Courthouse News Serv. v. Forman

• Decision Date: 10 June 2022
• Docket Number: Case No.: 4:22cv106-MW/MAF
• Citation: 606 F.Supp.3d 1200
• Parties: COURTHOUSE NEWS SERVICE, Plaintiff, v. Brenda D. FORMAN, et al., Defendants.
• Court: U.S. District Court — Northern District of Florida

606 F.Supp.3d 1200

COURTHOUSE NEWS SERVICE, Plaintiff,

v.Brenda D. FORMAN, et al., Defendants.

Case No.: 4:22cv106-MW/MAF

United States District Court, N.D. Florida, Tallahassee Division.

Signed June 10, 2022

Daniela Abratt, Thomas & LoCicero, Fort Lauderdale, FL, Jonathan Eric Ginsberg, Bryan Cave LLP, New York, NY, Mark Richard Caramanica, Thomas & LoCicero, Tampa, FL, Carol Jean LoCicero, Thomas & LoCicero PL, Tampa, FL, for Plaintiff.

Amy Marie Wessel Jones, Shutts & Bowen LLP, Fort Lauderdale, FL, Sidney Charles Calloway, Shutts & Bowen LLP, Miami, FL, for Defendant Brenda D. Forman.

Gregory Thomas Stewart, Kirsten H. Mood, Lynn Miyamoto Hoshihara, Elizabeth Desloge Ellis, Nabors Giblin & Nickerson PA, Tallahassee, FL, for Defendant Florida E-Filing Authority.

Elizabeth Desloge Ellis, Gregory Thomas Stewart, Nabors Giblin & Nickerson PA, Tallahassee, FL, for Defendant Karen E. Rushing.

PRELIMINARY INJUNCTION

Mark E. Walker, Chief United States District Judge

In Broward County Circuit Court, most civil complaints are unavailable to the public the day they are filed. Plaintiff, Courthouse News Service, argues that this state of affairs violates its First Amendment right to timely access court documents. This Court must determine whether the First Amendment encompasses such a right, and whether the current delays in access violate it.

The eighteenth-century British politician Edmund Burke apocryphally said that "there were Three Estates in the Parliament; but, in the reporters’ Gallery yonder, there sat a fourth estate more important far than they all." Slavko Splichal, Principles of Publicity and Press Freedom 44 (2002). Our Nation's founders thought as much, providing in the first amendment to the Constitution that "Congress shall make no law ... abridging the freedom of ... the press." U.S. Const. amend. I. Indeed, the press is the only profession the Constitution expressly protects.

And "[a]s a check on the judiciary specifically, the media provides an outlet for ‘public scrutiny of the justice system,’ perhaps one of the greatest cornerstones of American democracy." Rachel Luberda, The Fourth Branch of the Government: Evaluating the Media's Role in Overseeing the Independent Judiciary , 22 Notre Dame J. L. Ethics & Pub. Pol'y 507, 513 (2008). Following this reasoning, the Supreme Court has found that the First Amendment provides a right of access to criminal proceedings. See Press-Enter. Co. v. Superior Court (Press-Enterprise II ), 478 U.S. 1, 5, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986). And a host of lower courts have extended that right to civil proceedings.

The Eleventh Circuit has likewise resolutely enforced the "presumption of public access" to court records, finding that the common law guarantees access to judicial records. Callahan v. United Network for Organ Sharing , 17 F.4th 1356, 1359 (11th Cir. 2021). But the Eleventh Circuit has yet to decide whether the First Amendment guarantees access to newly filed, non-confidential civil complaints, "the cornerstone of every case," to which "access ... is almost always necessary if the public is to understand a court's decision." F.T.C. v. AbbVie Prods. LLC , 713 F.3d 54, 62 (11th Cir. 2013).

As explained below, the First Amendment guarantees such access, and Broward County's current system violates that right. Thus, Plaintiff's motion for a preliminary injunction is GRANTED .

I

Courthouse News Service reports mainly on "the law as it is developed and decided in American courthouses." ECF No. 35-1 ¶ 1. To that end, Courthouse News covers "state and federal trial and appellate courts in all 50 states." Id. ¶ 4. Courthouse News publishes articles on its own website and sells its reporting to other news outlets, such as the Associated Press, CNN, and Walt Disney. Id. ¶¶ 7, 9. The "majority of the nation's large and mid-sized law firms also subscribe to one or more of Courthouse News’ publications," as do several universities. Id. ¶¶ 7–8.

Among its eight Florida newsletters, Courthouse News publishes the Broward County Report , "which reports on new litigation in Broward Circuit Court." Id. ¶ 5. "To prepare the new litigation newsletters and identify new cases that may warrant an article on Courthouse News’ website, Courthouse News’ reporters visit their assigned court, or visit the court's website where remote online access to documents is available." Id. ¶ 16.

In Florida, visiting the assigned court will not do much good; with a few exceptions, electronic filing is mandatory in Florida courts. See In re Elec. Filing in the Sup. Ct. of Fla. via the Fla. Cts. E–Filing Portal , Fla. Admin. Order No. AOSC13–7, 4 (Feb. 18, 2013). The two Defendants in this case—the Chair of the Florida E-Filing Authority,¹ Chair Rushing, and the Broward County Clerk of Courts, Clerk Forman—both play a role in the e-filing process.

All filings begin at Florida's E-Filing Portal. The Authority developed, owns, and governs the Portal. ECF No. 43-1 ¶ 2. Parties access the portal through www.myflcourtaccess.com. See ECF No. 35-3 ¶ 8. Before filing a complaint, the filer must enter case information such as the relevant jurisdiction, the type of lawsuit, party details, claim amounts, remedies sought, and whether the complaint contains confidential information. Id. at 8–24. Then, before uploading the complaint, the filer is reminded of their sole responsibility to ensure the redaction of confidential information. Id. at 25. Once a complaint is received through the Portal, the Authority processes it by "stamp[ing] the filing with the official file stamp date and time" and sending "a Notice of Electronic Filing ... to all parties selected on the E-Service list for that court case." ECF No. 43-1 ¶ 3. After the Authority processes the complaint, it transmits the complaint "to the selected county for review and processing." Id. ¶ 4. Despite all the information gathered during submission, the Authority only filters complaints by county and does not separate confidential filings from non-confidential filings. Id. The Authority simply transmits each complaint "in the order in which it is received." Id. ¶ 3. "Generally speaking," it takes "no longer than 5 minutes" to process and transmit a complaint from the Portal to the appropriate clerk of court. Id. ¶ 8.

Once the county clerk receives the complaint, further processing is done in one of two ways: Local Review or Portal Review. Id. Under Local Review, "the filing is submitted to that particular jurisdiction's review queue and the Portal's involvement ends there until after the county has completed its processing and accepted the submission, at which point the Portal receives a notification with the date and time of that completion." Id. ¶ 5. Under Portal Review, "the county will review the filing within the Portal review queue to ensure all documents in the filing can be automatically accepted, i.e., that the documents are formatted properly, contain the correct case style, and have the correct case number, among other things. If they can, the county accepts the filing, and it is then transmitted to the jurisdiction's CMS." Id. ¶ 6. Broward County uses Local Review. Id. ¶ 9.

Traditionally, as part of their review—whether Portal or Local—clerks had to sift through filings for confidential information. See In re Amends. to Fla. Rule of Jud. Admin. 2.420 , 320 So. 3d 626, 627 (Fla. 2021). But, responding to media complaints of "concerning delays in ... access to nonconfidential court records," the Florida Supreme Court modified the Florida Rules of Judicial Administration to provide "that, in certain civil cases, the clerk of court does not have an independent responsibility to identify and designate information as confidential. Instead, that is the sole responsibility of the filer." Id. ; see also ECF No. 46-3 (Defendant Forman's notice to filers that "[e]ffective July 1, 2021, filers will be solely responsible for ensuring any confidential information contained in filings ... is appropriately redacted").

Now, clerks need not "designate and maintain information as confidential unless the filer" follows the procedures for marking a filing as confidential. Fla. R. Gen. Prac. & Jud. Admin. 2.420(D)(1)(c). Yet, as noted above, although filings are marked as confidential or non-confidential when filed, "the Portal does not separate confidential filings from non-confidential filings." ECF No. 43-1 ¶ 11. "That is done by each individual clerk at the review stage." Id.

Both before and after the current system came into effect, delays in access have plagued Broward County. In 2018, the News Media Coalition prepared a report—based on observations by one of Plaintiff's reporters—criticizing Florida's court system for delays in access to court documents. ECF No. 35-2 at 45–53. In response, the Florida clerks issued a rebuttal arguing that the delays were justified by the time it takes "to docket and ... redact" documents. Id. at 68. The clerks further stated that Broward County met "performance standards for timeliness; i.e., two days for case filings and three days for supplemental filings 80 percent of the time." ECF No. 1-3 at 7. Defendant Forman still follows these standards. ECF No. 44 at 19; ECF No. 44-6 at 5.

More recently, from August 2021 to February 2022, Plaintiff tracked public access to civil complaints in Broward County. ECF No. 35-2 ¶ 20. Based on this data, 13% of complaints are available the day they are filed, 44% a day after filing, 14% two days after filing, and 29% three or more days after filing. Id. Thus, 87% of complaints are unavailable the day they are filed and 43% are unavailable for two days or more. Id. ¶ 22. Defendants have not challenged this data's accuracy.

Such delays seriously hamper Plaintiff's ability to report on lawsuits in Broward County. "News runs on a daily cycle where events occur during the day and are reported that day." ECF No. 35-1 ¶ 14. Or, as Plaintiff more colorfully put it, it's called "news" not "olds." ECF No. 35 ...