By Gary Blankenship
With a variety of motions, the Florida Courts Technology Commission has approved moving forward with shifting the electronic document format for the court system to what is known as PDF/A.
The commission, at its February 9 meeting in Daytona Beach, adopted several motions aimed at unifying the document format that will be used in e-filing documents, making them accessible to the courts and public, and storing them for the long term. The commission had previously selected PDF/A as the preferred format.
One motion included a policy that clerks will have two years to phase in storing documents in the PDF/A format once the FCTC works out related issues, sends the matter to the Supreme Court, and the court approves the recommendation. FCTC members noted there’s no schedule yet for approaching the court, and the commission must first write the appropriate technical standards.
The motion included that clerks could, for good cause, get a waiver from the two-year deadline.
Commission member David Ellsperson, Marion County clerk of court, asked whether the waivers could be obtained if clerks could show a good reason. He noted clerks currently have tight budgets and face increasing demands, including a mandate from the courts to completely switch to electronic court records when transmitting appellate records. Neither that nor the phase-in to PDF/A technology has received any additional funding for clerks, he noted.
Supreme Court Justice Ricky Polson, the court’s liaison to the FCTC, said the court has been accommodating in the past, as long as there was a good-faith effort to meet a deadline. He pointed to the court granting numerous waivers to clerks on meeting deadlines when the courts switched from paper to electronic filing in civil and criminal cases.
“In the past, particularly on working with the portal [which handles e-filing] issues and the phase in, waivers were granted as long as someone demonstrated an ability and willingness to move forward and try to achieve the goals. What’s not acceptable is for the clerks or someone else to come in and say, ‘We’re not doing that’ . . . . We declined those,” Polston said. “As far as this kind of instance going forward, I can tell you the court will work in good faith on granting waivers, but I cannot tell you whether the court will grant one or not.”
Ellsperson said it would cost him $16,000 to purchase a license for software to do redactions on PDF/A documents and “that’s not to say there are no other implementation costs.” He said clerk offices are already being strained by the mandate to convert to ECR for appellate document transmittals.
FCTC member Murray Silverstein, a member of the Bar’s Rules of Judicial Administration Committee and a former member of the Bar Board of Governors, after the meeting said the conversion shouldn’t be difficult for lawyers using the latest word processing programs.
“The lawyer on the street will not experience anything different from current practice because:
• “PDF/A is an easy conversion/saving option available in standard Adobe Reader XI (and Adobe Pro) and through Microsoft Word; the attorney simply selects “save” or “save as,” and the options for “type” will include PDF/A;
• “The benefits are: (i) essential metadata, such as bookmarking, hyperlinking, electronic signatures, attachments via insert feature, will be retained in the document as originally created; and, (ii) for archival purposes, the PDF/A standard will allow rendition of digital documents in their original format and appearance;
• “The document will retain these attributes so long as the portal does not convert the document to a TIFF image (which ‘flattens’ the document and removes the metadata), which is what the clerks are currently requesting until able to receive the document in PDF/A format;
• “The rules of court, primarily Rules of Judicial Administration 2.520 (documents) and 2.430 (retention) will reference PDF/A as the required standard (with reference to the applicable technology standard), but not until there’s sufficient time for this transition to work through; and,
• “The portal plans an informational message if the filing is not in PDF/A format as a reminder of what’s coming soon;
• “The portal also plans a full instructional video on the portal site, which will show the conversion/saving function for PDF/A, as well as links to related information.”
The approved motions were:
• Recommend that the courts’ e-filing portal begin preparing for the conversion of all received documents to the PDF/A format with the understanding the documents will be provided to each clerk in a format they can use with their case management system. In addition, “In support of this process, the portal [run by the Florida Courts E-Filing Authority] will educate the filers as to the requirement of filing documents in the PDF/A format.”
• Clerks must develop, in consultation with the Supreme Court, standards for their case management systems that will “meet the needs of the clerks of the court, the Bar, and other court partners.”
• The Bar’s Rules of Judicial Administration Committee should clarify a retention schedule for electronic court records; require that court records be stored in the PDF/A format; and set a date by which records must be in the PDF/A format.
• Allow the clerks to phase-in the shift to storing records in the PDF/A format within two years of the Supreme Court adoption of that after the FCTC presents it to the court as a technical standard, with the ability of clerks to seek a waiver.
• Allowing digital signatures and notarizations on electronic documents, including by judges. However, on the PDF/A documents, those signatures will be “flattened,” which means they cannot be altered.
The FCTC has designated the PDF/A format for court use because it offers stable, long-term electronic storage, it should require less electronic memory space than the current TIFF format generally used by clerks, and documents are more user-friendly because they can use bookmarks, active links, be searchable, and easier to cut and paste from.
There is evidence lawyers are preparing for the eventual conversion to PDF/A because their use of the current non-optical PDF format is increasing.
Judge Martin Bidwill, who heads both the FCTC’s workgroup on conversion to PDF/A and the Portal Subcommittee, reported to the FCTC that for January, electronically filing lawyers submitted 57 documents in WordPerfect format, 85,085 in Word, and just over 1 million in the scanned PDF form, which means they created a printed document and then scanned it, which removes bookmarks, links, and makes it difficult if not impossible to cut and paste from or search the document. However, 559,694 were PDF text documents, which means they were created as text documents, had electronic signatures attached and then were converted via software to PDF, which means things like links and bookmarks remained functional and the documents can easily be searched and edited with cut and paste features.
Bidwill told the FCTC that while only a third of the lawyer filings were PDF text, that was still a higher number than he expected and a much higher percentage than just a few months ago. Those filers should have little difficulty switching to PDF/A.
Aside from the information being put out by the e-filing portal, the Bar’s Practice Resource Institute also has information about converting to and using the PDF/A format. Go to pri.floridabar.org.