By Dan Christensen, BrowardBulldog.org
Following up on a decision three years ago that barred judges and court clerks from hiding civil court cases from public view, the Florida Supreme Court ruled Thursday that the same ban on secrecy also applies to criminal cases.
Also on Thursday, the justices wrote new rules forbidding the falsification of official court records – including the public docket – to shield informants.
The Miami Herald reported in 2006 how judges and prosecutors in Miami-Dade had altered the public docket to cover up the felony convictions of informants.
“That’s a clear victory for the public,” said Miami First Amendment attorney Thomas Julin. “It ensures we’re not going to have falsified records in the public court files that are misleading to the public.”
The falsification of court records, though illegal, was apparently common – at least in Miami-Dade. State Attorney Katherine Fernandez Rundle’s top assistant, Jose Arroyo, called it “an established practice” that had gone on for at least two decades. But after it became public, Rundle announced her office would stop asking judges to falsify dockets.
The law allows prosecutors to ask the court to order confidentiality for certain criminal court records that might identify informants or disrupt investigations. But in its unanimous decision, the high court rejected arguments by The Florida Prosecuting Attorneys Association that such records should also be omitted from the public record.
“If filings that are subject to this subdivision are not noted on the docket, the result would be a ‘false docket’ by omission. We have previously explained our condemnation of prior practices that resulted in reports of ‘hidden cases and secret dockets.’”
Those reports in The Miami Herald disclosed how hundreds of court cases, mostly divorces and civil lawsuits, were hidden from the public on a secret docket in Broward and elsewhere around the state. The stories resulted in the court’s 2007 prohibition of secret dockets in civil cases.
The new rules – actually amendments to formal trial and appeals court procedures – are part of a sweeping revision of the code that governs public access to state court records. The justices said they sought to “balance the public’s constitutional right to access to court records” with their responsibility to protect records that are confidential by law.
“The amendments also bring our court system closer to providing the public with electronic access to court records,” the 32-page decision says.
The court put off electronic access in 2005 so it could figure out how to protect confidential information.
To do that, the new rules identify 19 types of information – like adoption records, social security numbers and juvenile delinquency records – that must be automatically designated as confidential and withheld from the public. Likewise, lawyers or non-lawyers will have to tell the clerk if they include such confidential information in paperwork they file with the court.
Those procedures for clerks and court users take effect Oct. 1. The rest of the high court’s order takes effect immediately.
The status of other information that may be confidential, but is not automatically confidential under the new rule, will be decided by a judge.
In civil cases, new rules provide for expedited hearings and rulings on motions to seal or unseal and sanctions against those who act in “bad-faith” when seeking to hide or seal information.
On the criminal side, the court said it intended to “narrowly apply” certain “restrictive procedures” when deciding whether plea or cooperation agreements could be sealed from public view. Still, it OK’d a request by the Florida Public Defender Association to keep confidential documents filed to request confidentiality pending a final ruling.
Under the rules, records can be kept secret “to prevent a serious and imminent threat,” protect a compelling government interest, or avoid injury to an innocent.
Hearings must be held within 15 days in open court, although a judge can decide to conduct “all or part” of a hearing in secret. The judge must rule within 10 days.
The new rules impose a 120 day time-limit on how long information suppressed under those “restrictive procedures” can be kept under seal, although 60 day extensions may be requested.
Attorney Julin said the rules are so complicated that they may ultimately cause confusion
“I worry about whether it is a complex situation that will lead to complex litigation over whether records can be released,” he said. “The rule should be that court records are simply open, and if you want to seal them you have to go through some extraordinary showing as to why.”
[Attorney Thomas Julin is chair of The Florida Bar media and communications law committee, and is, pro bono general counsel for Broward Bulldog. He is a shareholder at Hunton & Williams.]
[Technical difficulties prevent identifying the justices in the photo caption box. Chief Justice Peggy A. Quince, seated, is flanked by Justices R. Fred Lewis and Barbara J. Pariente. Back Row – Justices Jorge Labarga, Charles T. Canady, Ricky Polston and James E.C. Perry.]