Wednesday, September 26, 2007

Speak now, or forever pay for copies

Published in the Portland Phoenix

Last month, the Maine court system forbade the public to photograph court documents — a practice it had allowed for more than five years. The order, issued by Superior Court Chief Justice Thomas Humphrey some time in August, was secret . . . and never put in writing.

But after inquires from the Portland Phoenix, the state’s top judge, Chief Justice Leigh Saufley, has promised to revisit the change, and perhaps to formalize permission for the practice, which helps members of the public save money and time when reviewing court documents.

Reversing Humphrey’s order would likely have more impact on poor people involved in legal cases than on journalists or lawyers. According to Gregg Leslie, legal defense director for the Reporters Committee for Freedom of the Press in Washington, DC, “non-media requesters [for court documents] are often people who are having a case brought against them . . . or they’re trying to bring a suit” to protect their rights or property. He also says that many states ban photographing documents to protect court-system revenue that comes from photocopying fees.

Saufley says one reason people may want to photograph court documents more than other government papers is because many agencies provide records electronically on their Web sites. The Maine courts do not. And they do charge photocopying fees — $2 for the first page and $1 for each additional page — that far exceed the actual costs.

By contrast, the federal courts have an online system that costs users eight cents per “page” viewed online, or, for in-person services at the courthouse, 10 cents per page of a computer printout and 50 cents a page for photocopies.

For years, people — including me — have avoided the state courts’ fees by bringing cameras into courthouses to photograph documents. When I was recently barred from photographing documents (based on Humphrey’s verbal order) a member of the Superior Court clerk’s staff told me it was because the courts want the revenue from photocopying.

State court administrator Ted Glessner said that’s not true: “We don’t get to keep or use any of the money” paid for copying fees.

He is technically correct. Court revenue goes into the state’s general fund, but that’s the same fund out of which the Legislature appropriates money for the court system. Lawmakers and court officials regularly talk about both the costs of the system and its revenue to the general fund.

In 2006, Maine’s court costs were $55 million, while revenues were an all-time high of $43 million, up from a meager $32 million in 2002. Of the 2006 record haul, $6.3 million was in “fees,” of which only $155,000 was for photocopying.

It used to be that photocopying was a service provided for the convenience of people who wanted copies of court records. The fees were instituted to cover the costs of photocopying, such as buying toner and paper, and paying for staffers’ time to make the copies (though all of that is already paid for by taxpayers). Now, though, photocopies are treated as a profit center.

Saufley takes pains to say that court-system revenue “has nothing to do with how much the Legislature should spend on access to justice,” but only after saying she might need lawmakers’ approval if the courts reduce their expected photocopying revenue.

She ends on a high note. In words suggesting she leans toward allowing the photographing of court documents, Saufley promises that at the very least the state’s advisory Committee on Media and Courts will discuss the matter publicly, and may recommend allowing the practice. If the practice is to be restricted, she says there will be opportunities for the public to weigh in, including — if it does go to the Legislature — public hearings before lawmakers.