Don’t shred files, justices tell O’Brien

LITTLE ROCK — A three-sentence order issued Thursday by the Arkansas Supreme Court ended plans by the outgoing Pulaski County circuit clerk to shred a year’s worth of court records to save storage space, but did not definitively answer the questions he raised about how much authority clerks have over those records.

Pat O’Brien, whose term ends in 29 days, had asked the high court to overturn an order by the 17 Pulaski County circuit judges forbidding him from destroying the records, which were for all of the cases that had been filed so far this year. O’Brien said the records needed to be shredded to help avert a storage crisis. The files had been electronically duplicated, and made easily and reliably accessible by computer to the judges, he argued.

But the judges - supported by the two incoming judges and O’Brien’s successor - disagreed that the computer system works well enough to abandon the paper files, although they said the program should be satisfactory within a few months, particularly with the court planning to implement electronic filing by August.

The Supreme Court’s order didn’t say on what grounds the justices were rejecting O’Brien’s request. Representing the circuit judges, Assistant Attorney General Colin Jorgensen offered four reasons for keeping the paper records: the short time O’Brien has remaining in office, problems with the computer system’s reliability, the circuit judges’ inherent jurisdiction over court records and the Supreme Court’s own authority over the files.

In court filings, O’Brien said his dispute with the judges needed to be resolved by the high court as more clerks move toward converting to paperless systems, something he has been working toward for the past three years. Without a clear mandate on who controls the records, O’Brien warned, the Supreme Court’s plans to develop a statewide electronic filing system could be jeopardized.

O’Brien, who ran unsuccessfully this year for secretary of state, said Thursday that he had no regrets about taking his case to the Supreme Court.

“Hopefully I brought some attention to an important issue: When and how does this transformation that is critical to the court’s future take place?” he said.

O’Brien said the high court’s 18-word ruling was not surprising, with the Supreme Court typically issuing brief orders in unconventional cases like the one he presented. But the decision doesn’t give his colleagues the answers they need as electronic filing moves closer to becoming reality, he said.

“Somebody at some point is going to have to answer the question of who is in charge,” he said. “If the issue is reliability, who decides that and what is the standard?”

O’Brien argued that the clerks are the elected officials who have ultimate jurisdiction over record management, an authority established by Article 7 of the Arkansas Constitution and sections of Title 16 and Title 13 of the Arkansas Code that prescribe how records should be maintained, electronically duplicated and destroyed once they are copied.

In his case to the Supreme Court, O’Brien argued that the record destruction was the last part of his plan to convert the courthouse to a paperless system, something he estimated would save taxpayers at least $1.5 million over the next 10 years.

O’Brien’s predecessor shredded 50,000 files from cases dating from the mid-1980s to the late 1990s after duplicating them electronically, something O’Brien said allowed the county to add another year of life to its storage space, a state-owned warehouse with a $97,500 annual lease. That lease expires at the end of 2011, O’Brien said, and the owner, the Department of Arkansas Heritage, is interested in reclaiming the entire facility for its own use. Transferring the clerk’s records to that storage facility took more than one year and 10,000 man-hours, he said.