(CN) — Florida used to be a champion of open government.
One aspect of that operating philosophy — manifested in its constitution, rules and court decisions — was that news reporters went behind the clerk’s counter in the big courts of Florida and reported on controversies contained in new complaints as soon as they were filed.
“The Miami-Dade Clerk’s office provided a desk behind the counter where the CNS reporter and other members of the press, including from The Associated Press and the Sun-Sentinel, could review and report each day’s new complaints,” said Adam Angione, a Courthouse News bureau chief who was in charge of Florida.
“Reporters were allowed to stay about an hour after the office closed, typically at 5:00 p.m., while at least one employee remained in the office to docket late and after-hours filings,” he wrote in a declaration filed Thursday in federal court.
But clerks in Miami, in Broward County next door, and throughout Florida constricted that openness when electronic filing came on the scene. In an irony of the technology age, public access traveled backward as the ease of filing new cases went forward.
Today, in Broward County, for example, only 13% of the new e-filed complaints can now be seen the day they are filed. The remaining cases are released over the following week. In that time, the news they contain grows stale.
In a memorandum for a preliminary injunction filed Thursday, the lawyer for Courthouse News recalled the longstanding tradition in American courts. “Since time beyond memory, journalists in Florida and nationwide reviewed paper-filed civil complaints right after they crossed the clerk’s intake counter and before docketing,” wrote Carol LoCicero, representing this news service.
“Complaints often contain breaking news, so they were available for viewing quickly whenever the court was open,” she added. “In paper times, many intake clerks employed a wooden bin where they placed copies of complaints on receipt for public review.”
The preliminary injunction memo noted that access to complaints is essential for accurate and speedy reporting. It said access is vital to the public's ability to understand and debate what happened in court.
LoCicero added, "To withhold disclosure undermines public scrutiny and often results in suppression, particularly in the digital era of 24/7 cycles, where news grows stale rapidly."
Most federal courts have carried the tradition of access forward into the new technological age. So too have a long list of state courts in Alabama, Arizona, California, Connecticut, Georgia, Hawaii, Nevada, New York, Utah, Vermont, and Washington state.
But another group of state clerks have fought against traditional access in the new age as though it were the devil’s toxic brew. They include a host of states now being sued by Courthouse News, including Idaho, Florida, New Mexico, Maine, Maryland, Missouri, Oregon and Texas.
“Technology need not be the bottleneck defendants have created,” said the memo. “Simple technological solutions exist to restore traditional access to newly filed complaints, the foundational documents invoking the judicial branch’s authority that are central to understanding legal disputes.”
Illustrating the difference between state and federal courts in Florida, the documents asking for a preliminary injunction against the state court clerk became public within minutes of their filing — because they were filed in federal court in Tallahassee. The case is assigned to Chief Judge Mark Eaton Walker in the Northern District of Florida.
Included with the memo is a declaration by Courthouse News bureau chief Ryan Abbott who toured through Florida’s courts in 2018 to see how much the access had deteriorated. One of his early stops was the courthouse in Broward County.
“I asked to see the most recent complaints filed the day of that visit. At the copy window, I was told that new filings could not be seen until they were ‘validated,’ and that validations were not done on request,” said Abbott’s declaration.
He saw no complaints on the day he visited and the clerk has since argued that she can hold the cases for two days within state rules. Abbott’s declaration includes clearly newsworthy filings that were held back, such as two cases filed over the Parkland high school shootings, delayed two days, and another case over fair housing violations that was blacked out for a week.
But the new lawsuits contain all kinds of stories, some front-page news and others brief, back-of-the-paper items. “We also report on interesting happenings,” wrote Abbott, referring to another suit against Broward County by a man claiming “a coconut fell on his head because the defendants failed to trim a palm tree.”
It too was held back.
The key legal test for those restrictions in access was set in 1986 by the Supreme Court in a case referred to as Press Enterprise II, which says the clerk must have an “overriding interest” in order to restrict access and must also “narrowly tailor” the restriction to achieve that interest.
The memorandum filed Thursday argues that the clerk has no overriding interest in holding back the new complaints while clerical work is done, and even if the clerk did have such an interest, she has much less restrictive alternatives.
For its e-filing, Florida uses software sold by Granicus, a company that also sells its software to Arizona. But there is a different attitude in Arizona, where officials set up a press portal for review of new filings when they cross the clerk’s virtual counter.
Because another state using the same software vendor can provide on-receipt access, the memo argues, so can Florida.
“Even if an overriding interest existed, defendants’ restrictions are not narrowly tailored because less restrictive alternatives are available,” said the memo. “In Florida’s Granicus environment, defendants have the power to provide traditional access like Arizona, which provides a review queue for new complaints making them automatically accessible virtually upon receipt and prior to processing.”
LoCicero, with the law firm of Thomas & LoCicero in Tampa, represents a large number of newspapers and media clients in Florida. She is working with Mark Caramanica, also with her firm, in representing Courthouse News in the case.
She argued for an injunction against the clerk’s “no-access-before-process” policy holding back new cases from the press and public until after clerical processing. She also asked for an order directing the defendants to make the new cases available on receipt.
"We need the court’s help. These are the records of the people. They’re being withheld for no justifiable reason. So here we are," LoCicero said in an email.
In concluding her memo for a preliminary injunction, she wrote: “American courts are the people’s courts. Systems injuring public access rights — in the name of technological progress — cannot be constitutionally sustained. News is called ‘news’ — not ‘olds’ — for good reason. News reports what is happening now. By the time the public has access to many Broward complaints, that ‘news’ is no longer.”
On the same day, in a court far, far away in Missouri, a circuit judge hearing another Courthouse News case echoed the general knowledge held by judges and reporters alike of a traditional time when the courts were open to the American people who could walk into the clerk’s office and see what was new.
U.S. Circuit Judge Ralph Erickson asked the lawyer for St. Louis County, “What we’re saying is, ‘Oh for about 230 years you could walk into a Missouri courthouse, into the clerk’s office, and say, ‘Hey, can I see what’s been filed today,’ and now all of a sudden you can’t, right?”
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