From the Palm Beach Daily Business Review, January 24, 2005
Supreme Court panel informally leans toward posting court online
In a rare straw poll by the Florida Supreme Court's Committee on Privacy and Court Records last week, a majority of the members present voted in favor of posting court documents online instead of maintaining a primarily paper-based system in courthouses around the state.
With 10 of the committee's 15 members in attendance, six members voted for electronic access, while four sided with keeping most of the courts' records in their paper files.
Committee chairman and University of Florida law professor Jon Mills outlined two options before the vote: Plan A, in which court documents would generally be available online with both open records exemptions and online specific exemptions, and Plan B, in which court documents would not generally be available online, but specific exceptions could be made for highly publicized cases, official records and docket information.
The vote came during the final segment of the committee's three-day meeting in Miami last week. It was the first time the committee has done a straw poll on the two options.
At the high court's direction, the panel, which was formed in late 2003, has been hearing testimony from privacy advocates, media organizations, title firms and other users of court records as it seeks to craft access rules for records that will be made available over the Internet.
As the committee's July 1 deadline to make recommendations to the court looms, it has turned its focus toward the nuts-and-bolts issues of providing online access to court documents. But arguments over the broader issue of balancing the right to privacy with the right to public information still linger.
Florida open records law currently has about 690 exemptions. Putting court records - which often contain sensitive and embarrassing information - online, has the committee looking at a second set of exemptions.
The committee has not yet determined what kind of exemptions should be made, but last week it discussed some possibilities for shielding records from online access.
Miami-Dade Circuit Judge Judith Kreeger noted that in every divorce case, parties have to file a detailed financial affidavit and suggested that that might be a document that should be kept off the Internet.
Additionally, Kreeger said, domestic violence advocates would likely protest the publication of even dockets containing victims' names, since an online reminder could "inflame" a perpetrator.
Documents containing trade secrets, references to sexual behavior and false allegations were also discussed as possibly needing exemption.
Under state law, the court clerks' offices already face a mandate to redact all Social Security information from the court records.
One suggestion, advocated by Edward H. Fine, committee member and chief judge of the Palm Beach Circuit Court, was delaying the release of documents until the defendant has had an opportunity to review the allegations and respond.
Some redactions, such as the erasure of Social Security numbers, could be taken care of by software programs. But the programming is relatively new, and would be limited to fairly simplistic, obvious redactions.
Given the complexity of the issues, and the jungle of new exemptions that might have to be made, Kreeger suggested using one county as a "pilot" to ease into the system.
"I think this is a 10-year issue," Kreeger said "One could recommend that the Supreme Court designate one county as a pilot, then look back at that pilot after one or two years. It would give the court administration and professional groups to take a look at what's been done."
The current mandate is for all court clerks' offices to go online by Jan. 1, 2006. The committee's recommendations will be used by the Supreme Court to determine how that should happen. Last week's meeting was a time for interest groups to comment on the issue of bringing the clerks' offices online.
Manatee County had its court records online before the Supreme Court placed a moratorium on the practice in late 2003. The circuit had been posting traffic and civil cases and had plans in the works to post criminal cases as well.
Karl Young, general counsel to the Manatee County clerk's office, gave the committee a sketch last week of how his county's system worked before the moratorium.
Young said that all the files were not necessarily posted in their entirety, but if a party requested the file, it would be placed online for anyone to see.
Young said posting a request eliminated the time-consuming need to go over files with a fine-tooth comb.
Clerks as gatekeepers
Regardless of what the group of judges and legal scholars decide, the basic work of redactions, Web postings and document scanning will fall to the clerks.
Greg Brock a representative of the Florida Association of Court Clerks, told the committee that "clerks, as a group, would be very in favor" of putting documents online.
The committee gave the clerk's association a 30-day period to comment specifically on any issues and anticipated problems.
Federal courts already have electronic filing and remote access to much of the case files. The trend is expected to trickle down to the less techno-savvy state courts in coming years.
But the slew of possible separate exemptions for online documents has some media advocates concerned.
Calling online access a "convenience" rather than a constitutional right, Mills the meeting of committee members that online access had been deemed a policy issue, not a constitutional one.
The rationale is that since the records were publicly available at the courthouse, their availability on the Web would be secondary and not bound by the state's open records laws.
But Carol Jean LoCicero, partner at Holland & Knight's Tampa office and member of The Florida Bar's media law committee, questioned the wisdom of separate polices for online records and their hard-copy counterparts as court document systems move toward being more electronic-based than paper-based.
"We're dealing with a paper system that has a limited life," LoCicero said. "The policies that they recommend, if the Florida Supreme Court adopts them, will be the world that we live with in the not too distant future when everything is done electronically."
But as time passes, and as technology continues to expand exponentially, the line between documents on the Web and documents on the shelves of the clerk's office could begin to blur, according to committee member and University of Miami law professor Michael Froomkin.
Froomkin pointed out that as hand-held scanners get cheaper, there could come a day when anyone can come into the courthouse, scan the documents themselves, then put them online.
