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Citing privacy concerns, a committee of judges, lawyers, court officials and others has recommended that the Florida Supreme Court impose a moratorium on public access to complete court documents via the Internet. The proposal applies only to documents that might be scanned in their entirety onto the Internet. Basic docket and case information, including the names of the parties to a case, attorneys of record and fees and fines collected would be unaffected. “Until policies are developed that appropriately balance privacy with access, and which support the core mission of the courts to do justice, unrestricted access to court records should not be available,” states the report approved by the Judicial Management Council, one of the supreme court’s advisory committees. Justice Major Harding, who will present the report to his judicial colleagues, chairs the council. The recommendation comes as many court clerks around the state move ahead with plans to place complete court records on the Internet. Seven of 67 counties in the state have placed some records online, and many others are planning to do so. In fact, Florida law requires clerks to have electronic images of documents on the Internet by Jan. 1, 2006. Currently, the records which are available online differ from one county to another. The supreme court is expected to solicit public comments next year before deciding whether to adopt this and other recommendations made by the Judicial Management Council, which consists of more than two dozen judges, lawyers, court clerks and representatives of such interest groups as news organizations. Following a three-hour discussion, the council adopted each of the recommendations made in a 34-page report by an ad hoc working group on privacy and electronic access to court records, which was chaired by 5th District Court of Appeal Judge Jacqueline Griffin. “It was close to unanimous,” says Palm Beach County Court Judge Jeffrey Colbath, a member of the council. “We want to be ahead of the curve before we open a Pandora’s box that we can’t close. Everyone recognizes there are some real risks with going forward blindly.” One of the threshold issues before the working group and the council was whether the supreme court even has the authority to establish guidelines on maintaining court records. They decided the high court does have that power. They concluded that the clerks of the courts are an arm of the judicial branch and therefore are subject to oversight and control of the high court, rather than the control of the Legislature. BALANCING ACCESS AND PRIVACY Other states also are grappling with these issues. Washington is developing a policy based on the principle that there should be equal access to paper and electronic court records, But California is placing special restrictions on electronic records, saying there is a fundamental difference between them and paper records. At issue for the Florida Supreme Court is finding a balance between two important and potentially contradictory Florida statutes. “Florida has a strong record of access to public documents,” explains Miami-Dade Circuit Judge Judith Kreeger, one of the members of the Florida working group, “but we also have a deeply embedded right to privacy. There is a lot of intimate information put in court files. I’m conflicted.” Personal information such as social security numbers, financial affidavits, psychiatric histories and sensitive personal allegations may show up in court files. While that information usually is already part of the public record, it is effectively protected by the “practical obscurity” of only being accessible at a particular courthouse and during certain hours. If detailed court documents appear on the Internet, they can be accessed by anyone at any time from any location. The benefits of placing entire court files on the Internet are cost savings and greater efficiencies and convenience. The report approved by the Judicial Management Council cited two Florida Supreme Court cases that bear on achieving a balance between privacy and access. The first, Barron v. Florida Freedom Newspapers, involved the late Senate president Dempsey Barron’s efforts to seal a sizable portion of his divorce file. The high court found there was a strong presumption of public access to court records and that disclosure should be limited only under narrow circumstances. But in State v. Rolling, while the high court permitted the news media to view the photographs of the nude and mutilated bodies of five Gainesville college students slain by Danny Rolling in 1990, it did now allow the photos to be copied without court approval. In making that stipulation, the court tried to balance the public’s right to information against the privacy rights of the victims and their families. WHAT’S IN AND WHAT’S OUT? The electronic dissemination of court files, however, is brand new territory for court officials. One of the issues to be resolved is how to prevent information that should be purged from online court cases from being published and, conversely, how to avoid deleting information that in fact should be part of the public record. Manatee County Clerk of the Courts Chips Shore, a state leader in posting information online, has said that the burden should be on the party filing a court document. This, however, poses several problems, the Judicial Management Council’s report notes. Pro se litigants can’t be expected to know what is and isn’t exempt, it says. And somebody filing a court document may intentionally include exempt information in order to embarrass an opposing party. Easy access to detailed court records could potentially have a profound impact on many areas of court operations, the report warns. “Court users may come to fear providing information — or using the courts at all — out of concern that private facts will be disclosed, creating a chilling effect to reliance on courts,” it states. “As well as parties, potential witnesses and jurors may be influenced by the chilling effect of reduced practical obscurity.” Another reason the council recommends guidelines on Internet records is for the sake of consistency. Currently, the court clerk in each county decides which records may go online. In Manatee County, Fla., for example, documents from domestic relations cases are available, but those from probate cases are not. In neighboring Sarasota County, which is part of the same judicial circuit, the reverse is true. If entire court files become available on the Internet, the work group predicts that Florida judges will be deluged with requests to seal or unseal electronic records. “It’s a very interesting issue,” says Judge Kreeger. “There’s no easy answer.”

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