined the sometimes antagonistic gaggle of document-seekers in the records room, the rule banning cell cameras has new legs in beating back Internet trolls, some of whom have turned up in the flesh to take photos of the court staff and accompany them by unpleasantries online.

“They have to deal with a lot of very unhappy people at the courthouse, as you can imagine,” said Herndon. “A good number of them don’t respect the legal process and don’t respect the authority of the courts. They want to make their own rules. And these people can be pretty hard to deal with.”

So when someone like me turns up, someone with a scanning app [1]on their cell phone, I somehow fall into this mix of the wayward. So does every law-abiding sort who doesn’t want to pay 25 cents a page for copies. And that, to me, seems like a problem.

Duane Bosworth, a partner at Davis Wright Tremaine, who is best known for litigating all manner of obstructive policy and bad behavior on behalf of the press, agreed, saying the new rule strikes him as “remarkable overkill.”

But is it legal? That’s a good question, too.

The Clackamas County Circuit Court uses a statewide rule — UTCR 3.180 — in defense of its new policy. The UTCRs are Uniform Trial Court Rules adopted by the Oregon Judicial Department.They spell out the dos and don’ts of courthouse behavior. Rule 3.180deals specifically with courtroom cameras and recording devices. In spirit, it’s intended to cut down on the circus effect that media coverage can have on courts. It allows judges to restrict cameras to particular areas within the court, or outside the courthouse, and it’s known and expected that in some courts reporters have to set aside their quibbling and actually share one camera. That’s why the nightly news can sometimes look like it’s on repeat from one channel to the next — courts require the press to share the footage from the single camera that’s allowed.

This makes perfect sense. Nobody needs a court proceeding — no matter how many clicks and views can be sucked out of it in the name of public interest — to play out in OJ-style splendor. It’s distracting to the jurors, the defendants and attorneys, most especially to the judge, and it’s offensive to the victims and loved ones who very often are crying their way through these things. It’s no wonder many judges choose to manage their courtrooms as something other than an OJ-esque media playpen. I wholeheartedly support their right to do so.

But UTCR 3.180 is otherwise pretty vague. It hands judges discretion to control cameras and recorders in all areas in and outside the court. However, it doesn’t make clear whether the judges should be using the law only to control the circus atmosphere cameras can provoke at the courthouse, or can extend its reach so as to control every camera or electronic device. So there is the rub. It sure looks to me like this practice flies in the face of Oregon Public Records Law.

That’s because when the court requires people to stand in line for photocopies, then pay 25 cents a page, or seek waivers for the fees or a permit from the court to use their cell phone, the court is blocking access to public records. Oregon law allows governments to recoup the “actual cost” of copying records, but it also says people can make their own copies. That isn’t happening in the Clackamas County courthouse. It’s hard to feel the public interest is well served by that. Most of these people, after all, are just looking for copies from their own court files.

“I don’t know what the purpose of this is,” said Bosworth, the media attorney. He says he doesn’t think the court is wrong in interpreting the UTCR 3.180 as applying to any person, not just the media. But he says the cell camera ban doesn’t afford people the opportunity to have their due.

I’m not sure I understand the purpose of this, either.

As a frequenter of the courts, I’ve long accepted their fiefdom-like qualities. I know that at the Washington County court, for example, I’ll be shaken down for my bike lock. And I know that the security guards at the Multnomah County court are relatively unflappable. (I have strolled in that place carrying all manner of recording gadgets — phones, cameras, audio recorders and cord adapters, the kind of things the TSA gets in a knot about — and floated through after briefly ceding it all to a metal detector.)

But I have also learned that Clackamas County court is especially restrictive on electronics. In addition to being forced to take a hit off my inhaler in front of the guards there, and to drink from my water bottle to prove that I am not trying to poison a judge or who knows what else, I have been practically turned upside down and shaken for electronics in that place. No recorders, no cameras without a permit. Use of the cell phone, a perfectly normal behavior elsewhere, gets the eyeball.

But reality check? It’s 2015. We have cell phones. They have recording devices on them, scanners, and cameras. And it’s hard to see how allowing them really causes a problem if they’re not creating a disruption. They are legal in the Multnomah and Washington county courthouses. And they ought to be legal everywhere else. They cut down on waste, make access to public records more efficient, and they guarantee that a person can make their own copy of a record everyone agrees belongs to them in the first place.

In the end, it’s hard to see how forcing people into a line at the photocopier is really helping staff. And a rule that doesn’t appreciate technology’s place in our world seems destined to provoke more problems then it will solve.

[1] A tangent here to note that the digital scanner is a must-have for the wandering reporter. If you spend the kind of time I spend traveling, you find yourself with piles of documents — gifts from contacts — that need copying quickly. I’ve come to learn that these piles weigh a lot less if I can scan them and quickly email them to myself. A digital scanning app means I can do this in front of the Timbers game in a hotel room or over dinner instead of driving through yet another strange city in search of a Kinkos, or worse, a public library, where I will no doubt spend countless hours standing at a machine begging all manner of change off the locals.

Comments are closed.