[00:00:09] Speaker 04:
Next we have Courthouse News Service versus Amundsen.

[00:00:42] Speaker 01:
I'd like to reserve five minutes, please.

[00:00:49] Speaker 01:
Good morning, Your Honors.

[00:00:51] Speaker 01:
May it please the Court and Council.

[00:00:53] Speaker 01:
Keeley Duke on behalf of the Appellant, Sarah Amundson.

[00:00:58] Speaker 01:
Idaho's electronic filing system meets the First Amendment right of access to judicial proceedings.

[00:01:07] Speaker 01:
And the District Court decision should be

[00:01:10] Speaker 01:
reversed as a result, and summary judgment awarded in Ms.

[00:01:15] Speaker 01:
Amundson's favor.

[00:01:17] Speaker 01:
Why does it meet the right to timely access?

[00:01:21] Speaker 01:
Because in Idaho, the moment a judicial proceeding is initiated, the press has immediate access to the complaint.

[00:01:33] Speaker 01:
Courthouse News, however, is not satisfied with that.

[00:01:36] Speaker 01:
It wants more, and it's been very successful across the country

[00:01:41] Speaker 01:
in arguing for more.

[00:01:43] Speaker 01:
But if you do a close reading of the Planet trilogy, that obviously this court is well familiar with, and has been used throughout the country in many instances wrongly, Planet is very, very different than the electronic filing systems that we deal with in the state of Idaho and other jurisdictions do across the country.

[00:02:07] Speaker 02:
Council, I wonder,

[00:02:09] Speaker 02:
I'm trying to determine what the district court did here in the relief and I'm looking at the memorandum decision in order and item number five in particular where the judge says the court hereby enters a declaratory judgment that

[00:02:26] Speaker 02:
policy is unconstitutional and then says she is preliminarily and permanently enjoined from continuing any process that denies CNS timely access to new non-confidential civil complaints.

[00:02:40] Speaker 02:
Omnison has 90 days to bring her policies and procedures into substantial compliance with the court's ruling today.

[00:02:47] Speaker 02:
What do you think that means that you're required to do under the judgment?

[00:02:51] Speaker 01:
I don't know, Your Honor, bluntly.

[00:02:56] Speaker 01:
Already, when a judicial proceeding is initiated, which is the very tenets that Planet Trilogy were based upon, you look at press enterprises, you look at the Globe cases, they all talk about the right to access to proceedings, to cases.

[00:03:14] Speaker 01:
And the judge there obviously did not agree with us with respect to the fact that no proceeding had yet been initiated.

[00:03:21] Speaker 01:
But when you look to that open-ended, I'm not gonna tell you what to do,

[00:03:26] Speaker 01:
but you need to do something, CNS argues that they want near immediate access.

[00:03:33] Speaker 03:
Well, let's talk about that.

[00:03:34] Speaker 03:
I mean, in most courts, certainly in the federal courts, once something is filed, absent, sealing, or confidential, it's immediately available to the public and to the press.

[00:03:48] Speaker 03:
And so I think it's a little bit disingenuous to say, well, we don't know what to do because

[00:03:55] Speaker 03:
The court isn't telling you how to modify the systems, but you've already given the court various options that you have so that there would be access upon the filing.

[00:04:10] Speaker 03:
So I'm a little confused as to why you say you don't know what you could do.

[00:04:14] Speaker 01:
A few things there, Your Honor.

[00:04:16] Speaker 01:
Number one, when you look to the Planet case,

[00:04:21] Speaker 01:
The Ninth Circuit has only held that there is a right to access already filed, so already brought into the court system and actually creating a case.

[00:04:34] Speaker 01:
That's all PLANET stands for.

[00:04:36] Speaker 01:
So in the event this court is expanding PLANET to now include not yet reviewed or accepted complaints,

[00:04:48] Speaker 01:
If that is where the court is headed, then you look to a few of the alleged reasonable alternatives that CNS has proposed, which are auto accept, which are press review queue.

[00:05:01] Speaker 01:
So first of all, the federal court uses auto accept.

[00:05:05] Speaker 01:
We've noted on our filings and we had all seven of our trial court administrators for our 44 counties.

[00:05:12] Speaker 01:
We have seven districts.

[00:05:13] Speaker 01:
all submit declarations as to why auto accept would be an issue and create significant inefficiencies, potential risks of confidential information being put out into the ether, which I think we all worry about every day, and the numerous reasons why that doesn't work and why our current system does work.

[00:05:40] Speaker 01:
That's number one.

[00:05:40] Speaker 01:
Number two, when you look to the federal system, and I'll do respect to it, our federal courts, despite the fact our federal district judges are incredibly overwhelmed in a district that desperately needs more federal district judges, they're doing the best they can, but they are dealing with a caseload, as we indicated in our record for you all, that is, pales in comparison to the states.

[00:06:04] Speaker 01:
And so you don't run the issue that we run in the state of Idaho, for instance, with a filing

[00:06:10] Speaker 01:
in Ada County or Adams County.

[00:06:12] Speaker 01:
Under CNS's auto accept rule, we cited to you all in the records statistics on how frequently Adams County.

[00:06:22] Speaker 03:
So we have that, then we have what you call the press review queue and that's

[00:06:27] Speaker 03:
would cost $108,000 or something, am I right, or whatever.

[00:06:30] Speaker 03:
It's going to cost some money, let's put it that way.

[00:06:34] Speaker 03:
So my question probably is a little preliminary to that.

[00:06:38] Speaker 03:
And that is, how do you define the right under the First Amendment?

[00:06:42] Speaker 03:
And we have cases that say, if you have a substantive right, you can't use court rules, et cetera, to modify that.

[00:06:52] Speaker 03:
That's the Washington Southern Navigation case.

[00:06:57] Speaker 03:
So we have an odd situation here where you've defined what it means to be filed.

[00:07:04] Speaker 03:
But the result is that you have delays of varying amounts.

[00:07:10] Speaker 03:
It could be almost immediate, five minutes to 15 days, right?

[00:07:15] Speaker 03:
And I understand that.

[00:07:16] Speaker 03:
And I understand you have these individual court clerks or assistance court clerks who are poring through the complaints.

[00:07:27] Speaker 03:
It seems to me that the question we have to decide is, what is the First Amendment right?

[00:07:36] Speaker 03:
Has that been violated?

[00:07:37] Speaker 03:
And if so, then leave to Idaho, and this is what I thought the district judge did, leave to Idaho to figure out how to then respond, and not for us, the courts, to figure it out.

[00:07:50] Speaker 03:
Is that right?

[00:07:51] Speaker 01:
So a few things to that.

[00:07:52] Speaker 01:
So I respectfully disagree with the delay that you described, the delay

[00:07:57] Speaker 01:
is not once a complaint is accepted.

[00:08:00] Speaker 03:
Once it comes through... Let me say, let's back it up.

[00:08:04] Speaker 03:
Sure.

[00:08:05] Speaker 03:
Once the litigant initiates the complaint, then you decide when it is accepted.

[00:08:15] Speaker 01:
Correct.

[00:08:15] Speaker 01:
And again, in the Planet Trilogy, Planet only provided that there was a right to access to already

[00:08:24] Speaker 01:
Filed accepted complaints.

[00:08:26] Speaker 01:
These are not accepted complaints yet.

[00:08:28] Speaker 03:
So that would be an expansion of the planet paper filing

[00:08:31] Speaker 03:
So we're now in another world.

[00:08:34] Speaker 01:
And I understand that.

[00:08:35] Speaker 01:
And when you look to Planet 3, Planet 3 makes clear that there are numerous tenants that need to be followed.

[00:08:46] Speaker 01:
First, even in the error of the EFS, like you represent, instantaneous public access to court filing, especially complaints, could impair the orderly filing and processing of cases with which clerks are charged.

[00:09:00] Speaker 01:
Number two, after all, litigants are not uploading their complaints to the internet, as CNS would like.

[00:09:08] Speaker 01:
They are filing them with a court, making them subject to judicial administration.

[00:09:13] Speaker 01:
And third, the First Amendment does not require courts, public entities with limited resources, to set aside their judicial operational needs to satisfy the immediate needs of the press.

[00:09:25] Speaker 01:
That is all out of the Planet 3 case.

[00:09:28] Speaker 01:
And that is all based upon Judge Nye's ruling.

[00:09:33] Speaker 01:
Effectively, this is what the federal court would be doing.

[00:09:38] Speaker 01:
They would be requiring us to submit our complaints instantaneously for public access.

[00:09:46] Speaker 01:
We've described throughout our record as to why there's a peril to that.

[00:09:51] Speaker 01:
And actually the Smith case that just was decided

[00:09:56] Speaker 01:
With respect to CNS, the Smith case took that real threat of cybersecurity, the scrapers, the bots that come into the press review queue, which is a public-facing queue that then could come and scrape whatever data it wants to scrape for good or bad.

[00:10:16] Speaker 01:
And so when you look to the courthouse news language itself, courthouse news was really trying to weigh that balance, even though it was paper filing.

[00:10:27] Speaker 01:
It was still commenting in the third edition that we've got to factor in EFS, and that does not provide an immediate access to submitted complaints.

[00:10:39] Speaker 01:
There is no case in the Ninth Circuit that has found that once you submit, you have a right to

[00:10:46] Speaker 01:
to access.

[00:10:48] Speaker 01:
And similar, Your Honor, I know we looked at the case that you had issued related to the citations.

[00:10:55] Speaker 01:
Once a citation is provided to a soon-to-be defendant, that is not when the right attaches with respect to the First Amendment.

[00:11:06] Speaker 01:
Instead, it's

[00:11:09] Speaker 01:
it attaches once that proceeding initiates, which is you get back to the courthouse, the citation is followed and filed.

[00:11:16] Speaker 04:
I have a couple questions.

[00:11:19] Speaker 04:
I have a lot of sympathy for the administrative concerns that you're raising.

[00:11:23] Speaker 04:
On the other hand, I think

[00:11:26] Speaker 04:
Couple concerns I have, one is a technical question.

[00:11:30] Speaker 04:
So the complaint gets electronically, I don't want to use the word filed, because I understand that's lodged.

[00:11:39] Speaker 00:
Perfect.

[00:11:39] Speaker 00:
Thank you.

[00:11:40] Speaker 04:
Like submitted for filing into the system.

[00:11:43] Speaker 04:
Then you, I understand that staff resources are limited, so there's some period of time

[00:11:50] Speaker 04:
that it takes for the five-minute process of reviewing and deciding whether to accept.

[00:11:55] Speaker 04:
And then it's deemed filed.

[00:11:58] Speaker 04:
It's deemed filed as of the moment they actually lodged it.

[00:12:02] Speaker 04:
Is that correct?

[00:12:03] Speaker 04:
Like for the illegal concept of filing, everything would relate back actually to that.

[00:12:09] Speaker 04:
So if it was on Monday, didn't get accepted to Friday for purposes, all legal purposes, it would have been deemed filed back to the Monday.

[00:12:17] Speaker 04:
Is that correct?

[00:12:18] Speaker 01:
Correct, the Idaho Supreme Court provided a grace period of three days to litigants to correct errors if the lodging is rejected.

[00:12:31] Speaker 01:
Or if there is additional time with respect to clerk review, that in no way impacts the litigants.

[00:12:37] Speaker 01:
So that is a balancing test that they've done.

[00:12:43] Speaker 04:
To one extent to the arguments about whether it's filed or like you know I mean because the filing is actually retroactive to the date of time of launching so that's a little bit of a Metaphysical problem that we have here in determining the first memory the other argument that I somewhat find persuasive on the other side is you know even the filing of a complaint that is ultimately not accepted or has problems is

[00:13:14] Speaker 04:
arguably newsworthy, right?

[00:13:16] Speaker 04:
So I think that's one of the points that the district court made here.

[00:13:19] Speaker 04:
And it's newsworthy as of the time that it was lodged.

[00:13:26] Speaker 04:
And arguably, at least that's the news argument that has not contingent on whether it's ultimately dotted all its i's and paid all of fees from the court's perspective.

[00:13:39] Speaker 04:
So how do you address that?

[00:13:40] Speaker 01:
So again, it's newsworthy once it's initiated a judicial proceeding.

[00:13:47] Speaker 01:
And that's what, when you look to Globe, you look to press enterprises, they are all based on public scrutiny of the court system with respect to civil court proceedings.

[00:14:00] Speaker 01:
There's no proceeding.

[00:14:00] Speaker 03:
I mean, that's a question of definition, so we're kind of dancing around.

[00:14:04] Speaker 03:
Sure.

[00:14:04] Speaker 03:
So I have a couple of questions.

[00:14:07] Speaker 03:
It seems to me that in the typical First Amendment analysis, we're often going to the time, place, and manner.

[00:14:13] Speaker 03:
And that doesn't really fit here.

[00:14:15] Speaker 03:
So I'd appreciate, at least as I keep thinking about it, time does, but place and manner don't really fit.

[00:14:21] Speaker 03:
I mean, it may be that we have this First Amendment concept that just doesn't fit here.

[00:14:27] Speaker 03:
What's your position on that?

[00:14:28] Speaker 01:
It's a content neutral process that the state of Idaho goes through.

[00:14:33] Speaker 01:
There's not redaction of specific types of cases or anything like that.

[00:14:40] Speaker 01:
It's a content neutral process that simply goes through the clerk processing format, then once accepted.

[00:14:46] Speaker 03:
So do you think that the First Amendment concept of time, place, and manner has any place in analyzing this kind of a restriction, which is, wait till the clerk looks at it.

[00:14:59] Speaker 01:
Difficult to answer.

[00:15:01] Speaker 01:
I mean, I understand, and you've hit the nail on the head.

[00:15:04] Speaker 01:
I mean, the time issue is there, but not the place and manner, other than what I can say is the places within the clerks all following the same process that all the other clerks follow, and there's not some special process in Adams County versus Boise County.

[00:15:19] Speaker 03:
Let me ask a couple more, and I hope our presiding will indulge me.

[00:15:25] Speaker 03:
But on the question of confidentiality,

[00:15:28] Speaker 03:
Isn't that the responsibility of the filer to redact?

[00:15:33] Speaker 03:
It's not the clerk or the courts, it's the filer.

[00:15:37] Speaker 03:
So that's why it's confusing to me that that's raised as an issue as to why we need to review this, because it's the filer's responsibility.

[00:15:46] Speaker 03:
not the courts, is that right?

[00:15:48] Speaker 01:
Agreed it's the filer's responsibility, but I don't think that that absolves a court if there are reasonable practices that could be put into place that do not impact the timely availability of filed complaints that the district court, excuse me, that our court clerks wouldn't have that obligation to do that.

[00:16:12] Speaker 01:
And that's one of the things that they are able to do and have done where

[00:16:16] Speaker 01:
there's been an instance where a social security number has been included that should not have been.

[00:16:21] Speaker 01:
And so, yes, I agree.

[00:16:22] Speaker 01:
It's the filer's responsibility.

[00:16:25] Speaker 03:
But still, that doesn't absolve the courts from also... But that doesn't mean they couldn't do a double check if they want.

[00:16:32] Speaker 00:
Sure.

[00:16:33] Speaker 03:
You could release it.

[00:16:34] Speaker 03:
It's the filer's responsibility.

[00:16:36] Speaker 03:
But then the court, of course, as you point out, and like Judge Sung, I'm kind of sympathetic to these court clerks and these filing people because they're

[00:16:46] Speaker 03:
under a mountain of electronics and paper.

[00:16:50] Speaker 03:
But these so-called filing errors, those can be fixed afterwards and they don't really affect.

[00:16:58] Speaker 03:
I mean, it's unclear to me that there's sort of a disconnect between if I am a news service or the public.

[00:17:05] Speaker 03:
I'd like to see that complaint when it's filed, not 2 to 15 or however many days later.

[00:17:10] Speaker 03:
If there are filing errors, you could correct those afterwards.

[00:17:15] Speaker 03:
And that doesn't really change the fact that you have a lodged complaint out there before, does it?

[00:17:24] Speaker 01:
Two things.

[00:17:25] Speaker 01:
Number one, there's not two to 15 days.

[00:17:29] Speaker 01:
out there.

[00:17:30] Speaker 01:
It's our data that we've provided to you does not support that.

[00:17:35] Speaker 01:
The great, great majority of complaints.

[00:17:37] Speaker 03:
I understand, but there's a range.

[00:17:39] Speaker 01:
Of course, there's going to be some outliers, no question.

[00:17:42] Speaker 01:
But with respect to the second part of your question, and I'm sorry, I just lost it for a moment.

[00:17:49] Speaker 03:
Well, the second part really had to do with if there's some technical filing error, whatever, that can be fixed.

[00:17:55] Speaker 03:
And it really doesn't relate to the need for the First Amendment right is the public access, public and press.

[00:18:05] Speaker 03:
And so-called filing errors can be fixed after the lodging, right?

[00:18:11] Speaker 01:
So we presented you with numerous clerks and trial court administrators who described the issues with that.

[00:18:18] Speaker 01:
And as they've indicated, there's significant efficiency issues.

[00:18:23] Speaker 01:
One of our administrators indicated from Ada County that, and this is SCR 195 to 212 Margaret Mulkin, her declaration, that,

[00:18:35] Speaker 01:
E-File and Serve, the clerks can communicate with the submitter through E-File and Serve.

[00:18:41] Speaker 01:
Once it auto goes into our case management system, which is a separate system than E-File and Serve, there is no ability to communicate with the submitter.

[00:18:51] Speaker 01:
So if there are issues, the clerks then need to go to E-File and Serve, find the submitter's information, and then through their own one-on-one communication, presumably email, their own independent email, email

[00:19:04] Speaker 01:
that person, and as she described, if that clerk goes on vacation, if that clerk is sick one day, if the clerk doesn't get to her email, it doesn't get done.

[00:19:15] Speaker 03:
You also have the issues with respect to... Would you remind me, though, and maybe I missed in the record, where the so-called, not confidentiality, but technical filing errors, what kind of percentage are we talking about there?

[00:19:30] Speaker 01:
It usually ranges between 7% to 11% in the data.

[00:19:35] Speaker 01:
And you know we we did cite to you all that you know we have two million plus Filings in the state of Idaho during that time period that we had and it was in that seven to eleven percent Range where there were issues that needed to be corrected There is and I'm sorry if this is addressed in your briefing, and I'm just not recalling this detail But is there a reason why?

[00:19:59] Speaker 04:
It has to switch from the one system to the other in order to make the lodge complaint available.

[00:20:06] Speaker 01:
So we purchased Tyler's system, and that's the way the Tyler system works.

[00:20:11] Speaker 01:
And so the state of Idaho invested $2 million to get the system.

[00:20:16] Speaker 01:
It then pays a licensing fee on a routine basis of, like, $563.

[00:20:20] Speaker 04:
I guess mine is maybe a simpler question.

[00:20:24] Speaker 04:
I mean, it's lodged, right?

[00:20:26] Speaker 04:
And court staff are able to print it out, right?

[00:20:31] Speaker 04:
And review it and decide whether to accept it.

[00:20:36] Speaker 04:
before they transfer it from the one system to the other.

[00:20:41] Speaker 04:
I mean, couldn't they just print out the one that was lodged and put it in the press box?

[00:20:46] Speaker 04:
And say, if you want to look at it, go ahead.

[00:20:49] Speaker 04:
It hasn't been accepted yet.

[00:20:50] Speaker 04:
It hasn't been deemed correct.

[00:20:53] Speaker 04:
It hasn't been reviewed by the clerk's office yet.

[00:20:55] Speaker 04:
But it hasn't been transferred to our new system yet.

[00:20:59] Speaker 04:
But here's the box of stuff that got lodged today.

[00:21:04] Speaker 01:
Well, I mean, if that were the case, yeah, I mean, they could print those out, but I don't think that that would be an effective judicial resource.

[00:21:11] Speaker 01:
The point of going to the filing, e-filing system was to reduce some of that.

[00:21:15] Speaker 01:
That's obviously a cost and expense, a time for the clerk to print it, to get it, to put it in the box.

[00:21:22] Speaker 03:
Well, forget about the printing, but with Tyler and with all these companies, you are purchasing primarily a custom-type system.

[00:21:32] Speaker 03:
I did see a figure of 108,000.

[00:21:34] Speaker 03:
I don't know if that's the correct figure.

[00:21:36] Speaker 03:
But it might cost some money to change the computer system as to actually facilitate what we're talking about here.

[00:21:51] Speaker 03:
But I thought what the district court was saying, I'm not going to tell you what you have to do to get it from box A to B to C electronically.

[00:21:58] Speaker 03:
I'm going to leave that to the state.

[00:22:01] Speaker 03:
So at this point, nothing's been done, right?

[00:22:05] Speaker 03:
Correct.

[00:22:05] Speaker 03:
Everything.

[00:22:06] Speaker 03:
Pending the appeal.

[00:22:07] Speaker 03:
Yeah, pending the appeal.

[00:22:08] Speaker 03:
Everything is where it is.

[00:22:11] Speaker 03:
So let's say that, hypothetically, and I don't know.

[00:22:15] Speaker 03:
I think this is a complicated case.

[00:22:17] Speaker 03:
Let's say that the district court were to be upheld.

[00:22:22] Speaker 03:
Then do you have an estimate of time that it might take to be able to find some way to comply with that?

[00:22:30] Speaker 01:
I mean, to do that and to still protect the issues that we have related to the auto accept and the undue burden that one of our clerks said would add three minutes to each review of every filing, which adds up over time.

[00:22:45] Speaker 01:
And to avoid the press review queue issues related to scraping, having information out there that's not yet part of a court record.

[00:22:57] Speaker 01:
it would be a revamping of our entire system, and I think one of the options would be, as you've indicated, that you go from, there's an ability to communicate with the submitter within the e-file and serve, but that's going to require us abandoning already a huge investment that the state of Idaho has made with respect to the Tyler system, and either find a new system that will permit that communication, or

[00:23:26] Speaker 01:
go to generating its own.

[00:23:29] Speaker 01:
And we all know that the cost of that would be incredible.

[00:23:32] Speaker 03:
You're sort of like, baby is out with the bath water.

[00:23:34] Speaker 03:
And I don't think that's kind of what might be required, although that may not be our job or Judge Nye's job to figure that out.

[00:23:45] Speaker 03:
But if the confidentiality is the requirement of the party, and that really then

[00:23:55] Speaker 03:
Of course, there can be mistakes.

[00:23:57] Speaker 03:
The system that you now have, that can be scraped, hacked, et cetera, as we well know from many systems.

[00:24:04] Speaker 03:
Maybe it hasn't, but it can be.

[00:24:06] Speaker 03:
It can be, sure it can.

[00:24:07] Speaker 03:
It's not.

[00:24:08] Speaker 03:
It hasn't been, but it can be.

[00:24:09] Speaker 03:
So I'm just saying the risks are out there.

[00:24:12] Speaker 03:
So you can't really have a risk-free system as a practical matter.

[00:24:18] Speaker 03:
But I think to me that this balancing of what you've put out, the cost,

[00:24:24] Speaker 03:
the time, et cetera, that those are important.

[00:24:28] Speaker 03:
Do those factors fall into defining what the First Amendment right is or defining the scrutiny and then saying, well, you meet the scrutiny because of all these, in effect, time and cost issues?

[00:24:45] Speaker 03:
I mean, I haven't really defined the question well, but that's really, you know, we were talking up here about all these issues, but when you get right down to it, we've got to define the First Amendment right.

[00:24:54] Speaker 03:
We've got to figure out what scrutiny is going to apply to it, and then what comes out the other end.

[00:25:01] Speaker 03:
And I'm worried about what's coming out the other end.

[00:25:04] Speaker 01:
Planet 3 defined that for us.

[00:25:07] Speaker 01:
Well, Planet 1 did.

[00:25:08] Speaker 01:
And that is already accepted complaints that have been through minimal processing that have been accepted, those attach a right to timely access.

[00:25:18] Speaker 04:
Did they actually reject the argument that it's lodged complaints?

[00:25:22] Speaker 01:
No, they did not.

[00:25:23] Speaker 01:
So that's the question, right?

[00:25:24] Speaker 01:
Correct.

[00:25:24] Speaker 04:
That's an open question for us to answer.

[00:25:25] Speaker 01:
It would be an expansion of Planet 3, the Planet trilogy in our view.

[00:25:31] Speaker 03:
I don't know if it would be an expansion so much as

[00:25:34] Speaker 03:
That was paper filing, which we all lived through for many years, both as lawyers and judges.

[00:25:40] Speaker 03:
But now we're in the electronic filing world.

[00:25:43] Speaker 03:
So there are principles from Planet 3 that are important, but they aren't necessarily controlling in an electronic world, are they?

[00:25:52] Speaker 01:
Well, I think that Planet 3 was trying to have them be controlling and was recognizing that there is no right to immediate access, which is what CNS wants and has demanded across this country and in many respects has gotten.

[00:26:05] Speaker 01:
But at the same time, you've got to balance the impairment to the important interests that Ms.

[00:26:11] Speaker 01:
Amundson and the Idaho Supreme Court have with respect to their system.

[00:26:16] Speaker 01:
And so when you look to that, you look to the first question you asked, which is, is that the right?

[00:26:22] Speaker 01:
That's that first issue.

[00:26:23] Speaker 01:
Second is the scrutiny.

[00:26:25] Speaker 01:
I know we have a dispute of whether it's rigorous or strict.

[00:26:28] Speaker 03:
And we don't know what rigorous means except it's a word.

[00:26:31] Speaker 01:
It's a word.

[00:26:32] Speaker 01:
And Judge Smith, who also is with the Ninth Circuit and out of Idaho, so we're very proud of him as well.

[00:26:39] Speaker 03:
We are as well.

[00:26:40] Speaker 01:
Okay, good.

[00:26:41] Speaker 01:
We cited his concurring opinion because you do look to that.

[00:26:44] Speaker 01:
and why we need to get into the reasonable alternatives exist, you only get there under that heightened rigorous standard, not under the lesser, more relaxed standard that was enunciated.

[00:26:59] Speaker 01:
Thank you.

[00:27:01] Speaker 04:
That's very helpful.

[00:27:02] Speaker 01:
And I know my time is...

[00:27:03] Speaker 04:
I'll give you a couple minutes on rebuttal.

[00:27:05] Speaker 01:
Thank you.

[00:27:06] Speaker 04:
Because we took you over.

[00:27:07] Speaker 01:
And I did just want to note, our case management system is not public facing.

[00:27:10] Speaker 01:
So that data scraping issue, while an internal hacker could try to do something, it's not out in the ether.

[00:27:17] Speaker 01:
Ours is a closed system.

[00:27:20] Speaker 03:
OK, thank you.

[00:27:31] Speaker 00:
Good morning.

[00:27:32] Speaker 00:
Jonathan Federle on behalf of the APLE Courthouse News Service.

[00:27:36] Speaker 00:
When litigants submit new complaints to the court, they invoke the power of the government to resolve a dispute using public resources.

[00:27:44] Speaker 00:
The press and the public have a right to know about that, and the First Amendment right of timely access protects that right.

[00:27:51] Speaker 00:
This court should affirm the judgment below because the district court correctly found that the administrator failed to carry her burden of justifying her no access before process policy

[00:28:02] Speaker 00:
under this court's rigorous scrutiny test from Planet 3.

[00:28:05] Speaker 02:
Council, I'm trying to understand what this concept of any process that denies CNS timely access.

[00:28:13] Speaker 02:
For example, as I understand the record, there was a time when Idaho reduced the hours that their clerk's office was open due to budgetary restraints.

[00:28:22] Speaker 02:
Is this something where under this order,

[00:28:25] Speaker 02:
They could be required to stay open longer or even convert to an electronic system from paper.

[00:28:32] Speaker 02:
How far does this judgment go in that?

[00:28:34] Speaker 00:
No, Your Honor, I don't believe it does.

[00:28:36] Speaker 00:
And to your earlier question to opposing counsel, I believe the short answer is the judgment requires nothing more.

[00:28:43] Speaker 00:
The injunction requires nothing more than to stop the policy that's producing these delays.

[00:28:48] Speaker 00:
That's the no access before processing policy, which is effectively the same policy that was enjoined in the planet litigation.

[00:28:55] Speaker 00:
It was applied to paper, here it's applied to electronic filings.

[00:29:00] Speaker 00:
All they need to do is stop that policy and what they do next, Judge Nye did leave that up to the state.

[00:29:08] Speaker 00:
But what we do know is that they have reasonable alternatives that are available to them.

[00:29:12] Speaker 00:
And that's where we look to the second part of the rigorous scrutiny test, which asks or puts the burden on the administrator to demonstrate that there are no reasonable alternatives.

[00:29:24] Speaker 00:
And we know that there are.

[00:29:25] Speaker 00:
So I can speak to that now if that would be helpful to the court, or I could go back to walking through kind of the broader application of the test, which is what I was intending to do.

[00:29:40] Speaker 00:
Let me just continue where I was then, because I think analytically it's helpful to think of it as the two-part rigorous scrutiny test where we address the first prong and then we turn to the second prong.

[00:29:49] Speaker 00:
And that's the test that Judge Nye correctly found the administrator failed to carry her burden under.

[00:29:55] Speaker 00:
And so this two-part rigorous scrutiny test, it's a reasonable and it's a common sense test.

[00:30:02] Speaker 00:
It gives the administrator the opportunity to demonstrate first, a substantial probability that a compelling governmental interest would be harmed by providing undelayed or immediate access to the complaints at issue.

[00:30:15] Speaker 00:
And then second, she has to demonstrate that there are no reasonable alternatives.

[00:30:21] Speaker 00:
If she fails to carry her burden under both of those prongs,

[00:30:25] Speaker 00:
At that point, the practice that is being challenged, the delay causing practice, should be enjoined.

[00:30:31] Speaker 00:
It is unconstitutional.

[00:30:33] Speaker 00:
And again, what she does next is simply up to her, and we know that she has alternatives.

[00:30:37] Speaker 00:
So let me start with that first prong of the rigorous scrutiny test.

[00:30:42] Speaker 00:
The district court correctly found that the administrator failed to establish a substantial probability that providing undelayed access to the complaints at issue

[00:30:51] Speaker 00:
would impair any of her asserted interests.

[00:30:54] Speaker 03:
OK, well, those are a lot of words.

[00:30:56] Speaker 03:
You agree that there's no First Amendment right to immediate access, correct?

[00:31:03] Speaker 00:
I think that is correct, and I want to be clear.

[00:31:05] Speaker 00:
We're talking about whether there's a per se right of access or a qualified right of access.

[00:31:10] Speaker 03:
Well, I'm starting at the top, and then we'll work our way down, OK?

[00:31:13] Speaker 00:
Very good.

[00:31:14] Speaker 03:
So there is no First Amendment right to immediate access.

[00:31:19] Speaker 00:
Is that right?

[00:31:21] Speaker 00:
And I would say not necessarily.

[00:31:23] Speaker 00:
And here's the reason why.

[00:31:24] Speaker 00:
In Planet 3, the court recognized that there is no right, a per se right to immediate access.

[00:31:31] Speaker 00:
But there's a qualified right.

[00:31:32] Speaker 03:
So the answer to my question is that's correct.

[00:31:36] Speaker 03:
There is no immediate right.

[00:31:38] Speaker 03:
Now you go to there is a qualified right.

[00:31:41] Speaker 00:
Correct.

[00:31:41] Speaker 00:
OK.

[00:31:42] Speaker 03:
How do you define the qualified right?

[00:31:45] Speaker 00:
A qualified right I would define as the government, here the administrator, has the opportunity to justify the restriction on access.

[00:31:54] Speaker 00:
And if we take it from the very top, Planet 3 holds that there is a right of access to new complaints that attaches when they are filed.

[00:32:02] Speaker 00:
And I know that we've heard the arguments about the administrative labels as to when something is deemed filed in the state of Idaho, but in the exact same sentence that the Planet 3 court says is a right of access to complaints,

[00:32:14] Speaker 00:
that attaches when they are filed, it goes on to state, i.e., when they are received.

[00:32:19] Speaker 00:
So this court used filed and received synonymously and equated the two in the paper world.

[00:32:28] Speaker 00:
And every decision, every court that has addressed this issue since Planet 3 has gone on to hold, agree with Planet 3, and hold that even in an e-filing environment, the right of access attaches when the complaint is received, which to use

[00:32:44] Speaker 00:
e-filing language is the point of submission.

[00:32:47] Speaker 00:
When the document is submitted to the court, that is the moment that it is received by the court.

[00:32:53] Speaker 00:
That is the moment that court clerks and staff can begin to work on it.

[00:32:57] Speaker 03:
And the records of- Before you jump to what you think is Idaho's burden, if you go back to Press Enterprise 2, is that intermediate scrutiny or strict scrutiny that the Supreme Court is talking about?

[00:33:13] Speaker 00:
My understanding of Press Enterprise 2 is that that is a case that is applying strict scrutiny.

[00:33:19] Speaker 00:
And then this court in Planet 3 took the Press Enterprise 2 test and it applied it as rigorous scrutiny.

[00:33:27] Speaker 00:
And we have this two-part test.

[00:33:30] Speaker 00:
Now, I think a key distinction there would be if we're talking about strict scrutiny, there can be no alternatives and under a rigorous scrutiny test,

[00:33:38] Speaker 00:
look at whether there are reasonable alternatives.

[00:33:41] Speaker 00:
And the administrator here carries the burden of demonstrating that there are no reasonable alternatives.

[00:33:46] Speaker 00:
And that's the burden that the district court correctly found she did not carry, because there are.

[00:33:51] Speaker 03:
And I know that in planet, I guess it's three, I get mixed up on how many planets we have, because we've of course dropped in actual planets.

[00:34:02] Speaker 03:
So in planet three,

[00:34:06] Speaker 03:
It's really framed as time, place, and manner, right?

[00:34:10] Speaker 00:
No, I do not agree with that.

[00:34:12] Speaker 00:
I think in footnote nine of the Planet 3 decision, it explains why time, place, and manner is not the correct test and why it does not apply.

[00:34:20] Speaker 00:
OK.

[00:34:22] Speaker 03:
So you would agree that that's really, and there are courts that have used time, place, and manner in these kind of restrictions, but it did seem to me out of place.

[00:34:30] Speaker 03:
So you would agree that Planet 3 doesn't require us

[00:34:33] Speaker 03:
to put it in the rubric of time, place, and manner?

[00:34:36] Speaker 00:
I would very much agree with that.

[00:34:37] Speaker 00:
It's not the correct test.

[00:34:38] Speaker 00:
I would note, just because it's been argued, that even if you run this through the time, place, and manner math as Judge, as the concurring opinion did in Plan 3, you still reach the same result for the same reasons that we would have here.

[00:34:51] Speaker 00:
But we don't need to apply that test.

[00:34:53] Speaker 00:
We apply the two-part rigorous scrutiny test, which starts with the first prong, which asks, has the administrator met her burden

[00:35:01] Speaker 00:
of demonstrating a substantial probability of harm to any of her asserted interests if she provides the public with undelayed access to the new complaints.

[00:35:10] Speaker 00:
And if I may speak to that, she asserts three interests and she does not support any of them.

[00:35:16] Speaker 00:
There's a lot of arguments that are made, they generally fall into these three categories.

[00:35:22] Speaker 00:
The first being the need to correct clerical errors.

[00:35:26] Speaker 00:
The administrator does not identify a single instance where there has ever been harm that has resulted from the public seeing an uncorrected complaint, let alone demonstrate a substantial probability of harm.

[00:35:38] Speaker 00:
Her next interest is an interest in preventing confusion.

[00:35:42] Speaker 00:
And here she relies on speculation about what could potentially happen if the public saw a complaint that had been submitted but was later rejected.

[00:35:53] Speaker 00:
And again, she does not identify a single instance where there's ever been actual harm that resulted from this hypothetical scenario, let alone a substantial probability of harm.

[00:36:03] Speaker 00:
And that brings us to her third asserted interest, which is protecting confidentiality.

[00:36:07] Speaker 00:
And here, just like in the Planet case, there simply is no connection between the Clerk review in Idaho and this asserted interest of protecting confidentiality.

[00:36:19] Speaker 00:
And I can explain.

[00:36:21] Speaker 00:
As an initial matter, the complaints at issue here, and this is not disputed, the complaints at issue here are not confidential as a matter of law.

[00:36:28] Speaker 00:
So we're not talking about juvenile complaints or petitions.

[00:36:31] Speaker 00:
We're talking about non-confidential civil complaints.

[00:36:35] Speaker 00:
And the record confirms in three separate instances that clerk review in Idaho does not entail looking for any confidential information that should have been omitted or redacted.

[00:36:46] Speaker 00:
And we see this in at least three separate places.

[00:36:50] Speaker 00:
First,

[00:36:51] Speaker 00:
At SCR 197, we have a list of the things clerks are looking for during their ministerial review.

[00:36:58] Speaker 00:
Looking for confidential information is not included in that list.

[00:37:02] Speaker 00:
Second, the rules in Idaho expressly state that clerks will not look for information that was omitted or not redacted.

[00:37:11] Speaker 00:
We have this at the e-filing rule 15A.

[00:37:14] Speaker 00:
We also have this at rule of civil procedure 2.6A.

[00:37:18] Speaker 00:
And lastly,

[00:37:19] Speaker 00:
We have a sample of four months of rejection data that provides detailed reasons for why complaints were rejected.

[00:37:27] Speaker 00:
And this is at 7ER 1433 and 45 through 76.

[00:37:32] Speaker 00:
And that data shows not a single complaint was rejected by court clerks because they found some information that should have been omitted or redacted.

[00:37:42] Speaker 00:
which is not a surprising result since the rules already tell us that they are not going to look for that.

[00:37:46] Speaker 00:
So there's simply no connection here between the restriction, the clerk review, and the asserted interest, which is protecting confidentiality.

[00:37:54] Speaker 00:
So the administrator fails to carry her burden out of this first prong of the test because she fails to demonstrate a substantial probability of harm that any of those asserted interests would be harmed if they provided undelayed access.

[00:38:09] Speaker 00:
Then we now go to the second part of the test.

[00:38:11] Speaker 00:
If the panel has any questions as to the first, I'll move on.

[00:38:15] Speaker 04:
Would we even reach the second step if we agreed with you on the first?

[00:38:19] Speaker 00:
My understanding is the appellant carries the burden of establishing both prongs.

[00:38:25] Speaker 00:
So I suppose failure to carry any one would be fatal, but we don't need to do that because we carry on to the second prong, which is reasonable alternatives.

[00:38:33] Speaker 00:
And we do know that there are reasonable alternatives because the record confirms that courts across the nation provide

[00:38:41] Speaker 00:
undelayed access to new civil complaints in various ways that are equally available to the administrator here in Idaho.

[00:38:49] Speaker 00:
Again, these various ways generally fall into three different categories.

[00:38:53] Speaker 00:
The first of which is auto accept.

[00:38:56] Speaker 00:
And all that entails here is simply configuring the system, the existing e-filing system, to automatically accept new filings as they come in rather than holding them for clerk acceptance.

[00:39:09] Speaker 00:
States across the nation use this.

[00:39:11] Speaker 00:
We've heard about the federal courts.

[00:39:12] Speaker 00:
And yes, the vast majority of federal courts use this system, but so do states.

[00:39:16] Speaker 00:
The states of Alabama, Connecticut, Hawaii, Nevada, Utah, all of those states use this functionality.

[00:39:24] Speaker 00:
And the state of Nevada uses the same Tyler e-founding system used by the state of Idaho.

[00:39:32] Speaker 00:
The Tyler e-founding system has this auto accept functionality built into it.

[00:39:38] Speaker 00:
kind of free, out of the box, turnkey solution simply needs to be activated.

[00:39:45] Speaker 00:
And again, no cost involved.

[00:39:48] Speaker 00:
And it can also be configured.

[00:39:50] Speaker 00:
I wanted to speak to this real quick.

[00:39:52] Speaker 03:
I'm going to let Idaho respond to that because I thought that Idaho said, yeah, that could be possible, but they also have internal requirements.

[00:40:01] Speaker 03:
And if you did this,

[00:40:03] Speaker 03:
You then are left with two computer systems that are not communicating with each other, which causes both a cost and an administrative problem and, in fact, maybe a significant time issue for the clerk's office.

[00:40:18] Speaker 03:
So doesn't the cost and time of that have to be weighed in?

[00:40:24] Speaker 00:
I'll speak to both of those.

[00:40:25] Speaker 00:
I believe first we have the different systems.

[00:40:28] Speaker 00:
I don't believe the record supports that there's

[00:40:31] Speaker 00:
conflicting systems.

[00:40:32] Speaker 00:
They have a Tyler e-filing system, Tyler case management system, the auto accept just would send it straight on through.

[00:40:37] Speaker 00:
That's just the configuration piece.

[00:40:39] Speaker 00:
As far as the administrative piece, yes, the administrator submitted to the district court numerous declarations that were effectively stating that auto accept would result in increased workload for incorrectly submitted filings.

[00:40:54] Speaker 00:
However, Judge Mitchell Brown at paragraph 7 of his declaration, he acknowledges that this is minimal for individual transactions.

[00:41:03] Speaker 00:
So he and the other declarants are relying on some larger aggregate of filings, which means they were not looking at the correct universe of filings.

[00:41:13] Speaker 00:
Because the record shows that for this AA

[00:41:16] Speaker 00:
civil category of complaints at issue in this case, the number of incorrectly submitted filings is incredibly small.

[00:41:24] Speaker 00:
We see that, and this is back to that four-month sample of rejection data.

[00:41:28] Speaker 00:
The sample shows that the number of rejections per court per month was fewer than two.

[00:41:36] Speaker 04:
And, yes.

[00:41:37] Speaker 04:
So, sir, just another technical question.

[00:41:40] Speaker 04:
Could they turn on the auto

[00:41:45] Speaker 04:
to accept just for the category of cases that you're talking about?

[00:41:49] Speaker 00:
Yes, they can.

[00:41:50] Speaker 00:
And we see that in the record at SER 79 through 80.

[00:41:54] Speaker 00:
That's the deposition testimony of the e-filing vendor who explains this.

[00:41:58] Speaker 00:
So when we're looking at this correct universe of filings, I just gave you the stat for number of rejections per court per month.

[00:42:06] Speaker 00:
And Judge and I, looking at the same sample,

[00:42:08] Speaker 00:
expressed it differently in terms of the statewide average per day, which was all counties combined, about four or five.

[00:42:17] Speaker 00:
So Judge Nye himself, a former Idaho State Court judge for approximately 10 years, concluded that was hardly burdensome.

[00:42:26] Speaker 00:
So the administrator fails to carry her burden of demonstrating that she doesn't have auto accept as a reasonable alternative.

[00:42:33] Speaker 00:
Now, if she does not want to use auto accept,

[00:42:36] Speaker 00:
That's fine, she does not have to.

[00:42:38] Speaker 00:
She still has other alternatives.

[00:42:40] Speaker 00:
A second one being the Tyler Press Review Queue.

[00:42:43] Speaker 00:
This would just be an add-on Tyler product that is effectively a web portal that displays new filings, displays submitted filings while they're waiting for clerk processing and acceptance.

[00:42:57] Speaker 00:
And we see states using this solution as well.

[00:42:59] Speaker 00:
This is states in California.

[00:43:05] Speaker 03:
response to that by laying out what would be basically scraping and various hacking issues with that.

[00:43:14] Speaker 03:
What is your response in terms of the burden and whether the state really has firsthand the ability to make that judgment and not the court?

[00:43:25] Speaker 00:
A few things, Your Honor.

[00:43:26] Speaker 00:
I think as an initial matter, the record does not support that this has ever happened

[00:43:30] Speaker 00:
with this product, even though it's being used in California, Georgia, Texas, and Vermont.

[00:43:35] Speaker 00:
The administrator admitted in a discovery response that she has no evidence of any bad outcomes or problems from this pre-processing access.

[00:43:44] Speaker 00:
As far as how it could be configured, she has options.

[00:43:48] Speaker 00:
We see in the record that some courts provide this press review queue only at terminals at the courthouse, or it could be provided remotely online.

[00:43:58] Speaker 00:
But there are options.

[00:43:59] Speaker 00:
So if she were to provide it remotely online, that's one thing.

[00:44:02] Speaker 03:
Could they charge the press for this add-on, so to speak?

[00:44:06] Speaker 00:
Yeah.

[00:44:06] Speaker 00:
This is the one alternative, which Your Honor referenced earlier, which is, I believe, $108,000.

[00:44:11] Speaker 00:
So yes, that is a cost that Tyler charges for this add-on.

[00:44:15] Speaker 03:
That's Tyler.

[00:44:16] Speaker 03:
But could they charge the press for each of the access, whether it's at the courthouse or electronically?

[00:44:24] Speaker 03:
Could there be an access fee?

[00:44:26] Speaker 00:
Oh, I see.

[00:44:27] Speaker 03:
I suppose there could... That be okay within your First Amendment construct?

[00:44:33] Speaker 00:
Yeah, I believe it would be.

[00:44:35] Speaker 00:
We've seen instances where courts do in fact charge subscription models in order to access the complaints.

[00:44:42] Speaker 00:
That is out there.

[00:44:43] Speaker 00:
Courts do that.

[00:44:44] Speaker 00:
That has not been something that Courthouse News has ever challenged.

[00:44:49] Speaker 00:
We have the Tyler solution, and I would just like to briefly move on to address one more solution, because if the court does not, the administrator does not want to purchase the Tyler product, they don't have to.

[00:44:59] Speaker 00:
They have yet another option, which would just simply be developing their own.

[00:45:03] Speaker 00:
And all that would be would be modifying their website in order to create an access portal to display these submitted filings while they are awaiting clerk processing and acceptance.

[00:45:15] Speaker 00:
And here, again, we see examples of courts that use this.

[00:45:18] Speaker 00:
We have Arizona.

[00:45:19] Speaker 00:
We have New York, we have Florida, we have Orange County in California.

[00:45:23] Speaker 00:
All of these courts have effectively done this themselves.

[00:45:26] Speaker 00:
And again, they can be configured in ways I just described.

[00:45:29] Speaker 00:
It could be a remote solution, but it could also be secured, requiring registered username and password, or it could be at the courthouse, at the local terminals.

[00:45:40] Speaker 00:
There's flexibility.

[00:45:42] Speaker 00:
Ultimately, the court has the options.

[00:45:44] Speaker 00:
So when we have these

[00:45:46] Speaker 00:
various options, the administrator does not dispute or deny that they exist.

[00:45:51] Speaker 00:
And with respect to simply building her own, she would have a lot more flexibility in terms of cost.

[00:45:56] Speaker 00:
Arizona developed its own solution for only $12,500, and that's in the record.

[00:46:01] Speaker 00:
As far as New York, as far as time, I believe that was asked earlier as well.

[00:46:05] Speaker 00:
New York developed its solution within six weeks of the injunction entered against it in the Tingling case.

[00:46:11] Speaker 00:
And that began as just one county.

[00:46:13] Speaker 00:
From there, New York scaled it out to provide preprocessing access to all counties.

[00:46:19] Speaker 00:
And there in New York, it's a public-facing queue.

[00:46:21] Speaker 00:
It's not behind a paywall.

[00:46:23] Speaker 00:
It's not behind...

[00:46:24] Speaker 00:
username and password, it's a public-facing queue on its website.

[00:46:28] Speaker 00:
And now, almost 10 years later, that solution remains in place, and it works great, and there have not been any problems.

[00:46:35] Speaker 00:
So the administrator does not deny any of this.

[00:46:38] Speaker 00:
When it comes to this particular alternative, the best she can do is point to a lack of information, but that is not sufficient to carry her burden under the rigorous scrutiny test, especially where, as here, she had the opportunity to make her record

[00:46:53] Speaker 00:
and carry her burden.

[00:46:55] Speaker 00:
The record shows that while this case was pending, she was talking to a vendor about developing a new portal for the state of Idaho.

[00:47:02] Speaker 00:
In connection with those conversations, she could have asked the questions and obtained the information she now claims she doesn't have.

[00:47:08] Speaker 00:
She could have asked about the cost.

[00:47:10] Speaker 00:
She could have asked about how long it would take.

[00:47:12] Speaker 00:
She could have asked about the resources involved.

[00:47:15] Speaker 00:
She simply did not do so.

[00:47:17] Speaker 00:
And that's in the deposition testimony.

[00:47:19] Speaker 00:
I'm at time, Your Honor.

[00:47:20] Speaker 00:
If I could just make one final point, and then I will stop.

[00:47:23] Speaker 00:
I just wanted to point out, the administrator's lack of will does not establish a lack of reasonable alternatives.

[00:47:29] Speaker 00:
The district court's judgment should be affirmed.

[00:47:30] Speaker 04:
Thank you, Councilman.

[00:47:33] Speaker 00:
Thank you.

[00:47:35] Speaker 04:
I think I promised you a couple minutes of rebuttal.

[00:47:37] Speaker 01:
Thank you very much, Your Honor.

[00:47:40] Speaker 01:
This is not about a lack of will.

[00:47:41] Speaker 01:
This is about a lack of reasonable alternatives.

[00:47:44] Speaker 01:
And we've noted for you, and CNS ignores a very critical part

[00:47:49] Speaker 01:
of the record, which is that Jennifer Dvorak, Chief Information Security Officer for the Idaho Courts starts at page 16 of the record, 216, I'm sorry, 216 of the record.

[00:47:59] Speaker 04:
You might want to make sure you're speaking.

[00:48:01] Speaker 01:
Oh, I'm sorry, page 216 of the record.

[00:48:04] Speaker 01:
And that is she was hired to establish a formal cybersecurity system for us in 2021.

[00:48:12] Speaker 01:
She then used the Center for Internet Security's top 18 critical controls as the framework for that assessment.

[00:48:19] Speaker 01:
They're important to creating appropriate cybersecurity.

[00:48:23] Speaker 01:
And she then asked Tyler to confirm for her that they indeed meet this, and Tyler refused.

[00:48:31] Speaker 01:
And that is in the record.

[00:48:32] Speaker 01:
So when CNS is representing that this is no big deal, she has all the information she has, that is not accurate at all.

[00:48:39] Speaker 01:
We actually specifically requested that information from Tyler, both for our current case management system and e-file and serve, which they refused to provide,

[00:48:49] Speaker 01:
and we're still under contract but almost in time here done.

[00:48:53] Speaker 01:
We then specifically asked them for their press review cue to assure us that it meets these very guidelines and they refused to provide that information and that is also in the record before you.

[00:49:08] Speaker 01:
So when it comes to the press review cue, it is disingenuous to say that we just have ignored it and we don't have the will.

[00:49:15] Speaker 01:
We have the will.

[00:49:17] Speaker 01:
Our vendor that we have committed an incredible amount of money to has refused to provide us with the cybersecurity details, information, and comfort that we need in order to make informed decisions and deem it a reasonable alternative.

[00:49:31] Speaker 01:
With respect to auto accept, again, Mr. Federally noted that and did finally concede that there is not a right to First Amendment, right to access immediately.

[00:49:44] Speaker 01:
He then calls it there's got to be no, you know, there's got to be a reason then for why we don't have it immediately.

[00:49:52] Speaker 01:
And you need to justify that and it needs to be reasonable.

[00:49:57] Speaker 01:
When you look to that, there's a lack of clarity then as to what would timely access be.

[00:50:02] Speaker 01:
Is it within a business day?

[00:50:04] Speaker 01:
Is it within two business days?

[00:50:06] Speaker 01:
We know that the courts, circuit courts have said within a business day or two is sufficient.

[00:50:14] Speaker 01:
If the Ninth Circuit is going to make a decision as to what is sufficient, that will provide great guidance to the courts that are within this jurisdiction that if it takes a business day or two in order to have access to these lodged complaints, then that's what it is.

[00:50:32] Speaker 01:
And you can bet Sarah Amundson and the Idaho Supreme Court will figure out how to make that happen with all of its counties.

[00:50:40] Speaker 01:
Ada County is already doing that, and that's in the record before you.

[00:50:44] Speaker 01:
We already meet.

[00:50:44] Speaker 01:
It's our biggest county.

[00:50:45] Speaker 01:
It's where Boise is.

[00:50:47] Speaker 01:
And we already meet that burden of within two days, 100% of our filings are processed and done.

[00:50:54] Speaker 01:
And so when you look, Your Honors, again, I come back to this concept of this isn't a lack of will.

[00:51:02] Speaker 01:
This isn't a lack of respect for, of course, the First Amendment.

[00:51:06] Speaker 01:
It's the practicalities that exist with respect to managing judicial resources, efficiency for the clerks, and the record is replete with how onerous the review would be if it's done on the back end and that that will also require and potentially prejudice litigants who do file mistakenly.

[00:51:25] Speaker 01:
Fifty-eight percent of the rejections in Adam County were because they were supposed to be in Ada County.

[00:51:33] Speaker 01:
If you're at a statute of limitations, you're done as a litigant.

[00:51:36] Speaker 01:
The state of Idaho has tried to balance those needs along with providing timely access to its complaints.

[00:51:42] Speaker 01:
And that's why it's taken the position that a lodged complaint does not have the First Amendment protections under Planet 3.

[00:51:50] Speaker 01:
But a file does and that's why immediate access is provided at that time, so thank you Okay, thank you appreciate the time very much.

[00:51:59] Speaker 03:
Thank you I would just like to say that I want to compliment both council because your facility with the record is Amazing and very helpful, so thank you.

[00:52:08] Speaker 03:
Thank you.

[00:52:09] Speaker 03:
It is an honor to be here.

[00:52:10] Speaker 03:
Thank you.

[00:52:10] Speaker 03:
Thank you