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Appeals court backs Dorothy Brown in lawsuit over public access to electronic records, says judge overstepped authority

Tuesday, November 13, 2018
Chicago Tribune
by Jason Meisner


Appeals court backs Dorothy Brown in lawsuit over public access to electronic records, says judge overstepped authority


A federal appeals court on Tuesday overturned a lower court’s ruling that Cook County Circuit Court Clerk Dorothy Brown was doing an “end-run” around the First Amendment by failing to provide the public with immediate access to electronically filed lawsuits.

In its 21-page decision, the 7th U.S. Circuit Court of Appeals found that U.S. District Judge Matthew Kennelly overstepped his authority in deciding how Brown’s office managed its e-filing system, saying such an issue should be dealt with in state court if possible.

“We want to avoid a situation in which the federal courts are dictating in the first instance how state court clerks manage their filing procedures and the timing of press access,” Judge David Hamilton wrote in the opinion. “We also want to avoid the problems that federal oversight and intrusion of this sort might cause.”

The three-judge panel also noted that even filings in federal court undergo a screening process by its clerk “for compliance with applicable rules” before being made publicly available.

The ruling brings to an end a lawsuit filed last year by the Courthouse News Service alleging that e-filed lawsuits were often not accessible to the public for a day or more.

READ MORE: Dorothy Brown can't 'end-run' First Amendment, judge says in denying delay »

The implementation of the e-filing system has been fraught with delays and glitches.

Before Brown’s office began transitioning to electronic filings in 2015, media outlets covering county courts obtained paper copies of lawsuits on the same day they were filed, the suit alleged.

Meanwhile, Brown announced her candidacy for mayor of Chicago, even though she’s under federal investigation over widespread pay-to-play allegations within her office. Brown has repeatedly denied any criminal wrongdoing and has not been criminally charged.

Kennelly had originally ordered Brown to alter the system within 30 days to make digital copies of lawsuits accessible in real time at public access terminals in the Daley Center.

Brown appealed, claiming in part that the order would have unfairly required her to post lawsuits that were supposed to be under seal. In denying her initial appeal, Kennelly chastised the clerk for trying to argue that her hands were tied by the system when, in fact, she was the one who put it together.

READ MORE: Cook County Circuit Court Clerk Dorothy Brown ordered to improve public access to electronic records »

“What is actually afoot is 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,” Kennelly wrote. “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 also took Brown to task for trying to claim that it would be too expensive for her to comply with his order. Making the documents visible on public terminals in her own courthouses was a “rather basic computer function,” not a technological nightmare, he said.

Brown then appealed to the 7th Circuit, which ordered the suit dismissed but said in its opinion that Courthouse News Service is “free to pursue a remedy in the state courts.”

A spokeswoman for Brown could not immediately be reached. A lawyer for the Courthouse News Service also was not immediately available for comment.

Twitter @jmetr22b


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