EDITORIAL – For the record: The cost of obtaining public court documents

The Compass does not usually engage in “checkbook journalism,” but this week we were forced to pay cash for a story – not to a source looking for a quick payday, but to the Cayman Islands government. Here’s what happened:

A reporter went to the courthouse on Tuesday to examine a writ filed in Grand Court regarding the legal challenge to Cayman’s same-sex marriage ban, and to check on a document for an unrelated case in the Financial Services Division of the court.

By law, those court documents are available for inspection by the public (not just journalists). But to access them, one must pay various costs prescribed in the Court Fees Rules for inspection and copying.

Few people – not us – would argue against officials charging reasonable fees for public records, in order to ensure the sustainability of the process of obtaining those records.

Read the following, and determine for yourself if Cayman’s court fees are reasonable, or verge on punitive:

Our reporter approached the cashier and said he wanted to search the records. She asked which area, Grand Court or Financial Services Division?

The reporter answered, “both.” She advised him he would have to pay a $20 search fee for each. (The Grand Court and Financial Services Division records are located in the same room, inside binders in adjacent cabinets.)

The reporter paid the $40. The cashier allowed him into the room.

The reporter searched the Grand Court binder, discovering the gay marriage writ was not yet there. In the Financial Services binder, he did find the document he sought.

In order to make a photocopy of the document, the reporter was charged another $20, plus an additional 50 cents per page (for six pages).

The final price for Tuesday’s search: $63.

On Wednesday, the reporter returned to the court to search again for the gay marriage writ. This time, it was in the binder. He paid another $20 search fee, another $20 for permission to copy and an additional 50 cents per page (for 27 pages).

The final price for Wednesday’s search: $53.50.

In all, it cost the Compass $116.50 to secure copies of two public records totaling 33 pages, including $73.50 for the writ we needed to report Thursday’s front page story, informing the country of a substantial challenge to Cayman’s marriage law.

Don’t feel sorry for our reporter – the Compass picks up the tab for expenses such as payments for public records.

As a company, we can absorb the costs, but for many individuals in Cayman, such expenses could constitute a real burden, and an obstacle to gaining information about litigation in which they, a family member or associate may be involved. Who has the time, patience, and knowledge to navigate those bureaucratic rapids, sift through binders of legalese or locate the court records room in the first place? (FYI, it’s on the third floor of Kirk House on Albert Panton Street downtown.)

Is it the court system’s intention to foster an informed citizenry, or to turn a profit?

The court clamped down on its open records policy (and effectively hiked the cost of obtaining records) in spring 2017, causing a bit of an international stir.

The affair settled down somewhat in June 2017, when the Grand Court Rules Committee – composed of Chief Justice Anthony Smellie, Attorney General Samuel Bulgin and two local attorneys – met to consider revising the court records policy.

After that meeting, court administrator Suzanne Bothwell said, “I can confirm that steps are currently under way to make available online, on the Judicial Website, free of cost, the inspection of all public registers, including unreported judgments. This is aimed at expanding the public’s access to court records.”

A full year later, updates from Ms. Bothwell on the supposedly ongoing digitization process have become more and more sporadic. To date, the promise of free, online, public court records has not yielded any results or demonstrable evidence of progress. If anything, the court system has become more aggressive about charging fees for records that formerly were available for free, such as autopsy reports.

One is tempted to wonder, if court officials eventually declare that the free public online register project is dead, will they charge us for that autopsy report, too?

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  1. The Compass makes some very important points about public access.

    I was left wondering actually how much providing access to public documents costs? So, we have a cashier to pay but what else? Maybe there is a cost for the photocopier which is, no doubt, leased under contract – what is the cost of the c contract (which maybe a fixed monthly/quarterly cost or by page copied)?

    But exactly what else costs? The files have to be kept so there should be no additional cost to allow someone into the room to view them.

    Then we need to know how much the courts got in fees to inspect / copy these documents? Are they making a profit, breaking even or making a loss? If they are making a profit, is it unreasonable? If they are breaking even, is this sustainable if the public’s desire for access goes up and down? And if it is making a loss, then, just don’t charge!

    And finally, if there is (however dead in the water it might seem) to digitise court documents – which is, IMHO, unlikely, courts, in my experience, just love paper! – then this should digitise them for the court use, not just for ease of public access.

    Perhaps the Compass could do a FOI to ascertain the costs of providing public access to court documents and find out how much they recouped, say, in each of the last 3 years.

  2. Apart from the higher costs, the Court is now sealing far more writs/other forms of originating process (collectively “writs”) than before it temporarily (and, worryingly for a court of law, illegally) banned copying last year. For example, in the Financial Services Division of the Grand Court of the Cayman Islands, writs for only six of the first 100 cases filed in 2017 were sealed. That number rose to 35 for the first 100 cases in 2018. That’s a massive increase. For reasons best known to themselves, the Chief Justice and the attorneys who influence him have declared a war on transparency – all done on the quiet, with no public announcement that the Court’s policy on transparency had changed. I find that deeply troubling.