The advent of electronic filing over the last decade had a perverse effect in America’s state courts. But the most perverse has to be Florida, where traditional press access was blown up and the clerks banded together to seize control of the e-filing portal.
Courthouse News is in the process of reporting on the millions of dollars the clerks association extracts from that portal but we also wanted to show how public access has been obliterated in the switchover from paper to electronic. So our bureau chief for the region took a winding tour through Florida, stopping in courts along the way and conducting a kind of transparency test.
On the previous stage, chronicled here, I described the visit by bureau chief Ryan Abbott to the small town of Macclenny. Unlike most of the courts he visited, Abbott was able to see new complaints promptly by going to a public terminal in the clerk’s office and clicking on an icon named “Clericus.”
“The head clerk was visible from the counter. I started asking questions, and she popped right up, shook my hand and introduced herself as the clerk,” said Abbott. “The conversation was friendly. There was a common thread I got from the small town clerks that they didn’t have the resources to dedicate just for the purpose of redaction.”
At end of the conversation, the clerk told him “We’re a small county. It’s all accessible to you.”
Read about the First Amendment Tour de Florida:
Florida is unique among the states in the nation in imposing a redaction duty on its court clerks, requiring that they read through and check all the court filings for private information, a monumental task that every other state puts on the filing lawyers. Oddly, the clerks association in Florida has fought to keep that duty, despite its cost to their budgets and to the First Amendment.
From Macclenny, the bureau chief drove southwest towards the courthouse in Lake City where a supervising clerk told him, “You can’t use Clericus,” the very same software he had just used in the court down the road. He was directed instead to a public terminal and from there to the clerk’s website. On the website, Abbott found that image icons for new complaints were grayed out. He returned to the counter where three clerks, sitting at their desks, answered his question in the manner of a chorus: “They’re locked!”
It takes 24 to 48 hours to unlock a complaint, one explained. Because there is only one clerk to redact documents for the entire building, said another.
The afternoon shadows had grown long, so Abbott picked up an order of sushi and spent the night at Holiday Express in downtown Lake City, which was originally named “Alligator” and is home to 12,000 souls.
In the morning, he drove through a terrain of woodlands and open fields to Jasper, where Hamilton County Circuit Court sits. He entered a small courthouse and found his way to the counter. In answer to a request to see recent civil filings, the counter clerk looked puzzled and sent him to the docketing clerk who told Abbott she dockets the new filings once a day. The docket, she told him, can then be reviewed online. But the documents themselves, the actual filings, are “on demand.” Reporters must request that they be “unlocked.”
She said the unlocking request must be made online. She learns of that request “on the computer,” pointing to the terminal before her, then reviews the document and unlocks it, usually the following day. But there were no public terminals in the courthouse, from which to check the court’s website and make a request. So Abbott left the court without being able to inspect any records at all.
From Jasper he rolled westwards to the town of Madison, population 3,000, with a big, traditional courthouse. When he started asking questions, the counter clerk called the head clerk on a phone, explaining that a reporter wanted to see some new complaints. And the boss soon arrived.
“He was very genuine and told me they would make every effort to redact the files we need as quickly as they could,” said Abbott. He then brought Abbott over to the lone docketing clerk in the records room.
“She spun around. She said for every new case she makes an entry in her log right away. I asked to see it, she sent it across the counter.” Abbott then asked to see the most recent case, and the docket clerk walked to a shelf, pulled a paper file, looked over the document inside, and handed it to him.
There it was. The remnant of First Amendment access in Florida’s courts, like the stones from a perimeter wall in an ancient civilization. No website, no electronic images, no locking, no unlocking, just paper records that the press can review as they come across the counter.
That civilization where journalists saw paper records when they crossed the counter, in other words, on receipt, was destroyed as Florida converted from paper to electronic filing. Clerks put the newly filed records on their websites and locked them, pushed journalists online, and told them to request an unlocking. All of which delayed access until days after the records were filed and fresh. Because news is like bread, it ages quickly and after a day or two or three, it is good and stale. And thus a big part of the news in Florida’s courts was covered by a veil of obscurity.
In setting up Courthouse News over the last three decades, I would visit courthouses all around the country to find out how beat reporters, a slowly vanishing species, covered the courthouse. And I often ran across what I called “the bones of access,” a handwritten intake log that was no longer kept, a wooden bin labeled “media” in faded letters, that stood empty.
The records room in Madison was like that, a fossil reminder of the excellent paper access once given to the press as they covered the courts. And it was the sole remaining example of traditional paper access found by the bureau chief on his long meander through the courts of Florida.