New rules on court records often ignored

BY PATRICK DANNER AND DAN CHRISTENSEN

Six months after the Florida Supreme Court ordered tough new rules aimed at curbing the wrongful sealing of court records, judges in Miami-Dade and Broward aren't following them.

A review of sealing orders shows judges often are failing to comply with some of the new law's key requirements, such as specifying in writing the grounds for sealing court records, or including findings that the secrecy was no broader than necessary.

Broward judges have issued 10 sealing orders since the high court's ruling on April 5, the clerk's office said. Eight don't meet the new requirements.

Four of six sealing orders that judges issued in Miami-Dade do not comply.

The cases include the divorce of a prominent Broward homicide prosecutor, a defamation suit against a Miami doctor, and a Fort Lauderdale law firm's fee dispute in a probate matter.

The Supreme Court unanimously adopted the rules after The Miami Herald reported that hundreds of civil and criminal cases in at least a half dozen counties were hidden from public view. Broward had the most concealed cases, and they often involved the divorces of judges, lawyers, politicians and businessmen.

The new rules require all sealing orders be posted on the court clerk's website and at the courthouse. The idea is to ensure the public has been notified in case anyone wants to challenge a sealing.

The high court's ruling also outlawed the practice in civil court of erasing any trace of a case's existence from the public record, called ''supersealing.'' The court continues to study sealing rules regarding criminal cases.

But the rules aren't always being followed.

Some cases involve records the law says should be public. Others involve sensitive information that appears to be exempt from public disclosure, like trade secrets, but were sealed with orders that don't comply with the new standards.

It's unknown whether the number of sealing orders has declined since the new rules took effect.

`NEFARIOUS'?

''You always have to wonder if there's something more nefarious going on when the rules aren't being followed, and whether judges are ignoring them thinking they can get away with it,'' said Thomas Julin, a Miami First Amendment lawyer.

Miami-Dade Chief Judge Joseph P. Farina's office will review the recent sealing orders, and if records were improperly sealed the judges responsible will be individually advised of the Supreme Court's new rules, a court spokeswoman said.

''We will take whatever steps necessary to ensure compliance with the Florida Supreme Court's rule,'' Farina said in a statement.

Broward Chief Judge Victor Tobin said he'll call a general judges meeting soon ``to run through this once again.''

''We need to follow the rules,'' Tobin said.

The order doesn't spell out enforcement procedures or penalties for those who fail to follow the law. But the Supreme Court acknowledged that its rules were ``only as good as the manner in which they are applied and enforced. In this respect Florida's trial courts and court clerks are the first line of action.''

Florida Chief Justice R. Fred Lewis declined comment through a court spokesman.

''Assuming there is a violation, this could result in legal action,'' if a party in a lawsuit cited the sealing issue in an appeal, said Craig Waters.

The Miami Herald even found a sealing order the Miami-Dade clerk's office didn't post -- one that sought to superseal a case, or keep its existence from public view.

Miami-Dade Circuit Judge Daryl Trawick issued the order Aug. 1 in a defamation case involving doctors. He dismissed the case and instructed the clerk's office to seal the court file and docket ''in its entirety,'' and keep it hidden ``from public view by anyone, ever until the end of the earth.''

But Trawick's order in Neurology Associates Group and Dr. Michael M. Pfeffer v. Dr. Richard L. Glatzer doesn't include legal findings aimed at curbing abusive sealing practices. For example, the order cited no grounds to justify the sealing.

The new rules require that all requests to make records confidential be made in writing. But no motion to seal was filed. Trawick did not respond to requests for comment.

Trawick is one of two Miami-Dade judges who admitted this year to approving the alteration of criminal court dockets to disguise the fact that defendant/informants had pleaded guilty to various criminal charges.

In Florida, it's a crime for anyone, even a judge, to falsify court records. But no charges have been filed against Trawick or the other judge, Victoria Sigler.

CASE IRREGULARITIES

Miami lawyer Brian Glatzer, Dr. Glatzer's son, asked for the sealing in his father's civil case, but wouldn't say why. The complaint accuses Dr. Glatzer of writing baseless ''peer review'' reports used by insurers to challenge the medical treatment and bills of accident victims who were patients of the plaintiffs.

There are other irregularities in the handling of the case. The clerk's office didn't post Trawick's sealing order as required, or actually seal the case as he instructed.

''The case should be sealed,'' Brian Glatzer said. ``That would be a huge, huge issue.''

The Miami-Dade Court Clerk's office was baffled about what to do with the order, so it has asked the court administrator for clarification.

''It didn't state a reason for sealing, and it had some other questions regarding whether it complied with the criteria laid out in the Supreme Court decision,'' said Court Clerk Harvey Ruvin.

NO EXPLANATION

Broward Circuit Judge Susan Greenhawt agreed to seal financial information from Broward Assistant State Attorney Howard Scheinberg's divorce -- even though such information is not exempt from disclosure.

Greenhawt's Aug. 28 order sealed financial affidavits and the marital settlement, but did not explain why that was necessary or address the other requirements set down by the justices.

''The only intent in that case was to protect him in terms of his occupational hazard, not for any other purpose,'' Greenhawt said in an interview.

In a Broward probate case, Judge Mark Speiser signed a July 18 sealing order that concealed court papers regarding a law firm's efforts to collect legal fees.

Fort Lauderdale's Mombach Boyle & Hardin wanted records sealed, including an affidavit, regarding its request that the court determine how big a lien it was entitled to slap on property owned by a litigant in a probate case. The firm argued the records were needed as evidence, but were ''protected by the attorney-client'' privilege.

Speiser granted the firm's motion, but his order did not explain why the sealing was justified. Rules governing access to court records do not include attorney-client privilege on a list of legitimate reasons to seal records.

Speiser declined to comment because the case is pending.