Amendments to Rule 2.420, Case No. Sc14-569 Florida Rules of Judicial Administration ______

Home , Central Florida Future, Florida Today, Naples Daily News, Pensacola News Journal, Seminole Chronicle, The Ledger

Filing # 14335866 Electronically Filed 06/02/2014 05:24:29 PM

RECEIVED, 6/2/2014 17:28:38, John A. Tomasino, Clerk, Supreme Court

IN THE SUPREME COURT OF FLORIDA

IN RE: AMENDMENTS TO RULE 2.420, CASE NO. SC14-569 FLORIDA RULES OF JUDICIAL ADMINISTRATION ______/

THE MEDIA’S COMMENT TO PETITION TO AMEND FLORDA RULE OF JUDICIAL ADMININSTRATION 2.420

Freedom of the press is not, and has never been a private property right granted to those who own the news media. It is a cherished and almost sacred right of each citizen to be informed about current events on a timely basis so each can exercise his discretion in determining the destiny and security of himself, other people and the Nation.

- State ex rel. Miami Herald Publishing Co. v. McIntosh, 340 So. 2d 904, 910 (Fla.

1977).

The Associated Press; The Bradenton Herald, Inc.; Courthouse News

Service; The Florida Press Association; Gannett Broadcasting, Inc. (d/b/a WTLV-

TV, WJXX-TV, and WTSP-TV); Gannett Co., Inc. (d/b/a Florida Today, Fort

Myers News-Press, Pensacola News Journal, Tallahassee Democrat, FSView &

Florida Flambeau, Central Florida Future, and Seminole Chronicle); Halifax

Media Group, LLC (d/b/a Apalachicola & Carrabelle - The Times, Crestview

News Bulletin, Holmes County Times Advertiser, Northwest Florida Daily News,

Ocala Star Banner, Panama City News Herald, Santa Rosa’s Press Gazette,

Sarasota Herald-Tribune, The Daytona Beach News-Journal, The Destin Log, The

Gainesville Sun, The Ledger, The Star, The Walton Sun, and Washington County

News); Media General Operations, Inc. (d/b/a WFLA-TV and WKRG-TV); Miami

Herald Media Company; The New York Times Company; Orlando Sentinel

Communications Company, LLC; Scripps Media, Inc. (d/b/a Naples Daily News,

Stuart News, St. Lucie News Tribune, Jupiter Courier, Indian River Press Journal,

TC Palm, Sebastian Sun, Vero Beach Newsweekly, WFTS-TV and WPTV-TV);

Sun-Sentinel Company, LLC; Tampa Media Group, Inc. (d/b/a The Tampa

Tribune, Brandon News, Carrollwood News, Central Tampa News, Hernando

Today, Highlands Today, Northeast News, Northwest News, Pasco Tribune, St.

Petersburg Tribune, Plant City Courier, South Shore News, South Tampa News,

The Sun, and Suncoast News); and WFTV, Inc., d/b/a WFTV-TV (the “Media”) to comment upon the proposed rule changes submitted through a petition by the

Florida Courts Technology Commission (the “Commission”).

The Media’s concerns center on two primary issues: the unconstitutional favoring of attorneys generally by providing them better access to court records than that provided the public, and delays in access. The Media respectfully ask the

Court to end the attorney preference immediately. Also, statewide access delays exist now and must be rectified, and future remote systems must ensure that timely access to filings can be provided.

Background

The Court, of course, has been grappling with the issues related to remote access to electronic records for more than a decade. Throughout this time, a moratorium on remote access to court records has existed. The moratorium and its lingering effects are oppressive. Over time, to ameliorate the effects of the moratorium, the Court created exceptions. One such exception permits clerks to provide preferential access to members of The Florida Bar to all non-confidential court records. Even though the Court lifted the moratorium in March, the attorney preference still exists in about one-third of Florida’s counties. (See Exhibit A of the Appendix to this Comment, which is a chart of counties providing preferential attorney access.) The Media wrote the Commission and this Court to express concern about the constitutionality of the attorney preference. (The September 24,

2013, correspondence to the Commission is Exhibit B of the Appendix. The April

10, 2014, and May 19, 2014, correspondence to the Court are contained in

Composite Exhibit C of the Appendix.) The Florida Court Clerks & Comptrollers

(“FCCC”) then asked this Court to sanction continuing the attorney preference.

(The FCCC’s April 30, 2014, correspondence to the Court concerning the preference is contained in Composite Exhibit D of the Appendix.)

This Court’s most recent administrative order permits the preference to continue during a county’s transition to electronic access for more than nine

3 months, based on our reading of the order. See In re Standards for Access to

Electronic Court Records, Fla. Admin. Order No. AOSC14-19 at 4-5 (amended

May 23, 2014). The order gives all county clerks 60 days from the signing of the order to submit an application to provide electronic access systems consistent with the Standards for Access to Electronic Court Records (the “Standards”) and the

Access Security Matrix (the “Matrix”). See id. Failure to do so requires them to cease any online access, thereby eliminating the preference in those counties in which it currently operates. See id. However, if a plan is submitted within the 60- day period, it must go through an approval process (of unspecified length) with clerks then having 120 days to become compliant with the approved plan. See id.

At this point a 90-day pilot program must begin, where user levels are presumably phased in. Only at the conclusion of the pilot must clerks be fully compliant with

AOSC14-19. See id.

When all of these time periods are added together, an unconstitutional preference could potentially continue in effect for more than nine months. To stem this ongoing violation, the Media respectfully request this Court to stop the preference now or, at least, further minimize this transition period and provide for a definite, limited approval period and shorter transition periods for preference counties. Compliance with the Standards and Matrix would necessarily mean an elimination of the attorney preferences as they simply do not tolerate such a

4 preference. The quicker full-blown access is reached in preferences counties applying for approval, the quicker the unconstitutional preference is terminated.

Those counties should have an easier time transitioning to full remote access in any event because of their remote access and record protection experience in providing general attorney access.

Of equal importance to the Media are the delay issues that have accompanied manual redaction by clerks and e-filing and the perception that confidentiality issues and e-filing are of greater importance than the constitutional right of timely access to Florida court records. On behalf of the public, the Media ask this Court to remind clerks that timely access to the electronic court records in our judicial system is not merely a goal to strive toward, but rather a constitutionally required standard.1 Delays in access to court records exist at this

1 This Court has indeed recognized the critical role clerks play in ensuring that the public’s constitutional access rights are upheld, describing them as the “first line of action” and expressing confidence that “clerks of court will remain ever vigilant of the courts’ longstanding presumption in favor of open records.” In re Amendments to Fla. R. of Jud. Admin. 2.420-Sealing of Court Records and Dockets, 954 So. 2d

(footnote continued on next page)

5 moment and throughout the state – independent of remote access systems – and need to be rectified. In addition, a high priority component of all remote electronic access systems needs to be the ability to process court records quickly with an eye toward prompt, same day access. As this Court remarked nearly four decades ago,

“News delayed is news denied.” State ex rel. Miami Herald Publishing Co. v.

McIntosh, 340 So. 2d 904, 910 (Fla. 1977). That fundamental transparency policy must again guide this State’s actions with respect to the public’s court records.

The Media request the Court address the following issues:

• The attorney preference is an existing, ongoing constitutional violation and it should be stopped immediately. This can be achieved either by immediately halting the preference and putting Florida attorneys on the same footing as the public or by providing remote access to the public equal with that provided to Florida attorneys. As is more fully explained in this comment, at a minimum, this Court should shorten the attorney preference transition period permitted by recent administrative order. The Court should also clarify certain aspects of that order.

16, 23 (Fla. 2007). In this same opinion, the Court recognized the important role the media played in bringing the issue of “super-sealed” cases to light in Florida and helping the Court address the theretofore unknown problem. “In this instance, the free press has shown its value to the people of Florida by helping the judiciary identify and quickly correct unintended practices that tended to undermine public trust and confidence in our courts.” Id. at 24.

• Two delay issues exist. There are current, systemic delays in access to court records that need to be addressed now. With respect to future remote access systems, the constitution and case law mandates requiring prompt access to judicial records have taken a backseat to enacting statewide e-filing and concerns about protecting confidential records. Both at the courthouse itself and for remote access systems, clerks need to be reminded that timely access to court records is a high-priority obligation that must be provided to satisfy the mandates of Article I, Section 24 and this Court’s access jurisprudence. The Court should also emphasize that the Matrix and Standards provide no closure discretion to clerks, but merely implement Florida law. Neither tolerates a general attorney preference either. These issues could be addressed in this Court’s opinion on the proposed amendments to Rule 2.420, in a comment to the rule, via administrative order and in revisions to Rule 2.420 itself, as explained in detail below.

Any System Permitting Preferential Access to Court Records for Attorneys Generally Violates the Equal Protection Clause of the Florida Constitution.

We have corresponded by letter with the Court expressing concern with the constitutionality of the attorney preference. We have not yet had the opportunity to brief more fully the legal issues arising from the preference and take the opportunity to do so here. It remains the Media’s position that the preference must be eliminated now. At a minimum, however, the Media respectfully request the

Court shorten the transition timeframes provided in amended AOSC14-19, as described below.

As mentioned in our April 10, 2014, letter to Chief Justice Polston, one of the ways that this Court sought to lessen the impact the moratorium had on access to court records was to permit clerks to provide attorneys generally with remote

7 access to such records. See Admin Order 07-49, ¶ 3(i). Specifically, the 2007 order stated that “attorneys may be provided general remote electronic access to non-confidential records in cases in which the entire court file is not confidential.”

Id. Since that time, more than twenty Florida counties – roughly one-third of the state – have implemented an attorney preference system and continue to do so in the wake of this Court’s lifting of the moratorium. (See Exhibit A to the

Appendix.)

Indeed, these counties have demonstrated that online access to court records can be implemented in a manner that grants access to large populations (more than

98,000 members of The Florida Bar) while at the same time protecting appropriately confidential information from disclosure. The technical capability to implement such a system and corresponding commitment to greater court transparency is both laudable and promising. In light of this demonstrated achievement, it makes sense to grant the public at large the same remote access rights attorneys currently enjoy in many counties.

However, permitting one group preferential treatment with respect to a constitutionally guaranteed right of access to government is unconstitutional. We understand that attorneys can have a greater need to access the cases in which they are counsel of record, but it does not follow that that they should be afforded greater rights than the public to court files generally. Access to judicial records is

8 a fundamental right in Florida. Drawing preferential class distinctions among citizens that enables quicker and cheaper access to such records for some but not others fails to meet the required strict scrutiny review imposed under equal protection jurisprudence when a fundamental right is at stake.

The Florida Constitution’s equal protection clause provides that “[a]ll natural persons, female and male alike, are equal before the law….” Art. I, § 2,

Fla. Const. This “constitutional right to equal protection mandates that similarly situated persons be treated alike.” Level 3 Commc’ns, LLC v. Jacobs, 841 So. 2d

447, 454 (Fla. 2003). A court’s first duty when adjudicating an equal protection challenge is to determine what level of review scrutiny to apply to a challenged law.2 See The Florida High Sch. Activities Ass’n, Inc. v. Thomas, 434 So. 2d 306,

308 (Fla. 1983). Strict scrutiny analysis is applied when state action abridges a fundamental right or adversely affects members of a suspect class. See id. See

2 Administrative orders issued by Florida courts are as subject to equal protection review as acts of the legislature. See, e.g., Craig v. State, 583 So. 2d 1018 (Fla.

1991); Spencer v. State, 545 So. 2d 1352 (Fla. 1989); In re Exec. Assignment of the

State Attorney, 298 So. 2d 382 (Fla. 1974) (Boyd, J., dissenting); Akridge v. Crow,

903 So. 2d 346 (Fla. 2d DCA 2005); Hartley v. State, 650 So. 2d 1044 (Fla. 4th

DCA 1995).

9 also Level 3 Commc’ns, LLC, 841 So. 2d at 454; Lane v. Chiles, 698 So. 2d 260,

263 (Fla. 1997); Lite v. State, 617 So. 2d 1058, 1060 n. 2 (Fla. 1993).

Strict scrutiny review, “which is almost always fatal in its application, imposes a heavy burden upon the state” to establish the constitutionality of a law.

In re Estate of Greenberg, 390 So. 2d 40, 43 (Fla. 1980). To prevail under strict scrutiny, the government must show that the interest in drawing separate classifications among citizens is “substantial and compelling and requires inquiry as to whether the means adopted to achieve the legislative goal are necessarily and precisely drawn.” Id. at 42. See also Perkins v. State, 576 So. 2d 1310, 1314 (Fla.

1991) (state cannot deny equal protection of a fundamental right “without demonstrating a compelling state interest achieved by the most narrowly tailored means”). In light of this exacting standard, the attorney preference unconstitutionally infringes upon the fundamental rights of Floridians.

As this Court has recognized, “[t]he text of our Florida Constitution begins with a Declaration of Rights—a series of rights so basic that the framers of our

Constitution accorded them a place of special privilege” under which “each individual citizen has long been held to be on equal footing with every other.”

Traylor v. State, 596 So. 2d 957, 963 (Fla. 1992). “Each right and each citizen, regardless of position, is protected with identical vigor from government

10 overreaching, no matter what the source.” Id. (citing Boynton v. State, 64 So. 2d

526, 552 (Fla. 1953)).

Among these rights is the explicit guarantee that every person has the right to access state public records, including those of the judicial branch. See Art. I, §

24, Fla. Const. An individual’s right to access state judicial records is indeed a fundamental one. “A citizen’s right to public records is a fundamental right in

Florida.” Rhea v. Dist. Bd. of Trustees of Santa Fe College, 109 So. 3d 851, 855

(Fla. 1st DCA 2013). As this Court has recognized, “it is settled in Florida that each of the personal liberties enumerated in the Declaration of Rights is a fundamental right.” N. Florida Women’s Health and Counseling Servs., Inc., v.

Florida, 866 So. 2d 612, 635 (Fla. 2003). See also Haag v. State, 591 So. 2d 614,

618 (Fla. 1992) (recognizing that the rights set forth in the Florida Constitution’s

Declaration of Rights are “fundamental”); Vetrick v. Hollander, 743 So. 2d 1128,

1131 (Fla. 4th DCA 1999) (noting that “[t]he Declaration of Rights under Article I of the Florida Constitution established certain fundamental rights”).

Moreover, the fundamental right to access public records is explicitly self- executing. See Art. I, § 24(c), Fla. Const. “The right to inspect a public record in

Florida is not one merely established by legislation, it is a right demanded by the people.” Nat’l. Collegiate Athletic Ass’n. v. Associated Press, 18 So. 3d 1201,

1206 (Fla. 1st DCA 2009), rev. denied, 37 So. 3d 848 (Fla. 2010).

Indeed, our Public Records Act, § 119.01, et seq., Fla. Stat., provides an analogous comparison demonstrating our state’s commitment to equal protection under the law when access to records is at issue. It states explicitly that “[i]t is the policy of the state that all state, county, and municipal records are open for personal inspection and copying by any person.” § 119.01(a), Fla. Stat. (emphasis supplied). “This fundamental policy in essence places all government records on the table for open inspection by all.” Tribune Co. v. Cannella, 458 So. 2d 1075,

1077 (Fla. 1984). Moreover, the act draws no distinctions between citizens’ rights to access public records based upon the purported need for such records. “The motivation of the person seeking the records does not impact the person’s right to see them under the Public Records Act.” Curry v. State, 811 So. 2d 736, 742 (Fla.

4th DCA 2002) (citing Booksmart Enters., Inc. v. Barnes & Noble College

Bookstores, Inc., 718 So. 2d 227, 228 n. 2 (Fla. 3d DCA 1998)); Staton v.

McMillan, 597 So. 2d 940, 941 (Fla. 1st DCA 1992); Lorei v. Smith, 464 So. 2d

1330, 1332 (Fla. 2d DCA 1985)). Save for specific exemptions found in law, this statutory right has been described as “unfettered.” See Smith, 464 So. 2d at 1332.

Given the fundamental nature of this access right, the state cannot impose a classification that creates special access preferences for attorneys at the expense of the general public without meeting strict scrutiny review. As this Court has made clear, every individual of this state is afforded equal fundamental rights under our

12 state constitution. The current attorney preference policy allows a subset of the population virtually instant access to court records from their personal computer – and at no cost in the overwhelming majority of counties that have implemented a preference. Meanwhile, to exercise those same rights, the regular citizen must incur costs of up to $1 per page for paper copies of electronic court records, be forced to travel often significant distances to physical courthouses, and otherwise endure delays in obtaining records.3

The argument that attorneys often need ready access to court files does not amount to a compelling state interest as history clearly demonstrates that attorneys have lived without remote access for decades. Moreover, the desire for such a preference would not to be so compelling as to justify the class distinction created.

3 Clearly travel expenses, $1 per page fees, and time expended all add up to a significant cost. In some of our larger counties, Palm Beach for example, a resident of South Bay is nearly 50 miles away from the main courthouse in West

Palm Beach. Similarly, rural residents of Osceola County living near Yeehaw

Junction would have to travel close to 60 miles (most likely via the Florida

Turnpike, a toll road) to reach the main courthouse in Kissimmee. All told, a trip from Yeehaw Junction to the Osceola County Courthouse in Kissimmee to obtain a copy of a 20-page document could well end up costing a citizen close to $50 and take nearly 3 hours to complete.

But even assuming such an interest were “compelling,” the attorney preference policy is also not narrowly tailored. Providing every citizen with the same access rights – as the Florida Constitution requires – would meet the same goal as the current policy without infringing the fundamental rights of all. In essence, the policy could only be narrowly tailored by expanding access to all.

The unintended result of this exception seeking to ameliorate the burden of the moratorium was an abridgement of a fundamental right. Continuing a policy whereby attorneys obtain instant and free access to court records in electronic form while the general public endures additional delay and is required to pay $1 per page for paper copies of electronic records merely perpetuates this violation of the state’s equal protection clause. The fact that the attorney preference policy fails equal protection strict scrutiny analysis does not mean that this Court should not continue efforts to expand remote access to electronic court records. It simply means that the important policy goal of greater court transparency be administered evenly with the rights of all citizens in mind. The attorney preference is at odds with what is permitted under the Standards and the Matrix as well. We, therefore, respectfully ask this Court to abandon the attorney preference policy expressly and immediately and, instead, institute a policy that provides for equal access to non- confidential court records for all. Alternatively, this Court should establish a limited approval timeframe – no more than a month – and shorten the transition

14 timeframes as set forth in its May 23, 2014, amended order so that the attorney preference ends as quickly as possible in counties applying to provide full-blown remote access.

In addition, the Media ask the Court to clarify portions of the amended order, including: (1) How will the 90-day pilot period work in practice and, more specifically, how will different user groups be phased in over this period?; (2)

What does the reference to a “statewide” pilot program mean on page 5 of the order?; (3) Does the command on page 5 of the order that the “clerk shall request approval to provide online access” after the 90-day pilot period imply an additional delay before any complete roll-out of an electronic public access system can occur?; and (4) Is the “certification process” referred to on page 5 of the order an additional procedural step that will also take additional time beyond the 60, 120, and 90-day transition periods explicitly referenced? Any opportunity the Court can take to minimize the timeframes permitting the preference to exist would help ease its effects. For example, if the public user group can be phased in first in the 90- day pilot period, that would reduce the existence of the preference.

In the interim, one practical way to minimize the access and delay disparities created by the attorney preference is to immediately require clerks to provide the public with court records by e-mail upon request. Despite the exception to the moratorium permitting clerks to email documents in response to a request, clerks

15 much more often than not refuse to do so. And in Okaloosa County, where the clerk is willing to email records, requesters must pay $2 per page for emailed copies (while the county incurs no copy costs).

It is especially frustrating to journalists covering time-sensitive events to have to navigate the disparate access policies and procedures that vary by county.

See Statements of Anthony Cormier, Investigations Editor, Sarasota Herald-

Tribune, and Anne Vasquez, Associate Editor, South Florida Sun Sentinel,

Exhibits E and F of the Appendix. Additionally, many are forced to travel significant distances from their respective newsrooms to courthouses within their coverage areas. See Statement of Lenore Devore, Editor, The Ledger, Exhibit G of the Appendix. A late-breaking story is often impossible to cover because journalists simply cannot arrive at the courthouse before it closes.

While no county currently replicates the Manatee County system, a few have taken steps toward greater public access. Many others, unfortunately, still adhere to the antiquated system of only providing in-person, paper copies at the $1 per page fee. Imposing an immediate requirement that clerks must e-mail documents upon request to do so will help to alleviate a current problem that will persist while counties transition to full-blown remote electronic access. And because instituting remote access systems is not required, access problems may persist for those counties that elect not to make this transition at all. Emailing records could also

16 bring a level of consistency and predictability across the state and, again, serve as an attempt to minimize the disparities in counties where there is an attorney preference.

The following chart details the wide array of procedures journalists report that they routinely encounter in various counties around the state. As is evident, even within certain counties, the requesters can encounter inconsistent procedures.

Paper Email Electronic Miscellaneous County Copy Fee Delivery, Fee Viewing (per page) (per page) at Court- house

Alachua $1 Yes, $1 Yes

Broward $1 No Yes

Citrus $1 Yes, $1 Yes

Clay $1 No No

Collier $1 No Yes

Duval $1 No Yes Courthouse News Service attempted to obtain complaints by email, but was unsuccessful.

Paper Email Electronic Miscellaneous County Copy Fee Delivery, Fee Viewing (per page) (per page) at Court- house

Escambia $1.10 No No

Hernando $1 Sometimes, No $1

Hillsborough $1 Sometimes, Viewing Requests must $1 terminals often be made installed, but days in not presently functioning advance. for certain criminal matters.

Indian River $1 No No

Lake $1 No Yes Pre-2013 cases difficult to obtain in electronic form.

Lee $1 No Yes

Leon $1 No No

Manatee Free, online access for all.

Marion $1 Yes, $1 Yes

Paper Email Electronic Miscellaneous County Copy Fee Delivery, Fee Viewing (per page) (per page) at Court- house

Martin $1 Yes, $0 Yes Records often (sometime provided same s $0) day.

Miami-Dade $1 No Limited Occasional civil (complaints orders posted can be viewed online. and printed for $.25/page) Criminal judgments and sentencing records online. Generally, long lines/delays for civil records (particularly for older cases). Criminal records provided relatively quickly.

Nassau $1 No No

Okaloosa $1 Yes, $2 No County is charging more for electronic records.

Orange $1 Rarely Yes

Osceola $1 No Yes

Paper Email Electronic Miscellaneous County Copy Fee Delivery, Fee Viewing (per page) (per page) at Court- house

Palm Beach $1 No Yes

Pasco $1 Sometimes, No In rare $1 circumstances, records posted online for high profile cases.

Pinellas $1 No No

Polk $1 No Yes

St. Johns $1 No Yes

St. Lucie $1 Sometimes, No Often requires $0 case number list one week in advance due to manual redaction methods.

Santa Rosa $1 No No

Sarasota $1 Sometimes, Yes $1 (often $0)

Seminole $1 Rarely Yes

Sumter $1 No No

Paper Email Electronic Miscellaneous County Copy Fee Delivery, Fee Viewing (per page) (per page) at Court- house

Volusia $1 No Yes

Walton $1 No No

Neither citizens nor journalists should be required to stand in lines at clerk counters to obtain paper access to electronic records – particularly where attorneys may review records remotely and at their convenience. This Court recognized the absurdity of this process even with respect to paper records by permitting clerks to provide court records electronically when a record “has been individually and specifically requested.” See Fla. Admin. Order No. AOSC07-49 3.c. Promptly providing court records by email might lessen the impact of the preference for attorneys.

Emailing alone, however, cannot begin to address the constitutional issues presented by the attorney preference. The preference must be entirely and ultimately eliminated. At a minimum, the Media respectfully ask the Court to minimize the transition time periods tolerated by the recent amended order and clarify the questions posed by the Media concerning this order.

Clerks Must Provide Timely Access to Electronic Court Records to Remedy Existing Statewide Access Problems with E-Filed Records.

Florida has eliminated virtually all paper filing of court records. With statewide e-filing in place, court records now exist in electronic form. As discussed above, those electronic records, however, are not being provided in electronic form or by any electronic transmission means by many clerks. Instead, electronic records are often being converted to paper records where the requester is forced to pay $1 per page for the record. Obtaining records has become an unnecessarily cumbersome, expensive process. These issues need to be remedied quickly, independent of potential remote access systems. The Media respectfully solicit the Court’s help in addressing delay issues.

Across the State, many journalists routinely experience problems with getting access to e-versions of records. Many are charged for printing out paper copies at $1 a page. Others cannot obtain records from clerks unless they provide them with complete party name information or a case number. And delays in access to court records are an ongoing and major problem.

Even in counties where, for decades, the media had access to court records on the day they were filed, same day access now rarely occurs and delays of varying lengths have become the routine while clerks individually inspect electronic records before reporters – even those visiting the clerk’s office in person

– are allowed to see them. High profile cases of national interest are routinely 22 litigated in Florida courts. Cases like the Casey Anthony, George Zimmerman, and Justin Bieber prosecutions quickly come to mind. High profile civil cases are litigated here too. Access delays in such cases are particularly troublesome for journalists’ efforts to keep the public informed. Even when a chief judge permits remote access to court records in a case “of significant public interest,” substantial delays can occur before records are available through a clerk’s website. For example:

• Julie Schenecker was prosecuted in Hillsborough County for the murder of her two teenaged children. State v. Schenecker was designated a case of significant public interest by the Chief Judge of the Thirteenth Judicial Circuit. The Chief Judge authorized the Clerk to provide court records filed in the case via remote electronic means on the clerk’s website. This procedure was supposed to enhance prompt public access to records for high profile cases. In reality, it caused significant delays. For example, at the critical stage just before trial, there was a delay of over one week between the filing of court records and their electronic posting. In the interim, paper records were unavailable in the clerk’s office. Therefore, the press and public were denied timely access to court records in a case of significant public interest on the eve of trial. Issues in the case would be heard and decided before the underlying motion was even placed on the clerk’s website. The delay was caused by a new computer system in the clerk’s office and a two-tiered system of review whereby a deputy clerk and then a Clerk’s Office attorney would manually review every posting before it was made available to the public.

Cases not designated “of significant public interest” can still be of significant interest to the public. For example:

• Bank of America was accused of helping in a Ponzi scheme that defrauded a wealthy family of $85 million, in a suit filed in Broward County on March 31. In that court, where access is regularly delayed by 23

two weeks to one month, access to the new filing was not provided until May 2, more than one month after it was filed.

• In another action alleging financial malfeasance, PNC Bank sued politically influential South Florida developer Anthony Pugliese alleging that he shuffled millions of dollars to relatives and his affiliated companies to avoid more than $21 million in judgments. Access to that new action was delayed for five days after filing.

• In an action filed in Miami-Dade, the Taylor, Bean & Whitaker Plan Trust sued PriceWaterhouseCoopers for $1 billion, claiming the accounting firm negligently provided Colonial BancGroup clean audits for five years, allowing insiders at Colonial Bank and Taylor Bean & Whitaker Mortgage Group to "loot" the Taylor Bean trust account of "tens of millions of dollars per day." Access to that important action was delayed by a day.

• In a new action tied to a national story that received significant coverage, a Florida gun show filed a demand in the Orange County courts for the return of more than $20,000 paid for a venue that canceled its event when the venue’s management learned that George Zimmerman would be one of the vendors. Access to that newsworthy complaint was delayed for two days.

See Statements of Bill Girdner, Editor, Courthouse News Service, and Kate

Caldwell, Courts Journalist, WFLA-TV, Exhibits H and I, respectively, of the

Appendix.

Examples of delay also occur in cases that involve human interest news stories. For example:

• A photographer sued the Sigma Chi fraternity after its members fired a cannon at him to celebrate a Hurricanes touchdown. Access to that Miami-Dade complaint was delayed for three days.

• For a day, the Palm Beach courts delayed access to a complaint filed by a British man who said a Florida woman was holding his parrot hostage to "extortionate demands.”

See Statement of Bill Girdner, Exhibit H of the Appendix. Except for the Broward

County litigation, these examples arise in court systems where, historically, the press regularly saw the new cases and other filings on the day they were filed.

These examples boil down to illustrating an ongoing problem: systemic, statewide delays in making court records available. This state of affairs is improper – both for clerks likely to turn to remote access systems in the foreseeable future and for those counties where remote access may never be made available.

Non-confidential, e-filed court records are public records. Those electronic records, of course, are subject to the right to inspect or copy judicial branch records guaranteed to every person by Article I, Section 24(a) of the Florida Constitution.

Moreover, this Court previously has recognized that a strong presumption exists that the “filed records of court proceedings are public records available for public examination.” Barron v. Florida Freedom Newspapers, Inc., 531 So.2d 113, 118

(Fla. 1988). As a result, the public may be denied access to civil court records only if “no reasonable alternative is available to accomplish the desired result, and if none exists, the trial court must use the least restrictive closure necessary to accomplish its purpose.” Id. The right of access springs into being the moment a

25 person “undertake[s] to utilize the judicial process.” Bank of Am. Nat’l Trust &

Sav. Ass’n v. Hotel Rittenhouse Assocs., 800 F.2d 339, 344 (3d Cir. 1986); accord

Leucadia, Inc. v. Applied Extrusion Techs., Inc., 998 F.2d 157, 164 (3d Cir. 1993)

(“By submitting pleadings and motions to the court for decision, one ... exposes oneself [to] public scrutiny.”). These same principles apply in criminal cases. See

Miami Herald Publ’g Co. v. Lewis, 426 So. 2d 1 (Fla. 1982).

Delays, even for a day, significantly hinder news reporting and the free flow of information. As the United States Supreme Court has explained, “the element of time is not unimportant if press coverage is to fulfill its traditional function of bringing news to the public promptly.” Nebraska Press Ass’n v. Stuart, 427 U.S.

539, 561 (1976). This Court has agreed. “News delayed is news denied. To be useful to the public, news events must be reported when they occur.” McIntosh,

340 So. 2d at 910; see also, Tribune Co. v. Cannella, 458 So. 2d 1075, 1079 (Fla.

1981) (reversing a ruling by the Second District Court of Appeal that upheld a city imposed 48-hour delay in granting access to public records and holding that “[t]he only delay permitted by the [Public Records] Act is the limited reasonable time allowed the custodian to retrieve the record and delete those portions of the record the custodian asserts are exempt”).

When a right of access exists “even a one to two day delay impermissibly burdens the First Amendment.” Globe Newspaper Co. v Pokaski, 868 F.2d 497,

507 (1st Cir. 1989); accord Nebraska Press Ass’n v. Stuart, 423 U.S. 1327, 1329

(1975) (“[w]here, however, a direct prior restraint is imposed upon the reporting of news by the media, each passing day may constitute a separate and cognizable infringement of the First Amendment” as “suppressed information grows older” and “[o]ther events crowd upon it”); Elrod v. Burns, 427 U.S. 347, 373 (1976)

(“[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury”); Grove Fresh Distribs., Inc. v.

Everfresh Juice Co., 24 F.3d 893, 897 (7th Cir. 1994) (“The newsworthiness of a particular story is often fleeting. To delay or postpone disclosure undermines the benefit of public scrutiny and may have the same result as complete suppression.”);

Associated Press v. U.S. District Court, 705 F.2d 1143, 1147 (9th Cir. 1983) (even a 48-hour delay in access constituted “a total restraint on the public’s first amendment right of access even though the restraint is limited in time”);

Courthouse News Service v. Jackson, 2009 WL 2163606, at *4 (S.D. Tex. July 20,

2009) (“24 to 72 hour delay in access is effectively an access denial and is, therefore, unconstitutional”).

In the case of newly filed civil complaints, for example, any delays in access effectively hide from the public the fact that a new controversy is now pending

27 before an important institution of government.4 Complaints are the means by which the public becomes aware that the powers of the judiciary have been invoked with respect to a particular controversy, and are often the only way to know that a new piece of litigation has been filed. As such, delays in access here are particularly problematic for the news media, who are deprived of the ability to inform interested members of the public of the new business of the courts while it is still newsworthy. Delays make the information less useful, and impair the ability of the public and business community to react appropriately to it. The need

4 As case-initiating documents, complaints have a special significance among judicial records to underscore the importance of prompt disclosure. As one federal district court explained:

[A] complaint ... is the root, the foundation, the basis by which a suit arises and must be disposed of. [A]long with a summons, it is the means by which a plaintiff invokes the authority of the court, a public body, to dispose of his or her dispute with a defendant. ... It provides the causes of action. ... It establishes the merits of a case, or the lack thereof. ... [W]hen a plaintiff invokes the Court’s authority by filing a complaint, the public has a right to know who is invoking it, and toward what purpose, and in what manner.

In re NVIDIA Corp., 2008 WL 1859067, at *3 (N.D. Cal. 2008) (emphasis in original); accord Vassiliades v. Israely, 714 F. Supp. 604, 606 (D. Conn. 1989)

(denying request to seal complaint: “The filing of the complaint is likely to be the first occasion that the public could become aware of the dispute”).

28 for prompt access is indeed of concern to journalists. See, e.g., Statement of Anne

Vasquez, Associate Editor, South Florida Sun Sentinel, Exhibit F of the Appendix.

The proposed amendments to Rule 2.420 contain language amending the

Scope and Purpose section of the rule. The proposed amendment would add the following language:

(a) Scope and Purpose. Subject to the rulemaking power of the Florida Supreme Court provided by article V, section 2, Florida Constitution, the following rule shall govern the protection of and public access to the records of the judicial branch of government.

As explained in detail above, there are existing, system-wide delay problems in our courts. Of course, confidential records have to be protected. But those records comprise a minority of the court records in this state. Open records can no longer be held hostage to confidentiality concerns affecting a limited percentage of

Florida’s court records. In light of these issues, adding the requested language in

Rule 2.420 will likely only exacerbate existing delay problems.

Rule 2.420 should be amended instead to address prompt access:

(a) Scope and Purpose. Subject to the rulemaking power of the Florida Supreme Court provided by article V, section 2, Florida Constitution, the following rule shall govern prompt public access to the records of the judicial branch of government.

At a minimum, the proposed amended rule should add the term “prompt” to the proposed amendment:

(a) Scope and Purpose. Subject to the rulemaking power of the Florida Supreme Court provided by article V, section 2, Florida Constitution, the

following rule shall govern the protection of and prompt public access to the records of the judicial branch of government.

In summary, with the advent of e-filing, clerks must timely provide electronic versions of court records upon request. Making individuals appear at the counter to get costly paper copies of electronic records is not consistent with

Article I, Section 24 of the Florida Constitution. As discussed previously, promptly providing electronic records now by electronic means like email could help alleviate the immediate statewide delay issues illustrated by the experiences of the Media’s journalists described above and in Composite Exhibit I of the

Appendix. But whatever the method of transmission, the delays in access must stop. The very language of Rule 2.420 should also reflect the requirement of timely access. Suggested language is provided above. This issue could also be addressed by administrative order or the Court’s opinion on the proposed amendments to Rule 2.420. Prompt access must be a hallmark of clerks’ offices now, as well as any remote access systems enacted in the future.

Remote Access Systems Must Facilitate Prompt Access and Effectuate the Requirements of Article I, Section 24 and Rule 2.420.

As discussed above, prompt access to court filings must be an overarching priority no matter the means of delivery. It must be a priority in every remote access system implemented by the clerks under Rule 2.420 and the amended administrative order. The proposed amendments to Rule 2.420 reference the

Standards and the Matrix. Under the proposed rule, all remote access systems must be governed by the Standards and the Matrix, and clerks must establish the ability to comply with them before receiving approval to implement remote access systems.

As this Court is well aware, R.B. “Chips” Shore, the Manatee County Clerk of Court, implemented a pilot program providing remote access to court records.

As part of that pilot program, Mr. Shore developed an access security matrix to govern the release of electronic court records to the general public and specified user groups in accordance with applicable statutes, court rules and court orders.

The Matrix is based on Mr. Shore’s matrix. This Court adopted the Matrix by administrative order effective March 20, 2014. The proposed rule change similarly provides that access to electronic court records shall be governed by the Matrix and related Standards adopted by this Court.

The Matrix and the Standards can do nothing more than implement Florida law. While protecting lawfully confidential records is important, providing timely access to court records must be a hallmark of remote access systems too. The

Court should emphasize to clerks that the Matrix and Standards do not provide clerks with any discretion concerning closures. The Matrix and Standards permit closure only as required by Rule 2.420(d)(1) or by order of a court. The fundamental principle of timely access to court records also cannot be sacrificed in

31 implementing the Matrix spreadsheet. Prompt access must be a feature of all remote access systems.

Prompt access often falls victim to privacy concerns that simply do not withstand scrutiny. Those critical of providing public access to electronic court records often have raised the argument that such a system poses a grave threat to privacy. They argue that allowing parties to file information that is then placed online for anyone to view heightens the risk that inadvertent disclosures of confidential information will occur or may, in fact, encourage parties to purposely file confidential information (often to the detriment of the opposition) with the express intent that it becomes public. They further argue that such a system would place an undue burden upon clerks to monitor and ensure that no confidential information is made available to the public. These fears often underlie existing delay problems and many clerks’ reluctance to provide remote access systems.

In reality, these concerns are belied by actual experience. Critics have not offered any evidence that the inadvertent disclosure of confidential information found in court records is a significant problem under the current system, nor do they provide any evidence that it is of greater concern in an electronic system beyond anecdotal arguments that online information should be restricted more than paper information. It appears that clerks are already well-equipped to fulfill their duties to maintain the confidentiality of protected records. As this Court has made

32 the transition to electronic filing of and access to court records an administrative priority, we urge it to consider the wide-ranging public benefits of prompt electronic access as weighed against speculative privacy harms for which critics cannot point to specific evidence of systematic, ongoing breaches.

The Media acknowledge that no system is perfect. The possibility that mistakes will occur is just as inevitable in an electronic system as in a paper system. The appropriate question becomes what procedures are in place to minimize mistakes? Rule 2.420, which would be equally applicable to an electronic access system, provides the requisite level of protection because, among other things, it: (1) at the time of filing, places the burden on parties to identify confidential information protected under court rules; (2) allows those who claim that a document was filed without properly identifying confidential information to inform the court and have the mistake corrected; (3) provides due process to those seeking to file what they determine to be confidential information to make their case for confidentiality if it is not immediately clear the record otherwise qualifies for protection; and (4) provides for sanctions upon those who, in bad faith, file confidential information under a public designation. Consistent with this, before any document is filed with the current e-filing system, attorneys must affirmatively declare, by clicking a box, whether the filing contains confidential information that requires protection. These procedures place the burden of identifying confidential

33 information squarely with the filer, thereby relieving clerks of any perceived extraordinary duty to police court filings for confidential information and are consistent with previous administrative orders of this Court approving placing such burdens on filers. See In re Implementation of Report and Recommendations of the

Committee on Privacy and Court Records, Fla. Admin. Order No. AOSC06-20 at 7

(June 30, 2006). The Court has also adopted minimization rules that limit the filing of sensitive information. See Fla. R. Jud. Admin. 2.425.

These protections address privacy issues sufficiently. Given the constitutional access rights at stake, it is time that prompt access to records becomes at least an equal priority. No system can deter those specifically intent on filing confidential information. The constitutional right of timely access should not be sacrificed in an effort to thwart the aberrational bad actor. Strict enforcement of sanctions can be used to deal with the relatively few incidents of such behavior. In any balancing of constitutional access rights against the mere possibility of sporadic and infrequent breaches of confidentiality, this Court should side with access.

Clerks should not bear the risk of being guarantors of a perfect system in which no confidential information is ever released. To place that type of burden on clerks necessarily denigrates the constitutional right of access. With the high

34 number of filings in this state, no clerk can effectively ensure error-free filings in every case – without eliminating timely access.

Clerks should be reminded that timely access to court records is a high- priority and current obligation and that swift transition to remote access is a goal.

A statewide requirement that clerks must, upon request, email court records to requesters would do much to alleviate delays in the current system and provide a base level of consistency among counties. The delay issues can further be addressed as explained in the previous section by an amendment to the purpose provision of Rule 2.420, by commentary and in this Court’s opinion in this case.

An administrative order might be another option. To facilitate clerks’ transitioning to remote access systems, this Court’s opinion should emphasize that the Matrix must be guided by the access and closure law of this state, as embodied in Rule

2.420 and as exemplified in the Manatee system.

The Media appreciate the opportunity to comment on an issue of such importance to all Floridians and look forward to continuing to work with the judiciary to improve public access to court records. Thank you for considering our transparency concerns and for the Court’s ongoing work on these issues.

Dated: June 2, 2014 Respectfully submitted,

THOMAS & LOCICERO PL

/s/ Carol Jean LoCicero______Carol Jean LoCicero Florida Bar No. 603030 Rachel E. Fugate Florida Bar No. 144029 601 S. Boulevard Tampa, FL 33602 [email protected] [email protected] Telephone: (813) 984-3060 Facsimile: (813) 984-3070

and

Dana J. McElroy Florida Bar No. 845906 401 SE 12th Street, Ste. 300 Fort Lauderdale, FL 33316 [email protected] Telephone: (954) 703-3417 Facsimile: (954) 400-5415

Attorneys for The Media

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy has been furnished via the

Florida Courts E-Filing Portal this 2nd day of June, 2014, to: The Honorable Lisa

T. Munyon, Chair, the Florida Courts Technology Commission, Ninth Judicial

Circuit, 425 N. Orange Avenue, Orlando, Florida 32801 ([email protected]); and Susan Dawson, Office of the State Courts Administrator, Supreme Court 36

Building, 500 Duval Street, Tallahassee, Florida 32399 ([email protected]), or by electronic mail if notice of service is not returned from the Florida Courts E-

Filing Portal subsequent to filing.

/s/ Carol Jean LoCicero Carol Jean LoCicero

CERTIFICATE OF COMPLIANCE WITH FLA. R. APP. P. 9.210

Undersigned counsel hereby certifies that this Comment is typed in 14 point

(proportionately spaced) Times New Roman and otherwise meets the requirements of Florida Rule of Appellate Procedure 9.210.

/s/ Carol Jean LoCicero Attorney