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Reporter’s Handbook – Access to Juvenile Records and Proceedings

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Access to Juvenile Records and Proceedings

by Rachel E. Fugate, Ana-Klara H. Anderson, and Elizabeth Belsom Johnson

I. Introduction
II. Children as Victims or Under the Protection of the State

A. Children as Abuse Victims
B. Adoption
C. Dependency and Termination of Parental Rights

III. Children Accused of Criminal or Delinquent Conduct

A. Law Enforcement Records
B. Adjudicatory Hearings

IV. Constitutional and Common Law Considerations
V. Conclusion

About the Authors

I. Introduction.

Court and agency proceedings today quite frequently involve children – either as victims or alleged offenders. Because such topics are often newsworthy, this article is intended to serve as a basic Florida primer on some of the records and proceedings involving minors to which reporters most commonly seek access.

Part II focuses on statutory rules of access when children are victims or otherwise under the protection of the state. Part III focuses on statutory rules of access when children themselves are accused of delinquent conduct. Part IV concludes with constitutional and common law principles that may apply in particular situations involving minors. While the presumption in most cases involving juveniles is still closure, the good news is many courts and agencies have recognized that transparency, particularly in extraordinary cases, results in public scrutiny and oversight of agency operations that affect child welfare.

II. Children as Victims or Under the Protection of the State.

A. Children as Abuse Victims.

When it appears that a child has been abused or neglected, the agencies most likely to become involved are local law enforcement agencies (police and sheriff’s departments), the Florida Department of Children and Families (“DCF,” formerly known as the Florida Department of Health and Rehabilitative Services (“HRS”)). This article uses the term DCF even for periods when the agency was known as HRS. The issue reporters are likely to face at the initial stage of a case involving abuse of a minor typically involves seeking access to state agency records as opposed to access to court proceedings and court records. For detailed information about Florida’s Public Records Act, see the section in this handbook entitled, “Florida’s Government in the Sunshine and Public Records Laws.”

Under the Public Records Act, records made or received by a state agency, such as DCF or a law enforcement agency, are presumptively open, unless the record falls within a specifically stated exemption. Fla. Stat. 119.01(1) (2014), 119.07(1)(a) (2014), 119.071(2) (2014). While law enforcement records are traditionally open, specific exemptions address law enforcement records related to child abuse. In particular, Florida statutes exempt “[a]ny information, including the photograph, name, address, or other fact, which reveals the identity of the victim of the crime of child abuse. . ., [a]ny information which may reveal the identity of a person who is a victim of any sexual offense,” Fla. Stat. 119.071 (2)(h)(1)(a), (b), and “[a]ny information in a videotaped statement of a minor who is alleged to be or who is a victim of sexual battery, lewd acts, or other sexual misconduct.” Fla. Stat. 119.071 (2)(j)(2)(a).

Clearly, the purpose of the exemption is to protect the identity of the alleged minor victim. By contrast, the arrest records pertaining to those persons charged with criminal child abuse are presumptively open. See Fla. AGO 93-54 (distinguishing arrest reports of persons charged with criminal child abuse from other confidential records held by DCF). Additionally, there is an argument that the identities of juvenile victims of other offenses – not related to abuse – are subject to release.

Likewise, when DCF undertakes an investigation into the alleged abuse, its interviews, recommendations, caseworker reports, and other documentation are shielded from public view by a host of exemptions to the Public Records Act designed to protect the identity and history of the child. One of the most frequently cited is Section 39.202(1), Florida Statutes (2014), which states:
[T]o protect the rights of the child and the child’s parents or other persons responsible for the child’s welfare, all records held by [DCF] concerning reports of child abandonment, abuse or neglect, including reports made to the central abuse hotline and all records generated as a result of such reports, shall be confidential and exempt from the provisions of s. 119.07(1) [the Public Records Act] and shall not be disclosed except as specifically authorized. . .

A nearly identical provision exists to protect records concerning reports of abuse, neglect or exploitation of disabled adults or elderly persons. See Fla. Stat. 415.107(1) (2014). This exemption on child abuse reports serves as the statutory authority for DCF to shield child abuse information from public view. However, there are two important exceptions.

First, Section 39.202(2)(o), provides for access to “[a]ny person in the event of the death of a child determined to be a result of abuse, abandonment, or neglect.” Therefore, when a child under the protective custody of DCF dies as a result of “abuse, abandonment, or neglect,” DCF’s records regarding that child are automatically open. The statute does, however, prohibit the release of information identifying the person who reported the abuse, abandonment or neglect, as well as other information made confidential or exempt by law. Id.

Even though DCF may automatically disclose certain reports in cases where a child has died as a result of abuse, abandonment or neglect, other records created prior to the child’s death may remain confidential. Reporters seeking to gain a complete understanding of DCF’s actions leading up to the child’s death often seek out these records. A second highly important exception to the overall protection of abuse reports, which is known as the “Bradley McGee exception,” provides another path for accessing such records. The Bradley McGee exception is found in Section 39.2021, Florida Statutes (2014). The law was enacted as a result of the tragic 1989 death of two-year-old McGee at the hands of his mother and step-father. A post-death DCF report revealed that ten people, including three DCF workers, were aware of possible abuse of the child but failed to report it. Under the section, any person or organization, including DCF, may petition the court for an order “making public the records of the Department of Children and Family Services which pertain to investigations of alleged abuse, abandonment or neglect of a child.” Fla. Stat. 39.2021(1). The law recognizes the positive effect of public scrutiny of agency actions pertaining to minors and helpless adults. See id. (“the public interest in access. . .includes the need for citizens to know of and adequately evaluate the actions of the Department of Children and Family Services and the court system in providing children of this state with the protections enumerated [in Florida Statutes Ch. 39]”). This path recognizes that openness serves the public, and ultimately results in better monitoring of the government agencies charged with the care of children.

The court uses a “good cause” standard to determine whether the previously confidential record should be released. In making this determination, the court must balance the privacy rights of those identified in the reports against the public interest in the information. Id.; see also, Dep’t of Health & Rehabilitative Servs. v. Gainesville Sun Publ’g Co., 582 So. 2d 725, 726-27 (Fla. 1st DCA 1991) (affirming disclosure of DCF records because no privacy interests remained to compete with public interest, but ordering redaction of only the person who reported the abuse and any other living adult named in the records). Moreover, this “public interest in disclosure is based on the underlying public interest in understanding the causes of performance shortcomings – a prerequisite to correcting those shortcomings.” Id. at 513. See also, In the Interest of E.J., 34 Med. L. Rep. 1251, 1254 (Fla. 20th Cir. Ct. Sept. 7, 2005) (“confidentiality and denial of access laws, which are designed to protect children’s privacy, more often than not fail to serve the overall, long-term best interests of children”); In re Records of the Dep’t of Children & Family Servs., Case No. 05-3517 (Fla. 13th Cir. Ct. May 19, 2005). In making its determination as to whether there is good cause for disclosure, the court must conduct an in camera review of the records. See In re Records of Dep’t of Children & Family Servs., 873 So. 2d 506, 514-15 (Fla. 2d DCA 2004) (trial court could not make good cause determination without inspecting records). However, the court is not required to hold a hearing before finding good cause to release the department’s records relating to a child abuse investigation. Dep’t of Health and Rehabilitative Servs., 582 So. 2d 725.

The petitioner seeking public access to the records must formally serve DCF with the petition. Florida Dep’t of Children & Families v. Sun-Sentinel, Inc., 865 So. 2d 1278 (Fla. 2004). A “very narrow” exception to the home venue privilege, which provides that an agency has a right to be sued in the county where it maintains its headquarters, applies when a petition is filed seeking to make DCF records public. Id. at 1289 (adopting the exception in cases where a party petitions the court for an order to gain access to public records, and where the records sought are by law confidential and cannot be made public without a determination by the court, pursuant to the petition, that good cause exists for public access). Therefore, good cause petitions can be brought in the county where the records are kept.

Like a newspaper or public citizen, DCF can also use the Bradley McGee petition route provided for in Section 39.2021(1). However, in cases involving serious bodily injury to a child, DCF may use a companion provision in Section 39.2021(2), allowing it to “petition the court for an order for the immediate public release” of its records pertaining to a protective investigation. The DCF petition must be served on the child, his or her guardian and any named, alleged perpetuator in the abuse report. Id. While the disadvantage of this provision is that it can only be utilized by DCF, the section has the built-in advantage of immediacy. Not only is DCF able to petition the court for “immediate public release of records,” the court must respond to the petition with a decision within 24 hours. Fla. Stat. 39.2021(2). The 24-hour requirement excludes Saturdays, Sundays and legal holidays. Id. If no action is taken by the court within the allowed time, DCF may, subject to specified exceptions, release summary information including a confirmation that an investigation has been conducted concerning the victim, the dates and a brief description of procedural activities undertaken in the investigation, and information concerning judicial proceedings. Id.

In such cases where DCF wants to release information quickly because it believes in the appropriateness of its actions, the media can take advantage of the rush determination by piggy-backing its own request under Section 39.2021(1) to the DCF request under Section 39.2021(2).

The records of child protection teams from non-profit child-care agencies with which the State contracts to provide DCF-like services are also confidential. Fla. Stat. 39.202(6); see also Fla. Stat. 39.303 (2014) (statutory authority for child protection teams). However, courts have consistently recognized that those agencies’ reports may be released upon a showing of good cause similar to the good cause showing for release of DCF records in Section 39.2021. In re Records of the Children’s Advocacy Ctr. of Southwest Fla. Relating to Michele Fontanez, 35 Med. L. Rep. 1346, 1347 (Fla. 20th Cir. Ct. June 16, 2006) (newspaper granted access to records of child protection team relating to child, who died from injuries sustained from a sexual battery allegedly committed by her stepfather, while under the supervision of DCF because “[a]ccess to the records will allow the public to fully evaluate the circumstances of [the child’s] death”).

Section 39.202(4) authorizes DCF and the investigating law enforcement agency to release certain identifying information to the public in order to help locate or protect a missing child under investigation or supervision of the department or its contracted service providers.

B. Adoption

The presumption in both the Florida statutes and Florida cases is that adoption proceedings are closed to the public. See Fla. Stat. 63.162(1) (2014). Some leeway is given for the opening of adoption records, however, under Section 63.162(2), courts may open “papers and records” pertaining to an adoption by making certain records or portions of records subject to inspection “only upon order of the court.” Id. Even though the statute does not expressly specify that a good cause finding is required, courts have construed the statute to require it before releasing information contained in a court file. See D.M. v. Elizabeth R. Berkowitz, PA, 112 So. 3d 575, 577 (Fla. 4th DCA 2013) (good cause requirement applies to persons who are not parties to the suit or in order to give access to the proceedings after a final judgment is entered, but not to parties to the proceedings). See also, In re Adoption of Rand, 347 So. 2d 450, 452 (Fla. 3d DCA 1977). The issue of whether to open an adoption file is under the continuing authority of the court in which the judgment of adoption was entered. Dep’t of Health & Rehabilitative Servs. v. Kimmick, 390 So. 2d 1218, 1219 (Fla. 1st DCA 1980).

A companion provision in Section 63.162(4)(d) similarly gives the court discretion to depart from the general rule of confidentiality. It states that “for good cause,” the court may allow the disclosure of the name and identity of a birth parent, adoptive parent or adoptee. Fla. Stat. 63.162(4)(d). In determining “good cause,” the court:

[S]hall give primary consideration to the best interests of the adoptee, but must also give due consideration to the interests of the adoptive and birth parents. Factors to be considered in determining whether good cause exists include, but are not limited to:
1. The reason the information is sought;

2. The existence of means available to obtain the desired information without disclosing the identity of the birth parents, such as by having the court, a person appointed by the court, the department, or the licensed child-placing agency contact the birth parents and request specific information;

3. The desires, to the extent known, of the adoptee, the adoptive parents, and the birth parents;

4. The age, maturity, judgment, and expressed needs of the adoptee; and

5. The recommendation of the department, licensed child-placing agency, or professional which prepared the preliminary study and home investigation, or the department if no such study was prepared, concerning the advisability of disclosure.

Fla. Stat. 63.162(4)(d)(1-5). Again, an earlier version of this provision was construed as requiring the release of information where good cause is shown. See In re Lay, 382 So. 2d 814, 815 (Fla. 1st DCA 1980). Interestingly, since that case, the Florida Legislature has eased the standard. The former provision required “good cause shown in an exceptional case.” See 1982 Fla. Laws. Ch. 82-166. Now, the statute simply requires “good cause.” Ordinarily, such “good cause” requires the interest of some child, parent or highly affected party as opposed to outsiders. In re Lay, Berkowitz, and In re Adoption of Rand did address the court’s discretion to open court adoption files but not the public policy question of opening such court files to the media. Nonetheless, there are exceptions.

For example, in 1995 records related to the adoption of seven-year-old Lucas Ciambrone were opened after the adopted child was abused, beaten and killed by his parents. Because of the circumstances surrounding Lucas’ life and death, he was the focus of a governor’s panel. As a result, the circuit court judge was persuaded that full disclosure of the child’s adoption records was necessary. As the court explained:

Ordinarily, records pertaining to adoptions in Florida are jealously guarded and strictly confidential. See Fla. Stat. 63.162, Fla. Stat. (1993). There are strong public policy reasons for the confidential nature of adoption proceedings and records, so strong that the Florida legislature has even specifically exempted these records from Chapter 119, Fla. Stat., (1993), Florida’s Public Records Law. However, when good cause is shown for the necessity to disclose, Sections 63.162(1)(b) and (1)(d), Fla. Stat. (1993), provide the legal mechanism. These provisions have been renumbered as Fla. Stat. 63.162(2), (4) (2014).

In considering the criteria. . .the Court finds that because of the unique circumstances of this case, disclosure of certain records from the Court adoption file and from HRS’ file relating to the adoption should be disclosed to the public, the need for disclosure outweighing any residual rights of privacy [the adoptive parents] enjoy in the matter.

In re the Interest of L.C., 24 Med. L. Rep. 1863, 1863 (Fla. 12th Cir. Ct. Oct. 9, 1995).

C. Dependency and Termination of Parental Rights.

Adjudicatory hearings involving custody and permanent placement of children and other dependency proceedings are presumed open except upon special order of the presiding judge. Fla. Stat. 39.507(2) (2014). Section 39.507(3), Fla. Stat., specifically states that nothing shall prohibit the publication of such proceedings. See The Interest of T.G., Case No. 11-DP-82-A (Fla. 18th Cir. Ct. March 21, 2014) (Order on WFTV, Inc.’s Motion For Leave To Intervene For The Limited Purpose Of Seeking Access To The Digital Court Recording And/Or Transcript). However, the special order provision allows the presiding judge to close the hearing upon a determination that the public interest or the welfare of the child is served best by a closed proceeding. See id.

By contrast, adjudicatory hearings involving termination of parental rights are automatically confidential under Section 39.809(4), Florida Statutes (2014). See Natural Parents of J.B. v. Dep’t of Children and Family Servs., 780 So. 2d 6 (Fla. 2001). See also Dep’t of Children & Family Srvcs. v. Carter, 851 So. 2d 197, 199 (Fla. 5th DCA 2003) (stating in dicta that “it seems intuitively clear that proceedings for the termination of parental rights are substantially more intrusive than dependency actions”). The reason for this disparity is unclear; it seems inconsistent that the Legislature would decide to open dependency proceedings, which are at an earlier stage of the process, while closing the later and more permanent termination of parental rights proceeding.

Termination of parental rights and dependency records are closed except to those showing a “proper interest.” Fla. Stat. 39.0132(3) (2014), 39.814(3) (2014); see also Fla. R. Jud. Admin 2.420(d)(1)(B)(i) (noting that clerks must automatically seal dependency records). On certain occasions, the general public may be shown to have the requisite proper interest. For example, in Dep’t of Health & Rehabilitative Servs. v. In the Interest of A.N., 604 So. 2d 11 (Fla. 3d DCA 1992), the appellate court upheld a circuit judge’s decision to disclose the full court record despite the confidentiality provisions. Noting that the guardian ad litem had supported waiver of the confidentiality provision, the court stated:

[W]e conclude that the circuit court was acting within its discretionary powers when it determined that disclosure of the full record would best correct any speculation, rumor or innuendo circulating about the instant family and that disclosure was in the best interest of the dependent children.

Id. at 11. Similar reasoning was employed by a circuit judge in Hillsborough County who found that disclosure of portions of the child’s court record was in the best interest of the dependent child. In the Interest of E.S., Case No. 89741 (Fla. 13th Cir. Ct. Jan. 29, 1997) (Order on Tampa Tribune’s Motion for Leave to Intervene and for an Order Unsealing Court Records). Similarly, a circuit judge in Lake County found that release of a dependency court file was in the public interest. In re Interest of R.S., J.C., Case No. 2002-DP-0286-GS (Fla. 5th Cir. Ct. March 9, 2004).

While there are restrictions on public access to dependency and termination records, the media may be permitted access to such records for the compilation of statistics or other quantitative data. See Fla. Stat. 39.0132(3), 39.814(3). In such situations, the court may impose certain “conditions upon their use” and may “punish by contempt proceedings any violation of those conditions.” See Fla. AGO 91-32 (allowing The Tampa Tribune access to juvenile dependency court statistics for research purposes).

III. Children Accused of Criminal or Delinquent Conduct.

When children are accused of criminal or delinquent conduct, as opposed to being abuse victims or the subjects of court and agency decision-making, the balance of interests under the Public Records Act weighs more heavily in favor of access.

A. Law Enforcement Records.

The law allows a law enforcement agency to release to the public the “name, photograph, address, and crime or arrest report” of a child taken into custody “for a violation of law which, if committed by an adult, would be a felony.” Fla. Stat. 985.04(2)(a) (2014). Likewise, the law enforcement agency could reveal the identity of a child “found by a court to have committed three or more violations of law which, if committed by an adult, would be misdemeanors.” Id. at (2)(b). Moreover, a law enforcement agency may not use age as the sole reason for not releasing the record of a juvenile felony or three-time misdemeanor offender. Id. at (2). Thus, law enforcement agencies should release such juvenile offender records unless some other justifiable reason apart from age exists for keeping the record confidential.

As has been noted by two Attorney General opinions, the move for open records was intended to focus public awareness on serious juvenile crime. See Fla. AGO 94-91 (“[t]he clear goal of the Legislature was to establish the public’s right to obtain information about persons who commit serious offenses, regardless of age”); Fla. AGO 95-19 (“Legislature has allowed for greater dissemination of information relating to juvenile offenders”).

The Attorney General’s Office has read this legislative intent broadly. The law enforcement agency is not confined to release of the name, photograph, and address of the juvenile, but also may release other background information regarding the offense or arrest. Fla. AGO 94-91; Fla. Stat. 985.04(2) (releasable information includes the crime or arrest report of the child). Further, law enforcement records which “have been transmitted to and are in the hands of a criminal justice agency such as the Department of Juvenile Justice” also may be released. Fla. AGO 94-91. The only information that remains non-public are those law enforcement records of juveniles arrested for a felony prior to October 1, 1994. Fla. AGO 95-19.

If the juvenile has committed some other delinquent act, which, if committed by an adult, would be a crime but not a felony, the record is confidential and will only be released to specified, interested agencies, certain relatives, and to those deemed by the court to have a proper interest. Fla. Stat. 985.04(2), (3), (6) and (7) (information obtained by Department of Juvenile Justice, the Parole Commission, the Juvenile Justice Advisory Board, the Department of Corrections, district juvenile justice boards, any law enforcement agent or any licensed professional community agency participating in the assessment or treatment of a juvenile is confidential). However, reporters wishing to obtain generalized information for research purposes should be aware that there is a conditional, limited right of access in this provision for the compilation of statistical information in this statute as well. See id. at 4(7)(a).

B. Adjudicatory Hearings.

When a child has been accused of committing a delinquent act or violation of law, an adjudicatory hearing will be conducted “as soon as practicable” with the court applying the same rules of evidence that are used in criminal cases. Fla. Stat. 985.35(1), (2) (2014).

Although the court file is not subject to disclosure, see Florida Statute 985.045 (2014), the adjudicatory hearings are presumptively “open to the public, and no person may be excluded except on special order of the court.” Fla. Stat. 985.035(1) (2014). In addition, the statute specifically provides that except as provided in subsection (1), “nothing in this section shall prohibit the publication of proceedings in a hearing.” Id. at (2). Additionally, cameras have in general been allowed in delinquency proceedings just as they would be in criminal cases involving adults. See In re Norcia, 30 Med. L. Rep. 1188, 1191 (Fla. 12th Cir. Ct. Aug. 27, 2001). However, the court, in its discretion, “may close any hearing to the public when the public interest and the welfare of the child are best served by so doing.” Id. at (1).

IV. Constitutional and Common Law Considerations

As the above discussion shows, numerous exemptions to Florida’s Public Records Act shield certain juvenile records and proceedings from public view. However, reporters also must consider overriding constitutional and common law protections that may apply despite Legislative efforts to shield such information.

One such protection is the constitutional protection forbidding prior restraints. If a news organization already has in its possession a confidential report pertaining to a juvenile, the State cannot ban the publication. To do so would be viewed as an impermissible prior restraint. The government cannot restrain the media from publishing information it already has in its possession or that it obtained through its sources. Only a few narrow exceptions exist to this rule, and they are usually confined to circumstances involving national security interests. See, e.g., Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976). This is true even when a statute exists prohibiting disclosure a victim’s identity. See Florida Star v. B.J.F., 491 U.S. 524, 551 (1989) (state could not impose civil damages on a newspaper for publishing rape victim’s name lawfully obtained from police report). Of course, even if the State cannot restrain the publication of such information, the media outlet in possession of a confidential document obtained through sources should carefully consider any privacy concerns that may be raised by a child or other person who is the subject of a confidential report. Id. (while holding that it would be a violation of the First Amendment to impose civil damages on a newspaper for publishing rape victim’s name lawfully obtained from police report, court suggested that on different facts, there may be narrow zones “of personal privacy within which the State may protect the individual from intrusion by the press”).

In Florida Publishing Co. v. Brooke, 576 So. 2d 842, 846 (Fla. 1st DCA 1991), for example, the court invalidated a restrictive order that prohibited the media’s broadcast of an expert psychologist’s letter critical of HRS, even though the press had received the letter during the course of a closed juvenile dependency proceeding. The court noted the well-accepted principle that prior restraints of the media are presumptively unconstitutional and can only be overcome by circumstances demonstrating a “manifestly overwhelming necessity” for secrecy. Accord Doe v. Doe, 567 So. 2d 1002, 1003 (Fla. 4th DCA 1990) (affirming trial court’s finding that there could be no prohibition on the publication of truthful information involving mentally handicapped minor, since press had already obtained prior access lawfully). The same prohibition against prior restraints applies when the press manages to obtain juvenile offender information. See Smith v. Daily Mail Publishing Co., 443 U.S. 97 (1979) (state could not prohibit publication of name of alleged juvenile offender, lawfully obtained by media monitoring police band radio); Oklahoma Publishing Co. v. Oklahoma County, 430 U.S. 308 (1977) (when press was able to attend juvenile hearing despite statute dictating closed hearings, court later could not enjoin publication). However, an order that allowed a reporter to attend a closed hearing on assurances that the reporter would not publish information learned at the hearing was found not to be a prior restraint. See Mayer v. State, 523 So. 2d 1171, 1175 (Fla. 2d DCA 1988).

A second consideration is whether fundamental rights of access to court proceedings and court records will supersede a statutory restriction. A full discussion of this topic appears in the section of this handbook entitled “Judicial Access: The Reporter’s Right of Access to the Judicial System.” In general, reporters enjoy a constitutional and common law right to attend criminal and civil proceedings. Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113, 114 (Fla. 1988) (“we hold that all trials, civil and criminal, are public events and there is a strong presumption of public access to these proceedings and their records, subject to certain narrowly defined exceptions”); Miami Herald Publishing Co. v. Lewis, 426 So. 2d 1 (Fla. 1982) (fundamental right of access to criminal trials). These cases took their cue from a long line of First Amendment precedent opening court proceedings. See, e.g., Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986) (“Press-Enterprise II“) (preliminary hearings); Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984) (“Press-Enterprise I“) (voir dire); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) (criminal trials).

Although the right is not absolute, the proponent of closure in a criminal case must show: 1) a serious and imminent threat to the administration of justice; 2) a lack of available alternatives; and 3) the effectiveness of closure in protecting the rights of the accused, without being broader than necessary to accomplish this purpose. Lewis, 426 So. 2d at 3.

A slightly modified version of this test determines closure in a civil case. Specifically, the court must (1) balance other competing interests, (2) find no reasonable alternatives to closure, and (3), if closure still is required, use the least closure necessary to accomplish the required purpose. Barron, 531 So. 2d at 118.

Court records – those filed with the court or considered as evidence – also are presumptively open.

Arguably, these principles require courts to avoid automatic closure in juvenile cases and to test the need for openness on a case-by-case basis. The presumption of openness in the dependency proceedings except when the presiding judge determines good cause for closure, would appear to satisfy these concerns. See, e.g., In re Brown, 18 Med. L. Rep. 1460, 1461 (Fla. 4th Cir. Ct. Nov. 2, 1990) (even before the amendment to the statute that mandated a presumption of openness, court held that the trial judge had to have discretion to open child custody and child dependency hearings to minors because constitutional problems would be raised by a policy of mandatory closure); Hays v. Hays, 16 Med. L. Rep. 2431 (Fla. 5th Cir. Ct. Sept. 28, 1989) (court employed balancing test to determine propriety of access to custody proceeding involving minors).

Likewise, the presumption of openness in adjudicatory hearings involving minors accused of delinquent acts appears to address fundamental access concerns by requiring the court to make a specific finding that the welfare of the child demands closure. See Fla. Stat. 985.035(1).

However, two areas that remain traditionally closed to the media are adoption proceedings and proceedings involving the termination of parental rights. See Fla. Stat. 63.162(1), 39.809(4). Even though such proceedings occur in a civil courtroom before a judge, there is very little weighing of public interests of access versus the privacy interests of participants because the State’s interest in protecting the privacy of adoptive children and parents is deemed paramount. See In re Adoption of HYT, 458 So. 2d 1127, 1128 (Fla. 1984) (automatic closure of adoption proceedings for child who was still alive upheld in face of constitutional challenge by the media); cf. In re Interest of Baby Doe v. Joiner, 13 Med. L. Rep. 1365, 1366 (Fla. 15th Cir. Ct. Sept. 19, 1986) (proceedings ancillary to confidential adoption proceedings would not be subject to automatic closure).

Many media lawyers argue that such automatic closure is unjustified See, e.g., Barron, 531 So. 2d at 118 (decided subsequent to HYT); Globe Newspaper v. Superior Court, 457 U.S. 596 (1982) (holding that automatic closure of trial concerning sex offenses against minors was unconstitutional) and that closure should only occur after careful judicial consideration of public versus privacy interests. The policy of closing adoption proceedings still must be read narrowly to effectuate its purposes. Although Section 63.162(1), Fla. Stat., provides that adoption proceedings shall be held in closed court, the reach of the statute is limited. See, e.g., Dep’t of Health & Rehabilitative Servs. v. Tallahassee Democrat, 481 So. 2d 958, 960 (Fla. 1st DCA 1986) (confidentiality provisions of Section 63.162, Fla. Stat. (2001), did not extend to hearing by adoption agency on application for a license; confidentiality of persons involved could be accomplished via less restrictive means of using their initials).

However, the Florida Supreme Court has ruled that automatic closure of termination of parental rights proceedings is constitutional. See Natural Parents of J.B., 780 So. 2d 6.

V. Conclusion.

When children are the victims of abuse or neglect, statutes facilitate public scrutiny of the government agencies charged with their care by providing for public access to certain records and judicial proceedings, particularly when highly extraordinary events occur or where public policy dictates the need to examine agency procedures and practices. Greater transparency is also afforded for juvenile offender records when the juvenile is accused of a felony or multiple misdemeanors. These avenues to access, coupled with traditional paths of constitutional and common law access, may help reporters gain more information about juveniles, particularly when strong policy reasons support the need for disclosure.


Rachel E. Fugate is a partner at the law firm of Thomas & LoCicero PL in Tampa, Florida. Her practice focuses on all aspects of media law, including access litigation, pre-publication review, and defamation defense. She has argued media matters, such as defending against reporter subpoenas, access to judicial proceedings, and disclosure of public records under the Freedom of Information Act and Florida Public Records Act, in federal and state trial and appellate courts throughout Florida. Ms. Fugate graduated magna cum laude from the Florida State University College of Law in 1998, where she was elected to the Order of the Coif and Order of the Barristers. Ms. Fugate was also the Legislative Editor of the Florida State Law Review and Vice President of the FSU Moot Court Team.

Ana-Klara H. Anderson is an associate at the law firm of Thomas & LoCicero PL in Tampa, Florida. She is bilingual and represents both English and Spanish-language media clients in the areas of First Amendment law, intellectual property, commercial litigation and arts and entertainment law. She provides pre-broadcast and pre-publication review and newsgathering advice and counsels media clients concerning Internet content and publication practices. She earned her law degree from the University of Florida Levin College of Law and a Ph.D. in Media Law and Policy from UF’s College of Journalism and Communications. She earned her undergraduate degree from The George Washington University after which she served as an officer in the United States Marine Corps.

Elizabeth Belsom Johnson is a former partner in the media law department at the law firm of Holland & Knight LLP in Tampa. Her specialties include advertising, defamation, access litigation, media contests and promotions, and civil rights. Prior to joining Holland & Knight LLP, Ms. Johnson was a law clerk to the Honorable Glen Davidson, United States District Court, Northern District of Mississippi. She received her J.D. with honors from the University of Florida College of Law in 1989, where she was elected to the Order of the Coif and was the Editor-in-Chief of the University of Florida Law Review. Prior to attending law school, Ms. Johnson was a newspaper reporter for the Sarasota Herald-Tribune.


Factual Circumstance Florida Statute Standard
Child abuse records held by DCF;
child is not deceased and no petition has been made for the release of the record.
Section 39.202(1) Record is confidential and exemption from Florida Statutes
Chapter 119
Child abuse record held by DCF;
child has died as a result of abuse, but no petition has been made by member of the public.
Section 39.202(2)(o) Record shall be released to “any person”
Child abuse record held by DCF;
child is not deceased but member petitions for access.
Section 39.2021(1) & (2) Court must determine
“good cause” for release of public of the record; immediate release in cases of serious bodily harm (DCF only)
Adoption records. Section 63.162(2) & (4) General
rule of confidentiality, although court may open the record for “good cause.”
Adoption proceeding. Section 63.162(1) Automatically closed.
Dependency hearing. Section 39.507(2) Open except upon special order of the court.
Dependency records. Section 39.0132(3) Closed except to those showing a proper interest.
Termination of parental rights
Section 39.809(4) Automatically closed.
Termination of parental rights records. Section 39.814(3) Closed except to those showing a proper interest.
Law enforcement record pertaining to
alleged juvenile felony offender.
Section 985.04(2) Should be released by
law enforcement agency.
Law enforcement record pertaining to
other alleged juvenile offenders.
Section 985.04(2) & (7)(a) Record is confidential and exempt from Chapter 119.
Adjudicatory hearing for alleged juvenile offender.

Court file for alleged juvenile offender.

Section 985.035(1)

Section 985.045

Open except upon special order of the court.

Closed except upon special order of the court.


Authored by the Media & Communications Law Committee, the handbook serves as a resource guide for members of the media about topics in the legal profession.

[Revised: 11/1/2004]