by Pat Dunnigan
Updated 2 yearss ago
With very limited exceptions, records placed into a court file are open to public inspection. A courthouse is a public forum, after all, not a repository of secrets. But what if the records contain information that lawmakers have excluded from what the state considers "public"? There are now more than 1,000 exemptions from public records, ranging from the names of donors to fish and wildlife conservation efforts to "company data collected by the state geologist."
So far, the question about what's public and what's not has stumped a committee of judges, lawyers and court clerks that the state Supreme Court created to develop policies for the electronic release of court records.
In practical terms, it is unrealistic to expect court clerks to inspect every file to determine if information related to one of the exemptions is in them. Members of the Supreme Court's Committee on Privacy and Court Records believe that would be "either impossible or damn near impossible," says Daytona Beach lawyer Jonathan Kaney Jr., a committee member who represents the First Amendment Foundation.STUMPED: It is "either impossible or damn near impossible," says attorney Jonathan Kaney Jr., to inspect every court file.
But Kaney incensed members of the Florida Bar's media law group -- and surprised himself, he says -- when he and others on the committee took the position that the exemptions apply to court files.
Kaney says for years he and every other media lawyer in the state had been certain that the Sunshine Law's exemptions didn't apply to the courts. But he said he changed his mind after stumbling upon a provision in the judicial administration rules that were drafted just before the Sunshine Law took effect in 1992. The provision, a laundry list of court records that were to remain confidential, included a reference to "all state and federal laws" requiring confidentiality. A few years later, the Florida Supreme Court appeared to say the same thing in a little noticed death penalty case in which a defendant sought records.
Tampa lawyer Carol LoCicero, who chairs the Bar media law committee that took the court's privacy committee to task over the issue, says it is not as clear as Kaney perceives.
But in late June, both sides were ready to call a truce for the simple reason that there are just too many exemptions to absorb into the court rules. In addition, many of the legislative exemptions make no sense in the context of litigation. "What I get back to at the end of the day is that everybody needs to step back and decide what makes sense," says LoCicero.
Kaney agrees. Before the committee can recommend anything, there has to be agreement about what is a public court record. That means going through the exemptions individually to see if they should apply. That will also be a huge and controversial undertaking -- hopefully, says Kaney, a job for some other committee. As for his group's recommendations, Kaney says he will be tempted to take the report, "throw it under the door and take off."