Florida High Court Strikes Clerk Redaction Rule, Affirms Principle of Timely Access

The Florida Supreme Court strikes down an old rule requiring that court clerks find and redact private information in public records, based on damage caused to the principle of timely access.

Headquarters of the Florida Supreme Court in Tallahassee. (Photo via Wikipedia Commons)

(CN) — Beginning a revival of First Amendment access in Florida’s courts, the state Supreme Court on Thursday struck an old rule that forced clerks to find and redact private information in court records.

The high court focused on the right of timely access to new court records and the old rule’s noxious effect of delaying access to the public record of the courts.

“This court has previously expressed its commitment to safeguard the public’s right of access to court records,” said an opinion affirmed by all seven justices of the high court.

“The public’s constitutional right of access to court records must remain inviolate, and this Court is fully committed to safeguarding this right,” said the opinion, quoting from an earlier decision.

Carol LoCicero, a First Amendment lawyer in Florida, had argued against the old rule on behalf of national and state news outlets including the Sun Sentinel, Miami Herald, The New York Times, Gannett, McClatchy, The Associated Press and Courthouse News.

“It made me feel gratified and proud of the judicial system, because the justices value transparency and they took concrete steps to make sure Florida’s courts are open,” she said.

In pressing her argument, LoCicero put together a report based on the travels of Courthouse News bureau chief Ryan Abbott who in late 2018 chronicled the extensive delays in access to new records in Florida courts, from south to north, large and small. 

“Thomas & LoCicero PL, on behalf of a coalition of news media organizations, published a report summarizing a journalist’s attempts to gain access to new case filings at various clerks’ offices throughout the state, See Thomas & LoCicero PL, Report: Tour of Florida Courthouses to Access Court Records (Dec. 10, 2018),” said footnote 1 of the opinion.

“The report concludes that access to court records, both in person and online, was routinely delayed. The report also suggests the primary reason for the delays is because the clerks of court are responsible for reviewing and redacting every filing prior to allowing access,” the note added.

The rule change was adamantly opposed by the Florida clerks association, as though an ownership right were being stripped away, but the media applauded the court’s decision.

Within hours after its release, the Media Law Resource Center, a nonprofit organization supported by many news outlets including Courthouse News, linked to the opinion in its “MediaLawDaily,” with a headline that said, Fla .: Supreme Court Eliminates Requirement That Court Clerks Independently Search for Confidential Info in Civil Filings.”

Under the headline, a succinct summary added, “Thomas & LoCicero, on behalf of a coalition of news media organizations, published a report concluding that access to court records was routinely delayed because clerks had to review and redact every filing prior to allowing access.”

In the Tour of Florida, bureau chief Abbott and reporter Marilyn Aciego chronicled how the redaction responsibility caused clerks to simply “lock” public documents — conveyed on the clerk’s website by an image of a padlock superimposed on document icons. Other courts took days and weeks to search the documents and open them, delaying the news in the new records until it was too old to report.

In many of the courts Abbott visited, the clerk and the staff were friendly toward the press and frustrated by the redaction duty.

“When the software is not broken, and a complaint image is successfully sent over to the clerk’s office, it must be hand-redacted by court personnel before it becomes public,” said the Miami entry of the Tour of Florida. “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.”

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Read about the First Amendment Tour de Florida:

Tour de Florida, Stage 1: Key West to Fort Lauderdale

Tour de Florida, Stage 2: Palm Beach to Orlando

Tour de Florida, Stage 3: Tavares to Yulee

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The background to the decision is as long and winding as Abbott’s trip through Florida.

Operating quietly and with speed, the state’s elected clerks took over the electronic gateway to the courthouse early in the chaotic jump between paper and electronic realms. The clerks association has since extracted millions of dollars from that gateway through “convenience fees.”

In taking control of the gateway and the public records that went through it, the clerks were helped by a 2010 rule that imposed on them an independent duty to search records and redact private information. The rule gave them a reason to deny public access, for weeks or indefinitely until they received a specific request.

No other state or federal court in the nation has enacted such a rule. They all place the duty to check for privacy on the filing lawyer.

“It created bottlenecks in reporting on the fundamental business of the court,” said LoCicero. “So all the civil complaints got sidetracked for redaction review.”

The new civil actions often serve as heralds for major conflicts in the community over voting, water rights, public insults, environmental matters, hurricanes and the limitless variety of events that cause death and destruction.

The old court rule, Subdivision (d)(1), required that clerks “designate and maintain” confidential information in the records, specifically saying the new responsibility was “independent of the responsibility of the filer.”

In Thursday’s opinion, the Supreme Court wrote, “Since Subdivision (d)(1) was adopted, however, news media organizations in Florida have reported concerning delays in their access to nonconfidential court records, in part due to the requirement that the clerks of court independently review all new filings for confidential information.

“Accordingly, to address timely access to court records, we now amend Subdivision (d)(1) to provide that, in certain civil cases, the clerk of court does not have an independent responsibility to identify and designate information as confidential,” said the justices in changing the rule. “Instead, that is the sole responsibility of the filer.”

The opinion was unanimous, with concurrence from Chief Justice Charles Canady and Justices Ricky Polston, Jorge Labarga, Alan Lawson Carlos Muniz John Daniel Couriel, and Jamie Rutland Grosshans.

The rule change, however, does not take effect until July 1st, allowing for comment. The Florida clerks are likely to make a last-ditch stand against the change.

“The clerks support the current rule and have hawkishly served as the primary protectors of confidential information,” said the association in an earlier letter.

The often knee-jerk opposition by state court clerks to press access has been confounding for judges, lawyers and journalists alike.

In Florida’s case, the duty was unique, burdensome and expensive in terms of the cost of paying clerks to search through all the filings and paying for redaction software that generally did not work well and required backup hand redaction. So the question remained as to why they would try to hang onto it like a dog hanging onto a bone.

The two most prominent explanations are that one, clerks treat the public records as a part of their fiefdoms and want to release them when they are good and ready, and two, that they profit from full control of the public records, primarily by selling copies.

In Florida, the clerks profit from the use of the electronic gateway and sell copies of records at the courthouse but, unlike clerks in other states, they do not charge for the records online. They are elected officials, however. So a third explanation has been advanced, that their stated desire to protect privacy is an appealing political plank to put out to their constituents and ensure reelection.

During the Tour of Florida, the Courthouse News bureau chief discovered in one small court the access of old, from the time before electronic filing.

He stopped in the fall of 2018 in the small town of Madison, with a population of 3,000, in a region of former cotton plantations along the northern border of Florida.

As described in the Tour of Florida, Abbott walked into the courthouse and found the clerk’s office. The clerk himself came over to talk.

“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 the bureau chief 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,” said Abbott. He 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 access of old, discovered in that tiny town. It was the last remnant of a pre-e-filing civilization in Florida courts, an artifact of access that once was — and that might again be — as a result of Thursday’s opinion from the Florida Supreme Court.

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