Court Records -Online Courthouse

By Carl Jones
Daily Business Review
July 6, 2006)

The Florida Supreme Court inched closer to toward implementing Internet access to state court records while extending its nearly three-year moratorium on such access for another year

In an administrative order issued Monday, the justices approved a court committee’s controversial recommendation that the Florida courts should move to a statewide system of easily accessible online court records. A minority of the Committee on Privacy and Court Records had opposed that recommendation.

The justices also established an interim policy toward reaching the goal of Internet-accessible records. It approved establishment of a pilot Internet records access program to be headed by Manatee County Clerk R.B. "Chips" Shores, an aggressive proponent of putting records online.

At the same time, the justices eased the burden on court clerks for keeping privileged or confidential information out of publicly available court files. The court also issued some guidelines outlining who is responsible for keeping private information out of public records.

The court established a new Committee on Access to Court Records to spearhead the implementation of the changes it approved. A number of other recommendations made by the Committee on Privacy and Court Records were referred to various committees and The Florida Bar for further study.

Jon Kaney, a Daytona Beach attorney and board member of the First Amendment Foundation, a nonprofit organization that lobbied for easy access to online court records, said his group is pleased with the Supreme Court’s order. "It’s a good step in the right direction," he said. "We should have something really good within a year, maybe longer."

5th District Court of Appeal Judge Jacqueline Griffin, who served on the Committee on Privacy and Court Records and opposed easy online access, said she thinks the Manatee County pilot program is a good idea. But she hopes that the pilot will be properly evaluated to determine if it is truly possible to balance online records and privacy.

Griffin said drafting rules to serve both goals may be harder than anyone realizes. "When people start putting pencil to paper," she said, "they might find it is not as easy as it’s going to be when they’re thinking about in the abstract."

This week’s order was the Supreme Court’s response to 24 recommendations issued last August by the Committee on Privacy and Court Records, which studied and debated the issue of access to online records for two years.

The Supreme Court agreed that limits should be placed on allowing private or confidential information to be made public, although those limits should not be so constricting that electronic access is virtually impossible.

The order, signed by outgoing Chief Justice Barbara J. Pariente, extends the current online records moratorium for another year until more permanent procedures can be established. Meanwhile, the court allowed Internet access to dockets, case schedules, verdicts, and other basic case information.

The justices stressed that privacy and court transparency are important ideals that must be balanced against each other. The court said public information should be available, with some limitations.

"These conditions must not be so onerous that our approval of electronic access exists only in theory, but unfettered electronic access to all courts without policies in place to protect privacy interests and guard against unintended consequences detrimental to the judicial process cannot be allowed," the justices declared.

The one-year pilot program to be headed by Shore will be considered for statewide implementation. The Supreme Court did not address exactly how that program will operate. That task is left up to the Committee on Access to Court Records.

Shore had submitted a program to phase in easier Internet access to court records. Whether his plan will become the basis for the pilot program has not yet been decided.

In a key issue to litigants, attorneys, and court clerks, the justices sided with the court clerks in deciding that the clerks should not be the ones to decide what information should be kept out of court records and whether to reject filings that contain irrelevant but sensitive personal data. County clerks around the state opposed putting the heavy responsibility on them to peruse court records and filter out privileged data.

The Supreme Court said that court clerks, "as ministerial officers charged with maintaining custody of court records, cannot and should not be responsible for making substantive decisions regarding whether documents accepted for filing are confidential."

There had been proposals to make clerks responsible for reviewing filings to make sure confidential information was not exempt under Florida law, such information did not make it into online images of court documents, and refuse court documents in which parties may have filed irrelevant, frivolous or sensitive information about another litigant.

The Supreme Court ordered that the specific rule that governs privileged information in court records be limited and easily understandable. Under current law, there are some 1,000 exemptions to open records laws dealing with court cases. Open government advocates have argued the exemptions are nebulous and growing with each legislative term.

The court said the party filing documents must seek confidentiality for situations that fall outside the specific exemptions allowed under the rules.

The court said the court clerks should not be the ones responsible for recognizing and rejecting filings not authorized by court rules, like filings that may contain another party’s Social Security number, bank account numbers, or other information that is not needed to adjudicate the case but could become public by being entered into the case file. The court, noting that there already are sanctions for such filings, said that a rule amendment should be studied further.

The justices noted that sanctions already exist for inappropriate filings containing irrelevant personal information. But they ordered that a rule to prevent such filings be researched.

A representative for the Florida Association of Court Clerks and Comptrollers was unavailable for comment.

Privacy advocates concerned

University of Florida law professor Jon Mills, who headed the Committee on Privacy and Court Records, said he hadn’t yet read the court order. But he said it sounded as if the court decision recognized that more rules and procedures need to be drafted.

"The court has expressed the goal of being more open in the future," Mills said. "What has to be done is to evaluate how best to do that while best assuring privacy rights."

The Committee on Privacy and Court Records submitted its list of recommendations after two years of debate about whether and how the public should be allowed to electronically view court files. The committee split sharply on many key issues.

The dissenters on the panel included Judge Griffin and Miami-Dade Circuit Judge Judith Kreeger, whose husband had his bank account siphoned by identity thieves. Griffin, Kreeger and others argued that the convenience of easy electronic access was not worth putting people’s privacy at risk.

Walt Smith, the 12th Judicial Circuit administrator, was one of the dissenting committee members. While he had not yet read the Supreme Court order, he said the dissenters were worried that privacy concerns were not being given the proper priority. "I think anything’s worth testing and seeing if we can make it work," Smith said.

Kaney said open records advocates are pleased that the Supreme Court has pressed both the privacy and access camps to make compromises while systematically moving toward easier access. "I think that strategy is working beautifully," he said.

Mills said everyone in the legal process needs to work together to protect litigants’ privacy.

"It’s got to be a shared responsibility," he said. "We’ve got to have education of attorneys to make sure they’re sensitive to what [information] needs to be protected and redacted. So, it’s going to be a job for everybody."

Court Rejects 'Privacy' as Reason to Bar Cameras

By Associated Press
November 4, 2005

TALLAHASSEE - A proposed rule change that could have severely limited courtroom camera coverage by news media in order to protect privacy rights and confidential material was rejected Thursday by the Florida Supreme Court.

The justices also turned down a proposal to allow judges to ban television and still pictures of jurors' and prospective jurors' faces without holding hearings.

"We're thrilled and see the court's decision as continuing Florida's tradition of public access to our courts," said Carol LoCicero, a lawyer for Cable News Network and five other media companies that include 12 Florida TV stations and newspapers.

The First Amendment Foundation also objected to the rule changes proposed by a Florida Bar committee.

Hillsborough Circuit Judge Claudia Rickert Isom of Plant City, then the Bar committee's chairwoman, argued in favor of the proposals at a June hearing. She was not surprised by Thursday's unanimous decision.

"We knew that those were going to be looked at very closely by the court. . . . There wasn't a lot of ego vested in this," she said.

Judges already have the power to restrict camera coverage to control decorum and make sure proceedings are fair.

Media lawyers argued that letting judges also take privacy and "privileged and confidential matters" into account would close most proceedings to cameras. Cameras are rarely excluded now.

"There's no privacy in a public courtroom," First Amendment Foundation lawyer Jonathan Kaney argued at the June hearing.

Isom said allowing judges to prohibit TV and still pictures of jurors' faces without a hearing would have saved time.

The high court also rejected a proposed rule that would have limited the use of court security cameras to only security purposes.

"That's a public record," said First Amendment Foundation president Barbara Petersen.

She said security tapes can provide a record of misdeeds in courthouses, and it would take an act of the Legislature, not a court rule, to exempt them from public records laws.

      Panel Urges State Supreme Court to Decide on Web Records

The switch from paper to virtual records will be "practically impossible" until the Supreme Court examines each of the 1,029 statutory exemptions to Florida's open records laws, determines which apply to court records and crafts a way to make sure the secrets stay out of files before being put on the Internet, the committee decided to recommend in its report, which is due to the state's high court July 1.

Citizens Don't Expect Privacy In Court

Editorial
Tampa Tribune
Jun 18, 2005

Florida was one of the first states in the country to allow cameras in the courtroom. Having them there has educated citizens by giving them a chance to observe the judicial system in action.

But the Florida Supreme Court is considering changing the rules to make it easier for judges to ban cameras to protect the privacy interests of people in court. This is a bad idea.

First off, a courtroom is not a private place. No one expects privacy upon entering a courthouse. Concerns about privacy and cameras were raised, evaluated and dismissed years ago.

Second, the system is working.

Judges can place restrictions on TV cameras and newspaper photographers on a case-by-case basis. Sure, some lawyers and judges grandstand before the cameras, but the transparency of the process allows citizens to judge for themselves whether the proceedings are handled properly.

The court should let the cameras be.

This story can be found at: http://www.tampatrib.com/News/MGBQOSF43AE.html

         Privacy and Court Records: Where to Draw the Line?

By Jon Mills
Gainesville Sun
June 2, 2005

As anyone who has followed recent news stories knows, the Internet has created a major clash between fundamental democratic values of open government and personal privacy - a clash only enhanced by its capacity to make information in Miami instantly available in Tokyo.

One view of the Internet's impact was expressed by Scott McNealy, CEO of Sun Microsystems.

He said, "You have zero privacy anyway, get over it."

Many Floridians do not accept that response. For more than a year, a Florida Supreme Court committee has sought to come up with a better answer in one very important area: Internet availability of public court records.

We have some initial recommendations. Now, we want to know what you think.

How do we balance the competing values of privacy and openness? The Internet makes possible greater openness, so indispensable to good government, and allows for greater convenience in accessing government services, including court records. However, such technology also places the privacy of Floridians at risk.

Should you be able to read court records over the Internet, avoiding trips to the courthouse and copy charges through use of the same technologies already widely deployed by banks, online retailers and private-sector institutions?

Should others be able to access court records about your cases? Should government be allowed to take personal information from you, then give or sell that information to commercial data companies that compile detailed portfolios about consumers?

The issue of privacy of information has gotten a lot of attention recently. In February, ChoicePoint Inc., the nation's largest dealer of personal information, revealed that it sold the information portfolios of 145,000 people to a group of alleged identity thieves.

More than 10,000 Floridians were among those whose information was divulged.

You may be one.

Many Floridians were shocked to learn detailed dossiers had been created about them. What everyone learned from the ChoicePoint debacle, and the Bank of America, Lexis-Nexis and Time-Life revelations that followed, is that we are not protected. Technology and commerce are outpacing the law and public policy.

Government files are also a prime source of information collected by companies like ChoicePoint. State and local agencies and courts collect a wide range of information in the process of providing government services, from drivers' licenses to building permits to probate of estates. Most of this information is open, and new information technologies make it possible for private entities to acquire it at little or no cost.

Florida's reputation for open government is well-deserved.

We are the Sunshine State, not just because of our climate, but because of our abiding commitment to open government, codified in the Sunshine Amendment to the Florida Constitution.

Open records facilitate transparency in government. Transparency supports accountability in decision-making. Accountability improves responsiveness and performance.

Access to court records allows us all to decide for ourselves whether judges are administering justice fairly and consistent with the law. That public right distinguishes us from many other court systems in the world.

To be sure, the constitution does not require electronic access to records, only that access be provided at the courthouse, but electronic access clearly would advance the cause of open government.

The Committee on Privacy and Court Records recognizes the great value in open government, and so plans to recommend that appropriate court records be accessible on the Internet.

But the matter is far from closed. Here's where we are now:
A majority of the Committee supports a recommendation to publish non-confidential court records to the Internet. Some members strongly disagree.

There is unanimity that this openness be balanced with a cautious set of policies designed to protect privacy.

Before records can be released electronically, a number of precautionary measures must be taken by lawyers, clerks of court and judges to protect confidential information and to prevent unnecessary information from coming into court files to begin with.

The Committee also proposes that, at least for now, records in juvenile, family and probate cases should not be released in electronic form.

Florida is an open state, but also a state that recognizes privacy rights in our Constitution. The Committee's proposals are an effort to strike a balance.

The Committee also recognizes that the problem of information privacy extends far beyond policies about court records.
The Florida Legislature and Congress have significant power to protect citizens and to set limits on the commercial exchange of personal information.

If citizens agree or disagree, they must make their voices heard.

The draft report and recommendations are available at the Florida Supreme Court Web site at www.flcourts.org.

Residents who care about the issues of open government and informational privacy may read the report, then provide input directly to the Committee before it finalizes its work.

We encourage public comments through June 3, but will accept any comments until the report is finalized. As chair of the Committee, I urge anyone to comment, and I assure you we will consider all input seriously.

Jon Mills is chair of the Florida Supreme Court Committee on Privacy and Court Records, and a professor of law at the University of Florida.

               Access to Records Easier, for Better or Worse

by Jim Saunders
Daytona Beach News
june 3, 2005

Panel Rejects Greater Access To Court Documents Online

By Allison North Jones
Tampa Tribune
November 24, 2004

TALLAHASSEE - A Supreme Court advisory panel has voted unanimously to deny a petition by media organizations, including The Tampa Tribune, to recommend that the state's high court lift a moratorium on electronic access to court records.

The Florida Supreme Court's Committee on Privacy and Court Records met last week at the Florida State University Law School to hear arguments from media organizations and their attorneys seeking greater access to court records online.

Though the panel will not recommend doing away with existing restrictions, they may consider recommending the court lift the moratorium in certain cases that present few privacy concerns, said Carol LoCicero, a lawyer for Holland & Knight, which represents the Tribune.

Chief Justice Barbara Pariente has said the court needs to ``embrace its role of permitting greater access'' to court documents online.

Proponents of permitting greater online access argue that it's a way for journalists to disseminate information to the public and should be as open as the current paper process.

The committee will exchange proposals for enhancing electronic access to court documents next month to try to reach consensus and draft a working policy document before the Florida Bar's meeting Jan. 18-19 in Miami.

This story can be found at: http://www.tampatrib.com/floridametronews/MGBHJ6Q2X1E.html

Equal Access Essential

Court Records on Internet must Be
No More Restricted than Those at the Courthouse

Florida Today Editorial
November 24, 2004

Despite state laws assuring the public's access to government records, the reality is that public officials routinely slam the door on that access.

A recent survey showed nearly 40 percent of legitimate requests for public information by citizens were illegally refused at Florida courthouses.

Now, that access could be made even more difficult, depending on the recommendations of a committee considering limits on posting court records on the Internet.

To formulate a policy balancing the state's constitutional privacy protections with its guarantee of access to public documents, Florida's Supreme Court has set up the 15-member Committee on Privacy and Court Records.

The goal is to study the issue, solicit public input and make recommendations by July 1, as preparation for rulings on which court records you can see on the Internet.

The result is of great concern to us, as it must be to anyone who believes the public has a right to know what its government is doing.

While some want Internet access to court records heavily restricted or shut down, we say online access must be equal to access in the courthouse, and the Internet's ability to make information available should be welcomed for its ability to better serve the public.

While we agree there are particular items of information that should be shielded to protect safety -- for instance, some family court matters -- they should be handled on a case-by-case basis, not through a wholesale removal of entire classes of information

Unfortunately, a year-old moratorium that restricts posting of some court records already shows an early tendency to shut citizens out.

That can't be permitted.

Instead, the courts must protect the hard-fought right of the public to get the court records they paid to create.

That keeps the door open to information on, for example, whether school bus drivers have numerous traffic violations, whether your children's teachers have been convicted of molesting children, even whether a homebuilder you're considering has been sued for not paying subcontractors.

Florida is not alone in trying to find a balance on this razor's edge between privacy and public access to the workings of government. The same debate is being heard nationwide as the Internet creates access unimaginable 15 years ago.

That's good news, since some states have already reached reasonable conclusions that can help Florida find its own solutions.

As the state's committee does its work, the public must be aware that any restriction of Internet access beyond that of access at the courthouse is not only an unacceptable offense against open government.

It also could become a precedent for slamming the door on still more public information online -- and eventually, to such information anywhere.

As tyrants know, the ability of citizens to gather government information of all kinds is the key to demanding accountability.

Without that key, the people are powerless.

Courts in the Computer Age

St. Petersburg Times Editorial
November 22, 2004

The digital age presents courts with some delicate questions of personal privacy as they place documents more readily into public view, but the Florida Supreme Court is beginning to look suspiciously squeamish. A year after the court imposed a moratorium on the posting of most court documents on the Internet, its appointed "Committee on Privacy and Court Records" is now asking a few disturbingly broad questions.

"We want and need access to public information," committee chairman Jon Mills, a former House speaker, said last week. "But part of our individuality is information about ourselves, and many of us want that protected."

That's true, of course, but doesn't necessarily bear on the task at hand. Florida's Constitution requires that all government branches, including the courts, provide the public with access to the documents that are a part of their work. And even the Constitution's specific "right of privacy" carries an important disclaimer: "This section shall not be construed to limit the public's right of access to public records and meetings as provided by law."

Given that directive, the committee should limit itself to identifying the narrow and exceptional cases that might warrant different treatment. But some of the early testimony has reverted to issues, such as whether the news media or the public can be trusted to report fairly on sensitive materials, that were decided long ago when voters demanded full government accountability.

Much of the current debate stems from the utility of digital recordkeeping. Technology now allows the courts to convert mountains of paperwork into digital files that are transmitted from one litigant to another with the stroke of a computer key. That technology also benefits citizens by giving them easier access to records that have always been within their right to view.

The easier access puts pressure on court officials to make sure they don't mistakenly allow information that is clearly private by law to be circulated on the Internet. The new technology may also call into question the types of documents judges should require to be inserted, or not inserted, into such civil proceedings as divorce.

Though the identity of NBA star Kobe Bryant's female accuser was clumsily disclosed by Colorado court officials who pushed some of the wrong computer buttons, technical glitches don't require moratoriums and study committees to rectify. The Florida committee can serve a useful purpose if it helps establish statewide guidelines for court clerks in the computer age, but the fears about identifying rape victims and abused children seem a little forced. After all, the public-records provision resides in the Constitution because court officials long have resisted public scrutiny.

Balance Rights
Public Records Access Vs. Privacy

Bradenton Herald Editorial
November 21, 2004

You have a right to privacy - it's guaranteed in the Florida Constitution.

You also have a right to access public records - that, too, is in the state Constitution.

Those two rights compete with one another on the Internet, creating a dilemma that would challenge the wisdom of Solomon. To comply with state law requiring them to provide fast and easy access to public records, most court clerks in Florida post many of their public records online. That lets anyone check public records on their computers at home or in the office, saving them a time-consuming trip to the courthouse to search through dusty records.

It also allows unscrupulous people to get access to those records, which may contain personal information that they can use to harm those named in the records. Social Security and bank account numbers make it easy for crooks to steal someone's identity and run up big charges against a victim's credit. A divorce file may contain false claims of sexual abuse against one spouse, exposing that person to undeserved negative publicity that could damage reputations and careers.

This is the complex problem a special Committee on Privacy and Court Records began to grapple with last week, responding to a state Supreme Court mandate to recommend changes to the public records access law that accommodate the information age and the hacker plague it has spawned. Since March, the Supreme Court has imposed a moratorium on posting of public records unless their contents have been screened or are deemed "of significant public interest."

As long-time supporters of unfettered access to public records, we have applauded the pioneering efforts by Manatee Court Clerk Richard B. "Chips" Shore to put public records on the Internet. Manatee was among the earliest to implement electronic technology to put many government records online. However, there's no question that private information contained in those records makes it too easy for scam artists to prey upon people named in those records. While that same information has always been available in the files stored at the clerk's office in the courthouse, it was in "practical obscurity" because few people would bother to seek it out. That has changed with the Internet.

Obviously, certain confidential data like Social Security and bank account numbers should not be in the public domain. But the concern for protecting privacy must not lead to a wholesale withdrawal of those records from the Internet. First, people should stop writing those numbers so freely when filling out forms. Use less-specific personal identifiers whenever possible.

Second, clerks should follow Shore's recommendation to create a system for redacting confidential data from documents while listing it on a separate reference sheet that is used only for court purposes.

Shore supports creation of an electronic system that differentiates between the kinds of information available to court, government and law enforcement officials and the general public, redacting the confidential data from the version open to the public. That will be a difficult and time-consuming process, but Shore says it is doable.

We were encouraged by the apparent absence of partisanship in the committee's initial meetings last week. Chairman Jon Mills, a former House speaker, indicated the committee intends to walk a "tightrope" in balancing the public's right to know while protecting the right to privacy.

That's precisely the outcome we hope for. A new information medium should not be used as an excuse to water down Florida's commitment to public records openness. Rather, it should be seen as an opportunity to make those records even more accessible.

              Ban on Internet Posting Of Records Is Supported

By Joe  Follick
Ledger Tallahassee Bureau
November 19, 2004

TALLAHASSEE -- The Florida Supreme Court's ban on the posting of court records on the Internet will remain after a committee turned aside concerns from land title companies and media organizations Thursday.

The Supreme Court Committee on Privacy and Court Records made the decision after two days of testimony on the prickly balance between privacy and the public's right to know how its courts are functioning.

A state law enacted in 2002 banned the posting of some court documents containing sensitive information on a "publicly available Internet site."

As a result, Manatee, Charlotte, Sarasota and other counties began offering subscription services to allow lawyers and others to access the information.

That led to the Supreme Court's ban on the posting of virtually all court documents online until the committee could provide new guidelines and rules to protect individual privacy.

Media groups had asked the court to lift the temporary ban, saying it was an unfair and unconstitutional limitation because it affected only the use of the Internet to find the public records, which are still available in courthouses.

Gregg Thomas is a lawyer representing a number of media groups, including The New York Times Co., which owns The Ledger, the Sarasota Herald-Tribune, The Gainesville Sun and The Ocala StarBanner.

Thomas told the committee that the fairly low risk of having sensitive information released on the Internet "is the price we pay in a democracy. If we have a transparent system, I think we only build confidence in our system."

Land title companies, which research the ownership claims of properties in real estate transactions, say the Supreme Court's ban on the Internet access has cost them money and time in moving forward on real estate closings.

Fred Dudley, a lawyer representing three title companies, said the subscription services allowed access to information that the Legislature had banned from the Internet, such as death certificates and divorce agreements. The Supreme Court's ban, Dudley said, turned what had been a 30-minute job of research on the Internet into an hours-long effort to find the information at the courthouse.

Thomas and Dudley each said their clients would likely take the matter back before the Supreme Court in an effort to end the Internet ban.

Dudley said the it was no surprise that a Supreme Court-appointed committee wouldn't overturn the court's ban.

"These people have a fear, because they are all put on there by the Supreme Court, of saying, `Hey! You didn't do it right,' " Dudley said.
Dudley and others noted that under the Supreme Court's ban, the information may still be made available on the Internet if a private company purchases copies at courthouses and then posts them online.

But committee member Jon Kaney Jr., a Volusia County lawyer, also said there's no legal "compulsion" requiring any court records to be posted online by counties.

Another committee member, Palm Beach Circuit Judge Edward Fine, said that the instant broadcasting of court records on the Internet could harm those who are not aware that sensitive information was being made public in a hostile lawsuit.

But Karl Youngs, a lawyer representing Manatee County Clerk of the Circuit Court R.B. "Chips" Shore, said that the county's use of the subscription service for online court documents had worked well with no leaks of nonpublic records

The committee will meet over the next few months to solicit more input from affected groups and research technology that might screen out sensitive information as court records are posted online.

The group has a July 1 deadline to make recommendations to the Supreme Court.

                        Court Records up for Debate
                  Panel Takes Suggestions on Privacy and Access

By James L. Rosica
Democrat Staff Writer
Nov. 18, 2004

News-media representatives, including the news heads of the Tallahassee Democrat and WCTV-

Channel 6, told a Florida Supreme Court committee Wednesday to leave the electronic floodgates open for court records.

After concerns over identity theft, the high court told the state's court clerks last year not to post court records on the Internet until it comes up with a policy to protect individuals' privacy.

There are exceptions, such as redacted documents and others decided to be of "significant public interest."

A 15-member panel of professors, court clerks, judges and lawyers now must seek a balance between the right to privacy and the open flow of information. That panel heard testimony at the Florida State University College of Law.

Most speakers urged panelists not to distinguish paper records from online records when they make their recommendations.

Others said they had found no instances where identities were stolen from online court records. In any event, they asked that access not be restricted based on worst-case examples.

"Putting speed limits on information is dangerous," said Mike Smith, WCTV's vice president of news and production.

Online access to court documents doesn't just help reporters gather news, Smith said, it also allows people to inform themselves.

Mizell Stewart III, editor and vice president of the Tallahassee Democrat, suggested a policy similar to federal court, which requires those who file court papers to leave out Social Security numbers and bank and credit-card account numbers, among other information.

"The burden is clearly placed on the filer of the document - not the court system - to exercise caution when deciding whether to include sensitive personal information," he said.

Orlando Sentinel attorney David Bralow said the courthouse "is a public commons; it's Central Park," and that, to some degree, there should be no expectation of privacy when conducting business there.

Court Panel on Privacy, Court Records Seeks Balance

Jackie Hallifax
Associated Press
Tallahassee Democrat
November 13, 2004

TALLAHASSEE, Fla. - Thomas Kulaga doesn't want information about his life and finances put on the Internet for all the world to see.

The Palm Harbor business consultant, who's been a victim of identity theft, was dismayed when he learned of plans in Pinellas County to make mortgage documents more readily accessible online.

So when he heard the Florida Supreme Court was studying the question of court records on the Internet, he didn't hold back.

"I am totally against making more information available online and, frankly, I think less information should be available," Kulaga, 55, wrote in an e-mail to the high court's Committee on Privacy & Court Records.

Kulaga's not the only one with views on the topic.

Andra Griffin, a 25-year-old bookkeeper in Bradenton, wrote an e-mail about how she uses Manatee County's online court records.

She logs on to the court clerk's Web page to screen business contacts for her father, who is in real estate, and has even used it in her personal life to do a "light background check" on people who have asked her out. She doesn't put much weight into fears about privacy being invaded or identities being stolen.

"A lot of people do not realize how wonderful this access is and how beneficial it can be," Griffin wrote. "This is public information."

A year ago, though, the state Supreme Court ordered court clerks to stop posting court records on the Internet until a policy could be developed to safeguard privacy. Exceptions to the moratorium included documents that have been screened or are judged to be of "significant public interest."

The court created a 15-member panel of judges, attorneys, law professors and court clerks to tackle the thorny issue of balancing access and privacy in an Internet world. The court's committee will hear its first public testimony Wednesday at the start of a two-day meeting in Tallahassee.

Florida has a strong tradition of public records dating back decades - and it was only strengthened a dozen years ago when voters added an open-government provision in the state constitution.

The state also has an explicit constitutional promise of privacy - it's one of the few states in the country with such a clause.

And those two rights both come into play when it comes to court records that are full of sensitive details about people's lives during divorces, child custody disputes and property fights, to name a few of the most common cases.

Everyone agrees a transparent court system is essential and no one advocates harmful intrusions into privacy, said Jon Mills, a University of Florida law professor and former state House speaker tapped to chair the court's committee.

Mills described the panel's work in one word: "Tightrope."

Court files have always been stuffed with personal details about people - particularly in the area of family law. But before the information age such material often was protected by what some call "practical obscurity" - kept in a public file in a records room at a courthouse and sought by few, if any, people.

The Internet changed that.

The committee has until summer 2005 to submit its policy recommendations to the Supreme Court. The court could implement some of the suggestions, while the Legislature or even voters might be required to approve others.

Like Kulaga and Griffin, the Florida Bar's Media & Communications Law Committee has already shared its views with the study group.

"We deeply believe that online access to court records will result in higher quality journalism and will foster better public understanding of the court system ... In principle and practice, electronic access should parallel at-the-counter access to paper records."

The letter was written by Carol Jean LoCicero, a Tampa attorney who chairs the committee's subcommittee on electronic access, and D. Patricia Wallace, a Miami attorney who chairs the full media law section.

Mills said he did not know what the answer would be. "We're at the beginning of the process," he said. "We're listening."

One of the committee members is Jon Kaney Jr., a Daytona Beach attorney who represents the First Amendment Foundation, an open government advocacy center in Tallahassee.

"One thing I'm interested in hearing is I want somebody to explain to me why there is no difference between old-fashioned counter access and modern-day bulk and remote access," Kaney said. "I think the policy argument that says, 'Forget about it, they're all the same' overlooks real and genuine differences in living in a database society and one where there is no digital dossier."

But Kaney also questions whether people are too quick to supply personal information when they have to go to court.

"The right to privacy under the constitution is a right to keep things to ourselves and away from the government," he said. "Floridians rarely exercise that right."

And once the government knows it, it's hard to call that information private, he said. People should consider if what they include in their divorce or child custody is really necessary to make their case, he said.

For instance, Kaney said, in an uncontested divorce between a husband and a wife with no children is it really necessary for each spouse to file a sworn financial disclosure?

Michael Froomkin, a University of Miami law professor who has taught about Internet law for 10 years, said court files often have so much key information that they're valuable resources to people who want to match information about people from different sources for business purposes such as background checks or to assess their credit worthiness.

"They're like the Rosetta stone for all these different databases," Froomkin said.

Barbara Petersen, president of the First Amendment Foundation, said the crux of the issues focuses on how the custodian of a record protects information that is exempt from Florida's public records law before releasing it on the Internet.

"I honestly don't think we need to be creating a whole slew of exemptions," Petersen said. "I think we need to rethink how we process and handle this information."

Florida Supreme Court's Committee on Privacy and Court Records:
http://www.flcourts.org/osca/divisions/privacy/index.html

First Amendment Foundation: www.floridafaf.org
Center for Democracy & Technology: www.cdt.org
The National Center for State Courts: www.courtaccess.org
The Electronic Privacy Information Center: www.epic.org

Court Records Should Be Open Whether Paper Or Electronic

Tampa Tribune Editorial
November 8, 2004

Citizens of Florida have a right of access to public records, including court records.

Net-friendly or Not, Panel Seeks Input
Court Records Committee Seeks Public Comment on Internet Access

Warren Richardson
Sun-Herald
September 23, 2004

SARASOTA FL -- A special committee appointed by the Florida Supreme Court to study Internet access to court records is seeking public comment on the issue.

In February, former Chief Judge Harry Lee Anstead, on behalf of the court, issued an order that terminated access to all court records over the Internet while a committee appointed by the court deliberated on standards of access.

The court terminated electronic access to the records after concerns arose about private information being readily available over the Internet and growing fears of identity theft.

The committee has already met twice, in April and August, said Supreme Court spokesman Steve Henley.

Individuals or organizations that want to comment on the issue may provide written comments by Nov. 1 either by e-mail to CPCR@flcourts.org or by regular mail to: Committee on Privacy and Court Records, Supreme Court of Florida, 500 S. Duval St., Tallahassee, FL 32399-1900.

In addition, the committee also will take public testimony during its next meeting in Tallahassee on Nov. 17. Individuals or organizations that plan to present public testimony are requested to notify the committee by Nov. 1 by e-mail or mail at the above addresses.

The scope of the committee's work is limited to court records and does not extend to other public records such as deeds or property appraisal records. Likewise, case dockets on the progress of cases in the courts also remain accessible over the Internet.

The ban on Internet access to court records forced Circuit Court Clerk Karen Rushing in Sarasota County to cease access to her Web site in February, which allowed users to view -- with the exception of the most sensitive private information -- all case records.

Charlotte County Circuit Court Clerk Barbara Scott, who is a member of the Supreme Court committee, was forced to cancel her subscription-based Internet access to records.

Now, landlords, bail bondsmen and others with an interest in the court records must physically visit a clerk's office where computers allow access over the Internet to the same records they were previously able to view outside the office.

The recommendations from the Committee on Privacy and Court Records are due no later than July 1, 2005.

According to Henley, the committee will begin deliberations on its preliminary recommendations on Nov. 18, and it's anticipated that a draft report will be ready for public comment in March or April. Once comments on the draft report are received, the committee will review that input and make any changes before submitting its final report.

"It's not uncommon for this court that the final report go back out for more comment," Henley said, thus providing residents with a third opportunity to weigh in on the standards.

                   Panel Will Debate Web Access to Documents

By Robert Patrick
Herald Tribune
March 14, 2004

Tallahassee Fl - State and federal courts see going digital as a way to save money, boost efficiency and help manage an ever-increasing case load.

By late last year, electronic filing and imaging systems were in place in almost 100 federal courts, according to the Administrative Office of U.S. Courts, helping manage daily paperwork loads that are sometimes measured in feet rather than pages.

With the systems in place, court personnel are no longer chained to paper documents or to a single file. Multiple users can look at a document simultaneously, and lawyers can even file documents to the court instantly. Local courts are following suit.

But as it becomes easy to connect these electronic systems to the Internet and make access available to all, court officials and the legal community are wrestling with the issue of privacy versus access to public information.

For all of its savings and convenience, the ability to "broadcast" court documents on the Internet makes some people nervous.

A handful of Florida court clerks made civil and criminal documents available online for several years, until concerned privacy advocates pressured the court to temporarily shut down electronic access this month. Some are trying to make the ban permanent.

The state Supreme Court's chief justice appointed 15 people to decide whether clerks in the state should post documents on the Internet. By court order, the committee is made up of judges, clerks, a court administrator and lawyers.

The committee's first meeting is scheduled in a few weeks.

By all early indications, it's likely Florida -- traditionally known as the most progressive state for open records -- is facing a serious retreat from online access.
Interviews with a dozen committee members show that many of them have serious concerns about the release of too much information online.

Members have been warning civic groups about the issue, giving lectures and even writing articles airing their concerns that openness has gone too far.

Committee Chairman Jon Mills, director of the Center for Governmental Responsibility at the University of Florida's Levin College of Law, is widely known for advocating privacy rights.

"He is the biggest advocate in Florida for privacy rights, and not in any logical or meaningful way," said Tom Julin, a media lawyer in Miami. The choice of Mills as committee chair "is just outrageous," he said.
Julin said Florida's long history of open government and open access to government records is changing.

"The pendulum has swung the other way and the privacy nuts have started to rule the roost," he said.

But some committee members said nothing has been decided yet. They say the committee is balanced, and point to Jon Kaney, a lawyer for the First Amendment Foundation and someone who has represented media groups in public-records fights in the past.

Kaney said that it is the committee's responsibility to protect access to public records via the Internet and to protect public records from the Internet.

"From the point of view of the mainstream press, it (court records) can't be too open," Kaney said. But there has to be a more persuasive argument than saying "'Hell, no,'" to privacy advocates, he said.

Many on the committee say that they have an open mind, and will reserve a decision until they know more.

"I hope no one has a fixed opinion yet," Kim Skievaski said. Skievaski is the chief judge of the First Judicial Circuit.

Skievaski said that no one called and asked him what his position was before he was picked. "Maybe there was an intentional desire to not find out where I stood."

Journalists have used court records, including sentencing data, to analyze differences in prison sentences. The data can also be used to analyze the performance of prosecutors, probation officers and others in the criminal justice system.

That concerns one committee member.

"It could be pulled out of context," said committee member Edward Fine, who serves as chief judge of the 15th Judicial Circuit.

Death of practical obscurity

Courts have long counted on practical obscurity -- the effort required to go to different courthouses and look up court files -- as an obstacle to much of the potential abuse.

"The people who need it, get it," and the people who don't need it, don't get it, said Jackie Griffin, a committee member and a 5th Circuit Court of Appeal judge.
As it becomes possible for anyone around the world to access that information with just a few mouse clicks, those obstacles disappear.

"At 2 a.m., in your pajamas, anybody can see anything," said Orange County Clerk Lydia Gardner, and she said people are alarmed when they find that out. She's been lecturing Kiwanis club members about what's available in their divorce records if they ever get placed online.

No one argues that those records haven't always been available to the general public. But the difference with having court records online, Fine said, is that "you're broadcasting it."

"It's almost like Napster," he said, referring to the software program that allowed Internet users to illegally swap music and video files. "Once you put it out on the Internet, it facilitates re-broadcast by others."

Griffin said she's concerned about sensitive victim information appearing online, and the effect it could have on prosecutions. Griffin predicted that litigants might not use the court system if they know the information will be public, or could be published everywhere. If they do, she asks "Will they tell the truth?"

But those court records have been online for years in some Florida counties.
Manatee Clerk R.B. "Chips" Shore said that access to private information such as Social Security numbers and files from divorce or probate cases or sensitive cases, such as sexual abuse or cases involving children, can easily be restricted. He says he and other clerks who post court documents are careful to keep sensitive documents off the Web.

In 2001, federal courts allowed remote electronic access to civil, bankruptcy and appeals court files. Federal courts are now experimenting with electronic access to criminal files.

A Federal Judicial Center study found "no evidence of harm to any individual and also found that a majority of those interviewed in the pilot courts -- judges, court staff and counsel -- extolled the advantages of electronic access," according to the Administrative Office of U.S. Courts. Federal courts now require that whoever files the document to remove personal information, instead of relying on the clerk to protect that information.

But even with such restrictions, some committee members are concerned about posting documents.

"Would you rely on your local clerk to get up early every morning … and make sure your naked body doesn't make it on the Internet …," asked Griffin, "or the deposition testimony of the offender who describes in great detail what he did to you over hours and hours and hours?" Shore bristles at such suggestions.

"That's never been online" Shore said. "No one would ever put that online."

Photos and depositions of victims have not been available to online users in Manatee or Sarasota counties. Document images from cases involving sexual crimes or underage victims also have not been accessible to online users.

Paper records may change

In an article in the Florida Bar Journal, 11th Circuit Judge Judith Kreeger proposed that to protect privacy the Florida Supreme Court stop requiring financial records in some divorce cases.Committee members say that may be one outcome of the privacy versus access fight: The court may begin to restrict access to paper records that have been open for years.

Kaney, a committee member and attorney for the First Amendment Foundation, uses Dale Earnhart's autopsy photos as an example.

Autopsy photos were once publicly available, but when Earnhart's widow found out that the records could go online, she sued to block their release. The Legislature quickly passed a bill that made all autopsy photos illegal.
"The Internet made her do that," Kaney said. "If there had been no such thing … we would not have had an Earnhart bill."

The same thing could happen to other records, he and other committee members warned.

"I think that is an alarmist view," said Julin.

Walt Smith, court administrator for the 12th Judicial Circuit, said the committee's recommendations could affect records in other ways.

The committee could recommend that certain information should no longer be considered public, or change what information is collected. It could even affect police reports, which often contain height, weight, Social Security number, even how many tattoos a person has."You've got a whole lot of information that's there just to arrest some guy for curbside drinking," Smith said.

No one wants their mistakes posted on the Web. But it's clear that people find the information useful. Shore said that when the Web went down, he discovered a lot of single people were using it to check whether a potential date was safe.

Shore, who has been at the forefront of putting court records online, said that 99 percent of the complaints he receives are from people who don't like their criminal convictions appearing online. He has been roundly criticized by privacy advocates for being inflexible on the issue of the public's right to access court records.

Shore estimates that he saved $60,000 a year by having civil and criminal documents online, before access was shut down earlier this month. When he put property records and other "official records" online, Shore said, he was able to move four clerks to other jobs, eliminate seven microfilm machines and cut traffic to the office by 60 percent. Document images in civil cases have been online since July 2001 and in criminal cases since June 2002. "This saves an incredible amount of time," Shore said.

Shore said last week that he has been seeking guidance from the court all along about what should not be available online, but their response has been to try to shut down access.

He's afraid that's what this online moratorium is all about. Shore and others complain that that the committee didn't look for people with knowledge and information about putting records online. Michael Froomkin, a committee member and professor at the University of Miami's School of Law, has written extensively about privacy issues, and he says he knows one thing for certain about putting records on the Internet.

"In my writing, one of the points I make is that once information gets out, you can't put it back again," he said.

Froomkin said he is a strong believer in both privacy and the First Amendment, but said "you can't have 100 percent of both."

Court Records a Click Away? Yes, With Some Safeguards

By Susan Saulny
New York Times
February 26, 2004

The New York State court system announced yesterday that it planned to begin making criminal and civil legal records available on the Internet, leaping ahead of many other states and government agencies.

The project, which will be phased in over five years, includes some limitations set to protect individual rights to privacy. For example, the courts will not release family court cases, matrimonial actions and case files that are sealed or otherwise not already open for public inspection, officials said. And the online records will not contain complete Social Security numbers, financial account information, birth dates or the names of children.

The responsibility for omitting material like the names of sexual assault victims or information about cooperating witnesses will fall on those who represent the concerned parties. Judges, as well, will continue to have discretion over deleting information.

But briefs, criminal complaints, lawsuits and anything else that already is considered public information will be fair game, making the new policy a step beyond what has become commonplace in court systems, like the online publishing of schedules, calendars, news releases and judicial decisions, something even the New York courts do now.

The limitations on private information are a response to controversies elsewhere about the online publication of information like motor vehicle records, voter registration data and court files. For example, Internet efforts in Cincinnati and Florida have been met with complaints and disagreement, and ultimately, rethinking.

"This will play a significant role in making the courts comprehensible to the public," said Jonathan Lippman, the state's chief administrative judge. "We are one of the few states doing this on the individual case record basis. It's consistent with what we feel should be the openness of the courts."

Judge Lippman said the new policy most closely resembled the electronic availability of state court records in Colorado. (Its online court records have been updated daily since 2000, said Linda Bowers, the court's public access manager. She said the experience had been positive.)

Judge Lippman continued: "While the records are open now, remember they're sitting in basements in courthouses with dust all over them, and you have to go to the court and find them. That's very different from the openness and accessibility you have in the modern technological age."

But questions remain: Can a record ever be expunged from the Internet? Could names be lifted for improper purposes? Removing the inconvenience of having to go to a courthouse could create new problems with privacy and discrimination that need to be monitored, critics say.

"It's a good idea in principle to make public records accessible to the public, but as with so many technical advances, it's hard to predict the problems that will arrive," said Donna Lieberman, the executive director of the New York Civil Liberties Union.

She raised the hypothetical example of a landlord who might have never invested time in searching actual court records, but who now could routinely check online to see whether prospective tenants have ever been involved in a lawsuit.

To examine issues like this, Chief Judge Judith S. Kaye appointed a 22-member commission headed by Floyd Abrams, the First Amendment lawyer, to study the issue. The commission included advocates for defendants and plaintiffs, representatives of the judiciary, and business groups, and journalists, among others. It held three public hearings. "The courts must adapt to this modern reality," Judge Kaye said in a statement released yesterday.

There's a Reason They're Called Public Records

Sun Herald
February 26, 2004

CHARLOTTE [FL] - Apparently not willing to leave bad enough alone, the Florida Supreme Court has ordered county clerks to cut off all remaining Internet access to court records.

It's the coup de grace to a part of Florida's public records law that suffered a near-mortal wound last fall.

You may recall that Chief Justice Harry Lee Anstead issued a similar order in November, to shield private or confidential information in the records. An exception for clerks who had a screening procedure in place so that confidential information would not be posted allowed Sarasota County Clerk of Court Karen Rushing to keep the records available through her Web site.

Last week Anstead closed that window. Beginning March 1, if you want to see one of these public records, you have to go to the clerk's office to look at the actual file or view it over a computer there that isn't connected to the Internet.

That's the way things will be until sometime after July 1, 2005, when a committee is to recommend a uniform state policy for electronic access to court records.

We certainly see the need to ensure that information that doesn't belong in the public domain doesn't end up there. Identity theft is a real and serious problem, and not one the court system needs to abet. And the clerks of Florida's 67 counties should all handle these records in the same way.

In Charlotte County, Clerk of Courts Barbara Scott said her office will still be able to handle requests for records by e-mail. Charlotte is one of only a handful of counties in the state that is offering that service to internet users.

"Anything that is on our Web site, people can e-mail a request to us and we will send them that information by return e-mail," Scott said.

Still, Anstead's order both goes too far and not far enough -- it eliminates perhaps the most important method of accessing these public records without any showing that there is a real risk because of their availability, while leaving the information available through other means.

Lots of people depend on being able to get information from court records through the Internet -- attorneys, real estate agents and, yes, journalists. In Sarasota County, interested parties could view the progress of cases though the judicial process, and even view the documents filed within those cases.

A clerk screened all documents before they were scanned in and eliminated sensitive, personal information. If there was ever a problem with information being available when it shouldn't have been, we never heard of it.

Admittedly, all of that information is still available. But few people who work with these documents have the flexibility to be able to travel to the courthouse to see them whenever they're needed. And when that needed arises after 5 p.m. or on the weekend -- as it often does -- the papers might as well be on the moon.

Conversely, elimininating access to court records via the Internet will do little to serve the privacy concerns that the court is wooried about. Anstead's order leaves open Internet access to other records, such as deeds, which often contain Social Security numbers, a thief's Holy Grail.

And there is nothing to prevent a potential lawbreaker from going to the courthouse to access any record. Anstead's order doesn't change what goes into the court files, merely how we can obtain it.

Florida public records law is supposed to be interpreted to provide the highest possible level of public access, using the least restrictive means to protect sensitive material. We think the court's moratorium on Internet access to court records fails on both counts.