Florida Supreme Court Extends Temporary Moratorium on Internet Access to Records, But Agrees to Develop Permanent Statewide System
 
August 8, 2006
 
George D. Gabel- Jacksonville

Corinne R. Simon*

The Florida Supreme Court, in two recent administrative orders, extended its moratorium on Internet access to state court records for another year. However, the orders also established an interim policy on electronic access to records and approved a pilot program for one Florida county. The limited moratorium will be further reviewed by July 2007, but will continue until permanent procedures are established and approved.

The June 30, 2006, orders were in response to recommendations issued last August by the Committee on Privacy and Court Records. Signed by outgoing Chief Justice Barbara Pariente and incoming Chief Justice R. Fred Lewis, the Court ultimately agreed with the Committee’s recommendation that the state should develop a statewide system of online court records, but the system will include some limitations.

“The 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,” wrote the justices.

The Court articulated the conflict between “two competing yet important values … openness and transparency in court records, on the one hand, and individual privacy, on the other hand.” Much of the Court’s concern revolved around the privacy threat presented by “[t]he instantaneous and inexpensive dissemination of information [afforded by electronic access to court records which] raises the specter of increased opportunity for identity theft and misuse of personal information.”

The Court noted that many Florida clerks of court already store and maintain court records in electronic form and that many organizations, such as law enforcement agencies and law firms, often prefer electronic filing. However, according to the order, clerk of courts will not be charged with “making substantive decisions regarding whether documents accepted for filing are confidential[.]” Rather, the individual or organization filing the document with the court will be responsible for establishing a document is confidential if it does not fall within a soon-to-be established set of finite exemptions. The Court did not address the question of whether statutory records exemptions are “absorbed” into the court record and must be treated as confidential.

However, the Court stated “[t]he issue is not whether the courts will make records available electronically, but rather when and under what conditions they will do so,” the Justices said in the orders.

The interim policy will allow online access to some court records such as docket information, a limited range of real property records and all appellate court filings, including motions, briefs, petitions, orders and opinions. In addition, the order gave lower-court chief judges the discretion to, in cases of significant public interest, make all records available electronically. However, the order does not require nor obligate the clerk of court to provide electronic access.

According to the orders, the Manatee County, Florida, Clerk of Court will, with help from the Florida Courts Technology Commission, develop and implement a one-year pilot program, which the Court will later review as a potential model for permanent procedures to allow public access to court records statewide. The permanent procedure will include policies on user identification, access fees, sealing of court documents and redaction of confidential information.

The federal court system currently allows some electronic access to court records through a centralized service called PACER, which stands for Public Access to Court Electronic Records. After registering, the online service allows users to obtain case and docket information from individual court Web sites for a fee. Additionally, some federal courts also allow the public to access to actual court documents. Internet access to state court records varies by state and even by jurisdiction within a state, according to the Center for Democracy and Technology.

For more information, e-mail George D. Gabel, Jr. at george.gabel@hklaw.com or call toll free, 1-888-688-8500.

* Corinne R. Simon, 2006 summer associate in the Jacksonville office of Holland & Knight, attends University of Florida Levin College of Law and will graduate in 2007.