October 1, 2014

Sunshine Law

The Partly Cloudy State

Electronic records are under attack — with the state Supreme Court's blessing

Neil Skene | 1/1/2005
These days I seem to have to tell the government more, and the government has to tell me less. Terrorism and privacy: Fear has a grip on public policy, and government officials seem to overreact to everything.

And so it is that the erosion of Florida's long-heralded tradition of open, accountable government is accelerating, in the name of privacy and now with the active encouragement of the Florida Supreme Court.

This is not just some media fetish. The state's serious commitment to openness in government, which began in the late 1960s, coincided with a rise in the quality of government decision-making. The Supreme Court consistently rejected agencies' techniques of evasion, refused to create judicial exceptions to the law and basically examined open-records cases from the standpoint that openness is a fundamental policy of this state and exceptions would be carved out with a scalpel, not a hacksaw.

That era is over. And nothing so clearly demonstrates it as the Committee on Privacy and Court Records, appointed in November 2003 by then-Chief Justice Harry Anstead. The group is pondering extra restrictions on electronic access to court records that are public in paper form. Both the makeup of the committee and its working assumptions are stacked against openness.

The committee is made up entirely of lawyers, judges and court officials. (The court almost never puts outsiders on its committees, maybe because it thinks this branch of government is just for lawyers.) The Privacy Committee (might as well call it what it is) includes just one lawyer with clients who advocate open government, and even he has been a zealous critic of the testimony from other media lawyers.

By contrast, at least three members have experience in family courts, even though family law records are already exempt by law from both electronic and paper disclosure. Evidence of the resulting mindset is the committee's working chart of the elements of the Public Records Law, with a column for "should be exempt."

The bias of these proceedings is evident in the extraordinary "moratorium" Anstead imposed last November. It required local court clerks to delete broad categories of court records, though open to the public in paper form, from their internet sites. Anstead's order did not cite a single actual case of identity theft or any other abuse resulting from electronic availability of records. He made no reference to the right of public access in the Florida Constitution or an old ruling that there is no constitutional right to "disclosural privacy."

Nine months after the order, two groups of businesses petitioned the court and said the moratorium violated provisions of the state constitution, including the right of public access. The court didn't even hold a hearing. It dismissed the petitions and told the groups to take up their deprivation of rights with the Privacy Committee.

The petitioners were news organizations and title companies. Title companies used to get a lot of their records online but now have to send people to courthouses during business hours, copy records and then have them rekeyed into a database. Stiff-armed by the court, the petitioners found themselves in mid-November at a meeting of the Privacy Committee, which decided to do nothing.

The court and the committee have muddled the concepts of "exempt" and "confidential" documents. A "confidential" record must be kept from the public, but an "exempt" record may be disclosed or withheld at the discretion of the custodian. That's a big difference. The committee and the court also seem to embrace the proposition that the judicial system is obligated to apply the Legislature's exceptions to the law. Considerations that make certain categories of records "exempt" from disclosure by government agencies may or may not apply when a specific record has become part of litigation in court. The judiciary used to safeguard its independence from the legislative branch, but that doesn't seem to matter much anymore, either.

It is possible that this one-sided process will produce some epiphany, some recognition that we are the Sunshine State not just because of our weather but because of our attitude toward accountable government. But so far this committee looks like a Trojan horse where the privacy vanguard lurks.

It is by stirring fear, without differentiating the cause, that government seizes control from its citizens. From the government's collection of more and more private data, the court (and the Legislature, too) bootstraps a case for limiting access to those records to preserve individual privacy. Government power grows, and its accountability decreases. That is the fear that should abide in the hearts and minds of this committee and the Florida Supreme Court.

Enjoy the sunshine while you can.

Tags: Politics & Law, Around Florida, Government/Politics & Law

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