ARCHIVED: Special Program: A Sea Change in Access...July 23, 1997

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AALL MEETING -- July 23, 1997

I am John Hehman, Chief of the Appellate Court and Circuit Administration Division at the Administrative Office of the United States Courts.

I appreciate the opportunity to participate in this panel discussion on the Congress' proposed revisions to Title 44 and the impact on access to the judiciary's public information. The proposed legislation raises a number of concerns to the judiciary, which I will try to address this afternoon.

But, by way of introduction, I will point first to the unique status of the judiciary, as well as the Administrative Office of United States Courts, in our system of federal government. Since the courts cannot determine, and often cannot predict their workload, management of the judicial branch requires a constant shifting of priorities. Workload, in fact, is determined by the Constitution and statutes and thus, to a great extent, is driven by the legislative and executive branches.

The independence of federal judges in their Article III capacity commonly is viewed as one of the strengths of our American system of government. The extent to which that independence is reflected in the administration of individual courts suggests that the judiciary's environment is one of encouragement and persuasion, as opposed to directives and enforcement. This stands in marked contrast to the authorities vested in administrative agencies of the executive branch.

Unlike federal departments and agencies, the judiciary has no headquarters. The judicial branch is heavily decentralized to the local courts. Because the federal courts are comparatively small, the Judicial Conference of the United States has assigned the Administrative Office to carry out certain important direct support and management functions that can be completed for the courts most efficiently in a central office.

The Administrative Office is not a Washington headquarters administrative overhead operation. The role of the Administrative Office is one of stewardship; it assists the courts in carrying out their mission. It is fully integrated into the overall judiciary management structure, providing management and policy staff organization for the Third Branch. Unlike executive branch agencies, it does not have numerous administrative layers, such as departmental, bureau, district and field offices. It provides support directly to the federal courts, so that they can focus on their primary mission of adjudicating cases.

Having discussed the unique characteristics of the judiciary, vis-a-vis the independence of judicial officers, you will appreciate the judiciary's concerns regarding the proposed re-creation of the Government Printing Office (GPO) as an executive branch agency, which has significant implications to the independence of the judiciary. For example, the broad authority given to the Public Printer to promulgate regulations for printing, binding, and public information creation, as well as for the use of developing technology, concerns the judiciary. This authority will have implications on the judiciary's ability to make the most cost-effective and efficient decisions about its publications --- as I will explain.

To the extent this legislation would apply to the judiciary, there is concern that the Public Printer could become responsible, through regulation, for determining the technology that would create, store, and disseminate public information in electronic or other forms for the judiciary. Under the proposed legislation, the definition of public information could indeed encompass the judiciary's core data -- i.e., primary court data and records. It would be intrusive for an executive branch agency to take responsibility for storing and disseminating such information.

The prospect of having an executive branch agency control regulations that could impact the development of the judiciary's core records management systems is of major concern. The fact that the federal government is a frequent litigant in the federal courts adds to the concern.

Although it is the Third Branch of our federal government, the judiciary is a comparatively small federal organization. Its total printing expenditures are less than eight million dollars annually. The judiciary has a demonstrated track record of cost-effective and efficient procurement of printing services. A majority of its printing services involve competitive procurements, the Federal Prison Industries and other cost effective sources.

In the past, the Joint Committee on Printing recognized the judiciary's legitimate requirements for independence in the procurement of slip opinion printing contracts. These competitively-awarded contracts are necessary to ensure that the services being procured meet the quality, confidentiality, security, quantity, format, technical review, and delivery requirements of each U.S. Court of Appeals. Certainly, one can appreciate a court's need to have the utmost confidence in a printing contractor responsible for both confidentiality of the contents of a court decision as well as the need for absolute accuracy in its reproduction. The possibility for premature leaking or publication errors could have severe repercussions for the parties in dispute, with other far-reaching consequences such as to other pending court cases or the stock market. The judiciary is confident that it can continue to make cost-effective procurement decisions if it had its own authority for printing and could choose to use GPO when appropriate.

If GPO operates as an executive agency with authority to regulate the judiciary in these respects, conflicts may arise during the drafting of regulations or in general operations. Clearly, if there are challenges to GPO's authority or its regulations, the judiciary is often the referee in these issues. If these situations arise, the judiciary's independence from the GPO regulations would remove any concerns about objectivity. The judiciary is not only sensitive to such matters but also remains vigilant in its efforts to avoid the intrusions represented by outside pressures and influence.

The judiciary believes that its information procurement process should remain independent of GPO and executive branch control. To date, as the Third Branch of government, the judiciary has maintained its own personnel, budget, and procurement systems by authorizing the Director of the Administrative Office to implement policies consistent with those applicable to the other branches of government.

The judiciary has independent authority in other administrative areas and has demonstrated excellent experience in the areas of procurement and public access to information. Such authority, if included in the final legislation, would ensure the judiciary's ability to procure information services that are in the best interests of the taxpayer and the courts without invoking the substantial problems mentioned earlier.

At a minimum, the judiciary believes the Director of the Administrative Office should have the authority to exempt the judiciary from future regulations that could restrict the judiciary's ability to produce documents that meet its requirements for timeliness, confidentiality, and quality. In fact, during a 1996 hearing before the Senate Committee on Rules and Administration, the judiciary was complimented by a Committee member for its outstanding record regarding the confidentiality of case decisions prior to public release. It is in the interest of the judiciary and the other branches of government to assure that future legislative or regulatory actions will not have the potential to negatively impact this distinguished record.

A final point regarding Title II of this proposed legislation is the judiciary's concern about the Federal Advisory Councils referenced in Section 205, i.e., both the establishment of a judicial branch advisory council and the provision for having non-federal members on advisory councils. The legislation is vague about the responsibilities, membership and authority of such councils. At first review, these appear to be complementary to the process of building consensus and efficient operations responsive to the customers of GPO; however, the mission, role and authorities of these councils must be clearly defined, if they are to be effective and well-regarded by their constituent interest groups. While the judiciary is not opposed to the concept of advisory councils, and in fact uses advisory groups for many purposes, the responsibilities and the requirements for the councils defined in Section 205 are not clear.



In closing, I reiterate that the judiciary has strong reservations about the authorities granted to the Public Printer in this proposed legislation and the re-creation of GPO as an executive branch agency, to the extent that it regulates the activities of the judiciary. There are issues of independence that may have serious impact on the production of information both for and from the federal courts. The judiciary publishes information that is critical, time-sensitive, and establishes legal precedent for the benefit of judges, lawyers and citizens across the nation. The judiciary is supportive of improved access to government information and believes that its continually expanding electronic access program is testament to this commitment. There is every reason to believe that the judiciary will continue to build on its past successes and provide even greater access to information that is of interest to the public. The judiciary cannot risk that the publication of these materials will be negatively impacted by regulations established by an executive branch agency.