Court expresses concern about balancing access and privacy
By Jan Pudlow
Senior Editor
Manatee County Clerk of Circuit Court R.B. “Chips” Shore made an offer the Florida Supreme Court could not refuse.

This pioneer in paperless courts will conduct a one-year pilot program for electronic access to court records, using firsthand experience he’s gained for a dozen years. Meanwhile, the court took a cautious approach, ordering a “modified limited moratorium” until further review by July 1, 2007, and until permanent procedures are put in place to protect privacy.

“Two competing yet important values must be balanced in any responsible set of policies: openness and transparency in court records, on the one hand, and individual privacy, on the other hand. Any viable policy must balance these two vital principles,” Justice Barbara Pariente and Chief Justice-elect Fred Lewis wrote in their June 30 administrative order that partially implements the Report and Recommendations of the Committee on Privacy and Court Records.

Shore, who was not a member of the committee chaired by Jon Mills, director of the Center for Government Responsibility at the University of Florida and former House speaker, nonetheless made known his objections on what he viewed as an overly timid approach and suggestions on how to balance access and privacy concerns in letters to the court and appearances during invitations for public comment.

In his latest May 10 letter to Pariente, Shore wrote: “In its infancy, electronic access to court records seemed to be an uncomplicated issue. After years of experience, I now recognize it to be one of the more intricate matters the court has addressed. I truly believe, however, that meaningful electronic public access serves to bolster the public’s understanding and respect for the court system if it is done in a safe and secure manner.”

The key, Shore said, is “the ability of the clerk’s office to identify and to protect confidential information. Because my office already has this ability, I am requesting that the court grant me an exception to the moratorium to allow my office to serve as a pilot for providing subscriber-based access to images of non-confidential court records.”

That request was granted in the administrative order (No. AOSC06-20) and the court will review Shore’s pilot as a potential model for statewide electronic access to court records.

“I am very proud that the court selected my office to assist the court in protecting the public’s personal information while ensuring that our courts are open to public scrutiny,” Shore said, in a statement posted on the clerk’s Web site.

“The court recognizes that most of its rules were based on paper records, and while I am acting as their pilot, all Florida clerks and court stakeholders will be working to assist the court in its review of this important project,” Shore continued.

“We are going to set the office up for measured access and use all available technology to ensure the privacy of confidential court records. I need the public to be involved to test the system so we can report to the court what works and what doesn’t. This needs to work for the public because these are their records.”

After 18 months of study and debate, the committee submitted its report and 24 recommendations in August 2005, and the court accepted public comment from January through June 2006, holding public meetings on March 1, April 19, and June 14. After strong debate, the committee voted 11-4 on an overall general recommendation that electronic access remains only a goal of the judicial branch and cannot be fully implemented until safeguards involving court rules and judicial policy changes are put into place.

In its administrative order, the justices agreed: “The same technology that offers substantial benefit can bring significant risk. The instantaneous and inexpensive dissemination of information contained in court records enhances accountability and supports efficiency, but also poses a potential threat to the privacy interests of individuals and corporations. The potential of access to all court records electronically raises the specter of increased opportunity for identity theft and misuse of personal information . . . . When extraneous and potentially damaging personal information is available not just in paper form at the courthouse but also in electronic form, the potential for harm increases significantly.”

The issue, the justices said, “is not whether the courts will make records available electronically, but rather when and under what conditions they will do so.”

Issues sparking strong debate on the committee were:
• What should be the role of court clerks in making sure confidential information is not released on the Internet?

• Should Rule 2.051(c)(8) incorporate or “absorb” state exemptions and federal confidentialities as part of the rule? The committee dubbed this issue “the impossibility problem” because of the enormity of redacting all of that information from court records.

In its administrative order, the court directed that the rule be amended to “set forth a finite set of exemptions that are readily identifiable,” but “specifically does not address the applicability of the absorption doctrine.”

The court did approve the substance of the committee’s Recommendation 17: Revise Rule 2.051, that would make the filer of court documents responsible for “asserting and establishing the confidentiality of documents beyond the categories listed in Rule 2.051(c)(8).”

The justices directed the various Florida Bar rules committees to “study whether rules exist or rules should be adopted that would require attorneys and litigants to refrain from filing discovery information with the court until such time as it is filed for good cause.”

Acknowledging concerns of certain clerks of court and the Florida Association of Court Clerks and Comptrollers, the court agreed: “The responsibility for identifying unauthorized filings cannot be placed on the clerks of court.”

They directed a new Committee on Access to Court Records, to be established by separate administrative order, to develop proposed revisions to Florida Rule of Judicial Administration 2.051 regarding confidentiality and access to records, and to study “whether any sanctions need to be strengthened to further the goal of preventing gratuitous publication of extraneous and potentially damaging information.”

Before public access is allowed, the court wants to create consistent standards regarding such issues as user interface and identification, access fees, sealing of court documents, and redaction of confidential information. These standards should be submitted to the chief justice by November 1, 2006, and “should address user identification and access fee issues, as well as the screening, redacting, striking, and sealing of court records to ensure that confidential information is not improperly released.”

Until further study, records in juvenile, probate, and family cases, pursuant to general law, are not to be available electronically to the general public,

The Florida Courts Technology Commission and the Office of the State Courts Administrator will assist Shore’s pilot with an implementation strategy.

In Shore’s May 10 letter to Pariente, the clerk outlined a detailed phased-in approach of levels of access, using software and hands-on review and advising all court participants of the public nature of the records. For example, Level 1 gives access to judges, clerks and authorized government entities for free. Level 2 affords attorneys of record access through a subscription service and a setup fee of $50. Level 3 gives parties access with a password-protected login per case with a $5 setup fee. Level 4, for a setup fee of $50, would be provided to the public for nonconfidential court information, with all Social Security, bank, debit, and credit card numbers redacted from all images.

“We feel requiring a minimal setup fee will keep voyeurs off the system,” Shore wrote. “The second phase envisions having members of the public register online and receive access to a limited number of court record images before having access through a subscriber account.”

To read Shore’s letter, other public comment, the committee’s report, and the court’s administrative order, go to
www.floridasupremecourt.org/pub_info/index.shtml and scroll down to Report of the Committee on Privacy and Court Records.