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Undisclosed LLC v. State

Supreme Court of Georgia

October 30, 2017



         Alexander Hamilton famously observed in Federalist 78 that courts "have neither FORCE nor WILL, but merely judgment." Notwithstanding this general principle, the Georgia Constitution does confer on us some carefully defined room for the exercise of will: it vests in this Court the power to approve rules for each class of court in this State. That is a policymaking power. We can approve or disapprove a proposed rule based on whether we think it's a good idea. But once we've approved a rule, our policymaking role is at an end and Hamilton's observation applies with full force. And so, when a case (like this one) calls us to decide what a rule means, our role is no different than when we interpret the Georgia Constitution or a state statute; we simply determine what the text of the rule meant at the time it was adopted, and apply it accordingly, without considering whether we like the policy implications that meaning may have.

         More than a decade ago, Joseph Watkins was convicted of felony murder and other crimes following a jury trial, and we affirmed Watkins's convictions on appeal. Watkins v. State, 276 Ga. 578 (581 S.E.2d 23) (2003). In late 2015, Undisclosed LLC, a producer of a legal documentary podcast, began investigating Watkins's case and, as part of that investigation, sought access to audio recordings of several hearings and the trial. Undisclosed filed a motion in Watkins's case under Uniform Superior Court Rule 21 ("Rule 21") to obtain copies of the audio recordings, arguing that our decision in Green v. Drinnon, 262 Ga. 264 (417 S.E.2d 11) (1992) held that a court reporter's audio recordings are "court records" under Rule 21 and the rule provided the right to copy court records. The State did not oppose the motion; the trial court denied it to the extent Undisclosed wanted to make copies of the audio recordings, holding Rule 21 did not confer the right to copy. We granted Undisclosed's application for discretionary appeal. Interpreting Rule 21 in the light of the common law right that it preserved, we conclude that the trial court erred: Rule 21 does include a right to copy court records. We nevertheless affirm the trial court's order because Green's limited holding does not apply here, and a review of the common law shows that "court records" within the historic right include only those materials filed with the court, which the recording in question was not.

         1.Rule 21 provides the process for non-parties to seek access to court records.

         Rule 21 provides that "[a]ll court records are public and are to be available for public inspection unless public access is limited by law or by the procedure set forth [in the rule]." The State argues that a Rule 21 motion is not the proper vehicle for a non-party to access court records, and that Undisclosed should have instead sought mandamus. Undisclosed argues that its Rule 21 motion was the proper vehicle. Undisclosed is right.[1] See Merchant, Ga. at. (1).

         2.Rule 21's right of public inspection includes the right to copy.

         Undisclosed argues that a Rule 21 analysis generally requires a threshold determination of whether the requested material is a court record, a determination Undisclosed contends has been resolved in its favor by our opinion in Green. Undisclosed argues that we need only address whether Rule 21 includes the right to copy, arguing that Rule 21's right of access to court records includes the right to copy them, and so the court erred in concluding that Undisclosed did not have the right to make copies of the court reporter's audio recordings. We first review the trial court's ruling that Rule 21 does not include a right to copy court records, and then consider the import of Green's statement that a court reporter's audio recordings are court records.

         (a) Because Rule 21 is derived from the common law, we construe its text in the light of the common law.

         Whether Rule 21's right of access to court records includes the right to copy is a matter of first impression. Rule 21 expressly states that court records are available for "public inspection, " but does not specifically address the ability to copy records. The State asks us to construe the term "inspection" according to its plain and ordinary meaning, as we ordinarily do when construing statutes and court rules. See, e.g., Couch v. Red Roof Inns, Inc., 291 Ga. 359, 364 (1) (729 S.E.2d 378) (2012) ("[T]he basic rule used by courts across the country is to apply [a] word's ordinary, everyday meaning."); Beneke v. Parker, 285 Ga. 733, 734 (684 S.E.2d 243) (2009) ("The fundamental rules of statutory construction require us to construe a statute according to its terms [and] to give words their plain and ordinary meaning[.]" (citation and punctuation omitted)); Cuzzort v. State, 271 Ga. 464, 464 (519 S.E.2d 687) (1999) (evaluating plain meaning of a Uniform Superior Court Rule). The State contends that such consideration will show that the definition of "inspection" - "critical examination" or "official examination or review" - does not include "copy, " "duplicate, " or "reproduce." See Webster's New World Dictionary 729 (2d College ed. 1980).[2]

         But the State's argument ignores that in interpreting the plain meaning of Rule 21, we do not look at the text in isolation. See May v. State, 295 Ga. 388, 391 (761 S.E.2d 38) (2014). Rather, to determine its meaning, we also consider its context. Smith v. Ellis, 291 Ga. 566, 573 (3) (a) (731 S.E.2d 731) (2012) ("In construing statutes, however, we do not read words in isolation, but rather in context."). This context includes the immediate context of other provisions of Rule 21 and the other rules. It also includes the broader legal context in which Rule 21 was drafted, including other law that forms the legal background of Rule 21. May, 295 Ga. at 391-392 ("[C]ontext is a primary determinant of meaning. For context, we may look to other provisions of the same statute, the structure and history of the whole statute, and the other law - constitutional, statutory, and common law alike - that forms the legal background of the statutory provision in question." (citations and punctuation omitted)).

         Here, the common law is not only part of the relevant legal background regarding the right of access, it is the mold in which Rule 21 was cast. "It is well-settled that the right of access under Rule 21 is coextensive with the common law right of access to court proceedings." Merchant, __Ga. at__(1) (b) (citing cases). Through Rule 21, the common law remains in effect, and although the common law may be amended, such changes must be clear. See Fortner v. Town of Register, 278 Ga. 625, 626 (1) (604 S.E.2d 175) (2004) ("The common-law rules are still of force and effect in this State, except where they have been changed by express statutory enactment or by necessary implication." (citation and punctuation omitted)); see also Scalia & Garner, Reading Law: The Interpretation of Legal Texts 318 (2012) ("The better view is that statutes will not be interpreted as changing the common law unless they effect the change with clarity.").

         There is no indication that Rule 21 changed the common law in any way at issue here. Indeed, the preamble to the Uniform Superior Court Rules provides that:

It is not the intention, nor shall it be the effect, of these rules to conflict with the Constitution or substantive law, either per se or in individual actions and these rules shall be so construed and in case of conflict shall yield to substantive law.

256 Ga. at 865.[3] The common law right of access was the substantive law when Rule 21 was adopted. Consequently, we construe Rule 21 consistent with the common law. See May, 295 Ga. at 397 ("Where there is limitation by a statute which is capable of more than one construction, the statute must be given that construction which is consistent with the common law." (citation and punctuation omitted)). With that in mind, we turn to a review of the common law.

         (b) The common law right of access includes the right to inspect and copy.

         The right of access to court records that we consider here is based on the common law and predates the Constitution. See Belo Broad. Corp. v. Clark, 654 F.2d 423, 429 (5th Cir. 1981). Under the common law, the right of access to public records was generally restricted to those persons with a sufficient interest in them, such as those needing the records to prosecute or defend a legal action. See Colescott v. King, 57 NE 535, 537 (Ind. 1900); Ferry v. Williams, 41 NJL 332, 334 (1879); 20 Am. & Eng. Enc. of Law 521-523 (1892); see also Deal v. Coleman, 294 Ga. 170, 183 (2) (b) (751 S.E.2d 337) ("[M]ost founding-era English cases provided that only those persons who had a personal interest in non-judicial records were permitted to access them.") (citing McBurney v. Young, 569 U.S. 221, 233 (133 S.Ct. 1709, 185 L.Ed.2d 758) (2013)). The right of access to court records, however, did not require a special interest.[4] Instead, the common law provided that the right of access to court records was a right belonging to every individual:

It has been admitted, from a very early period, that the inspection and exemplification of the records of the King's courts is the common right of the subject. This right was extended by an ancient statute to cases where the subject was concerned against the King. The exercise of the right does not appear to have been restrained until the reign of Charles II, when, in consequence of the frequency of actions for malicious prosecution, which could not be supported without a copy of the record, the judges made an order for the regulation of the sessions of the Old Bailey, prohibiting the granting of any copy of an indictment for felony without special order, upon motion in open court, at the general jail delivery. This order, it is to be observed, relates only to indictments for felony. In cases of misdemeanor, the right to a copy has never been questioned. But in the United States, no regulation of this kind is known to have been expressly made; and any limitation of the right to copy of a judicial record or paper, when applied for by any person having an interest in it, would probably be deemed repugnant to the genius of American institutions.

Ex Parte Drawbaugh, 2 App. D.C. 404, 406-407 (D.C. Cir. 1894) (quoting Greenleaf; emphasis and citation omitted).[5]

         In addition to establishing that every citizen has a right to inspect judicial records, Ex Parte Drawbaugh also demonstrates the parallel right to copy those records.[6] Ex Parte Drawbaugh is not alone in observing that the common law right of access includes the right to copy court records. See Nixon v. Warner Comm., Inc., 435 U.S. 589, 597 (98 S.Ct. 1306, 55 L.Ed.2d 570) (1978) ("It is clear that the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents." (footnotes omitted)); Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1311 (11th Cir. 2001) ("Beyond establishing a general presumption that criminal and civil actions should be conducted publicly, the common-law right of access includes the right to inspect and copy public records and documents."); United States v. Hickey, 767 F.2d 705, 708 (10th Cir. 1985) ("We begin by acknowledging the axiom that a common law right exists to inspect and copy judicial records."); United States v. Criden, 648 F.2d 814, 819 (3d Cir. 1981) ("The right to inspect and copy, sometimes termed the right to access, antedates the Constitution."); Brewer v. Watson, 71 Ala. 299, 304 (1882) (a custodian of judicial records is "bound to furnish copies" of judicial records upon payment of any fees, whereas an individual requesting access to other public records must show an interest in the document and that the request is for a legitimate purpose); cf. Clay v. Ballard, 13 SE 262, 263 (Va. 1891) ("The authorities on the subject are very numerous, and they uniformly hold that such a right [to inspect] includes the right, when necessary to the attainment of justice, to take copies."). The State has not identified - nor have we found - any contrary authority.

         The right of access to court records serves vital purposes:

As James Madison warned, "A popular Government without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy: or perhaps both. . . . A people who mean to be their own Governors, must arm themselves with the power which knowledge gives." . . . [T]he right of inspection serves to produce an informed and enlightened public opinion. Like the public trial guarantee of the Sixth Amendment, the right serves to safeguard against any attempt to employ our courts as instruments of persecution, to promote the search for truth, and to assure confidence in judicial remedies.

United States v. Mitchell, 551 F.2d 1252, 1258 (D.C. Cir. 1976) (quoting Letter from James Madison to W. T. Barry, August 4, 1822, in 9 The Writings of James Madison 103 (Hunt ed. 1910)), reversed on other grounds by Nixon, 435 U.S. 589. A right to read but not copy court records would be of limited use to this purpose. Indeed, the right of access is not complete unless it includes the right to copy. See Whorton v. Gaspard, 393 S.W.2d 773, 774 (Ark. 1965) ("The right to inspect . . . carries with it the right to make copies, without which the right to inspect would be practically valueless."); Fuller v. O'Donnell, 17 So.2d 607, 607 (Fla. 1994) ("[T]he right to inspect would in many cases be valueless without the right to make copies."); 37 Cent. L. Journal 399 (1893) ("[T]he right of examination must necessarily carry with it the right to make whatever copies or other memoranda are necessary to effectuate the purpose for which the examination is sought, or else the grant of the mere right of inspection is nugatory.").

         This line of authority uniformly accepting that the common law right of access to judicial records encompasses a right to copy provides important context for the scope of the right Rule 21 preserved. Consistent with the common law, we conclude that Rule 21's right to "inspect" ...

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