Fla. takes bold steps in giving public access to court records

By Douglas Lee
Special to the First Amendment Center Online

At a time when many courts and government agencies are recoiling from the realization that public records can be accessed, searched and disseminated electronically, the Florida Supreme Court has stepped bravely and boldly into the future.

Completing a process that began in 2003, the court on March 18 amended several rules that govern public access to trial and appellate court records. In doing so, the court acknowledged that electronic access to court files is both inevitable and valuable and embraced the challenge of balancing the public’s right to know against parties’ legitimate needs for confidentiality.

“The goal of the comprehensive amendments,” the court said, “is to balance the public’s constitutional right to access court records with the courts’ responsibility to protect from public access court records that are confidential.”

“While there are enormous benefits to electronic access to court records,” the court added, “the Court has an ongoing concern that we not sacrifice the important goal of protecting those records that are confidential.”

Admirably, the court recognized that the best way to strike this balance is to (1) presume that all court filings are available to the public, (2) limit confidential filings to clearly specified, narrow exemptions, (3) place most of the burden of establishing confidentiality on the filer, (4) provide an immediate and independent check on confidential filings and (5) implement an expedited and streamlined process for challenging confidentiality claims.

Under the amended rules, all filings in the trial and appellate courts are presumed to be open to the public. That presumption can be overcome only if a document fits into one of 19 specified exemptions. While a 19-item list might sound excessive, the court noted that Florida law contains more than 1,000 statutory public-record exemptions. Among the information considered confidential under the amended rules are records concerning juvenile proceedings, adoptions and grand juries and documents that identify persons with HIV and victims of sexual offenses. Also confidential are Social Security, bank-account and credit-card numbers.

Though the court clerk is independently responsible for maintaining the confidentiality of exempt information, the amended rules require the filer seeking confidentiality to notify the clerk of a purportedly confidential filing. In the notice, the filer must identify the claimed exemption and specify the information alleged to be confidential.

Upon receiving of a notice of confidential information, the clerk must determine whether the document fits within the specified exemption. If it does, the clerk then must determine whether, instead of treating the entire document as confidential, he or she can redact confidential information from the record.

If the clerk finds that the information does not fit within the exemption, he or she must notify the filer and maintain the confidentiality of the record for 10 days, in order to enable the filer to seek judicial review of the clerk’s decision. If no such review is sought, the document is filed in the public record.

If someone believes a document that does not fit within one of the exemptions nevertheless should be filed under seal, he or she must file a “motion to determine confidentiality of court records.” In civil and most criminal cases, this motion and the proceedings related to it must be noted in the public court record. A hearing on the motion must be held within 30 days, and the court must rule on the motion within 30 days of the hearing. If the court grants the motion in whole or in part, the court must specify the information deemed confidential and the legal basis for the court’s holding. The clerk then must post the order on the court’s Web site and in a prominent location in the courthouse for at least 30 days.

If a journalist or other non-party challenges the granting of a confidentiality motion, the court must hear this challenge within 30 days and rule on the challenge within 30 days of the hearing.

A different procedure applies in criminal cases in which a party seeks to protect t