Chief administrator to prescribe forms and to authorize use of electronic filing

§ 10.40 Chief administrator to prescribe forms and to authorize use of\n electronic filing.\n 1. The chief administrator of the courts shall have the power to\nadopt, amend and rescind forms for the efficient and just administration\nof this chapter. Such forms shall include, without limitation, the forms\ndescribed in paragraph (z-1) of subdivision two of section two hundred\ntwelve of the judiciary law. A failure by any party to submit papers in\ncompliance with forms authorized by this section shall not be grounds\nfor that reason alone for denial or granting of any motion.\n 2. (a) Notwithstanding any other provision of law, the chief\nadministrator, with the approval of the administrative board of the\ncourts, may promulgate rules authorizing a program in the use of\nelectronic means ("e-filing") in the courts of New York having criminal\njurisdiction for: (i) the filing with a court of an accusatory\ninstrument for the purpose of commencement of a criminal action or\nproceeding, and (ii) the filing and service of papers in pending actions\nand proceedings. Provided, however, the chief administrator shall\nconsult with the county clerk of a county outside the city of New York\nbefore the use of electronic means is to be authorized hereunder in the\nsupreme court or county court of such county, afford him or her the\nopportunity to submit comments with respect thereto, consider any such\ncomments and obtain the agreement thereto of such county clerk.\n (b) Participation in this program may be required or may be voluntary\nas provided by the chief administrator, except that it shall be strictly\nvoluntary as to any party to an action or proceeding who is not\nrepresented by counsel unless such party, upon his or her request,\nchooses to participate.\n (c) (i) Where participation in this program is to be voluntary: (A)\nfiling an accusatory instrument by electronic means with the court for\nthe purpose of commencement of an action or proceeding shall not require\nthe consent of any other party; nor shall a party's failure to consent\nto participation in an action or proceeding bar any other party to such\naction or proceeding from filing and serving papers by facsimile\ntransmission or electronic means upon the court or any other party to\nsuch action or proceeding who has consented to participation;\n (B) all parties shall be notified clearly, in plain language, about\ntheir options to participate in filing by electronic means;\n (C) no party to an action or proceeding shall be compelled, directly\nor indirectly, to participate;\n (D) where a party is not represented by counsel, the court shall\nexplain such party's options for electronic filing in plain language,\nincluding the option for expedited processing, and shall inquire whether\nhe or she wishes to participate, provided however the unrepresented\nlitigant may participate in the program only upon his or her request,\nwhich shall be documented in the case file, after said party has been\npresented with sufficient information in plain language concerning the\nprogram.\n (ii) Where participation in this program is to be required:\n (A) such requirement shall not be effective in a court in a county\nunless, in addition to consulting with the county clerk of such county\nand obtaining his or her agreement thereto if the court is a supreme\ncourt or county court, the chief administrator shall:\n (1) first consult with and obtain the agreement of the district\nattorney and the criminal defense bar of such county, provide all\npersons and organizations, or their representative or representatives,\nwho regularly appear in criminal actions or proceedings in the criminal\ncourts of such county with reasonable notice and opportunity to submit\ncomments with respect thereto and give due consideration to all such\ncomments, and consult with the members of the advisory committee\nspecified in subparagraph (v) of paragraph (u) of subdivision two of\nsection two hundred twelve of the judiciary law; and\n (2) afford all those with whom he or she consults pursuant to item one\nof this clause the opportunity to submit comments with respect to the\nprogram, which comments, including but not limited to comments related\nto unrepresented litigants, he or she shall consider and shall post for\npublic review on the office of court administration's website; and\n (B) as provided in paragraph (d) of this subdivision, no party who is\nnot represented by counsel nor any counsel in an affected case who opts\nout of participation in the program shall be required to participate\ntherein.\n (d) Where the chief administrator requires participation in electronic\nfiling as provided in paragraph (b) of this subdivision, he or she shall\nafford counsel the opportunity to opt out of the program, via\npresentation of a prescribed form to be filed with the court where the\ncriminal action is pending. Said form shall permit an attorney to opt\nout of participation in the program under any of the following\ncircumstances, in which event, he or she will not be compelled to\nparticipate:\n (i) Where the attorney certifies in good faith that he or she lacks\nappropriate computer hardware and/or connection to the internet and/or\nscanner or other device by which documents may be converted to an\nelectronic format; or\n (ii) Where the attorney certifies in good faith that he or she lacks\nthe requisite knowledge in the operation of such computers and/or\nscanners necessary to participate. For the purposes of this\nsubparagraph, the knowledge of any employee of an attorney, or any\nemployee of the attorney's law firm, office or business who is subject\nto such attorney's direction, shall be imputed to the attorney.\n Notwithstanding the foregoing provisions of this paragraph: (A) where\na party is not represented by counsel, the clerk shall explain such\nparty's options for electronic filing in plain language, including the\noption for expedited processing, and shall inquire whether he or she\nwishes to participate, provided however the unrepresented litigant may\nparticipate in the program only upon his or her request, which shall be\ndocumented in the case file, after said party has been presented with\nsufficient information in plain language concerning the program; (B) a\nparty not represented by counsel who has chosen to participate in the\nprogram shall be afforded the opportunity to opt out of the program for\nany reason via presentation of a prescribed form to be filed with the\nclerk of the court where the proceeding is pending; and (C) a court may\nexempt any attorney from being required to participate in the program\nupon application for such exemption, showing good cause therefor.\n (e)(i) Nothing in this section shall affect or change any existing\nlaws governing the sealing and confidentiality of court records in\ncriminal proceedings or access to court records by the parties to such\nproceedings, nor shall this section be construed to compel a party to\nfile a sealed document by electronic means.\n (ii) Notwithstanding any other provision of this section, no paper or\ndocument that is filed by electronic means in a criminal proceeding\nshall be available for public inspection on-line. Subject to the\nprovisions of existing laws governing the sealing and confidentiality of\ncourt records, nothing herein shall prevent the unified court system\nfrom sharing statistical information that does not include any papers or\ndocuments filed with the action; and, provided further, that this\nparagraph shall not prohibit the chief administrator, in the exercise of\nhis or her discretion, from posting papers or documents that have not\nbeen sealed pursuant to law on a public website maintained by the\nunified court system where: (A) the website is not the website\nestablished by the rules promulgated pursuant to paragraph (a) of this\nsubdivision, and (B) to do so would be in the public interest. For\npurposes of this subparagraph, the chief administrator, in determining\nwhether posting papers or documents on a public website is in the public\ninterest, shall, at a minimum, take into account for each posting the\nfollowing factors: (A) the type of case involved; (B) whether such\nposting would cause harm to any person, including especially a minor or\ncrime victim; (C) whether such posting would include lewd or scandalous\nmatters; and (D) the possibility that such papers or documents may\nultimately be sealed.\n (iii) Nothing in this section shall affect or change existing laws\ngoverning service of process, nor shall this section be construed to\nabrogate existing personal service requirements as set forth in the\ncriminal procedure law.\n 3. For purposes of this section, the following terms shall have the\nfollowing meanings:\n (a) "Consent of the criminal defense bar" shall mean that consent has\nbeen obtained from all provider offices and/or organizations in the\ncounty that represented twenty-five percent or more of the persons\nrepresented by public defense providers pursuant to section seven\nhundred twenty-two of the county law, as shown in the most recent annual\nreports filed pursuant to subdivision one of section seven hundred\ntwenty-two-f of the county law. Such consent, when given, must be\nexpressed in a written document that is provided by a person who is\nauthorized to consent on behalf of the relevant public defender\norganization, agency or office; and\n (b) "Electronic means" shall be as defined in subdivision (f) of rule\ntwenty-one hundred three of the civil practice law and rules; and\n (c) The "filing and service of papers in pending criminal actions and\nproceedings" shall include the filing and service of a notice of appeal\npursuant to section 460.10 of this chapter.\n