of these two cases what i thought i would do is start by taking a little bit of a step back and give you the perspective that deters appear in court has with respect to this case and why we're here and then i think i've only got three arguments that i'd like to sort of enforce for  argument this morning then of course answer your questions but the picture is if you just need to take it as a given we heard the court when we were told not once but twice go back and try the case so we d judgment we had on behalf of the court basically two arguments the first was there is no right of same day access and the reason that we made that one of our primary points was but that's what the complaint alleges and it's not the second thing we said was based on the standing statements in planet one this right of timely access we're not quite sure what that is exactly but we certainly need it because the new scanning policy gives you know you seven percent access either the same day or the next day depending on where the complaint is received during the day so far so good courthouse news comes back and they file across motion and it's it's it's important it's their supplemental excerpts it's page two fourteen but their motion was essentially enjoined us to give from denying access to new civil unlimited complaints after processing and to require ventura superior court to provide access to new unlimited civil complaints until like three o'clock that filings are continuing to four thirty said there's a certain number of filings that they don't get access to until the next day that's correct that's the current policy it went into effect in tw fourteen two years prior to this motion being heard and the rules of court contemplate that because just because of the lack of money and resource allocation the rules of court say you can close early but if you do you have anything after three o'clock some of those did make it to the computer some of them didn't but they all made it to the witch and sailed it be careful i'm sure that there was one or two but the vast majority made it to the computer the next day was there anything other than just the time at which the thing that complaint was dropped into the box that determined which who which complaints made it into the computer or not time it's time and what i can tell you because i walked through the process vague they made a point of gathering everything up and making sure that they had everything so that by the end they know courthouse news is reporter always comes at the end of the day so they know she's coming and they want to make sure that they're complying with their policy policy says three o'clock when the when the closes and so they start they start bringing in the complaints to make sure that they're scanned and available let me ask you we're talking about civil complaint civil unlimited complaints yes what is a civil unlimited complaint but the distinction is monetary twenty five thousand i believe is twenty five thousand dollars and the last is a symbol a limited complaint if you are discovery options civil fifty six counties and historically they were run by the individual counties so when eventually funding was taken up to the states and now it's a state funded entity the fiefdoms remain so there are fifty six different court trial courts with fifty six different different the two main differences for your purposes are number one planet our case the first case is a paper file case not be filing at all second and more important in planted the evidence is criminal complaint there are some well you know i need to back and a tiara so if you're talking about like someone coming in on a tiara that would not be a civil and limited complaint well  questions is that when i read the a miki they talk about this to me he was trying to suggest i guess from this planet that there were some things that just did not been restricted as far as i know about of so i was trying to figure out if they're part of your statistics that the statistics that i'm giving you are complaints that are scanned and that's what is trying to get to the difference in numbers orange county has lots of those types of complaints the evidence of the record is that that ventura does not have as many that the inter reserves the right in this policy says so to make sure that confidential complaints are not stand and put forward but as a practical matter when we looked at it in the period of time that we're talking about for ventura because the volume of solo we weren't aware of a case where that was cell and i would wonder if mr percent of the court that yeah there we were keeping confidential documents out because as far as i know the record available trade secret cases and presumably other complaints that were made comp that confidential by statute and we've given you those examples as i can but so they do not as i understand it if they do not even have anything to do with the statistics which are giving us in those instances they would be if you will taken from the public for ever or for as long as the courts suggested or whatever in in ventura that's all i'm talking about the inventor of the answer to that is no because we did not find evidence of those types of cases being withheld inventory so as a practical are if there were cases there like that they would be is just you didn't find any cases like that is that what you're doing me i'm telling you this far as we know there weren't any of those types of  thought part of your argument and reasoning for the delays is that privacy concerns of some of the parties are at stake that's what i understood in your briefing and so then my question i guess i want to know is that true and if so aren't most of the privacy concerns basically mitigated by the fact that the court must have certain processes in place to address those issues such as requiring filing certain types of cases under seal or in a specific manner i mean i guess i have these privacy related types of concern is that your concern about what percentage of the docket do they make up ventura not very many your honor we don't have a specific number because that's not where the discovery went so then how does that contribute to your delay which or did you not use that as a basis because that's how i read i understand the point that we're trying to make is the scanning policy essentially said we will scan everything and make it available now there weren't any we reserve the right to hold back confidential documents we didn't we're not aware of a case of that was happen and we're not aware of a case where a document was withheld from scanning because of confidentiality that's the testimony so the numbers that i'm giving you are the actual numbers of complaints coming in and complaints making it to the scanner but but but it seems to me you're saying and i guess this is what i'm trying to figure out it seems to me that on the basis of this record one is suggesting that all of these complaints are made available by certain amounts of time but then i know from having been a lawyer in idaho there's a lot of complaints that never they public is not given access to and so i'm saying to myself as a relates to this argument what do we do with those decision on timeliness so what we really think should happen here is that this case should be remanded back so that we can go to trial and these issues can be developed understanding that we've been here twice but we even need to make a determination as to timeliness i mean we've established as a right of access and client one right yes and what you are suggesting is that you've now with your posts twenty fourteen policy you've now complied with that that by in voting some kind of a time place and manner restrictions so why is it necessary i mean you're complying you're making him think that they're at a certain point and time of day you know this isn't viewpoint discrimination isn't content base it's just a matter of time when your resources require you to close why or why sellers are all the person or prize cases what those cases all say is look at the particular restriction that's under review and the first question is is are essentially what a greater access based on experience logically you have to look at i don't even think you  experience in logic to tiredness and you have to look at is what you're doing a reasonable time place and manner restriction does it avoid are you not saying certain types of  cases based on what issues they raise are going to be withheld they're not doing that based on really that what's said in the complaint you're saying where there's a motion cited that have we decided that that's the question there is and use the word do we understand that there's timeliness for time in this requirement yes but the court did not say when where why and how that attach and other and the other circuits that help but i understand your point all i'm saying is i think it's a two step process and the first step of the process is what is taught what does the press enterprise test require you to do but then if you don't do it over the hype that i mean let me let me push a little bit on that sure do you think that the first planet and planet who left open the issue of whether a first amendment right of access right of timely access where is the experience tast applied in making that determination if it asks in a particular case what is the i'm not asking what you do in a particular case ok my worry has been was a deployed in planet because the experience test i mean what experience is there if we've got all these cases which i've now outlined to you today which have not got access what is there which would six bad which would suggest that the experienced passed would make them have access spirits would ask the level that you get whatever level the court is currently providing in this case it would exclude confidential complains and extols we're only dealing in this case with those complaints which are not confidential that are not confidential by law yes you are i think so if you're based on hold and agree with that you know for example that the safe at home statute says that is that this complaint must be means you can answer that question i mean my my worry is i'm trying to figure that out because the bottom line is i never saw anybody really delve into what a civil complaint is and  and all of things that may happen in a civil complaint context so that's why my questions today and i understand and i have to be very careful because judge where law and i were having a discussion last i was here two years ago and i spoke over her and i desperately not going to  what's the answer to judge smith's questions so the answer is that those complaints wouldn't should are not there not the courthouse is not claiming a right to confidential complaints period so from my studio anything the state determines is confidential by whatever way it determines that this is whether the court does it or whether the legislature does it or whatever if they determine it's confidential that's not what they want is that what you're suggesting i believe that's what they're suggesting because in the papers as i don't want to mix cases but me on the saki they've said that i don't like just argue your case you case so the answer to far as i'm concerned is this is all about non confidential civil unlimited complaints and so if that's the case since one make sure i understand your position then you need the delaying is attributed for complaint that came in that was different than what you think they've been in the past what delay would it be to get rid of the confidentiality i suppose for example there are complaints where there's a proper dilemma is the ninety seven percent figure which encompasses complaints the received before three o'clock on a day are made public that day if something comes in from three o'clock in the dropbox it's made available next day at what time well it's scanned that evening so they'll get it and you'll see in the record you'll see that the reporter is going online and seeing the docket that they're there so pin you tell me because i understand you're saying ninety percent there same forty nine percent doesn't get through for another five to five days so that's really well let me ask the question here ok so it's i'm having a hard time understanding what the real number is and seems like that's the whole point of this lawsuit is that there's some alleged delay so can you tell me what is the average time from when a complaint is filed to when it is available how many hours how many days i could say i could put it to you this way because this is what the record shows so ninety seven percent of them are available by the end of the next business day so that includes all the ones that are made available on the day that they're received and then you get in the grace period every virtually everything by the next day his or your that in this trade of office we have so how and why are you and cns then so disparate in your in your assessment of the delays in access to newly filed complaints i mean how did you reach your ninety seven percent number and fourteen there were greater delays i'm sorry say that again there are two policies one is the pre scanning policy which had lots of let's talk about the current policy ok and with respect to the current policy when they point out delays all the record shows this that they are identifying cases where i didn't see it on the day one i saw it on day two and it was received at four o'clock on the friday before thanksgiving and so the next business day is four days away they claim that's a four day delay but everybody there on the weekend and during thanksgiving to process it so that's the biggest is that it is all of the delay we're talking about here where there were with them or where they were with you because it all have to do with just to the lay and scanning or is there any delay associated with the review of confidential information to complete there is no deal the answer to that question there is no delay with respect to the review for confidential information if the complaint is received by three o'clock unless there is some the word the policy has typically just to be careful but as a practical matter if the complaint is in before three o'clock it is scanned him in available so it's all about scanning yes and there 's only so many people in the clerk's office a short cut short of saying well the first amendment requires me to do it you know the minute they come in which which i think is unreasonable i think it's a reasonable policy when we have argued time place manner on it a just say what it's three o'clock will get you everything and if you don't get it that day you get it the next day and by the way courthouse news reports are still very very limited and it's not as if they're even referring to the how close are you t resources isn't it cheaper to have electronic filing as opposed to paper filing and scanning and copy is it much more much cheaper and more efficient in the long run probably in the short run the cost of changing over is huge and that's one of the biggest issues that i don't think that's in the record but that's the practical answer it's the build up to get to the point where you will go over from from paper stuff to the scanning it's very expensive because you don't have the systems for would would if every court in california had electronic scanning would we even be having this today i don't i think i don't know the answer t in the reason is in some cases it history another it's one of the reasons there's no history you know experience some courts you file and but they process first before they let him out in the the seventh circuit does that in the brown case that were repealing should be for timely so in a nutshell first you look at the existing policy whatever that is and lynn sells are in those cases they ask is the restriction justified by the time placement test so you look at this case you look at doma saki is the restriction justified experience and logic that's where you get into disagreements about when is the complete come for review and all that but that's how we view it the second thing is if the then find that there is a of first amendment access based on history experience and logic then you ask ok if the if the defendant if the state is violating that or is it complying with that what's its justification in our case time place manner when you talk about access to a finite share it i mean i think if you were to do that task you wouldn't get into alternative means of communication because you're really just going into that i mean they'd have to or of the press enterprise if you will i'm looking to determine what is given the first amendment right of access and i think that's what you look at that's what they used in that criminal proceeding to destroy mn if that was to get that and i think that's the test i use in this proceeding once using that press enterprise test of experience and logic i'm trying to figure out why experience and logic has anything to do with once the standard has been determined in other words once the is once i've determined that there is a quote a right of access because of that standard seems to me at the next time that i apply or the next test i apply is the test of time place and manner yes not we're not back at press enterprise anymore we're at the new test of time place and manner if i didn't say that clearly that's what i meant so ok so if we're in time place and manner and we look at that test it can i apply every part of that test to this particular situation that's what judge or dog and i were just chatting about a little bit your honor and my answer is and that's what i'm going back to right and the answer is formulated to suit myself well the court this is this is just one last point i know what your point is but i'm just trying to figure out i'll put it this way this is an intermediate this is not strict scrutiny this is intermediate scrutiny and the courts have the not the discretion but they have the ability to fashion that time place manner test that meets the medium that you're addressing the billboard cases are like that because they don't have an alternative means but they but there are there are lots of ways to focus  access cases on that too right so if we get to there then if i look at the really time place manner test it seems to me that the ultimate on that test is content based restriction even with time place and manner but this isn't a con i don't think anyone says this is a content base it's only content based restriction if in fact you are if you will denying access based on confidentiality no respectfully i don't think that's quite right content neutrality means you're picking on action in a probate case hot to be given access or not isn't the same thing can i look at the same thing when i'm looking about mental health and disability or when i'm looking at child custody or child support respectfully you don't know that i suppose that sort of stink sions the point a concept neutrality is that you're picking on the you making judgments based on viewpoint that's not viewpoint that's subject by trying to address some of the questions at the panel house first off as to the issue of confidentiality as it relates to this that was raised in the planet case but only narrowly there was a question about fee waivers in that case and whether they were confidential i think there was a question about that and this was in the context of reasons to justify the process first policy that was in place at the beginning of this case and one of the reasons was these fee waivers another reason i believe may have been we might need to redact but when we took just covering this is reflected in judge of tears opinion there were admissions in depositions that they did not review the complaints to determine if they contain confidential information they did not to review the complaints before scanning and  as has put forth leave out a whole category of complaints that now we have make you want us to think about or in other words complaints about minors complaints about medical information complaints about child custody complaints about domestic violence those kind of complaints they seemed to be important are there is that not what you're after are you not any state law or any judge made ruly that would suggest that a certain complaint is confidential you're not seeking that now and those are not the kinds of complaints of courthouse news reviews day in and day out at federal courts and state courts across the country that you agree not no is your answer is that yes you agree with judge smith that you are not seeking that we are not seeking confidential complaints we are not so in my book you're then saying that whatever the court whatever county court it is or whatever record it is that you're trying to get these to the extent they've determined their confidential you do not seek those complaints that's correct to think that it's confidential by law or it's accompanied by a proper motion to seal we were not seeking those complaints to the extent it's been determined confidential we are not seeking those complaints we're seeking publicly available complaints complaints to which we contend a presumption of access attachments under the first amendment so do you claim you're still experiencing delays right now as we speak scanning there's the pub policy at the beginning of this case which was we you can't see these new complaints until after they are processed and that that procedure was not abandoned and tell after this court's first decision in this case in two thousand and fourteen four years into that case but even today even today in the briefs they are contending that they have a constitutional right they are not constitutionally foreclosed from withholding access until after processing that the mr planet argued in the court below that that was moot we disagreed and the court ruled in our favor on that so the process prior to judge portero ruling are you experiencing delays we saw that day because after three o'clock they were continuing and continuing to stand into essentially an empty were it's because courthouse muse's reporter was required to leave the only place where complaints could be viewed they were not available online only at the courthouse sand what percentage of newly filed complaints do you assert you were not getting th ninety some percent one point you all were saying forty seven percent we don't get for up to five to nine days i don't understand how the data can be that off and so somebody is really looking at it in one way i don't know if it's inaccurate or not and i'm just trying to get to the to the bottom of it all and trying to figure out are you really experienc otero's ruling that's that's because that's what we're the issue before us and of those complaints that you are not getting access to on the same day that they were i guess filed what is the delay in terms of hours  have to reconcile that disputes because it was unjust spew did that the room where they could be seen closed at three pm every day and the complaints could still be filed and help for thirty every day so i'm there with the the next day again i apologize i don't have this but that's a really key question that would have been helpful and i'm you know i'm sure i have a lot of information but that really i know judge otero i think didn't go that route in terms of making the ruling because he would have probably had to have a trial to figure that out instead he went with the time but we have this issue before us and it's really hard to know what the average delay is in access to the newly filed complaints under the system that was in place prior to judge otero's order which is not the original system we had significant percentages  don't want to misspeak but they were in the you know twenty thirty forty percent range but i want to be careful to note that this is also particularly hits the most important cases which tend to be filed at the end of the day we made this fire staff i mean that's kind of are why i mean why they're most how can you say that the most important most important how you define most important the ones that in court has mrs experience have been found to be the ones that  think that ventura is you know at this point is probably doing the best it can do given that it doesn't have electronic filing judge a terror said that th no reason why it should cut off access for the day at three o'clock and nevertheless allow complains to be filed until four thirty no reason whatsoever and it is it is their burden where you  ask for that you either that they allow your reporter to stay till four thirty word that they change their filing deadline to three well they did make a couple of changes and that is reflected in the documents in the cross appeal in this case which is t see new complaints up through four and she's even allowed to stay in the in the records room later and now complaints can be file until four it's like that right now i guess i'm trying to understand i'm sorry for interrupting you but you said judge ok tara found that there was no kno i don't think but he did say there is a right to timely access and he said you can't cut off access for the day while complaints can still be fought he says they've remedy that by the your reporter can be their top four and they stop accepting complaints for a change in their dropbox hours so the complaints are now dropped until four o'clock and the reporter can be there through four o'clock and you're going what is your complaint now that they've really mot i mean they've modified the dusty they've done that what's your test and what's your assessment of timely access because joe terrell seemed to say that there was no i guess you clarified bright line rule to same day access but he did say there was should be timely access what's the you what's your justification for why we should be what you're asking for i think timely is the functional equivalent of contemporaneous access and that's what many of the other circuit courts talk about when they talk about what access is required under the first amendment the seventh circuit talks about it and grow fresh the second circuit talks about it and look gosh the first circuit talks about it and caskey the fourth circuit talks about it in company company when you're talking about a civil proceeding it means you can be right there in the context of a new civil complaint when it's just been filed it is representative of the new civil lawsuit and we believe that timely access in the a newly filed civil complaint and a very predictable situation where a reporter showing up every single day to review those new complaints on something pretty quick and it means the absence of you all have presented as a question to try to answer and i'm just trying to get information from you both which it seems very difficult i don't envy the district court judges here because trying to figure out even what contemporaneous in your view means do you count for the fact that you know when you have physical a court with physical filings and short staff what does that mean the filings are sitting right there and we gave evidence in the declarations that we filed in support of our motion for summary judgment where they're in a stack providing access is not a function of cost or staff resources it is it is very easy to do as evidenced by the many courts they do provide that access and these are the new civil lawsuits the only way you can find out about this new civil lawsuit is by seeing the complaint that's what this court said in its first decision in this case and we contend that time that particular context means something pretty quick do you have to draw a bright line know might there be a situation where a complaint slips by here in there would that violate the right of thailand system go that means the absence of policies that in an ongoing basis deprive the public of access but this is just trying to figure out if you account for the fact doesn't deter county have to dock at those physical files at least and so i'm just trying to understand docketing and timely access are not mutually exclusive that they can both be accomplished were certainly not do they not take time i mean for physical access i mean when you have physical filing doesn't take some time and if you have a number and you're short staffed i mean you don't account for that at all docking need not proceed access docking is the functional equivalent of processing and that is one of the things that that was that  was the ventura county courts argument in the very beginning this case we can't get they said we i can't give you access intel were done processing and we established why that was not the case that the sender the first policy this is the first policy right that's under the first policy and that was accepted by the court and then they changed their policy they continued to can they continue with their first policy they changed it in two thousand and fourteen after the cour and did not provide timely access and that the ventura clerk had not met his burden under either the compelling government interest test or the time place and manner tests to provide evidence to meet the elements of those not us i'm not sure the court found that they were not timely i'm not sure that what the court did in planet two was not to send it back to have the court think about what there was timely my worry is that what test do i apply to determine this timeliness i mean and that's why i ask your colleague the same question seems to me that if we're go press enterprise that that says whether there is access at all but once getting access at all it seems to me that we then go with a different test and that would be the time place and manner test would you agree with that i think that the compelling government interest test is the better fit for it tell us about what does that mean i should it's also referred to as the overriding that this court and other courts apply to determine whether countervailing interest overcome a first amendment right of access so how does time place manner fall into that time place and manner is a test  that the rich newspapers i understand where it came from and i understood basically reading planet that this court said that my be something that we could look at in the future when they sent that back we we recognize that this court certainly said that in planet one we think that it's not satisfied in this case we are so for for not satisfied or you want to different test we think the compelling government interest test is the more appropriate test and i understand that so you're really saying if we don't take the press enterprise test we cannot deal with the time place  terrors that is in our briefing on the theme ocean that is before this court on the cross appeal there was a contention that well you had partial success in this case and we said look this is what happened eve one substantially all the victory that you could get out of this because you've established the right of access you've gotten them to change their policy twice why are you arguing against i hope i'm understanding your question correctly what we like the result in this case we think it's the right result and we think it should be a fart if you want to finish your answer my question or of you forgot i'm sorry on the burden of the parking party seeking to restrict access it can't be met here it seems posing counsel on others or searching them the ninety minute or hour to have to lay at the end of the day  t to the media is really a minor delay and so i guess i'm just asking you squarely why is there a first amendment right to same day access assert that there's a first in memory right timely access and what that's going to mean in a court that doesn't have procedures that restrict access on an ongoing basis is going to be same day most of the time with some exceptions and in this case the scanning policy provided it cut off access at three complaints could still be filed until four thirty that is similar to the ride in our case that judge of terror relied on where that court was closing its court room at three while proceeding still went on a cell five that's on a daily basis week after week month after month if you look at a typical eight hour day that that's a fifth of it it means that or whatever is scanned into that room on that day you won't see it earliest until the next court day and what's your best authority for that i'm sorry for your best authority pro what you just outlined for the proposition that short delays implicate the first amendment right of access and are worthy of protection i would point the court to the past a case i would point the court to that's the first circuit case i would point the court to the ninth circuit's decision associated press i would point the court to the many decisions i've referenced talking about the importance of contemporaneous access where a first amendment right of access so are you then as since are you in that any delay no matter how short five minutes ten minutes is a violation of the first amendment we are not asking for instant access we we are not trying to figure out how do we draw the last line you tell me lay it out for me i make it sound easy and i don't know that it is that i don't think it's an easy question and i've obviously done a lot of thinking about this issue and this is where i come out and i think the judge of tara was was right not to draw a bright line it's cont specific i think fundamentally in this case we're talking about newly filed civil complaints and a reporter who shows up every day versus a situation where maybe it's an older record maybe it's harder to locate maybe you have someone coming up the street you've never met before who's not showing up every day and making this kind of predictable request but in this kind of a situation and we think timely again is the functional equivalent of contemporaneous and mean something pretty quickly and it means the absence of procedures that are going to result in a systematic delay of at least one court day which translates into even longer delays wherever there's a weekend or a holiday is the inventor of reporter and she had asked a question about standard procedure and was told don't talk to me talk to your lawyer answer my question she yes or no because it's really a yes or no the complaints are the exhibits are part of the complaint and she asked to see new complaints in a timely so that's how you claim she asked for the exhibits we pointed out the problem of the exhibits  responses in this case in deposition responses in this case she felt she couldn't did you ever experience a delay in obtaining exhibits from the church county after you requested them and if so point to me in the record where that happened we can't to an instance where you were denied yes we can ok then maybe you should leave with that that i'm just i'm not actually i'm not you're not gotcha i'm trying to figure out whether or not you have properly teed this issue up and i think i don't know why i'm having trouble getting out a straightforward answer here i'm sorry i didn't did we say may i please see the exhibits and the answers you know for the reasons that are just articulated didn't we asked to see the new complaints in a timely manner yes and it's our contention that the eleventh circuit f t c case makes the point that exhibits are a part of the complaint they're part and parcel we didn't think that we needed to make a separate ok thank for my question on that front but i just have one last question from from mike just warm up a permit and just thinking about what you've answered to here today regarding the timeliness i'm just trying to really figure out what the do difference is in your assessment between contemporaneous and immediate you argue for contemporaneous but it seems like you're really asking for immediate and i need you to help me understand  that i have been unable to draw a bright line rule from up from a practical person perspective what courthouse news has seen another courts and what is in the record from what is has experienced in other courts and what  is timely here is access by the end of the day with some exceptions here and there in a paper court maybe there is a complaint it seeks a t r o and it has to get to a judge right way or maybe gets left on an we're not saying that's a first amendment violation i thought i going to terra rejected that right he said he wasn't going to have a requirement of same day access he said i'm not finding a bright line rule of same day access  situations but i but i would contend that what he said was unconstitutional because it deprived courthouse news of timely access were policies that were we need to take them side in this case thank you morning your honor is a may please the court one bogus for me curie the reporters committee for freedom of the press and twenty seven media organizations the main point of like to emphasize for your honour's today is from the perspective of a miki how important timely information for many news organizations such as six of the immediate including the los angeles times the associated press and the wall street journal all of whom are subscribers to courthouse news service other news organizations rely on the first member right of timely access when they send their own reporters to courthouses around the country to access newly filed civil complaints so that they may report on them to the public and this is often a simply as check it is simply an excuse me this is often as simple as checking the media been that is outside the clerk help for those new copies of civil complaints as they come in so as a result the court's decision in this case will impact in the queue directly and is not just courthouse news service is right of access it is at stake in fact it is the public's right of access that is at stake in this case and their ability to learn about the matters that are before the courts as they are filed the reason for this is because priem court has recognized that most people learn about  proceedings from the news media rather than from observing it directly firsthand and for the news media timeliness isn't an essential component of newsworthiness newspapers and the evening news report on matters when they're fresh the day's events what just happened and in the modern era online news organizations report on events within hours minutes or even seconds of when they occur that's why news organizations like the new york times or the los angeles times on their websites they post a timestamp of when articles are posted or updated so the public knows the very minute that they're receiving news and that that news is most up to date  dow jones newswires provide financial news and data to subscribers in real time throughout the day and twitter feeds including posts by journalists with breaking news including about civil complaints are updated by the second for the public but just like with other news the news media relies on timely access to civil complaints so that they can report on them when they are most newsworthy and that is when they are filed in our brief i mean he provided two examples from the l a times of news articles that were written about civil complaints on the same day that they were filed because the news media was able to obtain access to them one was a case about wage theft by a home healthcare business very much of interest to the public  another was against los angeles police department for violations of the california public records act again a matter of extreme interest to the public and only available to the public to know about because the l a times had timely access to those complaints it seems like you know you're making it clear that your position would be to have same day or near same day access to civil filings  might lead you to ask what does timely access mean i thought you were making in your in your brief it seemed like you were arguing press enterprise experience and logic tax and and maybe i in reporters committee that cuts against your position what what's your response to that so yes and reporters committee the d c circuit held that there was no right of access until judicial action however that case has not been followed by other circuits i would say it's essentially an aberrational case so if you look at goshen the second circuit which found a right of access to summary judgment motions which was the exact same issue at the exact same type of document issue an reporters committee they really rejected that approach from the d c circuit and d c subsidiary the california supreme court decision and the court there noted that the modern trend has been against the court's decision and reporters committee how we make a decision about whether you have had that timely right and if it's a time place and manner standard that we apply why is it not mad here your i don't think that the time place manner analysis is appropriate for determining whether or not timely i understand when i you know i think it is but supposing that i believe it is so if you if you are going to apply to time place manner analysis i would say it's not met here for two reasons and the first is that the burden is on the ventura court i understand that but i look at what they did and i'm having a tough time understanding why they didn't show that they use that so they have to show a significant government interest that would demonstrate the delay here that there is no significant up government interest that would justify the delay in this case so the court's own procedure and putting stuff together on its own calendar your honor i'm not aware of any case it's held that type of kind of administrative interest is a significant interest under the time place and manner tests are not because it has to rise to a certain level it's not just any interest that will do it has to  and manner but we have to find an interest i appreciate that but i guess i'm challenging why do you think that's not enough interest i think those types of administrative concerns i guess i would point the court to the red in our case that was decided by the arizona supreme court where there they were looking at again similar types of administrative concerns about court security to create a basically three pm cut off for allowing access to the courtroom even though proceedings were going to continue to go on after three pm and they are the court found that that type of interest was not sufficient to satisfy the first amendment well but that case i think that in that case they allowed certain people who are already in to stay in and it allowed anybody so there was a disparity there i think that's makes that case distinguishable here because they're treating everybody the same here i would say your honor if anything it makes this case worse because in right now or at least some people were granted access to the ongoing court proceedings and some members of the public had the ability to observe what was happening here when complaints are delayed no member of the public has access to them for that and i hear that there delayed but also to when they can have access to the complaint when the courts whole process is simply taking the complaints and then after taking the complaints doing what process they need to do to put them down so that you can get access to them if we went to the far extreme with your analysis it would seem we've got to cut everything off at three o'clock because at that point they can't file anymore because you can't get access anymore i mean i'm just trying to figure out why the courts process is of no value in your calculation i think the court's process does have value but on the other side of things you have to look at the value of the public's right of acol i understand i understand but here we are trying to if we're not in a strict scrutiny situation and that's where i put you to begin with in a time place and manner situation and we're not in a strict scrutiny situation then at that point i don't know why the courts process isn't very well enough reason to do what they've had to do here so another reason i would say is because as part of the time place and now a timely manner analysis the court has to look at whether alternative channels of communication are available and as i believe you've discussed with both parties that prompted the time place ma so i would i would say the former is more appropriate but if the time place manner analysis doesn't fit the situation that tends to suggest that it's not the appropriate analysis and again we do argue that the overriding interest test that was announced in press enterprise one is the appropriate analysis here and the court the ninth circuit and levy salazar found that when the first amendment right of access applies the appropriate tests to determine if it is overcome is the overriding interest test and not the time place manner test so again we would emphasise that the overriding interest test is the test that the court should apply here i think with the district court has given the evidence in this case that  preserve higher values or is narrowly tailored to serve a substantial government interest so as you are a proof issue but he still applied the time place and manner test your honor i believe that is in fact what i'm referring to as the overriding interest test and if i could just read to you from press enterprise one where the court said the presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest which i believe mirrors the language that your honor is quoting so again that is the overriding interest test that is the higher test that the court the supreme court has articulated applies when the first amendment right of access applies and you're you are just one more point very briefly in addition to the importance of timeliness to newsworthiness i just also want to point out that timeliness is extremely important to accuracy timely access is necessary for the press report accurately and completely on civil complaints journalists know that the most authoritative source of information are the court documents themselves and they want to be able to read those and in some cases actually provide links or embed them in their news stories so that the public has access to that complete and accurate information as well points i would like to take the five first on whether strict scrutiny is the standard present apprise says his counsel says global news newspapers which is a follow up case footnote seventeen says but if it's not a denial and it's more like a delay time place manner which is why we're here right now or the case that counsels relying on where the court access was denied to people after three o'clock you can see why that would be strict  the trial happens once and if you're not there you can't participate you can't watch you can't do anything as opposed to a complaint where even if the court is closed at three o'clock you get at the next week and that point is is there a third policy now are you binturong only taking complaints up to four and are they allowing the reporter to be there the only policies under review are the ones that i described which is the three o'clock with a drop box of four thirty after the court entered his injunction we had to comply with it and the only thing we could do was get rid of the drop box and extend our court hours but why isn't that the most reasonable solution if you say that the first amendment either prohibits courts from accepting implants up after a certain time or you say that the first amendment you know requires the court to maintain ours i suppose that would be a reasonable alternative what we're trying to do is make sure without violating a court injunction federal court injunction while we appeal so the issue for you but respect for you is the scanning policy which was three o'clock with access everything after that that i saw and what's happened in the current procedure halves is the sky fall and right now it's actually no different the same procedure happens except the hours are different and now they're ripping apart the complex of ways that they didn't before because they try to scan the exhibits well how long has that been in place the since i can give the precise date but after the judgment was final we we change the policy if you go in the courts website the revised policy is there as they believe is based on the fact that ventura county failed to make a showing that it that there was a significant interest in having the gap between three and now which is explain is totally an opposite your view in the second that saying that there's a right of same to access even though in the prior paragraph he said there is no such right so the problem i've got we did want a bright line rule that is saying what was reasonable under the circumstances and you didn't meet of showing that there was some governmental interest i mean tell me what it is what is it's in the record that says that ventura county has significant interest in having one point in time where they kick out the reporter and another point in time where they stop taking filings all the number of supreme court decisions recognize that courts have the inherent power to  from planet and his deputy i guess what are they when they say why did they have to do it that way they did it that way they shut at three o'clock because they were understaffed because of the budget shortfalls and what they were using between three o'clock and four thirty they could take people off of the public windows to catch up on the backlog so that we could do our primary job to service the public you know the litigants and that's what the that and that's in the record so that's why  the the doors closed at three o'clock but we kept working and as i said the rules of court with us also the records say that when you close you can close at three o'clock but if you do you have to have a dropbox which is what they did so we were complying with california law short staffing cutback on the public office hours so i don't have to have people out there on the clerks line and i can put them back to deal with the backlog of materials a glimpse has disappeared from the order from judge or tear i guess was dated in june two thousand and sixteen operating under the four o'clock oh i'm sorry under the four o'clock pm cut off i guess for filing is that right correct for two years yes and we were operating under the our regular scanning policy which is virtually the same thing other than the office hours change and we now add exhibits for two years before this summary judgment order was was put in place that's why in our brief we make two points that which are important first we think any discussion ordering  show to justify prospective relief based on some voluntary secession and that's what i think this case is and i don't think you first policy is you because you could go back to it is not point well that's your honor respectfully this is we're talking about a court here it's a public entity we get a presumption to go to but i'll take that as a given that the it's hochmuth this is a hard point it always exists but that doesn't mean that it's just because something isn't moot that those same lack of facts