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February 9, 2010 |
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| February 11, 2008 |
By: Jordana Mishory |
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In re: Amendments to Florida Rule of Judicial Administration 2.420 – Sealing of court records and dockets, Case No. SC06-2136
Spurred by news reports of cases removed from public records, the Florida Supreme Court enacted new rules to make it tougher to seal court records and prevent so-called secret dockets.
Released in April, the unanimous unsigned opinion said the practice of super-sealing cases to avoid public access was “clearly offensive” to “Florida’s well-established public policy of government in the sunshine.”
"The public’s constitutional right of access to court records must remain inviolate, and this court is fully committed to safeguarding this right,” the court wrote.
The new rules forbid judges from sealing case and docket numbers or otherwise removing a case from public view. Other rules restrict the sealing of court filings.
The justices adopted the rules for noncriminal cases on an “interim, emergency basis.” A Florida Bar committee is working on rules for criminal cases.
First Amendment attorney Tom Julin, a partner at Hunton & Williams in Miami, called the decision “one of the most remarkable actions the court has taken.”
“Access to records is one of the most important checks the public has on the power of the courts,” he said. If courts operate in secrecy, the public “doesn’t know if there is favoritism or other nefarious motives.”
The justices adopted procedures for judges and litigants to follow when sealing a court record. Requirements include:
• The filing of a written motion by a party seeking to seal a court record.
• A public hearing on all contested motions.
• An order detailing the reasons for making information confidential must be written by the judge.
• Posting notices of all orders sealing documents on the clerk’s Web site and in the courthouse.
• Written motions by nonparties seeking to open sealed documents.
• Public hearings on all motions to vacate a sealing order.
The rules came in the wake of news reports that hundreds of civil and criminal cases across the state were secret or hid material that had been sealed without proper notice and hearings. The Miami Herald found more than 100 Broward Circuit Court cases had been hidden without a record of even a case number.
Supreme Court Chief Justice R. Fred Lewis responded by asking the Florida Association of Court Clerks and Comptrollers to suggest amendments to state rules on access to court records.
Lewis also directed two Florida Bar committees to propose expedited rules. He wrote the state’s 20 chief circuit judges asking them to establish procedures for examining sealed cases.
The Supreme Court heard oral arguments last March after both the Rules of Judicial Administration Committee and the executive committee of The Bar’s board of governors unanimously approved the changes.
Gary Fox, chairman of the Rules of Judicial Administration Committee, said his committee balanced the public’s First Amendment rights with the needs of litigants to keep some documents confidential.
Confidentiality is guaranteed for trade secrets and compelling government interests.
After the rules took effect, news media found some judges weren’t following them. Attorney Carol Jean LoCicero at Thomas & LoCicero in Tampa said it is up to the courts to raise awareness, otherwise “it just sits on the books.”
Broward Chief Circuit Judge Victor Tobin said his court has fully implemented the new rules, and the court’s general counsel offered a program to educate judges about them.
Jordana Mishory can be reached at jmishory@alm.com or at (954) 468-2616.
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