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Palm Beach Post A distinguished group of Florida judges, court administrators, law professors, legal technology experts and court clerks is trying to decide rules regarding access to court records and other public records in the electronic age. That makes the Committee on Privacy and Court Records the latest traffic cop at the intersection of technology and one of the most open governments in the country. "Nobody in the U.S. has got this nailed down," said Judge Edward Fine, chief of the 15th Judicial Circuit in Palm Beach County and a member of the panel established by the Florida Supreme Court in November 2003. Newly elected Palm Beach County Clerk of Court Sharon Bock said that the decisions "are going to make a difference in . . . how we get information in the future and where we go with technology." In fact, with the inevitable increase in electronic record-keeping, the documents that you easily can access in the future could become a lesser concern than the ease with which others may be able to get information about you. But a primary objective of the Florida Society of Newspaper Editors' fourth annual Sunshine Sunday campaign, being conducted by news organizations statewide today, is to raise public awareness that secrecy-addicted government easily could exploit the Internet as an excuse to expand the assault on Florida's government-in-the-sunshine on paper by shutting citizens out of the sunshine online. The panel's recommendations will be part of the state's effort to balance individuals' right to privacy with the public's right to know. The Florida Constitution provides every person the right to inspect or copy any public record, including court records, made or received in connection with the official business of any public body. By the late 1990s, it only made sense to offer even greater public access to those records via the Internet, and the Florida Supreme Court and Legislature soon were directing clerks of the court to provide it. But there were even bigger problems than the end of "practical obscurity" — the fact that more records can be seen by more people when it doesn't require a trip to the courthouse. The lack of definitions and procedures for protecting sensitive personal information led to the current limited moratorium, until electronic dissemination of court records in particular can be regulated properly. The committee, chaired by University of Florida law professor and former state House speaker Jon Mills, is taking the lead. It is a reflection of the complexity of the issues that last week, at its next-to-last scheduled meeting, the committee was still uncertain what recommendations to make by its July 1 deadline. The members have agreed, for example, that if a record exists in electronic form, it should be available in electronic form. But they are divided on exactly what is a record — or, more precisely, whether paper and electronic versions really are copies of the same thing. The panel seemingly has reached a consensus that bulk users should pay more for online access, but not whether the seeker of a single record should pay at all. The public is well aware of concerns regarding online availability of Social Security numbers, medical or military records, etc., given the growth industry that is identity-theft protection. But judges, clerks and lawyers also have valid objections to full public access to court records of family law cases. Those routinely require extensive disclosure of financial data, and contain even more sensitive personal information such as the names of minors. "Fifty percent of our cases are divorces, probate, juvenile, dependency adoptions, post-judgment and child support," said Judge Fine, adding that what is proven and appears in the final judgement is one thing but that it would be "reckless" to put family law filings on the Internet. Those contain allegations of rape or sexual abuse that frequently are found to be unsubstantiated, he said, not to mention slanderous material that also could be pulled up by strangers, or children and their friends who these days are quite computer-literate. As the gateway to the court system and an arm of the judicial branch, the clerks are the custodians of court records. But the clerks have little control over the content of the records, Ms. Bock said, and have found that scanned images of documents are likely to contain sensitive information. "We would like to see access to the records stay free," she said, and not a cumbersome and expensive system that puts the onus on the clerks for redacting sensitive information. The Florida Association of Court Clerks is supporting legislation that would shift to preparers and filers of documents — including electronic filers — the responsibility for eliminating any confidential material. "The biggest issue in the country is the pro se litigant," Ms. Bock said. Her office is tooling up to refer even more people who represent themselves to the clerk's self-service center, "but we've got to be very careful. The clerk can never, ever get in the position of giving legal advice." Judge Fine, however, considers it "unrealistic to expect people representing themselves to keep improper stuff out of the files." But he agrees that "it's financially unrealistic to expect the clerks to handle all this." Technology may be driving this debate, but a question the committee has yet to address, said Judge Fine last week, "is 'Who benefits?' There is an assumption, and that's all it is, that it's the guy on the street who benefits from this. Maybe it is commercial, and not the guy on the street. Then you tend to look at it differently." The issues come down to what should be on the Internet, what happens when the wrong information gets broadcast, who should police the documents, and who should pay for that. For now, Judge Fine supports a small test program — though not in family court — and a delay in posting online. "There is such a thing as letting the technology catch up," the judge said. "But you gotta start someplace, so this is the committee that's starting." If the spirit that made Florida that most open state prevails, the state will come out all right.
Reproduced courtesy
of the Palm Beach Post. |
