Georgia's E-Filing Bill Faces Opposition

Many in opposition are citing issues in the bill that would affect First Amendment rights.

by Wes Wolfe, The Brunswick News, Ga. / March 15, 2017
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(TNS) -- There is no shortage of complaints by folks within the legal industry regarding slow adaptation to technological innovations — the fax machine, after all, still maintains a toe-hold. State Supreme Court Chief Justice P. Harris Hines laid down flatly in his address to the General Assembly in January that one aspect will change now.

“In 2017, e-filing will become the norm,” Harris said.

Oh, if it was only that easy?

House Bill 15, which cleared the state House of Representatives on March 3 with a 168-5 vote, is presently awaiting action in the Senate Judiciary Committee.

The bill’s already gone through several revisions — for instance, it originally allowed for fees up to $8 per civil filing transmission and contained language that made it appear as though clerks of court could also charge up to that amount for viewing electronic copies of those records, leading to First Amendment questions.

That language has since been amended to state that the transaction fee for filing civil pleadings or documents, and the service of those pleadings, shall not exceed $7.

One particular problem, though, say First Amendment advocates, lies in the bill’s reference of the state Open Records Act. According to the version of the bill labeled most current on the legislative website Tuesday afternoon, “A pleading or document filed electronically shall not be subject to disclosure under Article 4 of Chapter 18 of Title 50 until it has been physically accepted by the clerk.”

Essentially, once the clerk accepts the filing, it would become subject to the Open Records Act, which, despite the name of the law, would provide more hurdles to the public in regard to accessing civil records than presently stand.

Under the law, a person would have to submit a request compelling the agency in question — here, a county clerk of court’s office — to turn over those documents within three days or provide an answer as to when they will be available. It would also subject those documents to costs and other complications First Amendment advocates regard, in the matter of civil court records, to be unnecessarily burdensome.

In a letter Friday to House Judiciary Committee Chairman Wendell Willard, Georgia First Amendment Foundation Executive Director Hollie Manheimer stated, “We certainly appreciate the legislative counsel’s thoughtful concerns about O.C.G.A. § 15-6-60.1, but after scrutinizing this issue we feel that the cross-references to the Open Records Act in O.C.G.A. § 15-6-60.1 are there only because the scope of the section includes real estate records and other non-court records maintained by Superior Court clerks.

“Those non-court records have traditionally been available to the public under the Open Records Act, but court records have always been regarded as subject to the First Amendment-based rights of access.”

Manheimer referenced the 1992 case Green v. Drinnon, in which the state Supreme Court held that the trial court should not have used the Open Records Act regarding whether to grant a newspaper access to a court record.

Also, for the public to access electronic records, there has to be a method of doing so. Manheimer’s letter references that the bill’s language does not encompass the governing rule from the Judicial Council of Georgia that e-filed records are “publicly accessible upon filing at no charge on a public access terminal available at the courthouse.”

The bill does allow clerks, however, to provide terminals for attorneys or their designees to submit civil pleadings and documents at the courthouse for free, though the convenience fee of 3.5 percent or 30 cents may be applied.

Because of these issues, the First Amendment Foundation has taken a position against the bill, but Tuesday afternoon, Senate Judiciary Subcommittee A considered H.B. 15 in a hearing-only setting. But, that was with an attached substitute bill that eliminates references to the Open Records Act, and includes specifications that policies and procedures adopted by the Council of Superior Court Clerks of Georgia to abide by the legislation are subject to the approval of the Judicial Council.

In regard to these matters, Georgia State Bar Director of Communications Sarah Coole said in an email, “While the State Bar has not taken an official position on H.B. 15, we will continue to monitor it as it progresses through the legislative process.”

Willard, H.B. 15’s chief sponsor, was unavailable for comment as of press time due to the heavy schedule of the legislature leading up to the end of session at the end of the month.

©2017 The Brunswick News (Brunswick, Ga.) Distributed by Tribune Content Agency, LLC.

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