Fifth Circuit Concludes No Right to Rapid Access to Court Records

In Sullo & Bobbitt P.L.L.C. v. Milner, No. 13-10869, 2014 WL 3845227 (5th Cir. Aug 6, 2014), the Fifth Circuit concludes that there is no constitutional right for a criminal defense law firm to view records of new misdemeanor summonses within one business day after they are filed.

Sullo & Bobbitt P.L.L.C. (“Sullo”) is a Dallas law firm offering legal representation for misdemeanor offenses. The firm reviews court records seeking information about recent misdemeanor summonses to obtain the names and addresses of people who might need their services.

In August 2011, Sullo sued the City of Arlington’s chief municipal judge, the chief court clerk of the City of Dallas municipal court, and other local judicial officials on the grounds that they had “deliberately delayed access” to court case information needed by Sullo to contact potential criminal defendants.  Sullo sought access to criminal citations or new criminal cases within one business day after they were recorded or filed.  Sullo offered to send individuals to court to obtain the requested information or, in the alternative, to provide the courts with software to extract and deliver the information.

Sullo alleged a violation of its right to receive “quick access to court records” under federal common law, the First and Fourteenth Amendments, and 42 U.S.C. Section 1983. The district court denied Sullo’s request and dismissed the claims.

The Fifth Circuit affirmed, finding no constitutional right to access court records within one business day of their filing. The court looked to the Supreme Court’s “experience and logic” test for right of access to government information as set out in Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986).  In dealing with First Amendment claims of right of access to criminal proceedings and records, courts using the two-part test look: (1) to whether they have traditionally been accessible to the press and public, and (2) to what extent such access plays a significant positive role in the functioning of that process.

Here, Sullo had to allege more than a tendency of other Texas courts to afford rapid access to records. Rather, Sullo had to allege that courts nationwide have historically released citations or citation information in the timeframe requested. Sullo failed “to even allege that other [Texas] municipalities provide access to these documents within one business day of their filing.” Therefore, the firm had no constitutional argument and no basis for a Section 1983 action.

This case was not initially selected for publication in the Federal Reporter.  However, as a result of a motion to reconsider filed by the City of Dallas, the case is now slated for publication.