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First Amendment access returned to court records throughout Florida

After a six-year legal saga, Florida has agreed to return traditional on-receipt access to new complaints filed in the courts of the third most populous state in the nation.

Once upon a time in Florida, the state courts were open and easy for journalists to cover. Journalists checked new complaints as soon as they crossed into court, often revealing big news about fraud, political shenanigans, environmental depredations and fatal calamites. But that was when paper was the way records were filed and kept.

Then along came the great technological revolution in the courts where paper was left behind and complaints came in electronic form. At that point Florida and many state courts shut the tradition of access down. They in effect sealed the electronic filings for a day or a week or more, long enough for the news to drain out of them entirely. In Florida the process was carried to an extreme where many of the courts simply posted an image of a padlock on their websites when it came to searching for records.

But on Wednesday, after a six-year legal saga, a federal judge entered an order that set in legal concrete an agreement between this news service and the Florida e-filing authority that returns public access to new complaints when they cross the virtual counter, bringing the state courts back in line with how they used to be in the time of paper.

With a population of 21 million, Florida joins the biggest state in the nation, California, and the fourth biggest, New York, in returning traditional access to the public record of the courts in the electronic era. A related First Amendment action is now pending in the second biggest state, Texas, with 29 million people, also seeking to reclaim the First Amendment right taken away under the cover of modernization.

The terms of the deal between this news service and Florida’s e-filing authority calls for Florida to give public access to new court filings “on receipt.” In exchange, Courthouse News agreed to give up its claim for attorney fees.

The judge presiding over the case, Chief U.S. Judge Mark Walker based in Tallahassee, on Wednesday ordered that both sides abide by the agreement. “The parties are ordered to comply with their settlement agreement,” said Walker’s order. “The Court reserves jurisdiction to enforce the order to comply with the settlement agreement.”

The key language in the underlying agreement states: “In consideration for the time and expense incurred by counsel for CNS, the Florida Courts E-Filing Authority will implement a statewide public access system in the E-Filing Portal for nonconfidential circuit civil complaints to be publicly accessible upon receipt, but in no circumstances to exceed five minutes.”

The agreement was a long time coming.

In June, the judge issued a 53-page order granting the Courthouse News motion for an injunction under the First Amendment. “This right of access is foundational to the function of our judicial system,” he wrote.

In February, Courthouse News filed its request for an injunction. “The advent of new technology such as e-filing should add light to the halls of government, not darken them,” said the complaint.

In June of 2021, the Florida Supreme Court, which has long supported access to the courts, undid a key rule that gave clerks a reason to keep the complaints and other records away from the public. The old rule made clerks responsible for removing social security numbers and other private information from court filings. All the other states, except Vermont, put the responsibility for removing private identifiers on the filing lawyer, which is where it now rests in Florida.

The former rule had ruined public access to court records in Florida. Most clerks simply sealed the records, posting an image of a padlock next to the docket record of the filing. When someone asked for the filing, a clerk would read through it and send it along some time later.

In December 2018, after two years of fruitless negotiations, Courthouse News bureau chief Ryan Abbott took a meandering tour through the courts of Florida, documenting public access in ruins. His resulting report started the train of events that ended at Wednesday’s judgment, setting into permanent place the agreement to return public access on receipt throughout Florida.

Abbott started his tour in Key West, then rolled north in Highway 1 through Miami and Palm Beach, then inland to Okeechobee, north on Highway 441 to Tavares and Orlando. He picked up the tour a few weeks later, this time starting in Yulee just south of the Georgia border, went south to Jacksonville, then west through a series of small courts on state Highway 90, McClenny, Lake City, Jasper, Madison, and finally entered Florida panhandle where he stopped in Monticello and Tallahassee.

The Tour of Florida entry for Tavares reads: A few steps back from the counter, three clerks sat at desks. In the manner of a chorus, they explained that all the complaints are “locked” and remain locked until a specific unlocking request is made. Then it takes 24 to 48 hours to unlock a complaint, they said, because there is only one clerk to redact documents for the entire building. Mr. Abbott then picked up an order of sushi and spent the night at Holiday Express in Lake City.

The entry for Miami reads: The counter clerk said he could not allow Abbott to review a case for free. He then asked if he could pay for a printout at a dollar per page. The counter clerk said normally that would be the case, but this complaint could not be printed. A supervisor then invited the journalist into his office to explain that the complaint image must be hand-redacted by court personnel before it becomes public. The supervisor expressed frustration with what he termed “a broken system” and rhetorically asked what could be expected from a county that could not even pay for his business cards.

The entry for Yulee says: At the clerk’s counter, Abbott spoke to a clerk behind a glass window. She said a particular complaint can be requested. “We have three days,” she said, to complete the redaction. Abbott left the courthouse without having inspected any new filings, recent or otherwise. On the way to pick up a rental car, his rideshare driver explained to a fellow fisherman that he successfully fishes for smallmouth bass in culverts by the side of the road while he waits to be pinged for his next fare.

The entry for Jasper says: In the morning, Abbott drove through a terrain of woodlands. He entered a small courthouse and in response to a request to see recent civil complaints, the counter clerk looked puzzled and referred him to the processing clerk.  She said images of documents are “mostly on demand.” She explained that the public and reporters must request that the documents be “unlocked.” Because the clerk’s office had no public terminals, Abbott left without being able to inspect any recent filings.

The entry for the small North Florida town of Madison reads: The processing clerk explained that she keeps a handwritten intake log on a yellow pad, listing the date, case number and parties for each new complaint as it comes in. Mr. Abbott asked to see the most recent case on the intake log. The processing clerk walked to a shelf, pulled a paper file, looked over the document inside, and handed it to Mr. Abbott.

The Madison entry continued: The records room in Madison was like a fossil reminder of the excellent paper access once provided in Florida’s courts, and it was the only remaining example of traditional access found by Mr. Abbott on his voyage through the courts of Florida.

The e-filing authority was represented throughout the litigation by Gregory Stewart, Lynn Hoshihara, Elizabeth Desloge Ellis, and Kirsten Mood with the firm of Nabors, Giblin & Nickerson.   

Courthouse News was represented throughout the legal saga by Carol LoCicero, Mark Caramanica, James Maguire, and Daniela Abratt with the Florida law firm of Thomas & LoCicero. After Wednesday’s judgment, LoCicero wrote by email, “Providing statewide, on receipt access to new complaints is about accurate, timely news reporting to the public and the integrity of the judicial system itself.”

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