By Jonathan Bilyk | Feb 1, 2018

With just days to spare before her office would need to comply with a federal judge’s order to begin providing the public and the press immediate access to electronically filed lawsuits, the clerk of Cook County’s courts has appealed the ruling.

On Feb. 1, Cook County Circuit Clerk Dorothy Brown filed an appeal with the U.S. Seventh Circuit Court of Appeals in Chicago. Neither her notice of appeal filed in federal district court nor an initial document filed at the Seventh Circuit specified what aspect of the ruling from U.S. District Judge Matthew F. Kennelly the circuit clerk’s office was challenging.

On Jan. 8, Judge Kennelly granted a request for a preliminary injunction from Courthouse News Service, ordering Brown and her office to create a system under which the press, at least, can gain immediate access to newly filed lawsuits, including those filed electronically, or e-filed, through the circuit clerk’s online filing system.

CNS had sued in November to force such immediate access, alleging the circuit 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. CNS alleged this is the clerk’s policy, despite “applicable rules and orders” which state “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 his decision, Kennelly said Brown had failed to demonstrate why her office should be allowed to continue a policy and practice that runs afoul of a legal principle upheld by numerous courts, including the Seventh Circuit, that delays in access to public information, including publicly filed lawsuits, amount to suppression of those records and denial of the First Amendment rights of the press and the public.

Brown had argued her office has no obligation under the First Amendment to grant any member of the public such immediate access to “complaints before they are accepted for filing.” She said the delays are needed to allow the clerk’s staff to review new e-filings for documents Brown said 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.

The judge, however, said Illinois Supreme Court rules place the burden of protecting such sensitive information on those filing the lawsuits, not the clerk’s office.

And judge Kennelly noted many other state and federal courts have already taken steps sufficient to grant journalists and the public access to new e-filed lawsuits “before they have been fully processed,” and he questioned why Brown’s office couldn’t do the same.

“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.”

On Jan. 10, however, Brown, through the Cook County State’s Attorney’s office, asked the judge for “clarification” of his order, again returning to the question of whether providing the public such immediate access to publicly filed lawsuits would conflict with her interpretation of the Illinois Supreme Court’s rules.

“As the Circuit Clerk is required to follow both this Court’s order and the rules of the Illinois Supreme Court, she may be facing the horns of a dilemma,” Brown wrote in her motion for clarification.

According to a court docket statement entered on Jan. 17, the judge held a hearing on the motion that day, and “terminated” Brown’s motion to clarify as “moot based on comments stated in open court.”

No further proceedings followed that action until Brown filed her notice to appeal on Feb. 1.

The Seventh Circuit has given Brown until Feb. 7 to file a docketing statement, and until March 13 to file a brief on the matter.

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Cook County Clerk of the Circuit Court Cook County State's Attorney Courthouse News Service Illinois Supreme Court U.S. Court of Appeals for the Seventh Circuit U.S. District Court for the Northern District of Illinois

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