Florida pushes ahead with an all-digital courthouse

The Florida Supreme Court is expected to approve new rules that will make most courthouse documents and records available to anyone who can get onto the Internet.

Aaron Deslatte

Sentinel Staff Writer

October 5, 2009

TALLAHASSEE

Florida courts could look a lot more inviting to Internet users in the near future.

The Florida Supreme Court is moving toward opening more court records to digital users, planning to approve rules this fall to govern the digital road.

But it's a future that holds broad risks and rewards for lawsuit-filers, coach potatoes and consumers as the state's court system wrestles with the competing concerns of access to the 19 million court documents filed every years and individual privacy.

Companies long have used the Internet and data-sorting technologies to sell -- or deny -- service. Programs allow them to download and sift through rafts of personal information -- from consumer credit scores to driving histories to past addresses to magazine subscriptions -- to build consumer profiles.

The digital courthouse would offer much more information.

In the not-too-distant future, Florida court clerks would feed filings -- from divorce records and civil suits to court testimony and judicial orders -- into a single Web portal that would allow instant access to anyone worldwide.

"It's a cost savings to the public," said Marion County Court Clerk David Ellspermann, who served on a court-created committee that spent the last two years researching and drafting the proposed new rules. "If you're not at my courthouse interrupting my staff, then I get more work done."

For much of this decade, though, Florida court administrators have struggled with how to balance the state's tradition of broad government openness against 21st-century Internet criminals.

Since 2006, the Supreme Court has barred county clerks from placing court records online. It's fear: That confidential information like Social Security or bank account numbers could fall into the hands of criminals or that data companies could use search programs to aggregate individual information that would be packaged with other data for telemarketing.

The order was issued after a few court clerks began scanning court documents and placing them on their Web sites. In 2005, Ellspermann was the first clerk to start redacting the documents he was placing online.

But the move toward digital records had already incited a statewide debate over whether all 1,000-plus exemptions carved into Florida's public records laws by the state Legislature should be applied to court records. Traditionally, everything in a paper court file was available to the public unless it was ordered sealed by a judge.

Critics worried that if everything in a file was available digitally, casual Internet users -- so-called "jammy surfers," people sitting at a computer in their pajamas -- could access personal information about individuals and, potentially, information deemed "trade secrets" by companies.

The struggle played out behind the scenes between county clerks, judges, media companies and others about how and when to make paper court records available on the Internet.

"We ran into this huge problem, which had not been thought about by anybody. To what extent does a legislative exemption from the public records apply when that information appears in the online court record?" said John Kaney, Jr., a Volusia County lawyer and general counsel for the First Amendment Foundation, which is financially supported by the media.

The Committee on Privacy and Court Records, formed by the court to study the issue, reported in 2006 that it appeared all the statutory exemptions did apply, based on the way judicial rules were worded — but that such an interpretation flew in the face of Florida's open-records tradition and was unworkable when applied to court records.

While the panel and court agreed electronic access to non-confidential records should be a goal, the Supreme Court withheld judgment on whether it supported applying all 1,000 exemptions to court records. Rather, it tasked another panel called the Committee on Access to Court Records to study how to fix the rules.

"The amount of information collected in litigation is enormous," said Jon Mills, a University of Florida law professor and former state House speaker who chaired the first "privacy" committee.

"This is the classic horse out of the barn analogy. Once information has gone on the Web, it's sort of gone."

Last year, the second committee recommended a new rule that creates 19 categories for confidential documents, including sexually transmitted disease records, paternity determinations, the names of child abuse victims and identities of confidential informants. Lawyers will also have the option of asking a judge to close additional records.

The Supreme Court heard arguments over the proposal last month from clerks, media lawyers, and the committee that drafted it. Although some changes related to grand jury information are under discussion, most watchers expect the rule to be put in place in the coming months.

That will set off an educational process for lawyers and the public, its authors said.

"Part of the educational process that needs to happen is to make lawyers, people, more aware that that which is in a court file is publicly viewable," said Miami-Dade Judge Judith Kreeger, who chaired the "access" committee. "And when it becomes available on the Internet, it will become instantaneously publicly viewable. ... I think it has good parts and I think it has risks."

The largest remaining hurdle is how to pay the costs of a statewide Web portal to access court records, committee members said.

Meanwhile, the courts are getting a better idea of the types of people who would likely be the biggest users of electronic court information.

Two years ago, the Supreme Court approved a pilot project in Manatee County, where court administrators have been scanning court documents and making them available only to registered users who identify themselves.

Of the 5,700 registered users, 3,000 were lawyers from around the country, said project manager Jeff Taylor. Another 500 were law enforcement agencies and 1,500 were from the general public. None of the registered users identified themselves as data "aggregation" companies, he said.

"Usually, they're looking for data more than images," Taylor said.

Aaron Deslatte can be reached at adeslatte@orlandosentinel.com or 850-222-5564.