In a modest victory for public access, the Federal Circuit has changed its policies to allow the public to immediately access briefs. Previously, the court had marked briefs as “tendered” and withheld them from the public pending review by the Clerk’s Office. That process sometimes took a number of days. EFF wrote a letter [PDF] asking the court to make briefs available as soon as they are filed. The court has now changed its policies to allow immediate access.
Earlier this month, the Federal Circuit announced a new compliance review policy. While that new policy [PDF] doesn’t specifically mention the practice of withholding briefs as “tendered,” we have confirmed with the Clerk’s Office that briefs are now available on PACER as soon as they are filed. Our review of recent dockets also suggests that briefs are now available to the public right away.
While this is perhaps a small change, we appreciate that the Federal Circuit is making briefs available upon filing. We had encountered delays of 7 days or more (this meant that the parties’ briefs were sometimes not available until after supporting amicus briefs were due). Ultimately, the public’s right of access to courts includes a right to timely access. The Federal Circuit is the federal court of appeal that hears appeals in patent cases from all across the country, and many of its cases are of interest to the public at large.
The Federal Circuit’s former practice was at odds with its other actions on transparency. The court has issued rulings making it clear that it will only allow material to be sealed for good reason. Federal Circuit rules were also recently changed to require parties to file a separate motion if they want to seal more than 15 consecutive words in a motion or a brief. With federal district courts routinely allowing parties to seal records that should be public, we hope that more courts take the Federal Circuit’s lead on public access.