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Even a little secrecy in legal system is too much

By HOWARD TROXLER
Published March 6, 2005


Secret courts are a bad idea.

Secret courts are a bad idea for so many different reasons I can't list them all.

For starters, when the government accuses somebody of a crime, that person is entitled to a public trial.

That's an old but good idea. It goes back to one of the reasons we fired the British king and started our own country.

There are lots of other good reasons to keep the courts public. The main one: We have to be able to see what is going on.

Is our legal system operating fairly? Is this judge, or that one, abusing his or her power? Are the divorce courts biased? Are the sentences for crooks about right? Is the clerk of court doing a good job?

Each of us might prefer at first blush to keep secret our own lawsuit or divorce case. But think twice - do you really want to take your case into a courthouse where the judge, the lawyers, even the court clerks, operate in secret?

* * *

We have this new thing called the Internet.

Well, okay, it's not so new. Not to the rest of the world, anyway.

In Florida, however, some folks are using the excuse of the Internet to try again to advocate secrecy in the courts.

The Florida Supreme Court has created a task force, called the Committee on Privacy and Court Records, to make recommendations on what should be online. The committee's report is due July 1. The panel is meeting tomorrow in Gainesville.

Different groups have come forward, urging the committee to keep more records out of the public's hands.

One such group is made up of Florida's family-law judges. They seek to keep all case records off the Internet involving family dissolutions, paternity, domestic relations and domestic violence cases.

Such secrecy, the judges say, is needed "to avoid substantial injury to innocent third parties, the children."

Yet experience teaches us exactly the opposite. The secrecy that we already have permits the system to operate negligently. Being "protected" by secrecy certainly did not help the Dollar children in Citrus County who were allegedly abused.

A few years ago, when a source revealed the state's negligence in the death of a foster child named Bradley McGee, the state swung into action - by throwing into jail the reporter who told the public about it.

That's what secrecy gets you.

Some lawyers, too, sniff an opportunity. The appeals branch of the Florida Bar told the committee that no one except themselves should have electronic access to most appeals case records.

Naturally.

* * *

So far, the Committee on Privacy and Court Records has stressed the right ideas about the importance of public access.

There has been a reasonable worry about how to protect bank account numbers, Social Security numbers and other sensitive information in court files.

Florida's record keepers, our clerks of court, do not want to have to edit such stuff out of the documents they post on the Internet. They say it would be a nightmare. And yet, some kind of step in that direction is essential, because if we are forced to choose between all or nothing, I am afraid the Supreme Court will choose nothing.

Those who are pushing for more secrecy deny it. After all, they say, the public is still permitted to go physically to whichever county in Florida holds the file they want, and read the case on paper.

But this ignores reality. It ignores practicality. It ignores modernity, as surely as saying the public is entitled to copy court records - but only by hand. Secrecy in effect is secrecy in fact.

Besides, this false reassurance about paper overlooks a teeny, tiny point, made by Steven Brannock, a lawyer experienced in public-information cases.

"This ignores that the day will inevitably come," Brannock says, "when paper records disappear."

Bingo! It is amazing that on the eve of this future, we are debating whether to restrict the public to papyrus and clay tablets.

[Last modified March 6, 2005, 00:13:18]


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