Cook Courts Clerk: No First Amendment obligation to provide immediate public access to lawsuits

By Jonathan Bilyk | Mar 15, 2018

The clerk of Cook County’s courts has asserted she has no obligation under the First Amendment to provide the press or public with immediate access to lawsuits publicly filed in court, making the claim as part of her bid to persuade a federal appeals panel to undo a federal judge’s injunction ordering her to create a system to provide swifter access to all electronically filed documents.

On March 13, Cook County Circuit Clerk Dorothy Brown, through the Cook County State’s Attorney’s Office, filed a brief with the U.S. Seventh Circuit Court of Appeals in Chicago, laying out her reasons for asking the appellate judges to overturn the decision of U.S. District Matthew F. Kennelly amid her ongoing dispute with plaintiff Courthouse News Service over access to court files.

CNS had sued Brown in November 2017, alleging the clerk’s office had routinely sat on up to half of all electronically filed lawsuits for days or even weeks at a time, violating the rights of CNS and others in the press and the public to access public information.

The circuit clerk’s office, however, has rejected that characterization. In the brief filed with the appellate court, for instance, Brown asserts her office makes about 90 percent of all complaints available to the press and the public within one business day, and claims CNS’ calculations on delays were skewed by not accounting for filings made on Fridays or during evening hours, when the clerk’s office is closed.

Cook County Circuit Clerk Dorothy Brown  

Further, Brown has continued to stand by her claims her office has no obligations under any law to provide immediate access to any lawsuits until they “are accepted for filing,” as judged by Illinois state court rules that compel her staff to screen all new filings to ensure they do not include sensitive information, such as the identities of minors or others who a judge has permitted to file a lawsuit either anonymously or under seal.

In early January, however, Kennelly had brushed aside Brown’s assertions, noting the Illinois Supreme Court has placed the burden of protecting that information on the attorneys filing the lawsuits, and not on her office. He said the First Amendment right to access public information should reign in this case, and gave the clerk 30 days to create a system to provide immediate public access to lawsuits.

He followed that up with a Feb. 13 order denying Brown’s request to put a hold on his ruling. In that order, Kennelly accused Brown of creating a system to “end-run the First Amendment,” which treats public access as a “frill” feature of the court system, subject to the speed with which she chooses to produce the documents.

Brown followed that ruling with an appeal to the Seventh Circuit, which slapped a hold on enforcement of Kennelly’s objection until the appeal is decided.

In her new filing, Brown fleshes out her arguments, asserting CNS has no tenable legal position to either sue her over her office’s policies, or to claim the First Amendment requires her to make the lawsuits available before she deems them ready for public consumption, under the court’s rules.

Brown again contended CNS’ legal targeting is askew in this case, saying the company’s beef should actually be with the Illinois Supreme Court and the Cook County Circuit Court, which set the rules by which she asserts she must abide, regardless of the federal judge’s findings otherwise.

“… If a court has absolute immunity from suit for issuing an order, the official executing that order should have the same immunity,” Brown’s brief said. “The same rationale applies here.”

Further, she said, the First Amendment also provides no basis for CNS’ suit or Kennelly’s orders, as she said case law supports her position that the public – and particularly, a for-profit media company – has no constitutional claim to access to “pre-trial/pre-judgment” court documents.

“No reviewing court has held that the common law right of access to court documents must include immediate and instantaneous access to pretrial documents, particularly in the case of newly e-filed civil complaints which have not yet been accepted by the court clerk,” Brown’s attorney wrote in the brief.

“The Circuit Clerk does not contend that CNS should not have access to newly e-filed civil complaints that do not fall under some privacy or confidentiality exception. The specific constitutional question in this matter is what constitutes a reasonable delay.”

Brown contended, in this case, the only legal injury suffered by CNS was to its bottom line, which, the brief asserts, relies on uncovering court documents about which to write articles and on generating “scoops,” for which lawyers and others are willing to pay.

“However, CNS’s business decision to seek its civil filing information only from the Circuit Court Clerk, as opposed to the private parties and witnesses involved in the lawsuit, does not invoke the First Amendment as much as it questions the business model of CNS,” the brief said.


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Cook County Clerk of the Circuit Court 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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