Judge: Public access to court documents not a 'frill' of court system; denies court clerk's request for delay

By Jonathan Bilyk | Feb 13, 2018

Saying public access to publicly-filed legal documents is not “some sort of frill” feature of a modern court system, a Chicago federal judge has denied a request from the Cook County court clerk’s office for more time to comply with the judge’s order to begin providing immediate access to all electronically filed lawsuits filed in her office.

On Feb. 13, U.S. District Judge Matthew F. Kennelly brushed aside the attempt by Cook County Circuit Clerk Dorothy Brown to delay providing such access, even as her appeal of the judge’s order remains pending. The judge bristled at the argument, advanced by Brown, that her office has the authority and the duty under court rules to withhold from the public all e-filed lawsuits and motions until her staff can confirm there is no sensitive or protected information contained in those documents.

“Brown cannot end-run the First Amendment by creating a system in which hypothetical doubt regarding whether litigants comply with rules about redaction allow her to exclude the public from access to judicial proceedings until she is good and ready to provide it,” Kennelly said.

Kennelly’s ruling came nearly five weeks after he had granted the request from Courthouse News Service for a preliminary injunction, giving Brown 30 days to create a system under which journalists and the public could gain immediate access to e-filed civil lawsuits. Brown filed an appeal of that order on Feb. 2, and asked the judge to stay his order to allow time for the appeal to be heard.

CNS had sued in November, alleging Brown’s office was routinely sitting on up to half of all filed lawsuits for days or weeks at a time, even though the lawsuits were electronically filed. They asserted these delays, keeping the lawsuits out of the public view, violated constitutional rights of the press and the public to access to public information.

In reply to the suit, Brown’s office had contended it had no obligation under the First Amendment to grant to any member of the press or the public such immediate access to “documents before they are accepted for filing.” Brown asserted the delays are needed to allow clerks time to review new e-filings for documents Brown said could violate rules set by the Illinois Supreme Court concerning the protection of certain identities, such as those of minors or plaintiffs allowed by judges to file certain lawsuits under seal.

In both his Jan. 8 injunction order and his Feb. 13 denial of Brown’s motion to stay, Kennelly granted no credence to Brown’s arguments concerning the Supreme Court rules or the handling of purportedly sensitive information.

In both rulings, Kennelly noted the Illinois Supreme Court rules cited by Brown expressly place the burden of protecting such sensitive information on the attorneys filing the documents, and not on the clerk’s office.

Further, in his Feb. 13 ruling, Kennelly said Brown had misinterpreted the rules, using them to set up “a system, effectively created by Brown herself, in which all e-filed complaints are treated as having been filed under seal until Brown herself clears them for public access.”

He said his injunction order does not require the clerk’s office to provide the public access to documents a judge has allowed to be filed under seal.

And Judge Kennelly further chided Brown for her attempt to ward off his ruling by citing an Illinois Supreme Court order requiring her to bring her office into compliance with the state’s mandatory e-file system by June. The state high court had granted her an extension of six months from the prior deadline of Jan. 1.

 In that order, the state Supreme Court ordered Brown to “commit all necessary resources to meet the extended deadline” and forbade her from adding “additional case types or filing transactions … to the (current Cook County) standalone filing system.”

In a petition filed Jan. 26 to the state Supreme Court, Brown contended complying with Kennelly’s order would require her office to “engage our stand-alone e-Filing vendor to add a new e-Filing transaction and will also require the Office of the Clerk of the Circuit Court to commit vital programming resources and man-hours to develop, in violation of (the state Supreme Court’s) order.”

Kennelly, however, rejected this contention, noting the Supreme Court’s order does not prohibit her from dedicating funding from elsewhere in the clerk’s office to comply with what he said should be a relatively simple task – viewing images of uploaded documents on a computer in the courthouse.

“It is too late for Brown to raise this point,” Kennelly said.  “It was clear from CNS's briefs on the preliminary injunction motion that viewing complaints via a terminal in the clerk's office would be a viable means to satisfy the First Amendment. But Brown breathed nary a word about the purported lack of what would seem to be a rather basic computer function - reading documents filed in the system that the computer is hooked up to.”

Kennelly’s order on the motion to stay does not discuss sanctions the judge could impose on the clerk’s office.

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Cook County Clerk of the Circuit Court Courthouse News Service Illinois Supreme Court U.S. District Court for the Northern District of Illinois

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MATTHEW F KENNELLY

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