News Service Challenges Missouri’s|Sale of Courts’ E-Filing System

     KANSAS CITY, Mo. (CN) – Courthouse News Service sued the Missouri state court system in Federal Court on Monday, challenging the state’s plan to give a private vendor a 4-year contract giving preferential access to electronic court filings, and allowing the vendor to charge all others for access. Courthouse News claims the program will create an unconstitutional “system of discriminatory media access to public court records.” The complaint adds, “Defendants have no right to elevate one news entity (the EFSP [Electronic Filing Service Provider]) over all others by granting the chosen entity preferential access to public court records.”

     Courthouse News claims, “There is no legitimate, compelling, or other justification for implementing a system of discriminatory media access to court records, and the e-filing program as articulated in the RFP is not narrowly tailored to serve a compelling government interest,” and that “Defendants’ actions are taken with the intent, knowledge, and purpose of depriving Courthouse News of its First and Fourteenth Amendment rights.”
     The Missouri Office of Administration issued a Request For Proposals on Sept. 25, 2008. “The RFP solicits proposals from private vendors to provide the judiciary with a four-year electronic case filing and electronic public access system using a single private EFSP. The system will be funded entirely through fees the vendor charges to users of e-filing and electronic public access services provided by the EFSP, and the RFP imposes no limit on the amount of the fee that can be charged,” according to the complaint.” (Citations to RFP omitted.)
     The complaint adds: “(T)he e-filing and electronic access program will give preferred access to court records to the chosen EFSP while at the same time allowing the EFSP to use those records for news reporting purposes, thus placing Courthouse News and all other members of the news media at a severe disadvantage with respect to news reporting about the public court record.
     “Specifically, the RFP, developed and issued under the direction and control of Defendants, calls for an e-filing and electronic access program that (1) permits a private EFSP to engage in news reporting of electronically filed documents; (2) grants the EFSP the right to retrieve those documents directly from the state’s database and store copies on own its servers; and (3) allows the EFSP to sell access to public court documents, including judicially created documents such as notices and orders, to the public and other members of the media, who have no other way to access case documents electronically.
     “The RFP states that the judiciary intends to add additional EFSPs to the e-filing program after expiration of the initial four-year period. Once new EFSPs are added, each EFSP will be able to retrieve every electronically filed document from the court’s database, whether or not a particular document was filed with that EFSP. All EFSPs will thus share a collective advantage relative to Courthouse News and all other members of the news media. Other than the EFSPs, no other member of the media will be permitted to directly access the court’s database to retrieve court documents.”
     Courthouse News claims this system will – indeed, is intended to – grant one state-selected member of the media preferential access to public court documents, allowing it to “scoop” all other news organizations, and to charge its competitors for the privilege of seeing the public documents. This program “invites a private e-filing vendor to engage in news reporting related to the court record, while at the same time: (1) granting the vendor preferential access to that record not available to other members of the news media; (2) permitting the vendor to provide the exclusive
means by which other members of the media obtain electronic access to public court documents; and (3) permitting the vendor to sell access to those documents to competing members of the media such as Courthouse News.
     “By these acts, Defendants plan to elevate one member of the news media to a favored position with respect to access to public court records, and to relegate Courthouse News and other members of the media to an inherently inferior position, all in violation of rights secured to Courthouse News by the First and Fourteenth Amendments to the United States Constitution.
     “Defendants have issued a Request for Proposal seeking an e-filing vendor to implement their unconstitutional policy, and received bids from four prospective vendors on December 19. Defendants are expected to enter into a contract with one of these vendors shortly, and Defendant [Missouri Office of Administration Public Purchasing Officer James] Miluski has informed Courthouse News that he cannot provide any specific information as to the date on which a contract is expected to be awarded. Accordingly, Courthouse News reasonably and in good faith believes that it is threatened with imminent harm to its constitutional rights, and that without immediate injunctive relief Courthouse News will suffer irreparable injury.”
     Courthouse News, based in Pasadena, is a 17-year old legal news service with subscribers throughout the country. It offers two daily reports on new civil filings in Missouri Courts, covering about 1,200 new civil cases per months from the state’s 114 counties, according to the complaint.
     “Courthouse News does not now, nor does it intend in the future to, engage in the electronic filing business,” the complaint states.
     The complaint contrasts the federal PACER system of electronic filing, which grants all subscribers equal access to the courts’ database, with Missouri’s plan, which will grant a private vendor first access to, and control over, all electronic filings, allowing it to profit from this preferential access, at other news organizations’ expense.
     “There are a number of ways to implement an e-filing and electronic public access program,” the complaint states. “The most common is a court-operated system. Under these systems, the court or the state either develops the technology for the system itself or uses turnkey software licensed to the court by an outside vendor. Either way, the court operates the e-filing program itself, and efiling parties file documents directly through the court’s own electronic interface, using the court’s own computer servers. The federal courts’ CM/ECF e-filing program is just one example of a court-operated system, and many state courts <A href=”http://www.cou

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