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US judge enjoins Florida’s e-filing authority on 1st Amendment grounds

TALLAHASSEE, Fla. (CN) — Overcoming a long campaign of resistance from Florida clerks, Courthouse News won an injunction Friday against the authority that rules Florida’s e-filing portal. The injunction forbids the authority from holding back access to new court filings while the clerical work of docketing is done.

The order also enjoins the local court clerk in Broward County who, along with the authority, enforced a “no-access-before-process” policy that delays public access until after clerical processing. Such policies have been imposed by many court clerks when they switched from paper to electronic filing.

Chief U.S. District Judge Mark Eaton Walker handed down the 53-page order on Friday morning, giving the press time to report on his decision. “Thus, this Court enjoins Defendants from withholding public access to non-confidential complaints in Broward County before clerical processing — i.e. Defendants cannot go back to their old policies.”

Florida had, in the paper-filing past, provided traditional press access to new court complaints — which often involve major controversies and are an important source of news. In the switchover to electronic filing, press access was crushed.

The clerks required that reporters and all the public wait until they looked through the filings and ran through a set of clerical tasks to create a court docket. Those tasks took days or weeks and often resulted in the documents simply being locked — covered by an icon that depicted a padlock — until someone asked for it to be unlocked.

"Defendants have utterly failed to show how denying access before processing furthers administrative goals, or how court operations would be harmed by expediting access," Walker wrote.

The Florida Supreme Court actively sought to improve press and public access to its courts by removing a former rule requirement that the clerks said required them to check for privacy violations. The Florida clerks association fought hard against that change, while individual clerks in big courts welcomed it.

On a tour of Florida courts last month, after a morning-long hearing before Walker, Courthouse News bureau chief Ryan Abbott talked with supervisors in Key West and in Tampa. They said they continue to redact every new filing despite the Supreme Court rule change, and continue to delay access as a result.

The clerk in Broward, Brenda Forman, does the same.

“Defendant Forman’s current practice begs the question: why does she review incoming complaints for confidential information when the Florida Supreme Court relieved her of this very task?” Walker wrote.

In his lengthy analysis, the judge relied on the U.S. Supreme Court ruling in Press Enterprise II, among other standards, which laid out the basic principle that, where a right of access attaches, government interference with that right must be justified by an overriding interest and must use the least restrictive alternative.

Since many courts, including the federal court where the Courthouse News case was heard, give the public access as soon as they receive a new filing, it was obvious that the Florida courts have alternatives that do not delay access.

“In short, Defendants’ policies are as narrowly tailored as a blunderbuss,” Walker wrote.

“Moreover, these no-access-before-process policies are not only unnecessary to the administration of justice but likely inhibit it. Indeed, all signs indicate that amending the current protocols and expediting access would ease tension and enhance court operations. In nudging statewide change, the Florida Supreme Court certainly thought so.”

Chief U.S. District Judge Mark Walker included the above illustration to argue his point about the litigation tactics of the Broward County, Florida, Clerk's Office. (Image via Courthouse News)

The Broward clerk and the e-filing authority that runs Florida’s statewide portal each tried to pin the blame for the First Amendment violation on the other. Walker illustrated the point with a common internet meme that shows two Spidermen pointing at each other. 

As he laid out the terms of his injunction, he wrote, “And one final point, this isn’t 'Who’s on First,' Defendants must move past pointing fingers at each other like the Spidermen pictured above; this Court fully expects Defendants to jointly come up with a plan that will resolve the constitutional deficiencies identified above. Lest there be any doubt, if Defendants return playing the blame game, they will have violated this Order.”

Courthouse News is represented Carol LoCicero, Mark Caramanica and James McGuire with the firm of Thomas & LoCicero. In a phone call after the ruling, LoCicero said she was “very pleased that the court valued transparency and the constitutional concerns so highly.”

LoCicero hoped the e-filing authority would adopt a system similar to Arizona courts, which allows new complaints filed through that state’s e-portal to be automatically placed in a “public queue” for viewing upon receipt. Arizona’s e-portal uses the same software system as Florida.

“A public review queue like Arizona seems to me like the easiest way,” she said. “Why should we spend more taxpayer dollars to create a wheel that’s already been created?”

Attorneys for the Broward County Clerk of Court and the Florida E-Filing Authority did not respond to phone calls and emails requesting comment.

The policy enjoined by the judge is widespread and follows on a philosophy adopted by state court clerks in a series of conclaves in Williamsburg that started in 2013. The notion of “practical obscurity” was espoused as a mantra that accompanied restrictions on press and public access.

The practical obscurity slogan was based on nonsensical reasoning that said paper court records were in practice obscure so they should also be obscure, or difficult to see, in the electronic world. Paper records were not obscure but instead well catalogued, and they could be reviewed by news reporters as soon as they were received over the clerk’s counter.

Nevertheless, state court clerks — as opposed to federal court clerks — have attached themselves to the delay policy like a dog hangs onto a bone. Courthouse News is currently pursuing First Amendment cases against court administrators in Oregon, Idaho, Missouri, New Mexico, Maryland and Texas.

Before today, Courthouse News got its last win in Vermont. The Vermont court administrator is now fighting that decision before the Second Circuit U.S. Court of Appeals.

Read the transcript of the hearing here

At a hearing last month and in the opinion, Walker noted a conundrum, which is that the portal authority sends the new e-filings along to the local clerks within five minutes. It is thus hard to argue that the authority is responsible for delays in access.

But it sends them along en masse, including a tiny portion of complaints that are confidential. It thus dumps all filings on the Broward clerk, who is then forced to sort individually through the filings to separate the confidential from the public. 

"Because Defendant Rushing dumps all Broward County complaints into the review queue without regard for confidentiality," Walker wrote, "Defendant Forman reviews each complaint for confidential information when she otherwise would not. ... As a result, non-confidential complaints are further concealed from public view."

It is a programming piece of cake to filter out the few confidential cases because they are tagged by the filer. And Courthouse News showed that the software system used for e-filing in Florida was the same as the one used in Arizona — which does provide access to press and public without delays.

That meant Florida’s authority could provide the access if they wanted to, and the authority’s lawyer conceded that point during oral argument.

"Before going further, this Court again notes that it finds — as fact — that a readily available and non-cost-prohibitive solution exists; namely, using Florida’s Granicus software to create an authority-side public review queue, just as Arizona has done," Walker wrote.

The opinion concludes with an order directed at the recalcitrant defendants.

“Broward County’s filing system frustrates the press and public’s right to monitor their local judiciary. And, beyond inertia, Defendants offer little to nothing in support of that system. That will not do. Because Defendants’ policies unnecessarily inhibit the public’s right to monitor the judicial system, IT IS ORDERED: Plaintiff’s motion for preliminary injunction, ECF No. 35, is GRANTED.”

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