Justices urged: Let files hit blade

Clerk fights order on court records

Pulaski County Circuit Clerk Pat O’Brien.
Pulaski County Circuit Clerk Pat O’Brien.

— Pulaski County is running out of court-record storage space, Circuit Clerk Pat O’Brien warned on Monday in a petition to the Arkansas Supreme Court asking that the justices overturn an order by the county’s 17 circuit judges barring him from destroying paper records that have been duplicated by electronic files.

The Supreme Court has given the Arkansas attorney general’s office, which will represent the judges, until Wednesday to respond. O’Brien has asked the high court to allow oral arguments, a decision the justices could make at their Thursday meeting. The judges exceeded their jurisdiction with the order, O’Brien claims, saying the circuit clerk’s authority to manage and maintain court records is derived from the Arkansas Constitution, state statute and the Supreme Court’s own rules.

Shredding the 2010 files is part of converting the state’s busiest court into a paperless computer system, a goal he’s worked toward for three years, O’Brien said. Both sides agree that a paperless system is the wave of the future but are split over when it will get here. Judges are now wary of the current system, said Judge Vann Smith, the circuit’s administrative judge. Every judge has reported having regular problems, including missing records and incorrect entries, Smith said on Monday.

“Until we have reliable access to the files, we don’t think it’s prudent to destroy the hard files,” Smith said. “We’re moving too quickly.”

The system is improving, Smith said, saying he’d just consulted with the programmers on Monday and is confident that the technology is within a year at most of being workable. Smith said he expects electronic filing, set to begin in August, a natural beginning to a fully paperless system.

But every judge in the 6th Judicial District of Pulaski and Perry counties, plus the two incoming judges, Smith said, oppose O’Brien’s plans to destroy the 2010 records until the technology is perfected. The 17 judges made their feelings known in an order last month, signed by all judges, barring the record shredding.

Time is of the essence, particularly for O’Brien, who made an unsuccessful run for the Arkansas secretary of state’s office and will leave his county office at the end of the month.

That gives him until Dec. 31 to convince the high court. And time is also running out on the state-owned storage space that holds the bulk of the records, expected to fill up by the end of next year, just in time for the lease to run out.

The 2010 records have been electronically duplicated and are secure, O’Brien said, with six of the courts already operating without paper files for 2010 cases. The judges have known about his plans for three years, O’Brien said on Monday, as his office has worked to electronically duplicate the daily criminal, civil, domestic and probate filings, in part as a reaction to state-mandate technology changes. The clerk’s office has also spent $425,000 on computers and other technology to improve the system for judges, O’Brien said.

“This has been well thought through and it’s well tested,” he said. “This isn’t a rash decision. It needs to happen and I view it as my job to make it happen.”

The clerk’s office spends $97,500 a year to lease 15,000 square feet of the LaHarpe Boulevard warehouse from the Department of Arkansas Heritage, he said. The site formerly housed Bill Clinton’s presidential records.

The agency reduced the clerk’s storage space by 3,000 feet during its last lease negotiation, O’Brien said, as the department uses more of the space itself. Moving the records into the former Balch Motor Co. building took 10,000 man-hours over a year, he said.

Larry Crane is not a party to O’Brien’s legal dispute, but as O’Brien’s successor, he assumes the responsibility for the records on Jan. 1. He said he won’t implement the paperless system until the judges are comfortable with it. Crane said he sees a looming storage crisis, but every judge he’s talked to has had problems with the new system.

“I am not opposed to shredding,” Crane said. “The [judges] have to be comfortable. These are court records they rely on each and every single day. Until the system works for their needs, we shouldn’t be taking away that one thing that’s reliable.”

Almost every state in the country is moving toward a paperless system, some faster than others, said Thomas Clarke, vice president of research and technology at the National Center for State Courts in Virginia.

“It’s not if they’re going, but when and how,” he said.

But every court implementing a paperless system has greeted that change-over from hard copies with trepidation, Clarke said, until participants are comfortable that electronic record-keeping is secure and reliable.

“Most places when they are first doing this aren’t comfortable not having the paper backups so it’s not uncommon to see people go a year or two doing both until the participants are satisfied there’s sufficient reliability and access then they stop requiring the paper backups,” Clarke said.

Of particular issue is making sure the users are comfortable making the switch from handling a file of paper to a file on a computer screen, he said.

“Courts struggle with ... how to make it easy for judges to use electronic versions of documents,” he said. “They have issues over how easy it is to search the files and find documents.”

The biggest allure of electronic filing is its efficiency, Clarke said, allowing record keepers to eliminate both expensive storage facilities required to maintain physical copies and the thousands of work-hours devoted to managing files, which includes ensuring those records are available to the public.

“It is massively more convenient to everyone who uses the system and needs to access the case file because they can get instantly whatever they need,” he said.

Front Section, Pages 1 on 11/30/2010

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