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July 29, 2010 |
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| August 18, 2005 |
By: Carl Jones |
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iven by sharp internal disagreement, a Florida Supreme Court committee charged with drafting recommendations on how to shift court records to the Internet has issued a final report that seeks to balance court transparency and public access with vigorous protection of personal information.
A majority of the panel approved a recommendation that Congress and the Florida Legislature pass legislation providing privacy protections against the operations of data mining companies and identity thieves, and that state rules making certain types of information confidential be narrowed. But a group of dissenters on the panel, including Miami-Dade Circuit Judge Judith Kreeger, argued that the majority’s recommendations will harm the public.
The majority recommended an interim policy that allows Internet access to dockets, basic case information, court schedules and calendars, and appellate briefs and opinions. The committee recommended this temporary policy until permanent rules are is enacted.
“The committee believes that we must avoid unnecessary, negligent or deliberate disclosure of information that should be personal or private,” committee chairman Jon Mills wrote in a letter Monday to Chief Justice Barbara J. Pariente. “Florida has significant legal protections for personal privacy and a major concern is the ability to establish a system that can rationally implement a balanced policy of openness and privacy.”
Fifth District Court of Appeal Judge Jacqueline Griffin authored a dissenting opinion in which she argued the majority’s recommendations would sacrifice privacy for convenience.
“It is commendable that the majority ultimately has concluded that Internet publication of court records is technologically, legally and practically impossible at present,” Griffin wrote. “The very fact that the best proposals [the majority] can offer to alleviate these problems are, at best, ineffective and, at worst, harmful to the essential function of the judicial branch demonstrates that public Internet access to court records is a misguided goal.”
Judge Kreeger, Tallahassee attorney Kristen Adamson and 12th Judicial Circuit Administrator Walt Smith joined in Griffin’s dissent.
The 15-member committee was established by the Supreme Court in late 2003 to study the issue of online court records and privacy and submit rules recommendations for the Supreme Court. At that time, the high court also placed a moratorium on courts placing records online. The final report consists of 24 major recommendations.
Chairman Mills is a law professor and former state House speaker. Other members are judges, attorneys, clerks and scholars.
Mills noted in his letter that although the committee has worked in good faith for almost two years, it could not reach a unanimous opinion on at least five key issues. Ten recommendations did not receive unanimous approval. One was the recommendation that the Florida judiciary’s goal should be widespread public access.
Perhaps most important proposals for practicing lawyers were those to limit the confidential information that goes into court records in the first place. By an 11-4 vote, the committee decided that Florida’s laws exempting certain personal information from public disclosure should extend to court records.
If the Supreme Court accepts that recommendation, it would mean that exempt information, such as Social Security numbers and medical records, would have confidential status — and could not be viewed by the public even though it is contained in a court filing. The committee acknowledged that this recommendation could limit public and media access to information.
“The committee notes that the interplay of the status and the rules presents substantial legal issues requiring resolution in properly contested cases or controversies,” the committee wrote.
The committee also acknowledged that it would be virtually impossible for clerks of the court to check all files for protected information.
By a 12-3 vote, the panel recommended that whoever files confidential information should be allowed to petition to have that information sealed. Under this proposal, any person, including journalists, would be allowed to later challenge that decision.
The committee also recommended that court clerks be allowed to reject filings that are not allowed by law or the court. “The court file is not an open forum available for gratuitous publication of extraneous and potentially damaging personal information,” the committee wrote.
In addition, the panel urged that discovery materials — which often include sensitive information and allegations that have not been vetted for accuracy — be kept out of court files until needed. Under the committee’s proposal, violators could be sanctioned.
But the committee found that state laws prohibiting public access to certain types of information may be too broad and urged the Supreme Court to expand public access by defining a specific set of exemptions.
Carl Jones can be reached at cjones@alm.com or at (305) 347-6648.
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