The public vs. the private

The state Supreme Court must take care not to erode our Sunshine Amendment when deciding how to handle court records in the digital age.

The name itself is revealing. As other states began to form what they called "public access" committees to explore how court records will be kept in the electronic age, the Florida Supreme Court appointed a group with a different first name. In the Sunshine State, the committee is known by "privacy."

That Committee on Privacy and Court Records is scheduled to complete its work later this month, and its product should first be measured against a constitutional imperative known as the Sunshine Amendment. In Florida, government is held accountable in part by a provision that says "every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state." Even the "right of privacy" is deferential, noting that "this section shall not be construed to limit the public's right of access to public records."

So the high court, soon to be faced with the thorny issues that attend the Internet era, needs to begin with a sunshine pledge: "To public access, do no harm."

The court's committee, led by former House Speaker Jon Mills, has released a draft of its final report and has taken some encouraging steps. Most notably, it pledges that "all information in court records and which is not confidential should remain open for public inspection and copy." It also recommends that the public one day be able to view many trial court records on the Internet. A wide variety of government records already are widely available online, including legislative documents, information from state agencies and county property records.

Unfortunately, the broader tone of the report betrays an animosity toward public disclosure. The report calls for granting court officials nearly unfettered discretion in determining which documents are placed in court files, and goes so far as to conclude that public records laws make Floridians "the most exposed people on Earth."

The committee's worry that personal privacy could be compromised in the digital age is understandable. In the judicial arena, privacy takes on a special significance, and family court is a vivid example. In matters of divorce, alimony and child custody, the court generally receives personal tax forms, credit reports, investigative findings, psychological assessments. The record may include allegations of child abuse or infidelity. Should all of these matters be available to the public, as they often are now? Posted on the worldwide Internet? The problem is not dissemination; it is the collection of unnecessary details.

One answer, recommended by the committee, is for the courts to collect less personal information. Why should spouses be required to file detailed financial records, for example, if neither is contesting the terms of their divorce? Another answer is to better train clerks and lawyers about the need to keep confidential personal information out of the public file.

The balancing act between public disclosure and personal privacy won't be easy, and the sensitive nature of some court proceedings makes the ciphering all the more difficult. But the problem with the privacy committee is that it appears too dismissive of its democratic context. When people are arrested or bring their disputes to the courthouse, they do have to understand their business becomes less private.

"Access to court records," Mills points out, "allows us all to decide for ourselves whether judges are administering justice fairly and consistent with the law. That public right distinguishes us from many other court systems in the world."

That the advances of the information age could lessen that right would be a bitter irony.

[Last modified June 4, 2005, 10:42:02]