Put court openness atop docket

A Times Editorial
Published March 4, 2007

A cry of foul erupted across the state last year when it was discovered that courts in a number of counties were keeping cases off the public docket, essentially erasing their very existence. Even worse, it appeared that Broward County was keeping cases off the docket to protect prominent and influential people from public embarrassment. In places like Pinellas and Pasco, where dozens of cases were also hidden from public view, the motives seemed more benign and were primarily due to mistakes and misunderstandings.

Nonetheless, the problems pointed up the need for a statewide policy. And on Monday, the Florida Supreme Court will hear arguments on a new set of proposed rules on public access to court documents, a plan offered by a committee of the Florida Bar.

Unfortunately, the proposed rules are not well designed. While they would tighten current procedure, making it more difficult for court records to be sealed and for names to disappear from the public docket, they don't go far enough to encourage openness. The rules should be modified to put more of the burden on those who wish to seal records rather than those who want to keep them open.

Florida is a state that protects access to public records through its Constitution, statutes and court precedent. In a ruling in 1988 opening up the messy divorce files of Dempsey Barron, the former powerful Senate president, the Florida Supreme Court made it clear that a "strong presumption of public access" applies to "all trials, civil and criminal."

But the rules under consideration would damage the presumption of openness. They would allow court records to be sealed and names withheld from the public docket if both parties and the judge agree, without any prior public hearing or notice. To get cases unsealed, a party would have to go to court and shoulder the burden of establishing that unsealing the documents is warranted.

The Bar's Judicial Administration Committee says that a public hearing prior to sealing records isn't necessary since the rules require judges to make explicit findings that any confidentiality ordered is justified and no broader than necessary. The committee believes that the judge will be the watchdog for the public interest. But without an advocate for public access in the courtroom, that interest might be more easily overlooked.

The rules should reflect a policy of openness, including notice and a public hearing before cases are sealed, and putting the burden of proof on the party seeking closure in all proceedings. The Florida Supreme Court should not accept these rules without these revisions.