IN RE REPORT AND RECOMMENDATIONS OF JUD. MGMT. COUNCIL ON CT. RECORDS

• Decision Date: 07 November 2002
• Docket Number: No. SC02-659.,SC02-659.
• Citation: 832 So.2d 712
• Parties: In re REPORT AND RECOMMENDATIONS OF THE JUDICIAL MANAGEMENT COUNCIL OF FLORIDA ON PRIVACY AND ELECTRONIC ACCESS TO COURT RECORDS.
• Court: Florida Supreme Court

832 So.2d 712

In re REPORT AND RECOMMENDATIONS OF THE JUDICIAL MANAGEMENT COUNCIL OF FLORIDA ON PRIVACY AND ELECTRONIC ACCESS TO COURT RECORDS.

No. SC02-659.

Supreme Court of Florida.

November 7, 2002.

Honorable Jacqueline R. Griffin, Judge, Fifth District Court of Appeal, Daytona Beach, FL, on behalf of the Judicial Management Council of Florida.

Jonathan D. Kaney, Jr. of Cobb, Cole & Bell, Daytona Beach, FL, on behalf of Attorneys for First Amendment Foundation; Daniel Nestel, Director, State Government Affairs, Washington, DC, on behalf of Lexis Nexis, a division of Reed Elsevier, Inc.; Lucy Dalglish, Executive Director, Arlington, VA, on behalf of the Reporters Committee for Freedom of the Press; William O'Neil, Longboat Key, FL; and Steven G. Mason, Orlando, FL, Responding.

HARDING, Senior Justice.

This matter is before the Court based on the December 17, 2001, submission of the report entitled "Privacy and Electronic Access to Court Records—Report and Recommendations" by this Court's Judicial Management Council ("Council"). We have jurisdiction. See art. V, § 2(a), Fla. Const.

The balancing of individual privacy rights against access to court records has been made increasingly difficult in the context of electronic transmission of documents. This is especially so in Florida, where open access to public records is both a constitutional right and a cornerstone of our political culture. See art. I, § 24, Fla. Const. The problem becomes more acute when court records are stored electronically and are widely available to the general public via the Internet. Therefore, as part of this Court's 2000-2002 operational plan, we requested that the Council examine issues relating to balancing privacy interests and the public's access to information in the context of the electronic access to court records.¹

In particular, the following questions were posed to the Council as part of its preliminary inquiry into the issue of electronic access to court records:

1. Does the Supreme Court have a role in formulating statewide policies on access to court records, or does responsibility for policy in this area rest elsewhere?

2. If the Court does have a responsibility to develop statewide policies, what steps should be taken to ensure that such policies are developed and implemented?

3. If statewide policies are to be developed, should there be a moratorium on electronic access to certain court records until such policies are developed and implemented?

In addressing these questions, the Council educated itself through a series of workshops which included a teleconference discussion with Justice John Dooley of the Vermont Supreme Court, who led a policy development committee in that state and is a national leader in this area; a presentation by Hayden Dempsey, Deputy General Counsel, Office of the Governor, who staffed the Governor's Task Force on Privacy and Technology; and a video conference discussion with staff of the Administrative Office of the United States Courts with responsibility for developing policy for the federal courts. The Council also received a demonstration tour of the Charlotte County Clerk of Court website, consulted by teleconference with Alan Carlson of the Justice Management Institute, and heard comments from Karl Youngs, General Counsel to the Manatee County Clerk of Court, and Walt Smith, Court Administrator of the Twelfth Judicial Circuit. The Council ultimately formed an ad hoc workgroup that met on three occasions via video-teleconference to specifically address these three questions.² On April 15, 2002, the Council's report was published in The Florida Bar News, and interested persons were invited to comment on the Council's report and recommendations.³

In its report, the Council recognizes that while there are great benefits to gained by providing electronic access to records (e.g., more convenient access to court records; greater openness and accountability; cost efficient storage and retrieval of information; and improved operational efficiencies via simultaneous access of information), serious concerns are presented regarding confidentiality, privacy, and the administration of the courts. As the Council points out in its report,

Perhaps no part of government gathers a range of information that is as broad or as intimate as that gathered by the courts. The sensitive nature of information in court files must be carefully considered as Florida contemplates electronic access to court records.

Council Report at 2.

Indeed, digital storage and transfer of information changes how information can be manipulated and retrieved. Previously obscure information can be located quickly and anonymously for essentially no cost. This expanded capability permits personal information to be copied, transmitted, and analyzed in ways previously impossible or impracticable. These and other issues raise deep concerns about the use of information for purposes other than those for which the information was initially provided.

Two specific areas of concern noted by the Council are as follows: (1) while information that is made confidential by statute or court rule is contained in many court documents, it does not appear at present that the clerks of court have in place reliable mechanisms to identify such information and protect it from disclosure; and (2) court records also contain a great deal of information which is not confidential or exempt from the right of access, but which is nonetheless of a very sensitive or problematic nature. Increased availability of such records may have negative long-term effects, including an undermining of the very ability of the courts to administer justice.

The introduction of technologies which allow remote, electronic access to court records is upsetting the tentative balance between privacy and access. The increased availability of court records— with the concomitant risks of exposure of personal information and interference with the administration of justice—becomes a new factor to be added to the balance. In light of the increased availability that electronic access promises, the existing statutory, court rule, and policy framework must be examined to see if it is adequate to support the achievement of a new balance.

Council Report at 25.

Accordingly, the Council recommends that based upon this Court's broad responsibility under article V, section 2, of the Florida Constitution for the administrative supervision of all courts—including setting policies regarding court records, it should be directed by this Court to oversee the development of policy and recommendations in this area. Along these lines, the Council recommends that it should create a committee for the purposes of addressing this specific issue and, following a policy development process, it should advance specific substantive recommendations to this Court, including proposed rules of cour...