senate Bill S7592A

Signed By Governor
2011-2012 Legislative Session

Authorizes pilot program permitting use of electronic means for commencing actions in certain criminal and family court proceedings

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Archive: Last Bill Status Via A10706 - Signed by Governor


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed by Governor

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Actions

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jul 18, 2012 signed chap.184
Jul 06, 2012 delivered to governor
Jun 21, 2012 returned to assembly
passed senate
3rd reading cal.1517
substituted for s7592a
Jun 21, 2012 substituted by a10706
ordered to third reading cal.1517
Jun 18, 2012 print number 7592a
amend and recommit to rules
Jun 05, 2012 referred to rules

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Bill Amendments

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S7592 - Bill Details

See Assembly Version of this Bill:
A10706
Law Section:
Judiciary
Laws Affected:
Add §§6-a, 6-b & 6-c, amd §6, rpld sub (b) ¶ (B) sub ¶¶ 1 & 2, Chap 367 of 1999; amd §6, Chap 416 of 2009

S7592 - Bill Texts

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Authorizes pilot program permitting use of electronic means for commencing actions in certain criminal and family court proceedings.

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BILL NUMBER:S7592

TITLE OF BILL:
An act
to amend chapter 367 of the laws of 1999, amending the civil practice
law and rules and the judiciary law relating to authorization of pilot
programs permitting use of facsimile transmission or electronic means to
commence an action or special proceeding, in relation to authorization
of pilot programs permitting use of electronic means in certain courts;
and to amend chapter 416 of the laws of 2009, amending the civil
practice law and rules relating to service of papers by electronic means,
in relation to development of a program relating to the use of electronic
means for the commencement of certain actions; and providing for the
repeal of certain provisions of chapter 367 of the laws of 1999 upon
expiration thereof

This measure is being introduced at the request of the Chief Judge of
the State and the Chief Administrative Judge.

In its 2011 session, the Legislature directed that the Chief
Administrative Judge establish two committees to consider whether the
State's program for the electronic filing of papers with the courts
and between litigating parties ("e-filing") should be extended into
criminal courts and the Family Court, respectively. See L. 2011, c.
543. The Chief Administrative Judge thereafter established these
committees, which, in accordance with the statutory direction, were
comprised of representatives of bench, bar and others who would be
affected by such extensions, including prosecutors, criminal defense
practitioners, local government agencies, County Clerks and specialty
bar associations across the State. Id.,§5. In the reports recently
filed by these committees(1), it is recommended that the Legislature
slowly begin to phase-in e-filing in select criminal and Family Court
cases in a small number of venues. This measure would give effect to
these recommendations, which include:

o Establishment by the Chief Administrative Judge, with the approval
of the Administrative Board of the Courts, of a consensual e-filing
program in criminal parts in Supreme Court and County Court for (i)
the filing of accusatory instruments in those courts, and (ii) the
filing and service of papers in criminal actions and proceedings
therein. Also, authorization to convert participation in this
e-filing program from consensual to mandatory in up to six counties
(with implementation in any of these counties to be conditioned upon
prior approval of the local District Attorney, the criminal defense
bar (through the head of a legal aid society, public defender's
office or local bar association, as appropriate) and the local County
Clerk).

o Establishment by the Chief Administrative Judge, with the approval
of the Administrative Board of the Courts, of a consensual e-filing
program in Family Court for (i) the origination of proceedings in
such Court, and (ii) the filing and service of papers in pending
proceedings therein. Also, authorization to convert participation in
this e-filing program from consensual to mandatory in up to six
counties for purposes of the filing of article 3 (juvenile


delinquency) petitions with Family Court by a presentment agency, the
filing of article 10 (abuse/neglect) petitions with such court by a
child protective agency, and the exchange of papers in these
proceedings (with implementation in any of these counties to be
conditioned upon prior approval of the local authorized presentment
agency and child protective agency).

This measure also would make two minor adjustments to the existing
e-filing program in Supreme Court civil parts: (1) adding Suffolk
County to the current list of eight counties outside New York City in
which the Chief Administrative Judge may authorize a program of
mandatory e-filing in Supreme Court civil parts; and (2) eliminating
certain restrictions on use of e-filing in Supreme Court civil
proceedings in New York City (so that mandatory e-filing may be
extended there on the same terms as it now may be extended in the
authorized counties outside the City).

I. Overview

New York's experiment with e-filing began in civil parts of Supreme
Court in 1999 in a very limited pilot.(2) Over the ensuing years, as
judges, attorneys, litigants and others having roles in the civil
justice system have developed experience and comfort with e-filing,
as the technology needed to e-file has improved markedly (and grown
exponentially in its availability), and as e-filing has become routine
practice in the Federal Court system, the State has gradually
expanded its e-filing pilot. This expansion has always been very slow
and deliberate: from a modest beginning where e-filing was sanctioned
in only a few classes of cases in Supreme Court in a small number of
venues, and only where the affected parties consented to its use, new
classes of actions and venues in which e-filing may be used have
gradually been added, and the e-filing program has expanded into
Surrogate's Court, the Court of Claims and the New York City Civil
Court. Also, the Chief Administrative Judge has been permitted to make
use of e-filing mandatory in some actions in some venues. As of this
time, in the spring of 2012, consensual e-filing may be authorized by
court rule in all categories of cases in Supreme Court (it has, in
fact, been authorized in 15 counties, primarily for commercial, tort
and tax certiorari cases); in 11 counties in Surrogate's Court; in
the 12 county Albany District of the Court of Claims; and in one case
type in the New York City Civil Court. At the same time, mandatory
e-filing may be established in Supreme Court in eight counties and in
New York City, in a broad array of cases.

This expansion has clearly demonstrated that use of e-filing in the
courts can have substantial benefits - including lower litigation
costs and reduced access-to-justice barriers especially for solo
practitioners, small firms and rural practice. These benefits have
been well documented in periodic reports filed by the Judiciary with
the Legislature over the past decade.
As now acknowledged by the advisory committees established this year
by the Chief Administrative Judge, these and other benefits promised
by e-filing can likewise be found where e-filing is extended to
practice in criminal courts and the Family Court, and, accordingly,
these committees have urged that the Legislature act promptly to
institute pilot e-filing programs in those courts.


In making their recommendations, our advisory committees have
recognized that, just as it was wise to proceed cautiously in rolling
out e-filing in the State's civil courts, it makes the greatest sense
to do the same with an e-filing rollout in criminal courts and the
Family Court.
However attractive the benefits e-filing may promise, there are simply
too many important rights at stake in proceedings in these courts to
start an aggressive e-filing program in them right away.
For this reason, our advisory committees have proposed that, with very
limited exception, the Legislature begin with strictly voluntary
e-filing for Family Court and criminal courts, with consent of the
parties required in each case. Moreover, in the instance of criminal
court, the criminal advisory committee proposes that e-filing be
authorized only for commencement of proceedings in superior courts),
and the exchange of papers between parties and between parties and
the court in such courts. In this regard, the advisory committee
believes that superior courts generally are ready, technically and
administratively, for this step, but that local criminal courts are
not yet prepared and cannot become prepared in a cost-effective
manner at this time.

Also in keeping with the historical emphasis upon caution in rolling
out e-filing, the advisory committees recommend that an e-filing
rollout in Family Court and in the criminal courts limit the breadth
of its reach. Thus, while the Family Court advisory committee
recommends that e-filing in Family Court be authorized generally, it
urges that its use be consensual in most venues. In no more than six
pilot counties should the Chief Administrative Judge enjoy authority
to eliminate the consent requirement.(4) Where he or she would act on
this
authority, it must be with the advance approval of appropriate justice
stakeholders in the affected counties (i.e., local presentment and
child protective agencies). Further, he or she may only so authorize
mandatory e-filing in connection with origination of Family Court Act
article three and article ten proceedings and subsequent exchange of
papers in those proceedings. Likewise on the criminal side, the
criminal advisory committee has recommended that e-filing now be
limited to the superior courts; and while, as with the Family Court
advisory committee, the criminal court advisory committee believes
that a broad consensual program in those courts may be in order, it
similarly recommends that the consent requirement in criminal court
be eliminated in no more than six pilot counties and then only where
the local District Attorney, the criminal defense bar (as represented
by the head of a legal aid society, public defender or president of a
local bar association, as appropriate) and the County Clerk give
advance permission. Moreover, both advisory committees recommend
that, where mandatory e-filing is sanctioned in Family Court and
superior criminal courts, all the protections now afforded to pro se
litigants and counsel who, for
want of computer equipment or skill with that equipment, are unable to
proceed bye-filing civil cases in Supreme Court should obtain (except
that pro se litigants should not proceed by efiling without court
permission, whereas, at present, in Supreme Court civil matters
subject to mandatory e-filing, such litigants must e-file unless they
affirmatively opt out). Finally, the committees recommend that the
e-filing programs promoted by this measure be subject to a three-year
sunset, i.e., by September 1, 2015.


Paramount, in the view of the advisory committees, is recognition
that Family Court and criminal court proceedings require special
layers of protection against inappropriate disclosure.
Unlike most civil cases, papers and records in Family Court cases are
categorically protected against routine disclosure (see Family Court
Act § 166), and papers filed in both pending and completed criminal
cases can carry particular sensitivity - whether or not formally
sealed by the court. Accordingly, the advisory committees recommend
that, where e-filing is expanded into Family Court and criminal
court, there be no right of public access on-line to Family Court or
criminal court papers that are e-filed.

Finally, the advisory committees recommend that they continue to
function and that, as it did with the gradual phase-in of civil
e-filing, the Legislature require a three-year report to the
Legislature on progress achieved in Family Court and criminal court
e- filing and the sunset of its authorization after three years. The
advisory committees recognize that introduction of e-filing in
different courts and case types requires particular care and a period
of study so that parties, counsel, stakeholders and the political
branches can ensure the protection of rights and the efficient
implementation of this next step in the modernization of the New York
State Judiciary.

II. Section-by-Section Summary

Section 1 would set out legislative findings memorializing the
objectives of this measure.

Section 2 would amend chapter 367 of the Laws of 1999, the original
e-filing statute, by adding new sections 6-a (to govern superior
criminal court e-filing) and 6-b (to govern Family Court e-filing).
Section 6-a would: (a) authorize the e-filing of superior court
accusatory instruments that commence criminal actions, and of the
papers and documents exchanged in those actions; (b) direct that such
program be strictly voluntary upon consent of all parties, except
where the Chief Administrative Judge eliminates the requirement of
consent (which he or she may do in up to six counties so long as he
or she secures prior consent of the local District Attorney, criminal
defense bar and County Clerk); (c) provide that where e-filing is
thereby made mandatory, Parties will enjoy the same right to opt out
of participation in e-filing for Want of technical resources or acumen
as they would enjoy in a mandatorily e-filed civil case in Supreme
Court and pro se litigants will automatically be excluded from such
Participation unless the court permits otherwise; (d) define e-filing
by the same terms as CPLR 2103(f) provides for civil cases; (e)
protect the confidentiality of e-filed documents, expressly applying
all laws governing the sealing and confidentiality
of court records in criminal proceedings, and expressly
providing that no e-filed paper or document in a criminal proceeding
can be available for online public inspection. Section6-b would: (a)
authorize tile e-filing of Family Court proceedings; (b) direct that
such program be strictly voluntary upon consent of all parties,
except where the Chief Administrative Judge eliminates the
requirement of consent (which he or she may do in up to six counties
and only for Family Court Act article 3 juvenile delinquency) and
article 10 (abuse and neglect) proceedings so long as he or she


secures prior consent of the local presentment and child protective
agencies); (c) provide that where e-filing is thereby made mandatory,
parties will enjoy the same right to opt out of participation in
e-filing for Want of technical resources or knowledge of computer
operation as they would enjoy in a mandatorily e-filed civil case in
Supreme Court and pro se litigants will automatically be excluded
from such participation unless the court permits otherwise; (d)
define e-filing by the same terms as CPLR 2103(f) provides for civil
cases; (e) protect the confidentiality of e-filed documents,
expressly applying all laws governing the sealing an
d confidentiality of court records in Family Court proceedings, and
expressly providing that no e-filed paper or document in a Family
Court proceeding can be available for online public inspection.

Section 3 would make a technical amendment to chapter 416 of the Laws
of 2009, as amended, to bring New York City's existing participation
in the civil e-filing system under the same list of included and
excluded categories of cases applicable to other counties subject to
mandatory e-filing under current law (i.e. Livingston, Monroe,
Rockland, Tompkins, Allegany, Essex, Onondaga and Westchester). This
section also would add Erie and Suffolk Counties to that list of
enumerated jurisdictions.

Section 4 would make a technical amendment to chapter 416 of the Laws
of 2009, as amended, to continue the two e-filing advisory committees
established for criminal courts and Family Court, respectively, and
to require that the Chief Administrative Judge submit a report on
e-filing in criminal courts and Family Court to the Legislature,
Governor and Chief Judge not later than January 1, 2015.(5)

Section 5 would make this act effective immediately, except that
sections 6-a and 6-b, as added by section 2 of this act, would expire
on September 1, 2015.(6)

This measure, which would have no fiscal impact on the State, would
continue the State's progress toward more streamlined and
cost-effective court operations, which is especially vital to the
effective operation of the justice system given continued resource
restraints at all levels of government. It would do this while
continuing the strict protection of litigant rights, confidentiality
and community support that have been hallmarks of the Judiciary's
gradual phase-in of civil e-filing. Perhaps most importantly, by
speeding judicial intervention in time-critical Family Court
proceedings, this measure could help protect the most vulnerable and
literally save lives.

LEGISLATIVE HISTORY:
None. New proposal.

FOOTNOTES:
(2) See L. 1999, c. 367 (authorizing consensual e-filing programs in
commercial and tax certiorari cases in Supreme Court in Monroe,
Westchester, New York and Suffolk Counties, and in the Court of
Claims).


(3) The superior courts are the Supreme Court and the County Court.
Under this measure, e-filing would not be permitted in criminal
proceedings in the local criminal courts of the State (i.e., the NYC
Criminal Court, the District Courts, the City Courts and the Town and
Village Justice Courts).

(4) Early experience with e-filing in New York, when bench and bar were
generally unfamiliar with it, demonstrated that, where it is
voluntary, relatively few practitioners choose to make use of it. Only
where e-filing has been made mandatory have enough people made use of
it - thereby exposing them to its benefits and encouraging their future
reliance upon it, as well as giving the State a fair sense of its pros
and cons.

(5) Concerning on-line public inspection of papers and documents in
criminal cases, the measure carves a small exception. It permits the
Chief Administrative Judge to post such papers and documents on the
court system's general website (which is different from the NYSCEF
website used bye-filers) where doing so would serve a public
interest. This is to enable the Chief Administrative Judge to
continue an existing practice wherein, in recognition of a high level
of public interest, certain unsealed papers and documents in a few
celebrated cases are posted on-line for the convenience of the public
and the media.

(6) This is the same date as is now fixed for the expiration of
authorization for the ongoing program of mandatory e-filing in civil
parts of Supreme Court.

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                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  7592

                            I N  S E N A T E

                              June 5, 2012
                               ___________

Introduced by Sen. SALAND -- (at request of the Office of Court Adminis-
  tration)  --  read  twice  and ordered printed, and when printed to be
  committed to the Committee on Rules

AN ACT to amend chapter 367 of the laws  of  1999,  amending  the  civil
  practice law and rules and the judiciary law relating to authorization
  of  pilot  programs  permitting use of facsimile transmission or elec-
  tronic means to commence an action or special proceeding, in  relation
  to  authorization of pilot programs permitting use of electronic means
  in certain courts; and to amend chapter  416  of  the  laws  of  2009,
  amending  the  civil  practice  law  and  rules relating to service of
  papers by electronic means, in relation to development  of  a  program
  relating  to  the  use  of  electronic  means  for the commencement of
  certain actions; and providing for the repeal of certain provisions of
  chapter 367 of the laws of 1999 upon expiration thereof

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1. Since 1999, the state has steadily expanded its program in
the use of electronic means for the  commencement  of  actions  and  the
exchange  of  legal  papers  and  other  documents  between  parties  in
proceedings in New York's civil courts. Throughout this expansion,  this
program has consistently demonstrated success, measured by its reliabil-
ity, efficiency, convenience and savings in time and money for the liti-
gating public and for the courts.
  Finding  that use of electronic filing in judicial proceedings also is
expanding rapidly across the nation, and  believing  that  the  benefits
heretofore realized in New York through its use in civil proceedings can
likewise  be  realized  through  its  expansion into criminal and family
court proceedings, the legislature enacts this measure  to  provide  the
necessary authorization.
  Introduction  of  electronic filing in the civil court proceedings was
begun slowly in New York. This was to ensure that important rights would
not be jeopardized as bench and bar gained experience with  use  of  the
technologies  involved  in  such  filing. The legislature now finds that
proceedings in criminal and family courts can present their  own  unique

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD15304-03-2

S. 7592                             2

complications and that, whatever the hopes and expectations may be for a
successful deployment of electronic filing in the those courts, it is in
the  public  interest  that  bench  and  bar  deliberately and carefully
explore  its use. Accordingly, this act limits the initial authorization
for such use. This authorization, in the  form  of  a  three-year  pilot
program,  will permit a careful examination by all affected interests to
ensure that no rights are prejudiced  and  that  the  administration  of
justice  is  not  in  any  manner compromised. Under this pilot program,
electronic filing may be used in only a limited number of criminal supe-
rior courts and family courts, and then only where the chief administra-
tor of the courts is satisfied that the circumstances are right for such
use. To further ensure that all affected interests are ready and able to
participate in the pilot, this act also requires that, while  the  pilot
operates,  the  principal  local  interests  to  be affected -- district
attorney, criminal defense bar and county clerk is the criminal  courts;
authorized  presentment  agencies  and  child protective agencies in the
family courts -- all acquiesce therein.
  S 2. Chapter 367 of the laws of 1999, amending the civil practice  law
and  rules  and  the  judiciary  law  relating to authorization of pilot
programs permitting use of facsimile transmission or electronic means to
commence an action or special proceeding, is amended by adding  two  new
sections 6-a and 6-b to read as follows:
  S  6-A.  (A)  NOTWITHSTANDING  ANY  OTHER  PROVISION OF LAW, THE CHIEF
ADMINISTRATOR OF THE COURTS, WITH THE  APPROVAL  OF  THE  ADMINISTRATIVE
BOARD  OF  THE COURTS, MAY PROMULGATE RULES AUTHORIZING A PROGRAM IN THE
USE OF ELECTRONIC MEANS IN THE SUPREME COURT AND  IN  THE  COUNTY  COURT
FOR:  (1)  THE  FILING  WITH A COURT OF AN ACCUSATORY INSTRUMENT FOR THE
PURPOSE OF ACQUIRING JURISDICTION IN A SUPERIOR COURT,  AS  PROVIDED  BY
ARTICLES  195  AND 200 OF THE CRIMINAL PROCEDURE LAW, AND (2) THE FILING
AND SERVICE OF PAPERS IN PENDING CRIMINAL ACTIONS AND PROCEEDINGS.
  (B)(1) EXCEPT AS OTHERWISE PROVIDED IN THIS SUBDIVISION, PARTICIPATION
IN THIS PROGRAM SHALL BE STRICTLY VOLUNTARY AND  WILL  TAKE  PLACE  ONLY
UPON CONSENT OF ALL PARTIES IN THE CRIMINAL ACTION OR PROCEEDING; EXCEPT
THAT  A  PARTY'S  FAILURE  TO CONSENT TO PARTICIPATION SHALL NOT BAR ANY
OTHER PARTY TO THE ACTION FROM FILING AND SERVING PAPERS  BY  ELECTRONIC
MEANS UPON THE COURT OR ANY OTHER PARTY TO SUCH ACTION OR PROCEEDING WHO
HAS CONSENTED TO PARTICIPATION. FILING AN ACCUSATORY INSTRUMENT BY ELEC-
TRONIC  MEANS  WITH THE COURT FOR THE PURPOSE OF CONFERRING JURISDICTION
OVER A CRIMINAL ACTION UPON SUCH COURT SHALL NOT REQUIRE THE CONSENT  OF
ANY OTHER PARTY.
  (2)  THE  CHIEF ADMINISTRATOR MAY ELIMINATE THE REQUIREMENT OF CONSENT
TO PARTICIPATION IN THIS PROGRAM IN SUPREME AND  COUNTY  COURTS  OF  NOT
MORE  THAN  SIX  COUNTIES  PROVIDED  HE  OR  SHE  MAY NOT ELIMINATE SUCH
REQUIREMENT FOR A COURT WITHOUT THE CONSENT OF  THE  DISTRICT  ATTORNEY,
THE  CRIMINAL  DEFENSE  BAR  (AS  REPRESENTED BY THE HEAD OF A LEGAL AID
SOCIETY, PUBLIC DEFENDER OR PRESIDENT OF A  LOCAL  BAR  ASSOCIATION,  AS
APPROPRIATE)  AND  THE  COUNTY  CLERK  OF THE COUNTY IN WHICH SUCH COURT
PRESIDES.
  (C) WHERE  THE  CHIEF  ADMINISTRATOR  ELIMINATES  THE  REQUIREMENT  OF
CONSENT AS PROVIDED IN PARAGRAPH (2) OF SUBDIVISION (B) OF THIS SECTION,
HE  OR  SHE SHALL SHALL AFFORD COUNSEL THE OPPORTUNITY TO OPT OUT OF THE
PROGRAM, VIA PRESENTATION OF A PRESCRIBED FORM  TO  BE  FILED  WITH  THE
COURT  WHERE  THE CRIMINAL ACTION IS PENDING. SAID FORM, WHICH SHALL NOT
BE PART OF THE CASE RECORD, SHALL PERMIT  AN  ATTORNEY  TO  OPT  OUT  OF
PARTICIPATION  IN  THE PROGRAM UNDER ANY OF THE FOLLOWING CIRCUMSTANCES,
IN WHICH EVENT, HE OR SHE WILL NOT BE COMPELLED TO PARTICIPATE:

S. 7592                             3

  (1) WHERE THE ATTORNEY CERTIFIES IN GOOD FAITH THAT HE  OR  SHE  LACKS
THE  COMPUTER  HARDWARE AND/OR CONNECTION TO THE INTERNET AND/OR SCANNER
OR OTHER DEVICE BY WHICH DOCUMENTS MAY BE  CONVERTED  TO  AN  ELECTRONIC
FORMAT; OR
  (2)  WHERE  THE  ATTORNEY CERTIFIES IN GOOD FAITH THAT HE OR SHE LACKS
THE REQUISITE KNOWLEDGE IN THE OPERATION OF SUCH COMPUTERS AND/OR  SCAN-
NERS  NECESSARY  TO PARTICIPATE. FOR THE PURPOSES OF THIS PARAGRAPH, THE
KNOWLEDGE OF ANY EMPLOYEE OF AN ATTORNEY, OR ANY EMPLOYEE OF THE  ATTOR-
NEY'S  LAW  FIRM,  OFFICE  OR BUSINESS WHO IS SUBJECT TO SUCH ATTORNEY'S
DIRECTION, SHALL BE IMPUTED TO THE ATTORNEY.
  NOTWITHSTANDING THE FOREGOING: (I) WHERE A PARTY IS   NOT  REPRESENTED
BY  COUNSEL,  HE  OR  SHE MAY NOT PARTICIPATE IN THE PROGRAM EXCEPT UPON
PERMISSION OF THE COURT; AND (II) A COURT MAY EXEMPT ANY  ATTORNEY  FROM
BEING  REQUIRED  TO PARTICIPATE IN THE PROGRAM UPON APPLICATION FOR SUCH
EXEMPTION, SHOWING GOOD CAUSE THEREFOR.
  (D) FOR PURPOSES OF THIS  SECTION,  "ELECTRONIC  MEANS"  SHALL  BE  AS
DEFINED  IN  SUBDIVISION  (F) OF RULE 2103 OF THE CIVIL PRACTICE LAW AND
RULES.
  (E)(1) NOTHING IN THIS SECTION SHALL AFFECT  OR  CHANGE  ANY  EXISTING
LAWS GOVERNING THE SEALING AND CONFIDENTIALITY OF COURT RECORDS IN CRIM-
INAL  PROCEEDINGS, NOR SHALL THIS SECTION BE CONSTRUED TO COMPEL A PARTY
TO FILE A SEALED DOCUMENT BY ELECTRONIC MEANS.
  (2) NOTWITHSTANDING ANY OTHER PROVISION OF THIS SECTION, NO  PAPER  OR
DOCUMENT  THAT  IS FILED BY ELECTRONIC MEANS IN A CRIMINAL PROCEEDING IN
SUPREME COURT OR COUNTY COURT SHALL BE AVAILABLE FOR  PUBLIC  INSPECTION
ON-LINE;  PROVIDED,  HOWEVER, THAT THIS PARAGRAPH SHALL NOT PROHIBIT THE
CHIEF ADMINISTRATOR, IN THE EXERCISE OF  HIS  OR  HER  DISCRETION,  FROM
POSTING PAPERS OR DOCUMENTS THAT HAVE NOT BEEN SEALED PURSUANT TO LAW ON
A  PUBLIC  WEBSITE MAINTAINED BY THE UNIFIED COURT SYSTEM WHERE: (I) THE
WEBSITE IS NOT THE WEBSITE ESTABLISHED BY THE RULES PROMULGATED PURSUANT
TO SUBDIVISION (A) OF THIS SECTION, AND (II) TO DO SO WOULD  BE  IN  THE
PUBLIC INTEREST.
  S  6-B.  (A)  NOTWITHSTANDING  ANY  OTHER  PROVISION OF LAW, THE CHIEF
ADMINISTRATOR OF THE COURTS, WITH THE  APPROVAL  OF  THE  ADMINISTRATIVE
BOARD  OF  THE COURTS, MAY PROMULGATE RULES AUTHORIZING A PROGRAM IN THE
USE OF ELECTRONIC MEANS IN THE FAMILY COURT FOR: (1) THE ORIGINATION  OF
PROCEEDINGS  IN  SUCH COURT, AND (2) THE FILING AND SERVICE OF PAPERS IN
PENDING PROCEEDINGS.
  (B) (1) EXCEPT AS OTHERWISE  PROVIDED  IN  THIS  SUBDIVISION,  PARTIC-
IPATION  IN THIS PROGRAM SHALL BE STRICTLY VOLUNTARY AND WILL TAKE PLACE
ONLY UPON CONSENT OF ALL  PARTIES  IN  THE  PROCEEDING;  EXCEPT  THAT  A
PARTY'S  FAILURE  TO  CONSENT  TO  PARTICIPATION SHALL NOT BAR ANY OTHER
PARTY FROM FILING AND SERVING PAPERS BY ELECTRONIC MEANS UPON THE  COURT
OR  ANY  OTHER  PARTY  TO  SUCH  PROCEEDING WHO HAS CONSENTED TO PARTIC-
IPATION.  FILING A PETITION WITH THE COURT BY ELECTRONIC MEANS  FOR  THE
PURPOSE OF ORIGINATING A PROCEEDING SHALL NOT REQUIRE THE CONSENT OF ANY
OTHER PARTY.
  (2)  IN  THE  RULES  PROMULGATED  PURSUANT  TO SUBDIVISION (A) OF THIS
SECTION, THE  CHIEF  ADMINISTRATOR  MAY  ELIMINATE  THE  REQUIREMENT  OF
CONSENT  TO  PARTICIPATION  IN THIS PROGRAM IN FAMILY COURTS OF NOT MORE
THAN SIX COUNTIES FOR:
  (I) THE FILING WITH THE COURT OF A  PETITION  ORIGINATING  A  JUVENILE
DELINQUENCY  PROCEEDING  UNDER  ARTICLE  3  OF THE FAMILY COURT ACT BY A
PRESENTMENT AGENCY AS DEFINED IN SECTION 301.2 OF SUCH ACT;
  (II) THE FILING WITH THE COURT OF A PETITION ORIGINATING A  PROCEEDING
TO DETERMINE ABUSE OR NEGLECT PURSUANT TO ARTICLE 10 OF THE FAMILY COURT

S. 7592                             4

ACT  BY  A  CHILD  PROTECTIVE AGENCY, AS DEFINED IN SECTION 1012 OF SUCH
ACT; AND
  (III)  THE  FILING  AND  SERVICE OF PAPERS IN PROCEEDINGS SPECIFIED IN
SUBPARAGRAPHS (I) AND (II) OF THIS PARAGRAPH  WHERE,  PURSUANT  TO  SUCH
SUBPARAGRAPHS,  SUCH  PROCEEDINGS  WERE ORIGINATED IN THE COURT BY ELEC-
TRONIC FILING.
  NOTWITHSTANDING THE FOREGOING, THE CHIEF ADMINISTRATOR MAY NOT  ELIMI-
NATE  THE REQUIREMENT OF CONSENT TO PARTICIPATION WITHOUT THE CONSENT OF
EACH AUTHORIZED PRESENTMENT AGENCY AND CHILD  PROTECTIVE  AGENCY  OF  AN
AFFECTED COUNTY.
  (C)  WHERE  THE  CHIEF  ADMINISTRATOR  ELIMINATES  THE  REQUIREMENT OF
CONSENT AS PROVIDED IN PARAGRAPH 2 OF SUBDIVISION (B) OF  THIS  SECTION,
HE  OR  SHE  SHALL  AFFORD  COUNSEL  THE  OPPORTUNITY  TO OPT OUT OF THE
PROGRAM, VIA PRESENTATION OF A PRESCRIBED FORM  TO  BE  FILED  WITH  THE
CLERK  OF  THE  COURT  WHERE THE PROCEEDING IS PENDING. SAID FORM, WHICH
SHALL NOT BE PART OF THE CASE RECORD, SHALL PERMIT AN  ATTORNEY  TO  OPT
OUT  OF  PARTICIPATION IN THE PROGRAM UNDER ANY OF THE FOLLOWING CIRCUM-
STANCES, IN WHICH EVENT, HE OR SHE WILL NOT BE COMPELLED TO PARTICIPATE:
  (1) WHERE THE ATTORNEY CERTIFIES IN GOOD FAITH THAT HE  OR  SHE  LACKS
THE  COMPUTER  HARDWARE AND/OR CONNECTION TO THE INTERNET AND/OR SCANNER
OR OTHER DEVICE BY WHICH DOCUMENTS MAY BE  CONVERTED  TO  AN  ELECTRONIC
FORMAT; OR
  (2)  WHERE  THE  ATTORNEY CERTIFIES IN GOOD FAITH THAT HE OR SHE LACKS
THE REQUISITE KNOWLEDGE IN THE OPERATION OF SUCH COMPUTERS AND/OR  SCAN-
NERS  NECESSARY  TO PARTICIPATE. FOR THE PURPOSES OF THIS PARAGRAPH, THE
KNOWLEDGE OF ANY EMPLOYEE OF AN ATTORNEY, OR ANY EMPLOYEE OF THE  ATTOR-
NEY'S  LAW  FIRM,  OFFICE  OR BUSINESS WHO IS SUBJECT TO SUCH ATTORNEY'S
DIRECTION, SHALL BE IMPUTED TO THE ATTORNEY.
  NOTWITHSTANDING THE FOREGOING: (I) WHERE A PARTY IS NOT REPRESENTED BY
COUNSEL, HE OR SHE MAY  NOT  PARTICIPATE  IN  THE  PROGRAM  EXCEPT  UPON
PERMISSION  OF  THE COURT; AND (II) A COURT MAY EXEMPT ANY ATTORNEY FROM
BEING REQUIRED TO PARTICIPATE IN THE PROGRAM UPON APPLICATION  FOR  SUCH
EXEMPTION, SHOWING GOOD CAUSE THEREFOR.
  (D)  FOR  PURPOSES  OF  THIS  SECTION,  "ELECTRONIC MEANS" SHALL BE AS
DEFINED IN SUBDIVISION (F) OF RULE 2103 OF THE CIVIL  PRACTICE  LAW  AND
RULES.
  (E)  NOTWITHSTANDING  ANY PROVISION OF THIS SECTION, NO PAPER OR DOCU-
MENT THAT IS FILED BY ELECTRONIC MEANS IN A PROCEEDING IN  FAMILY  COURT
SHALL BE AVAILABLE FOR PUBLIC INSPECTION ON-LINE.
  S  3.  Subparagraphs  1  and  2 of paragraph (B) of subdivision (b) of
section 6 of chapter 367 of the laws of 1999, amending the  civil  prac-
tice  law  and  rules and the judiciary law relating to authorization of
pilot programs permitting use of facsimile  transmission  or  electronic
means to commence an action or special proceeding, are REPEALED, subpar-
agraphs  3,  4 and 5 of such paragraph (B) are renumbered to be subpara-
graphs 1, 2 and 3 and subparagraph 1, as amended by chapter 543  of  the
laws  of  2011  and as renumbered by this section, is amended to read as
follows:
  1. One or more classes of  cases  (excluding  matrimonial  actions  as
defined  by  the civil practice law and rules, election law proceedings,
proceedings brought pursuant to article 78 of the civil practice law and
rules, and proceedings brought pursuant to the mental  hygiene  law)  in
supreme court in ERIE, Livingston, Monroe, Rockland, Tompkins, Allegany,
Essex,  Onondaga,  SUFFOLK  and Westchester counties AND IN THE COUNTIES
WITHIN THE CITY OF NEW YORK, and

S. 7592                             5

  S 4. Subdivisions (c) and (d) of section 6 of chapter 416 of the  laws
of  2009,  amending the civil practice law and rules relating to service
of papers by electronic means, as added by chapter 543 of  the  laws  of
2011, are amended to read as follows:
  (c)(1) The [chief administrator shall create an] advisory committee to
consult with [him or her] THE CHIEF ADMINISTRATOR regarding the develop-
ment  of  a  program  relating  to  the  use of electronic means for the
commencement of criminal actions and the filing and service of papers in
pending criminal actions and proceedings  IS  CONTINUED.  The  committee
shall  consist of such number of members as will enable the chief admin-
istrator to obtain input from those who ARE OR would be affected by such
electronic filing program, and such members shall include county clerks;
chief clerks of supreme, county and other  courts;  district  attorneys;
not-for-profit  legal service providers; public defenders; statewide and
local specialty bar associations whose membership devotes a  significant
portion of their practice to assigned criminal cases pursuant to subpar-
agraph (i) of paragraph (a) of subdivision 3 of section 722 of the coun-
ty  law;  institutional providers of criminal defense services and other
members of the criminal defense bar; representatives of victims'  rights
organizations;   unaffiliated   attorneys   who   regularly   appear  in
proceedings that ARE OR would be  affected  by  such  electronic  filing
program  and other interested members of the criminal justice community.
Such committee shall help the chief administrator to evaluate the impact
of such electronic filing program on litigants  including  unrepresented
parties, practitioners and the courts and to obtain input from those who
ARE  OR  would  be affected by such electronic filing program, including
district  attorneys,  not-for-profit  legal  service  providers,  public
defenders,  statewide and local specialty bar associations whose member-
ship devotes a significant portion of their practice to assigned  crimi-
nal cases pursuant to subparagraph (i) of paragraph (a) of subdivision 3
of  section  722  of the county law, institutional providers of criminal
defense services and other members of the criminal defense  bar,  repre-
sentatives  of victims' rights organizations, unaffiliated attorneys who
regularly appear in proceedings that ARE OR would be  affected  by  such
electronic  filing  program and other interested members of the criminal
justice community.
  (2) No later than January 1, [2012] 2015, the chief  administrator  of
the  courts  shall submit to the legislature, the governor and the chief
judge of the state a report of the evaluation including the entities  or
individuals  consulted,  the  input received, any recommendations of the
advisory committee to the chief administrator,  along  with  recommenda-
tions  for  legislation [authorizing the development of a program relat-
ing] IN RELATION to the use of electronic means for the commencement  of
criminal  actions and the filing and service of papers in pending crimi-
nal actions and proceedings.  THIS REPORT SHALL DEVOTE SPECIAL ATTENTION
TO THE QUESTION WHETHER SUCH USE OF ELECTRONIC MEANS SHALL BE AUTHORIZED
IN THE LOCAL CRIMINAL COURTS OF THE STATE.  IN  THE  REPORT,  THE  CHIEF
ADMINISTRATOR  ALSO SHALL ADDRESS ISSUES THAT BEAR UPON THE NEED FOR THE
COURTS, DISTRICT ATTORNEYS AND OTHERS TO RETAIN PAPERS FILED WITH COURTS
OR SERVED UPON PARTIES IN CRIMINAL PROCEEDINGS  WHERE  ELECTRONIC  MEANS
CAN  OR HAVE BEEN USED AND MAKE RECOMMENDATIONS FOR SUCH CHANGES IN LAWS
REQUIRING RETENTION OF SUCH PAPERS AS TO  THE  CHIEF  ADMINISTRATOR  MAY
SEEM APPROPRIATE.
  (d)  (1)  The [chief administrator shall create an] advisory committee
to consult with [him or  her]  THE  CHIEF  ADMINISTRATOR  regarding  the
development of a program relating to the use of electronic means for the

S. 7592                             6

origination  of  juvenile delinquency proceedings under article 3 of the
family court act and abuse or neglect proceedings pursuant to article 10
of the family court act in family court and the filing  and  service  of
papers  in  such  pending proceedings IS CONTINUED.  The committee shall
consist of such number of members as will enable the chief administrator
to obtain input from those who ARE OR would be affected  by  such  elec-
tronic  filing  [programs] PROGRAM, and such members shall include chief
clerks of family courts; representatives of authorized  presentment  and
child  protective agencies; other appropriate county and city government
officials; institutional providers of legal services for children and/or
parents;  not-for-profit  legal  service  providers;  public  defenders;
attorneys assigned pursuant to article 18-B of the county law; and other
members  of  the  family  court  bar; representatives of victims' rights
organizations;  unaffiliated   attorneys   who   regularly   appear   in
proceedings  that  ARE  OR  would  be affected by such electronic filing
program; and other interested members of the family practice  community.
Such committee shall help the chief administrator to evaluate the impact
of  such  electronic filing program on litigants including unrepresented
parties, practitioners and the courts and to obtain input from those who
ARE OR would be affected by such electronic  filing  program,  including
representatives of authorized presentment and child protective agencies,
other  appropriate  county  and city government officials, institutional
providers of legal services for children and/or parents,  not-for-profit
legal  service  providers, public defenders, attorneys assigned pursuant
to article 18-B of the county law and other members of the family  court
bar,  representatives  of  victims'  rights  organizations, unaffiliated
attorneys who regularly appear in  proceedings  that  ARE  OR  would  be
affected by such electronic filing program, and other interested members
of the criminal justice community.
  (2)  No  later than January 1, [2012] 2015, the chief administrator of
the courts shall submit to the legislature, the governor and  the  chief
judge  of the state a report of the evaluation including the entities or
individuals consulted, input received, any recommendations of the  advi-
sory  committee  to  the chief administrator, along with recommendations
for legislation [authorizing the development of a program  relating]  IN
RELATION  to the use of electronic means for the origination of juvenile
delinquency proceedings under article 3 of  the  family  court  act  and
abuse  or neglect proceedings pursuant to article 10 of the family court
act in family court and the filing and service of papers in such pending
proceedings.
  S 5. This act shall take effect immediately; provided,  however,  that
sections  6-a  and  6-b  of chapter 367 of the laws of 1999, as added by
section two of this act, shall expire and be deemed  repealed  September
1,  2015; and provided further that the amendments made to paragraph (B)
of subdivision (b) of section 6 of chapter 367 of the laws of 1999  made
by  section three of this act shall not affect the expiration and repeal
of such provisions and shall be deemed to be repealed therewith.

S7592A (ACTIVE) - Bill Details

See Assembly Version of this Bill:
A10706
Law Section:
Judiciary
Laws Affected:
Add §§6-a, 6-b & 6-c, amd §6, rpld sub (b) ¶ (B) sub ¶¶ 1 & 2, Chap 367 of 1999; amd §6, Chap 416 of 2009

S7592A (ACTIVE) - Bill Texts

view summary

Authorizes pilot program permitting use of electronic means for commencing actions in certain criminal and family court proceedings.

view sponsor memo
BILL NUMBER:S7592A REVISED 06/19/12

TITLE OF BILL:
An act
to amend chapter 367 of the laws of 1999, amending the civil practice
law and rules and the judiciary law relating to authorization of pilot
programs permitting use of facsimile transmission or electronic means to
commence an action or special proceeding, in relation to authorization
of pilot programs permitting use of electronic means in certain courts;
and to amend chapter 416 of the laws of 2009, amending the civil
practice law and rules relating to service of papers by electronic means,
in relation to development of a program relating to the use of electronic
means for the commencement of certain actions; and providing for the
repeal of certain provisions of chapter 367 of the laws of 1999 upon
expiration thereof

This measure is being introduced at the request of the Chief Judge of
the State and the Chief Administrative Judge.

In its 2011 session, the Legislature directed that the Chief
Administrative Judge establish two committees to consider whether the
State's program for the electronic filing of papers with the courts
and between litigating parties ("e-filing") should be extended into
criminal courts and the Family Court, respectively. See L. 2011, c.
543. The Chief Administrative Judge thereafter established these
committees, which, in accordance with the statutory direction, were
comprised ofrepresentatives of bench, bar and others who would be
affected by such extensions, including prosecutors, criminal defense
practitioners, local government agencies, County Clerks and specialty
bar associations across the State. Id.,§5. In the reports recently
filed by these
committees(1), it is recommended that the Legislature slowly begin to
phase-in e-filing in select criminal and Family Court cases in a
small number of venues. This measure would give effect to these
recommendations, which include:

> Establishment by the Chief Administrative Judge, with the approval
of the Administrative Board of the Courts, of a consensual e-filing
program in criminal parts in Supreme Court and County Court for (i)
the filing of accusatory instruments in those courts, and (ii) the
filing and service of papers in criminal actions and proceedings
therein. Also, authorization to convert participation in this
e-filing progranl from consensual to mandatory in up to six counties
(with implementation in any of these counties to be conditioned upon
prior approval of the local District Attorney, each criminal defense
office providing representation to 25% or more of the persons
represented by public defense providers in an affected county
(through the head of a legal aid society, public defender's office or
local bar association, as appropriate) and the local County Clerk).

> Establishment by the Chief Administrative Judge, with the approval
of the Administrative Board of the Courts, of a consensual e- filing
program in Family Court for (i) the origination of proceedings in
such Court, and (ii) the filing and service of papers in pending
proceedings therein. Also, authorization to convert participation in
this e-filing program from consensual to mandatory in up to six


counties for purposes of the filing of article 3 (juvenile
delinquency) petitions with Family Court by a presentment agency, the
filing of article 10 (abuse/neglect) petitions with such Court by a
child protective agency, and the exchange of papers in these
proceedings (with implementation in any of these counties to be
conditioned upon prior approval of the local authorized presentment
agency, the local child protective agency and the local Family Court
Bar (represented by the head of each legal services organization
representing parents and/or children, the head of each public
defender organization and the president of the local bar, as
appropriate).

This measure also would make two minor adjustments to the existing
e-filing program in Supreme Court civil palts: (1) adding Erie and
Suffolk Counties to the current list of eight counties outside New
York City in which the Chief Administrative Judge may authorize a
program of mandatory e-filing in Supreme Court civil parts; and (2)
eliminating certain restrictions on use of e-filing in Supreme Coult
civil proceedings in New York City (so that mandatory e-filing may be
extended there on the same terms as it now may be extended in the
authorized counties outside the City).

I. Overview

New York's experiment with e-filing began in civil parts of Supreme
Court in 1999 in a very limited pilot"(2). Over the ensuing years, as
judges, attorneys, litigants and others having roles in the civil
justice system have developed experience and comfort with e-filing,
as the technology needed to e-file has improved markedly (and grown
exponentially in its availability), and as efiling has become routine
practice in the Federal Court system, the State has gradually
expanded its e-filing pilot. This expansion has always been very slow
and deliberate: from a modest begimling where e-filing was sanctioned
in only a few classes of cases in Supreme Court in a small number of
venues, and only where the affected parties consented to its use, new
classes of actions and venues in which e-filing may be used have
gradually been added, and the e-filing program has expanded into
Surrogate's Court, the Court of Claims and the New York City Civil
Court. Also, the Chief Administrative Judge has been permitted to
make use of e-filing mandatory in some actions in some venues. As of
this time, in the spring of 2012, consensual e-filing may be authorized
by court rule in all categories of cases in Supreme Court (it has, in
fact, been authorized in 15 counties,
primarily for commercial, tort and tax certiorari cases);
in 11 counties in Surrogate's Court; in the 12 county Albany District
of the Court of Claims; and in one case type in the New York City
Civil Court. At the smne time, mandatory e-filing may be established
in Supreme Court in eight counties and in New York City, in a broad
array of cases.

This expansion has clearly demonstrated that use of e-filing in the
courts can have substantial benefits - including lower litigation
costs and reduced access-to-justice barriers especially for solo
practitioners, small firms and rural practice. These benefits have
been welldocumented in periodic reports filed by the Judiciary with
the Legislature over the past decade.
As now acknowledged by the advisory committees established this year


by the Chief Administrative Judge, these and other benefits promised
by e-filing can likewise be found where e-filing is extended to
practice in criminal courts and the Family Court, and, accordingly,
these committees have urged that the Legislature act promptly to
institute pilot e-filing programs in those courts.

In making their recommendations, our advisory committees have
recognized that, just as it was wise to proceed cautiously in rolling
out e-filing in the State's civil courts, it makes the greatest sense
to do the same with an e-filing rollout in criminal courts and the
Family Court.
However attractive the benefits e-filing may promise, there are
simply too many important rights at stake in proceedings in these
courts to start an aggressive e-filing program in them right away.
For this reason, our advisory committees have proposed that, with very
limited exception, the Legislature begin with strictly voluntary
e-filing for Fanlily Court and criminal courts, with consent of the
parties required in each case. Moreover, in the instance of criminal
court, the criminal advisory committee proposes that e-filing be
authorized only for commencement of
proceedings in superior courts(3), and the exchange of papers between
parties and between parties and the court in such courts. In this
regard, the advisory committee believes that superior courts
generally are ready, technically and administratively, for this step,
but that local criminal coulis are not yet prepared and cannot become
prepared in a cost-effective manner at this time.

Also in keeping with the historical emphasis upon caution in rolling
out e-filing, the advisory committees recommend that an e-filing
rollout in Family Court and in the criminal courts limit the breadth
of its reach. Thus, while the Family Court advisory committee
recommends that e-filing in Family Court be authorized generally, it
urges that its use be consensual in most venues. In no more than six
pilot counties should the Chief Administrative Judge enjoy authority
to eliminate the consent requirement(4). Where he or she would act on
this authority, it must be with the advance approval of appropriate
justice stakeholders in the affected counties (i.e., local
presentment and child protective agencies, and the local Family Court
Bar) and following consultation with a broad spectrum of other
interested parties, including the Family Court advisory committee.
Further, he or she may only so authorize mandatory e-filing in
connection with origination of Family Court Act article three and
article ten proceedings and subsequent exchange of papers in those
proceedings. Likewise on the criminal side, the criminal advisory
committee has recommended that e-filing now be limited to the
superior courts; and while, as with the Family Court advisory
committee, the criminal court advisory committee believes that a
broad consensual progran1 in those courts may be in order, it
similarly recommends that the consent requirement in criminal court
be eliminated in no more than six pilot counties and then only where
the local District Attorney, the local criminal defense bar and the
County Clerk give advance permission, and only after consultation
with a broad spectrum of other interested parties, including the
Criminal advisory committee. Moreover, both advisory committees
recommend that, where mandatory e-filing is sanctioned in Family
Court and superior criminal courts, all the protections now afforded
to pro se litigants and counsel who, for want of computer equipment


or skill with that equipment, are unable to proceed by e-filing civil
cases in Supreme Court should obtain (except that pro se litigants
should not proceed by e-filing without court permission, whereas, at
present, in Supreme Court civil matters subject to mandatory
e-filing, such litigants must e-file unless they affirmatively opt
out). Finally, the committees recommend that the e-filing programs
promoted by this measure be subject to a three-year sunset, i.e., by
September 1, 2015.

Paramount, in the view of the advisory committees, is recognition that
Family Court and criminal court proceedings require special layers of
protection against inappropriate disclosure.
Unlike most civil cases, papers and records in Family Court cases are
categorically protected against routine disclosure (see Family Court
Act § 166), and papers filed in both pending and
completed criminal cases can cany particular sensitivity - whether or
not formally sealed by the court. Accordingly, the advisory
committees recommend that, where e-filing is expanded into Family
Court and criminal court, there be no right of public access on-line
to Family Court or criminal court papers that are e-filed.

Finally, the advisory committees recommend that they continue to
function and that, as it did with the gradual phase-in of civil
e-filing, the Legislature require a three-year report to tlle
Legislature on progress achieved in Family Court and criminal court
e-filing and the sunset of its authorization after three years. The
advisory committees recognize that introduction of e-filing in
different courts and case types requires particular care and a period
of study so that parties, counsel, stakeholders and the political
branches can ensure the protection of rights and the efficient
implementation of this next step in the modernization of the New York
State Judiciary.

II. Section-by-Section Summary

Section 1 would amend chapter 367 of the Laws of 1999, the original
e-filing statute, hy adding new sections 6-a (to govern snperior
criminal court e-filing), 6-b (to govern Family Court e-filing) and
6-c (containing general provisions). Section 6-a would: (a) authorize
the e-filing of superior court accusatory instruments that commence
criminal acti~ns, and of the papers and docnments exchanged in those
actions; (b) direct that such program be strictly voluntary upon
consent of all parties, except where the Chief Administrative Judge
eliminates the requirement of consent (which he or she may do in up
to six counties so long as he or she secures prior consent of the
local District Attorney, criminal defense bar and County Clerk and
consults extensively with other interested members of the community
along with the Criminal advisory committee);
(c) provide that where e-filing is thereby made mandatory, parties
will enjoy the same rightto opt out of Participation in e-filing for
want of technical resoUl·ces or acumen as they would enjoy in a
mandatorily e-filed civil case in Supreme Court and pro se litigants
will automatically be excluded from such participation unless the
court permits otherwise; (d) define e-filing by the same terms as
CPLR 2103(f) provides for civil cases; (e) protect the
confidentiality of e-filed docnments, expressly applying all laws
governing the sealing and COnfidentiality of court records in


criminal proceedings, and expressly providing that no e-filed paper
or document in a criminal proceeding can be available for online
public inspection. Section 6-b would: (a) authorize the efiling of
Family Court proceedings; (b) direct that such program be strictly
voluntary upon consent of all parties, except where the Chief
Administrative Judge eliminates the requirement of consent (which he
or she may do in up to six counties and only for Family Court Act
article 3 (juvenile delinquency) and article 10 (abuse and neglect)
proceedings so long as he or she secures prior consent of the local
presentment and child protective agencies and the local Family COU
lt Bar and consults extensively with other interested members of the
conmmnity along with the Family Court advisory committee); (c)
provide that where e-filing is thereby made mandatory, parties will
enjoy the same right to opt out of participation in e- filing for
want of technical resources or knowledge of computer operation as
they would enjoy in a mandatorily e-filed civil case in Supreme Court
and pro se litigants will automatically be excluded from such
participation unless the court permits otherwise; (d) define e-filing
by the same terms as CPLR 2103(f) provides for civil cases; (e)
protect the confidentiality of e-filed documents, expressly
applying all laws governing the sealing and confidentiality of court
records in Family Court proceedings, and expressly providing that no
e-filed paper or document in a Family Court proceeding can be
available for online public inspection. Section 6-c would define the
"criminal defense bar" for purposes of establishing the proper body
to give consent to e-fiIing in criminal cases in the superior court
of a county. Also it would ban the imposition of a fee for access to
efiled documents and papers; and require the courts to install
sufficient computer kiosks in courthouses to permit parties and their
counsel to have access to filed documents and papers.

Section 2 would make a technical amendment to chapter 416 of the Laws
of 2009, as amended, to bring New York City's existing palticipation
in the civil e-filing system under the same list of included and
excluded categories of cases applicable to other counties subject to
mandatory e-filing under CUlTent law (i.e. Livingston, Monroe,
Rockland, Tompkins, Allegany, Essex, Onondaga and Westchester). This
section also would add Erie and Suffolk Counties to that list of
enumerated jUl"isdictions.

Section 3 would make a teclmical amendment to chapter 416 of the Laws
of 2009, as amended, to continue the two e-filing advisory committees
established for criminal courts and Family Court, respectively, and
to require that the Chief Administrative Judge submit a repolt on
e-filing in criminal courts and Family Court to the Legislature,
Governor and Chief Judge not later than January 1,2015.(5)

Section 4 would malce this act effective immediately, except that
sections 6-a, 6-b and 6-c as added by section 2 of this act, would
expire on September 1, 2015.(6)

This measure, which would have no fiscal impact on the State, would
continue the State's progress toward more streamlined and
cost-effective court operations, which is especially vital to the
effective operation of the justice system given continued resource
restraints at al1levels of government. It would do this while
continuing the strict protection of litigant rights, confidentiality


and community support that have been hallmarks of the Judiciary's
gradual phasein of civil e-filing. Perhaps most importantly, by
speeding judicial intervention in time-critical Family Court
proceedings, this measure could help protect the most vulnerable and
literally save lives.

2012 LEGISLATIVE HISTORY:

Senate 7592-A (Saland) (Rules)
Assembly 10706 (Rules-Weinstein) (Codes)

FOOTNOTES:

(1) Copies of these reports may be viewed on-line at the Unified Court
System's website: http://www.nycourts.gov (Under "Publications").

(2) See L. 1999, c. 367 (authorizing consensual e-filing programs in
commercial and tax certiorari cases in Supreme Court in Monroe,
Westchester, New York and Suffolk Counties, and in the Court of
Claims).

(3) The superior courts are the Supreme Court and the County Court.
Under this measure, e-filing would not be permitted in criminal
proceedings in the local criminal courts of the State (i.e., the
NYC Criminal Court, the District Courts, the City Courts and the Town
and Village Justice Courts).

(4) Early experience with e-filing in New York, when bench and bar
were generally unfamiliar with it, demonstrated that, where it is
voluntary, relatively few practitioners choose to make use of it.
Only where e-filing has been made mandatory have enough people made
use of it -- thereby exposing them to its benefits and encouraging
their future reliance upon it, as well as giving the State a fair sense
of its pros and cons.

(5) Concerning on-line public inspection of papers and documents in
criminal cases, the measure carves a small exception. It permits the
Chief Administrative Judge to post such papers and documents on the
court system's general website (which is different from the NYSCEF
website used bye-filers) where doing so would serve a public
interest. This is to enable the Chief Administrative Judge to
continue an existing practice wherein, in recognition of a high level
of public interest, certain unsealed papers and documents in a few
celebrated cases are posted on-line for the convenience of the public
and the media.

(6) This is the same date as is now fixed for the expiration of
authorization for the ongoing program of mandatory efiling in civil
parts of Supreme Court.

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                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 7592--A

                            I N  S E N A T E

                              June 5, 2012
                               ___________

Introduced by Sen. SALAND -- (at request of the Office of Court Adminis-
  tration)  --  read  twice  and ordered printed, and when printed to be
  committed to the Committee on  Rules  --  committee  discharged,  bill
  amended,  ordered reprinted as amended and recommitted to said commit-
  tee

AN ACT to amend chapter 367 of the laws  of  1999,  amending  the  civil
  practice law and rules and the judiciary law relating to authorization
  of  pilot  programs  permitting use of facsimile transmission or elec-
  tronic means to commence an action or special proceeding, in  relation
  to  authorization of pilot programs permitting use of electronic means
  in certain courts; and to amend chapter  416  of  the  laws  of  2009,
  amending  the  civil  practice  law  and  rules relating to service of
  papers by electronic means, in relation to development  of  a  program
  relating  to  the  use  of  electronic  means  for the commencement of
  certain actions; and providing for the repeal of certain provisions of
  chapter 367 of the laws of 1999 upon expiration thereof

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Chapter 367 of the laws of 1999, amending the civil prac-
tice law and rules and the judiciary law relating  to  authorization  of
pilot  programs  permitting  use of facsimile transmission or electronic
means to commence an action or special proceeding, is amended by  adding
three new sections 6-a, 6-b and 6-c to read as follows:
  S  6-A.  (A)  NOTWITHSTANDING  ANY  OTHER  PROVISION OF LAW, THE CHIEF
ADMINISTRATOR OF THE COURTS, WITH THE  APPROVAL  OF  THE  ADMINISTRATIVE
BOARD  OF  THE COURTS, MAY PROMULGATE RULES AUTHORIZING A PROGRAM IN THE
USE OF ELECTRONIC MEANS IN THE SUPREME COURT AND  IN  THE  COUNTY  COURT
FOR:  (1)  THE  FILING  WITH A COURT OF AN ACCUSATORY INSTRUMENT FOR THE
PURPOSE OF ACQUIRING JURISDICTION IN A SUPERIOR COURT,  AS  PROVIDED  BY
ARTICLES  195  AND 200 OF THE CRIMINAL PROCEDURE LAW, AND (2) THE FILING
AND SERVICE OF PAPERS IN PENDING CRIMINAL ACTIONS AND PROCEEDINGS.
  (B) (1) EXCEPT AS OTHERWISE  PROVIDED  IN  THIS  SUBDIVISION,  PARTIC-
IPATION  IN THIS PROGRAM SHALL BE STRICTLY VOLUNTARY AND WILL TAKE PLACE
ONLY UPON CONSENT OF ALL PARTIES IN THE CRIMINAL ACTION  OR  PROCEEDING;

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD15304-08-2

S. 7592--A                          2

EXCEPT  THAT A PARTY'S FAILURE TO CONSENT TO PARTICIPATION SHALL NOT BAR
ANY OTHER PARTY TO THE ACTION FROM FILING AND SERVING  PAPERS  BY  ELEC-
TRONIC  MEANS  UPON  THE  COURT  OR  ANY  OTHER  PARTY TO SUCH ACTION OR
PROCEEDING  WHO  HAS  CONSENTED  TO  PARTICIPATION. FILING AN ACCUSATORY
INSTRUMENT BY ELECTRONIC MEANS WITH THE COURT FOR THE PURPOSE OF CONFER-
RING JURISDICTION OVER A CRIMINAL  ACTION  UPON  SUCH  COURT  SHALL  NOT
REQUIRE  THE  CONSENT  OF  ANY OTHER PARTY; PROVIDED, HOWEVER, THAT UPON
SUCH FILING ANY PERSON WHO IS THE SUBJECT OF SUCH ACCUSATORY  INSTRUMENT
AND  ANY  ATTORNEY  FOR  SUCH  PERSON  SHALL BE PERMITTED TO IMMEDIATELY
REVIEW AND OBTAIN COPIES OF SUCH INSTRUMENT IF SUCH PERSON  OR  ATTORNEY
WOULD  HAVE  BEEN AUTHORIZED BY LAW TO REVIEW OR COPY SUCH INSTRUMENT IF
IT HAD BEEN FILED WITH THE COURT IN PAPER FORM.
  (2) THE CHIEF ADMINISTRATOR MAY ELIMINATE THE REQUIREMENT  OF  CONSENT
TO  PARTICIPATION  IN  THIS  PROGRAM IN SUPREME AND COUNTY COURTS OF NOT
MORE THAN SIX COUNTIES  PROVIDED  HE  OR  SHE  MAY  NOT  ELIMINATE  SUCH
REQUIREMENT  FOR  A  COURT WITHOUT THE CONSENT OF THE DISTRICT ATTORNEY,
THE CONSENT OF THE CRIMINAL DEFENSE BAR AS DEFINED IN SECTION  SIX-C  OF
THIS ACT AND THE CONSENT OF THE COUNTY CLERK OF THE COUNTY IN WHICH SUCH
COURT  PRESIDES.  NOTWITHSTANDING THE FOREGOING, THE CHIEF ADMINISTRATOR
MAY NOT ELIMINATE THE REQUIREMENT OF CONSENT TO PARTICIPATION IN A COUN-
TY HEREUNDER UNTIL HE OR SHE SHALL HAVE PROVIDED ALL PERSONS  OR  ORGAN-
IZATIONS,  OR  THEIR  REPRESENTATIVE  OR  REPRESENTATIVES, WHO REGULARLY
APPEAR IN CRIMINAL ACTIONS OR PROCEEDINGS IN THE SUPERIOR COURT OF  SUCH
COUNTY WITH REASONABLE NOTICE AND AN OPPORTUNITY TO SUBMIT COMMENTS WITH
RESPECT  THERETO  AND  SHALL  HAVE  GIVEN  DUE CONSIDERATION TO ALL SUCH
COMMENTS, NOR UNTIL HE OR SHE SHALL HAVE CONSULTED WITH THE  MEMBERS  OF
THE  ADVISORY COMMITTEE CONTINUED PURSUANT TO SUBDIVISION (C) OF SECTION
6 OF CHAPTER 416 OF THE LAWS OF 2009, AS AMENDED.
  (C) WHERE  THE  CHIEF  ADMINISTRATOR  ELIMINATES  THE  REQUIREMENT  OF
CONSENT AS PROVIDED IN PARAGRAPH TWO OF SUBDIVISION (B) OF THIS SECTION,
HE  OR  SHE  SHALL  AFFORD  COUNSEL  THE  OPPORTUNITY  TO OPT OUT OF THE
PROGRAM, VIA PRESENTATION OF A PRESCRIBED FORM  TO  BE  FILED  WITH  THE
COURT  WHERE  THE CRIMINAL ACTION IS PENDING. SAID FORM, WHICH SHALL NOT
BE PART OF THE CASE RECORD, SHALL PERMIT  AN  ATTORNEY  TO  OPT  OUT  OF
PARTICIPATION  IN  THE PROGRAM UNDER ANY OF THE FOLLOWING CIRCUMSTANCES,
IN WHICH EVENT, HE OR SHE WILL NOT BE COMPELLED TO PARTICIPATE:
  (1) WHERE THE ATTORNEY CERTIFIES IN GOOD FAITH THAT HE  OR  SHE  LACKS
APPROPRIATE  COMPUTER  HARDWARE AND/OR CONNECTION TO THE INTERNET AND/OR
SCANNER OR OTHER DEVICE BY WHICH DOCUMENTS MAY BE CONVERTED TO AN  ELEC-
TRONIC FORMAT; OR
  (2)  WHERE  THE  ATTORNEY CERTIFIES IN GOOD FAITH THAT HE OR SHE LACKS
THE REQUISITE KNOWLEDGE IN THE OPERATION OF SUCH COMPUTERS AND/OR  SCAN-
NERS  NECESSARY TO PARTICIPATE.  FOR THE PURPOSES OF THIS PARAGRAPH, THE
KNOWLEDGE OF ANY EMPLOYEE OF AN ATTORNEY, OR ANY EMPLOYEE OF THE  ATTOR-
NEY'S  LAW  FIRM,  OFFICE  OR BUSINESS WHO IS SUBJECT TO SUCH ATTORNEY'S
DIRECTION, SHALL BE IMPUTED TO THE ATTORNEY.
  NOTWITHSTANDING THE FOREGOING: (I) WHERE A PARTY IS NOT REPRESENTED BY
COUNSEL, HE OR SHE MAY NOT PARTICIPATE IN THE PROGRAM EXCEPT UPON HIS OR
HER REQUEST AND PERMISSION OF THE COURT; (II) A PARTY NOT REPRESENTED BY
COUNSEL WHO HAS OPTED IN SHALL BE AFFORDED THE OPPORTUNITY TO OPT OUT OF
THE PROGRAM FOR ANY REASON VIA PRESENTATION OF A PRESCRIBED FORM  TO  BE
FILED  WITH  THE CLERK OF THE COURT WHERE THE PROCEEDING IS PENDING; AND
(III) A COURT MAY EXEMPT ANY ATTORNEY FROM BEING REQUIRED TO PARTICIPATE
IN THE PROGRAM UPON APPLICATION FOR SUCH EXEMPTION, SHOWING  GOOD  CAUSE
THEREFOR.

S. 7592--A                          3

  (D)  FOR  PURPOSES  OF  THIS  SECTION,  "ELECTRONIC MEANS" SHALL BE AS
DEFINED IN SUBDIVISION (F) OF RULE 2103 OF THE CIVIL  PRACTICE  LAW  AND
RULES.
  (E)  (1)  NOTHING  IN THIS SECTION SHALL AFFECT OR CHANGE ANY EXISTING
LAWS GOVERNING THE SEALING AND CONFIDENTIALITY OF COURT RECORDS IN CRIM-
INAL PROCEEDINGS OR ACCESS TO COURT  RECORDS  BY  THE  PARTIES  TO  SUCH
PROCEEDINGS,  NOR  SHALL  THIS SECTION BE CONSTRUED TO COMPEL A PARTY TO
FILE A SEALED DOCUMENT BY ELECTRONIC MEANS.
  (2) NOTWITHSTANDING ANY OTHER PROVISION OF THIS CHAPTER, NO  PAPER  OR
DOCUMENT  THAT  IS FILED BY ELECTRONIC MEANS IN A CRIMINAL PROCEEDING IN
SUPREME COURT OR COUNTY COURT SHALL BE AVAILABLE FOR  PUBLIC  INSPECTION
ON-LINE.  SUBJECT TO THE PROVISIONS OF EXISTING LAWS GOVERNING THE SEAL-
ING AND CONFIDENTIALITY OF COURT RECORDS, NOTHING HEREIN  SHALL  PREVENT
THE  UNIFIED COURT SYSTEM FROM SHARING STATISTICAL INFORMATION THAT DOES
NOT INCLUDE ANY PAPERS OR DOCUMENTS FILED WITH THE ACTION; AND, PROVIDED
FURTHER, THAT THIS PARAGRAPH SHALL NOT PROHIBIT THE CHIEF ADMINISTRATOR,
IN THE EXERCISE OF HIS OR HER DISCRETION, FROM POSTING PAPERS  OR  DOCU-
MENTS  THAT  HAVE  NOT  BEEN  SEALED PURSUANT TO LAW ON A PUBLIC WEBSITE
MAINTAINED BY THE UNIFIED COURT SYSTEM WHERE: (I) THE WEBSITE IS NOT THE
WEBSITE ESTABLISHED BY THE RULES PROMULGATED PURSUANT TO SUBDIVISION (A)
OF THIS SECTION, AND (II) TO DO SO WOULD BE IN THE PUBLIC INTEREST.  FOR
PURPOSES  OF  THIS  SUBDIVISION, THE CHIEF ADMINISTRATOR, IN DETERMINING
WHETHER POSTING PAPERS OR DOCUMENTS ON A PUBLIC WEBSITE IS IN THE PUBLIC
INTEREST, SHALL, AT A MINIMUM, TAKE INTO ACCOUNT FOR  EACH  POSTING  THE
FOLLOWING  FACTORS:  (I)  THE  TYPE  OF CASE INVOLVED; (II) WHETHER SUCH
POSTING WOULD CAUSE HARM TO ANY PERSON, INCLUDING ESPECIALLY A MINOR  OR
CRIME  VICTIM; (III) WHETHER SUCH POSTING WOULD INCLUDE LEWD OR SCANDAL-
OUS MATTERS; AND (IV) THE POSSIBILITY THAT SUCH PAPERS OR DOCUMENTS  MAY
ULTIMATELY BE SEALED.
  (3)  NOTHING  IN  THIS  SECTION  SHALL  AFFECT OR CHANGE EXISTING LAWS
GOVERNING SERVICE OF PROCESS, NOR SHALL THIS  SECTION  BE  CONSTRUED  TO
ABROGATE  EXISTING  PERSONAL  SERVICE  REQUIREMENTS  AS SET FORTH IN THE
CRIMINAL PROCEDURE LAW.
  S 6-B. (A) NOTWITHSTANDING ANY  OTHER  PROVISION  OF  LAW,  THE  CHIEF
ADMINISTRATOR  OF  THE  COURTS,  WITH THE APPROVAL OF THE ADMINISTRATIVE
BOARD OF THE COURTS, MAY PROMULGATE RULES AUTHORIZING A PROGRAM  IN  THE
USE  OF ELECTRONIC MEANS IN THE FAMILY COURT FOR: (1) THE ORIGINATION OF
PROCEEDINGS IN SUCH COURT, AND (2) THE FILING AND SERVICE OF  PAPERS  IN
PENDING PROCEEDINGS.
  (B)  (1)  EXCEPT  AS  OTHERWISE  PROVIDED IN THIS SUBDIVISION, PARTIC-
IPATION IN THIS PROGRAM SHALL BE STRICTLY VOLUNTARY AND WILL TAKE  PLACE
ONLY  UPON CONSENT OF ALL PARTIES IN THE PROCEEDING; EXCEPT THAT FAILURE
OF A PARTY OR OTHER PERSON WHO IS ENTITLED TO NOTICE OF THE  PROCEEDINGS
TO  CONSENT  TO  PARTICIPATION SHALL NOT BAR ANY OTHER PARTY FROM FILING
AND SERVING PAPERS BY ELECTRONIC MEANS UPON THE COURT OR ANY OTHER PARTY
OR PERSON  ENTITLED  TO  RECEIVE  NOTICE  OF  SUCH  PROCEEDING  WHO  HAS
CONSENTED  TO PARTICIPATION.   FILING A PETITION WITH THE COURT BY ELEC-
TRONIC MEANS FOR THE PURPOSE  OF  ORIGINATING  A  PROCEEDING  SHALL  NOT
REQUIRE  THE  CONSENT  OF ANY OTHER PARTY; PROVIDED, HOWEVER, THAT, UPON
SUCH FILING, A PARTY TO SUCH PROCEEDING AND ANY ATTORNEY FOR SUCH PERSON
SHALL BE PERMITTED TO IMMEDIATELY REVIEW AND OBTAIN COPIES OF SUCH DOCU-
MENTS AND PAPERS IF SUCH PERSON OR ATTORNEY WOULD HAVE  BEEN  AUTHORIZED
BY  LAW  TO REVIEW OR OBTAIN COPIES OF SUCH DOCUMENTS AND PAPERS IF THEY
HAD BEEN FILED WITH THE COURT IN PAPER FORM.
  (2) IN THE RULES PROMULGATED  PURSUANT  TO  SUBDIVISION  (A)  OF  THIS
SECTION,  THE  CHIEF  ADMINISTRATOR  MAY  ELIMINATE  THE  REQUIREMENT OF

S. 7592--A                          4

CONSENT TO PARTICIPATION IN THIS PROGRAM IN FAMILY COURTS  OF  NOT  MORE
THAN SIX COUNTIES FOR:
  (I)  THE  FILING  WITH  THE COURT OF A PETITION ORIGINATING A JUVENILE
DELINQUENCY PROCEEDING UNDER ARTICLE 3 OF THE  FAMILY  COURT  ACT  BY  A
PRESENTMENT AGENCY AS DEFINED IN SECTION 301.2 OF SUCH ACT;
  (II)  THE FILING WITH THE COURT OF A PETITION ORIGINATING A PROCEEDING
TO DETERMINE ABUSE OR NEGLECT PURSUANT TO ARTICLE 10 OF THE FAMILY COURT
ACT BY A CHILD PROTECTIVE AGENCY, AS DEFINED IN  SECTION  1012  OF  SUCH
ACT; AND
  (III)  THE  FILING  AND  SERVICE OF PAPERS IN PROCEEDINGS SPECIFIED IN
SUBPARAGRAPHS (I) AND (II) OF THIS PARAGRAPH  WHERE,  PURSUANT  TO  SUCH
SUBPARAGRAPHS,  SUCH  PROCEEDINGS  WERE ORIGINATED IN THE COURT BY ELEC-
TRONIC FILING.
  NOTWITHSTANDING THE FOREGOING, THE CHIEF ADMINISTRATOR MAY NOT  ELIMI-
NATE  THE REQUIREMENT OF CONSENT TO PARTICIPATION WITHOUT THE CONSENT OF
EACH AUTHORIZED  PRESENTMENT  AGENCY,  CHILD  PROTECTIVE  AGENCY  OF  AN
AFFECTED  COUNTY,  THE  FAMILY  COURT  BAR  PROVIDING  REPRESENTATION TO
PARENTS, AND THE FAMILY COURT BAR PROVIDING REPRESENTATION  TO  CHILDREN
(AS  REPRESENTED BY THE HEAD OF EACH LEGAL SERVICES ORGANIZATION REPRES-
ENTING PARENTS AND/OR CHILDREN, THE HEAD OF EACH PUBLIC DEFENDER  ORGAN-
IZATION,  AND  PRESIDENT  OF THE LOCAL BAR ASSOCIATION AS APPLICABLE) IN
ANY COUNTY IN WHICH SUCH ELIMINATION SHALL APPLY.
  NOTWITHSTANDING THE FOREGOING, THE CHIEF ADMINISTRATOR MAY NOT  ELIMI-
NATE  THE  REQUIREMENT OF CONSENT TO PARTICIPATION IN A COUNTY HEREUNDER
UNTIL HE OR SHE SHALL HAVE PROVIDED ALL  PERSONS  OR  ORGANIZATIONS,  OR
THEIR   REPRESENTATIVE  OR  REPRESENTATIVES,  WHO  REGULARLY  APPEAR  IN
PROCEEDINGS IN THE FAMILY COURT OF SUCH COUNTY, IN WHICH PROCEEDINGS THE
REQUIREMENT OF CONSENT IS TO BE ELIMINATED, WITH REASONABLE  NOTICE  AND
AN  OPPORTUNITY  TO  SUBMIT COMMENTS WITH RESPECT THERETO AND SHALL HAVE
GIVEN DUE CONSIDERATION TO ALL SUCH COMMENTS, NOR UNTIL HE OR SHE  SHALL
HAVE  CONSULTED  WITH  THE  MEMBERS  OF THE ADVISORY COMMITTEE CONTINUED
PURSUANT TO SUBDIVISION (D) OF SECTION 6 OF CHAPTER 416 OF THE  LAWS  OF
2009, AS AMENDED.
  (C)  WHERE  THE  CHIEF  ADMINISTRATOR  ELIMINATES  THE  REQUIREMENT OF
CONSENT AS PROVIDED IN PARAGRAPH TWO OF SUBDIVISION (B) OF THIS SECTION,
HE OR SHE SHALL AFFORD  COUNSEL  THE  OPPORTUNITY  TO  OPT  OUT  OF  THE
PROGRAM,  VIA  PRESENTATION  OF  A  PRESCRIBED FORM TO BE FILED WITH THE
CLERK OF THE COURT WHERE THE PROCEEDING IS  PENDING.  SAID  FORM,  WHICH
SHALL  NOT  BE  PART OF THE CASE RECORD, SHALL PERMIT AN ATTORNEY TO OPT
OUT OF PARTICIPATION IN THE PROGRAM UNDER ANY OF THE  FOLLOWING  CIRCUM-
STANCES, IN WHICH EVENT, HE OR SHE WILL NOT BE COMPELLED TO PARTICIPATE:
  (1)  WHERE  THE  ATTORNEY CERTIFIES IN GOOD FAITH THAT HE OR SHE LACKS
APPROPRIATE COMPUTER HARDWARE AND/OR CONNECTION TO THE  INTERNET  AND/OR
SCANNER  OR OTHER DEVICE BY WHICH DOCUMENTS MAY BE CONVERTED TO AN ELEC-
TRONIC FORMAT; OR
  (2) WHERE THE ATTORNEY CERTIFIES IN GOOD FAITH THAT HE  OR  SHE  LACKS
THE  REQUISITE KNOWLEDGE IN THE OPERATION OF SUCH COMPUTERS AND/OR SCAN-
NERS NECESSARY TO PARTICIPATE.  FOR THE PURPOSES OF THIS PARAGRAPH,  THE
KNOWLEDGE  OF ANY EMPLOYEE OF AN ATTORNEY, OR ANY EMPLOYEE OF THE ATTOR-
NEY'S LAW FIRM, OFFICE OR BUSINESS WHO IS  SUBJECT  TO  SUCH  ATTORNEY'S
DIRECTION, SHALL BE IMPUTED TO THE ATTORNEY.
  NOTWITHSTANDING  THE FOREGOING: (I) WHERE A PARTY OR A PERSON ENTITLED
TO NOTICE OF THE PROCEEDINGS IS NOT REPRESENTED BY COUNSEL,  HE  OR  SHE
MAY  NOT  PARTICIPATE  IN THE PROGRAM EXCEPT UPON HIS OR HER REQUEST AND
PERMISSION OF THE COURT; (II) A PARTY WHO IS NOT REPRESENTED BY  COUNSEL
THAT  HAS  OPTED IN, SHALL BE AFFORDED THE OPPORTUNITY TO OPT OUT OF THE

S. 7592--A                          5

PROGRAM FOR ANY REASON VIA PRESENTATION OF A PRESCRIBED FORM TO BE FILED
WITH THE CLERK OF THE COURT WHERE THE PROCEEDING IS PENDING; AND (III) A
COURT MAY EXEMPT ANY ATTORNEY FROM BEING REQUIRED TO PARTICIPATE IN  THE
PROGRAM  UPON  APPLICATION FOR SUCH EXEMPTION, SHOWING GOOD CAUSE THERE-
FOR.
  (D) FOR PURPOSES OF THIS  SECTION,  "ELECTRONIC  MEANS"  SHALL  BE  AS
DEFINED  IN  SUBDIVISION  (F) OF RULE 2103 OF THE CIVIL PRACTICE LAW AND
RULES.
  (E) NOTWITHSTANDING ANY PROVISION OF THIS CHAPTER, NO PAPER  OR  DOCU-
MENT  THAT  IS FILED BY ELECTRONIC MEANS IN A PROCEEDING IN FAMILY COURT
SHALL BE  AVAILABLE  FOR  PUBLIC  INSPECTION  ON-LINE.  SUBJECT  TO  THE
PROVISIONS OF EXISTING LAWS GOVERNING THE SEALING AND CONFIDENTIALITY OF
COURT  RECORDS,  NOTHING  HEREIN  SHALL PREVENT THE UNIFIED COURT SYSTEM
FROM SHARING STATISTICAL INFORMATION THAT DOES NOT INCLUDE ANY PAPERS OR
DOCUMENTS FILED WITH THE ACTION.
  (F) NOTHING IN THIS SECTION SHALL AFFECT OR CHANGE ANY  EXISTING  LAWS
GOVERNING  THE  SEALING  AND  CONFIDENTIALITY OF COURT RECORDS IN FAMILY
COURT PROCEEDINGS OR ACCESS TO COURT RECORDS  BY  THE  PARTIES  TO  SUCH
PROCEEDINGS,  NOR  SHALL  THIS SECTION BE CONSTRUED TO COMPEL A PARTY TO
FILE A SEALED DOCUMENT BY ELECTRONIC MEANS.
  (G) NOTHING IN THIS SECTION  SHALL  AFFECT  OR  CHANGE  EXISTING  LAWS
GOVERNING  SERVICE  OF  PROCESS,  NOR SHALL THIS SECTION BE CONSTRUED TO
ABROGATE EXISTING PERSONAL SERVICE REQUIREMENTS  AS  SET  FORTH  IN  THE
FAMILY COURT ACT AND THE CIVIL PRACTICE LAW AND RULES.
  S  6-C. (A) FOR PURPOSES OF SECTION SIX-A OF THIS ACT, "CONSENT OF THE
CRIMINAL DEFENSE BAR" SHALL MEAN THAT CONSENT HAS BEEN OBTAINED FROM ALL
PROVIDER OFFICES AND/OR ORGANIZATIONS IN  THE  COUNTY  THAT  REPRESENTED
TWENTY-FIVE PERCENT OR MORE OF THE PERSONS REPRESENTED BY PUBLIC DEFENSE
PROVIDERS  PURSUANT  TO  SECTION  722 OF THE COUNTY LAW, AS SHOWN IN THE
MOST RECENT ANNUAL REPORTS FILED PURSUANT TO SUBDIVISION ONE OF  SECTION
722-F  OF THE COUNTY LAW. SUCH CONSENT, WHEN GIVEN, MUST BE EXPRESSED IN
A WRITTEN DOCUMENT THAT IS PROVIDED BY A PERSON  WHO  IS  AUTHORIZED  TO
CONSENT  ON  BEHALF OF THE RELEVANT PUBLIC DEFENDER ORGANIZATION, AGENCY
OR OFFICE.
  (B) NOTWITHSTANDING THE PROVISIONS OF ANY OTHER LAW, NO PARTY  OR  HIS
OR  HER  COUNSEL SHALL BE CHARGED A FEE FOR VIEWING INFORMATION FILED BY
ELECTRONIC MEANS,  OR  FOR  DOWNLOADING  OR  PRINTING  SUCH  INFORMATION
THROUGH  THE  USE  OF SUCH PARTY'S OR COUNSEL'S OWN EQUIPMENT. THE CHIEF
ADMINISTRATOR OF THE COURTS SHALL ENSURE THAT SUFFICIENT COMPUTER TERMI-
NALS AND STAFF ARE AVAILABLE AT THE COURTHOUSE OF EACH COURT PARTICIPAT-
ING IN THE PROGRAM IN THE USE OF ELECTRONIC MEANS, TO ENABLE PARTIES AND
THEIR COUNSEL TO  ACCESS  INFORMATION,  SUBJECT  TO  THE  PROVISIONS  OF
SECTIONS  SIX-A AND SIX-B OF THIS ACT AND LAWS GOVERNING THE SEALING AND
CONFIDENTIALITY OF COURT RECORDS, FILED  BY  ELECTRONIC  MEANS  AT  SUCH
COURTHOUSE IN A PROMPT AND CONVENIENT MANNER.
  S  2.  Subparagraphs  1  and  2 of paragraph (B) of subdivision (b) of
section 6 of chapter 367 of the laws of 1999, amending the  civil  prac-
tice  law  and  rules and the judiciary law relating to authorization of
pilot programs permitting use of facsimile  transmission  or  electronic
means to commence an action or special proceeding, are REPEALED, subpar-
agraphs  3,  4  and 5 of paragraph (B) are renumbered subparagraphs 1, 2
and 3 and subparagraph 1, as amended by chapter 543 of the laws of 2011,
is amended to read as follows:
  1. One or more classes of  cases  (excluding  matrimonial  actions  as
defined  by  the civil practice law and rules, election law proceedings,
proceedings brought pursuant to article 78 of the civil practice law and

S. 7592--A                          6

rules, and proceedings brought pursuant to the mental  hygiene  law)  in
supreme court in ERIE, Livingston, Monroe, Rockland, Tompkins, Allegany,
Essex,  Onondaga,  SUFFOLK  and Westchester counties AND IN THE COUNTIES
WITHIN THE CITY OF NEW YORK, and
  S  3. Subdivisions (c) and (d) of section 6 of chapter 416 of the laws
of 2009, amending the civil practice law and rules relating  to  service
of  papers  by  electronic means, as added by chapter 543 of the laws of
2011, are amended to read as follows:
  (c)(1) The [chief administrator shall create an] advisory committee to
consult with [him or her] THE CHIEF ADMINISTRATOR regarding the develop-
ment of a program relating to  the  use  of  electronic  means  for  the
commencement of criminal actions and the filing and service of papers in
pending  criminal  actions  and  proceedings IS CONTINUED. The committee
shall consist of such number of members as will enable the chief  admin-
istrator to obtain input from those who ARE OR would be affected by such
electronic filing program, and such members shall include county clerks;
chief  clerks  of  supreme, county and other courts; district attorneys;
not-for-profit legal service providers; public defenders; statewide  and
local  specialty bar associations whose membership devotes a significant
portion of their practice to assigned criminal cases pursuant to subpar-
agraph (i) of paragraph (a) of subdivision 3 of section 722 of the coun-
ty law; institutional providers of criminal defense services  and  other
members  of the criminal defense bar; representatives of victims' rights
organizations;  unaffiliated   attorneys   who   regularly   appear   in
proceedings  that  ARE  OR  would  be affected by such electronic filing
program and other interested members of the criminal justice  community.
Such committee shall help the chief administrator to evaluate the impact
of  such  electronic filing program on litigants including unrepresented
parties, practitioners and the courts and to obtain input from those who
ARE OR would be affected by such electronic  filing  program,  including
district  attorneys,  not-for-profit  legal  service  providers,  public
defenders, statewide and local specialty bar associations whose  member-
ship  devotes a significant portion of their practice to assigned crimi-
nal cases pursuant to subparagraph (i) of paragraph (a) of subdivision 3
of section 722 of the county law, institutional  providers  of  criminal
defense  services  and other members of the criminal defense bar, repre-
sentatives of victims' rights organizations, unaffiliated attorneys  who
regularly  appear  in  proceedings that ARE OR would be affected by such
electronic filing program and other interested members of  the  criminal
justice community.
  (2)  No  later than January 1, [2012] 2015, the chief administrator of
the courts shall submit to the legislature, the governor and  the  chief
judge  of the state a report of the evaluation including the entities or
individuals consulted, the input received, ALL PROBLEMS  ENCOUNTERED  OR
OTHERWISE  BROUGHT  TO  THE  ATTENTION OF THE CHIEF ADMINISTRATOR OF THE
COURTS OR HIS OR HER AGENTS, ALL SOLUTIONS DEVISED TO ADDRESS THE  PROB-
LEMS,  PRESENTMENT  OF  ALL OUTSTANDING PROBLEMS, any recommendations of
the advisory committee to the chief administrator, along with  recommen-
dations for legislation [authorizing the development of a program relat-
ing]  IN RELATION to the use of electronic means for the commencement of
criminal actions and the filing and service of papers in pending  crimi-
nal actions and proceedings. IN THE REPORT, THE CHIEF ADMINISTRATOR ALSO
SHALL  ADDRESS  ISSUES  THAT BEAR UPON THE NEED FOR THE COURTS, DISTRICT
ATTORNEYS AND OTHERS TO RETAIN PAPERS FILED WITH COURTS OR  SERVED  UPON
PARTIES  IN CRIMINAL PROCEEDINGS WHERE ELECTRONIC MEANS CAN OR HAVE BEEN
USED AND  MAKE  RECOMMENDATIONS  FOR  SUCH  CHANGES  IN  LAWS  REQUIRING

S. 7592--A                          7

RETENTION  OF  SUCH PAPERS AS TO THE CHIEF ADMINISTRATOR MAY SEEM APPRO-
PRIATE.
  (d)  (1)  The [chief administrator shall create an] advisory committee
to consult with [him or  her]  THE  CHIEF  ADMINISTRATOR  regarding  the
development of a program relating to the use of electronic means for the
origination  of  juvenile delinquency proceedings under article 3 of the
family court act and abuse or neglect proceedings pursuant to article 10
of the family court act in family court and the filing  and  service  of
papers  in  such  pending  proceedings IS CONTINUED. The committee shall
consist of such number of members as will enable the chief administrator
to obtain input from those who ARE OR would be affected  by  such  elec-
tronic  filing  [programs] PROGRAM, and such members shall include chief
clerks of family courts; representatives of authorized  presentment  and
child  protective agencies; other appropriate county and city government
officials; institutional providers of legal services for children and/or
parents;  not-for-profit  legal  service  providers;  public  defenders;
attorneys assigned pursuant to article 18-B of the county law; and other
members  of  the  family  court  bar; representatives of victims' rights
organizations;  unaffiliated   attorneys   who   regularly   appear   in
proceedings  that  ARE  OR  would  be affected by such electronic filing
program; and other interested members of the family practice  community.
Such committee shall help the chief administrator to evaluate the impact
of  such  electronic filing program on litigants including unrepresented
parties, practitioners and the courts and to obtain input from those who
ARE OR would be affected by such electronic  filing  program,  including
representatives of authorized presentment and child protective agencies,
other  appropriate  county  and city government officials, institutional
providers of legal services for children and/or parents,  not-for-profit
legal  service  providers, public defenders, attorneys assigned pursuant
to article 18-B of the county law and other members of the family  court
bar,  representatives  of  victims'  rights  organizations, unaffiliated
attorneys who regularly appear in  proceedings  that  ARE  OR  would  be
affected by such electronic filing program, and other interested members
of the criminal justice community.
  (2)  No  later than January 1, [2012] 2015, the chief administrator of
the courts shall submit to the legislature, the governor and  the  chief
judge  of the state a report of the evaluation including the entities or
individuals consulted,  input  received,  ALL  PROBLEMS  ENCOUNTERED  OR
OTHERWISE  BROUGHT  TO  THE  ATTENTION OF THE CHIEF ADMINISTRATOR OF THE
COURTS OR HIS OR HER AGENTS, ALL SOLUTIONS DEVISED TO ADDRESS THE  PROB-
LEMS,  PRESENTMENT  OF  ALL OUTSTANDING PROBLEMS, any recommendations of
the advisory committee to the chief administrator, along with  recommen-
dations for legislation [authorizing the development of a program relat-
ing]  IN  RELATION to the use of electronic means for the origination of
juvenile delinquency proceedings under article 3 of the family court act
and abuse or neglect proceedings pursuant to article 10  of  the  family
court  act  in family court and the filing and service of papers in such
pending proceedings.
  S 4. This act shall take effect immediately; provided,  however,  that
sections  6-a, 6-b, and 6-c of chapter 367 of the laws of 1999, as added
by section one of this act, shall expire and be deemed repealed  Septem-
ber  1,  2015; and provided further that the amendments to paragraph (B)
of subdivision (b) of section 6 of chapter 367 of the laws of 1999  made
by  section  two  of  this  act  shall not affect the expiration of such
provisions and shall be deemed to be repealed therewith.

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