In National Battle Over Access, Kansas Courts Favor Transparency & Speed

(CN) – As the nation’s big news outlets have pushed state courts to stay open and transparent in the digital age, the Kansas Supreme Court on Thursday came down strongly in favor of allowing immediate press and public access to new court filings.

“The Supreme Court decided to work toward implementing policy that a document is deemed accepted as soon as it is filed, and it is immediately available for review,” said a news release from the Kansas Supreme Court.

An epic struggle has unfolded in recent years between news groups and a set of powerful state court officials who have endorsed a doctrine of “practical obscurity” that uses privacy as its shield while allowing local clerks to delay access and then sell it for a price.

At the same time, events in and around courts have become an increasingly powerful source of news, as demonstrated by the regular flow of national stories coming out of court cases tied to President Donald Trump, his peccadillos and his administration’s policies.

The result has been that in the era of digital communication, where the news cycle is sped up, the switch to digital in some state courts has slowed down and impeded access to court records.

Announcing Thursday’s rollout of a plan to bring the Kansas courts into the electronic era, the state Supreme Court, led by Chief Justice Lawton Nuss, declared itself clearly in the camp of transparency and prompt access to new court filings.

In adopting a policy that opens newly filed documents to immediate public review, the court also made a common exception for cases that are filed under seal and the small subset of court filings that are not public. The court also pushed the state’s lawyers towards the new technology.

Of the 11,700 attorneys practicing in Kansas, roughly half are not registered for e-filing. The push to bring Kansas courts firmly into the new age requires that they all register and adopts a statewide, web-based system to manage court records.

“This statewide mandate is an important step in our move toward centralized case management, which is part of our Kansas eCourt initiative, and the standardization that will come with it,” said the chief justice as part of the news release.

By also including the policy statement that said new filings would be “accepted” immediately into the state’s case management system, the Kansas courts follow the policy of the nation’s federal courts which provide contemporaneous access to new electronic filings.

A growing number of state courts, in New York, Connecticut, Georgia, Alabama, Utah and Nevada, are also providing public access to the new documents automatically as they are received by the court, which in turn allows for timely reporting by newspapers and television stations covering big cases.

That immediate access to electronic records mirrors traditional press access to paper records which typically were placed in a wooden box or metal tray on the counter as they crossed into the court clerk’s office. It was often labeled “media box” or “press box.”

The equivalent in modern times is the electronic inbox which automatically receives new filings as they flow into the court and allows for prompt review by the press and public. Earlier this year, Courthouse News submitted a comment to the Kansas Supreme Court on its e-filing plan that included an endorsement of that method of access.

“The electronic inbox is a simple and elegant solution that requires no additional work from the staff and allows them to work at their appropriate pace,” said the comment from Courthouse News. “It would cost the courts nothing extra, it guarantees timely access, and it very much resembles the traditional physical press box where courts around the nation placed new paper filings as soon as they crossed the counter.

“Such a system, whether online or at the courthouse, would put the Kansas courts on par with courts nationwide that recognize the traditional role of the media in putting a window on the courts and provide the press access required to achieve that purpose,” the letter states.

The paradox of a digital conversion that actually slows down access to court records was illustrated earlier this year in Chicago. As Dorothy Brown, the clerk in Cook County Circuit Court, slowly moved the court toward electronic records, some lawyers continued to file new cases in paper form while others filed electronically.

The parallel filing systems allowed for a side-by-side comparison on access speed.

Access to electronic records turned out to be markedly slower than access to traditional paper records. The slowdown was rooted in the clerk’s policy of reviewing and docketing electronic filings before they could be seen by the press, in contrast to paper filings that could be seen by the press as soon as they crossed the counter.

Brown refused to allow contemporaneous access to the new electronic filings and, as a result, Courthouse News filed and won a First Amendment action against her.

She then appealed to U.S. Court of Appeals for the Seventh Circuit, where in April a group of 40 news organizations joined an amicus brief in support of access and against the clerk. The news organizations included the Associated Press, The Chicago Tribune, The New York Times, Politico, Gannett, McClatchy, Dow Jones, Fox News Stations, ABC, CNN, and a host of others.

“Courts that use modern electronic filing methods are capable of generating digital copies of complaints and other judicial documents automatically, allowing them to be shared with the public immediately,” the brief states. “Courts have recognized that the potential for real-time access provided by electronic filing increases judicial transparency.”

The appeal is now pending in the Seventh Circuit.

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