Judge: Cook County courts clerk must give immediate public, press access to e-filed lawsuits

By Jonathan Bilyk | Jan 8, 2018

A Chicago federal judge has told the Cook County Circuit Clerk’s office it cannot withhold electronically filed lawsuits from public view for days at a time pending administrative processing because, to do so, violates the right of the press and the public under the First Amendment to immediate access to otherwise public documents.

On Jan. 8, U.S. District Judge Matthew F. Kennelly granted a preliminary injunction requested by Courthouse News Service against Cook County Circuit Court Clerk Dorothy Brown, saying Brown had failed to demonstrate why she should be allowed to continue a policy and practice that runs afoul of a legal precept upheld by numerous courts, including the U.S. Seventh Circuit Court of Appeals in Chicago, noting that delays in access to public information can often amount to suppression of those records.

Kennelly gave Brown’s office 30 days to create a system under which the press can gain immediate access to newly e-filed lawsuits, just as it does with complaints filed on paper.

“In the absence of an injunction, CNS will continue to be deprived of its First Amendment right of timely (immediate and contemporaneous) access to e-filed complaints,” Judge Kennelly wrote. “And Brown has not explained why she cannot implement any of the measures other state and federal courts have taken to provide access to e-filed complaints prior to official acceptance and other processing.”

CNS had filed suit against Brown and her office in November, asking the judge to order Brown to immediately provide all lawsuits to both journalists and the public, as they are filed. Presently, the lawsuit said, the clerk’s office has sat on up to half of all lawsuits filed for days or even weeks at a time, even though the lawsuits were electronically filed, as the office waits to confirm administrative “acceptance” of the complaints.

Since 2009, Brown’s office has allowed and encouraged attorneys to file new lawsuits and motions electronically, through a process known as e-file. Such systems have gained favor in courts across the country, easing the intake and processing process for court clerks, particularly as compared to the traditional paper filing process. In federal courts, for instance, new lawsuits and filings are all filed electronically, and are in most instances immediately posted to the federal courts’ electronic docketing systems, most of which can be accessed remotely online.

At the state level, however, e-filing has resulted in more mixed results. And in Cook County, CNS’ complaint said, e-filing has actually served to restrict public and press access to lawsuits, as compared to the traditional paper filing methods.

Under the old method, the lawsuit said, journalists working in the courthouse were able to freely access paper lawsuits as they were filed with the circuit clerk’s office, even before they entered the official intake process, as the courts considered such lawsuits public information from the moment they were dropped off at the clerk’s office.

However, as more and more lawsuits have been e-filed, CNS said the clerk’s office has withheld more and more of them, for days or weeks at a time, as they are administratively processed.

“These delays in access … is (sic) the result of the Clerk’s policy and practice of withholding new e-filed complaints from press review until after the performance of administrative processing, including post-filing ‘acceptance’ of the complaint, at which time the Clerk deems the complaint ‘officially filed,’” CNS wrote in its lawsuit. “The Clerk takes this position even though the applicable rules and orders provide that e-filed complaints received before midnight on a court day are ‘deemed filed’ on the date of receipt, even if they are not ‘officially’ accepted as filed until a later date…”

In response, Brown’s office said she has no obligation under the First Amendment to grant any member of the public “immediate access to electronically submitted complaints before they are accepted for filing.” The delays, she said, were needed to allow the clerk’s staff to review new e-filings for documents Brown insisted could violate standing court rules concerning the protection of certain identities, such as minors or plaintiffs allowed by the courts to file certain lawsuits under seal.

Kennelly, however, rejected those arguments, saying, under Illinois Supreme Court rules, litigants filing the documents, and not the clerk’s office, bear the burden of protecting sensitive information from landing in a public document.

The judge also noted Brown “made no effort to explain why” her office can’t establish a system under which journalists and the public can review new e-filed lawsuits “before they have been fully processed,” even though numerous other state courts and the federal courts have all done so.

“There is an important public interest in ensuring that the press and the public have timely access to new civil complaints,” Kennelly wrote. “Additionally, the Seventh Circuit has acknowledged that "even short deprivations of First Amendment rights constitute irreparable harm.

“These principles are no less true when the First Amendment deprivation in question is a deprivation of the right of timely access to judicial proceedings or documents than when it involves a deprivation of the right of free expression.”

CNS is represented in the action by attorneys with the firm of Bryan Cave LLP, of Chicago.

Brown and the clerk’s office are represented by the Cook County State’s Attorney.

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Bryan Cave LLP Cook County Clerk of the Circuit Court Cook County State's Attorney's Office Courthouse News Service Illinois Supreme Court U.S. District Court for the Northern District of Illinois

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