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Court records on the Internet:
By Jon Kaney When clerks of circuit court in several Gulf Coast counties began publishing court files on the Internet last year, citizens and government officials noticed the clerks were not screening documents to “redact” or excise exempt and confidential information. Spokesmen for the clerks startled a legislative study committee when they said it was not possible (or necessary) to screen out exempt and confidential information before putting the records on the Internet. This problematic stance prompted the legislative study committee to join with an existing judicial branch study committee in making two recommendations to Florida’s Supreme Court. One was that the court issue a temporary moratorium on Internet publication of court files. The second was that it create a committee to study challenges raised by widespread Internet broadcast of court records. The study committee (the Committee on Privacy and Court Records) is nearing completion of its work. Contrary to the somewhat reflexive fears of many profoundly dedicated advocates of open government, including many reporters, editors, and publishers, the committee is not hostile to Internet access to court records. While its work is not yet complete, several key principles have been tentatively approved. The court’s committee will recommend that the Supreme Court favor publication of court records on the Internet, provided that the records are effectively screened to remove information that is exempt or confidential by law. The committee also will recommend that clerks be tasked with developing good practices to sort the exempt from the nonexempt before court records are posted on the Internet (or delivered by any other means). The Supreme Court’s moratorium would be lifted county by county once a clerk demonstrates that he or she has developed the capacity to do this screening. Screening practices would be subject to continuing oversight to assure that both sides of Florida’s open government policies are respected. These two sides are (1) the presumptive right of access to any public record (2) that is not exempt. Exemptions are every bit as much of our open government tradition as is the presumption of openness. It is the precision of exemptions that makes possible the broad presumption of access to everything not exempt. Wholesale Internet broadcast of unscreened court records would run roughshod over the exemption side of the equation, and that is potentially fatal to open government in Florida. The strong right of access must be tempered by sensible exemptions (not that all of them are sensible, but that is another problem). Some critics of the Internet publication moratorium have complained that it infringes on the constitutional right of access to records. But there is nothing in Florida’s constitution that requires the government or the courts to publish records on the Internet, and there is certainly nothing in the Constitution that allows Internet publication to override lawful exemptions. What will emerge from the committee’s work is a difficult but useful reconciliation of Internet access with the tradition of over-the-counter access. The result will be a healthier system of open government with access to that which is rightfully open through greatly enhanced remote electronic access while also protecting exempt and confidential information from unlawful disclosure.
Jon Kaney, general counsel to the First Amendment Foundation, serves on the Florida Supreme Court’s Committee on Privacy and Public Records. He is senior partner in Cobb & Cole, a law firm in Daytona Beach. |
