NEWS MEDIA UPDATE · FLORIDA · Secret Courts · Sep. 11, 2006
Court rules on hidden dockets, sealed cases may change
Sep. 11, 2006 · Florida court officials have proposed rules that would forbid courts from hiding criminal cases on secret dockets and create stricter guidelines for courts to follow when sealing cases.
The suggested changes stem from an April article in The Miami Herald, which reported that more than 400 civil cases and an unknown number of criminal cases were not on public dockets in Broward Circuit Court since 1989. Some of these involved prominent figures such as politicians, judges and police officers. Similar instances of disappearing cases have been found in courts in other Florida counties, including Palm Beach, Hillsborough, Sarasota, Pinellas and Pasco.
“I almost swallowed my tongue when I read about this,” said Florida Supreme Court Chief Justice Fred Lewis, according to the Herald. “To have such hiding occur . . . that’s not America, is it?”
The Florida Association of Court Clerks and Comptrollers drafted the proposed rule changes after a meeting with Lewis. Some of the changes are similar to rules mandated by Broward County Chief Judge Dale Ross in June. The Florida Supreme Court must approve the new rules for them to go into effect statewide.
If the suggested changes are adopted, courts would not be allowed to hide any criminal case by removing it from the docket, even if parts of a criminal file are sealed. The proposed rule 3.692(d)(2) states, “The case style and case number shall not be sealed in the indices of cases maintained by the clerk.” “Case style” refers to the party names.
The proposal would also alter rule 2.051, which concerns the sealing of civil court records. Unlike the suggested changes to the criminal rules of procedure, the proposed rules regarding civil cases do not explicitly ban the sealing of case styles and numbers.
However the changes to the civil rules would require that, after a party moves to seal the case, the clerk of court would have to publish the date, time and location of the hearing on the clerk’s Web site and in a prominent location in the clerk’s office. If the motion to seal was granted, the judge’s order must state whether the parties’ names, progress docket showing the actions that have been taken in the case, or court records are to be removed from public access.
The judge would also have to specify what portions of the court records are to be removed from public access, the names and addresses of any people who contested sealing the court record, and the names of those permitted to view the sealed records.
Currently judges don’t have to provide those details when sealing a case. Instead they only need to give “reasonable” public notice that a case has been sealed.
Such changes would prevent judges from simply signing a motion to seal in chambers or in court without giving notice to the public. However the proposed rules don’t specify a minimum time period that must lapse between the public announcement of the motion to seal and the hearing. This could lead to a situation where the clerk’s office would notify the public shortly before the hearing.
Holland & Knight media lawyer Scott Ponce, who represents the Herald, noted that this lack of a timing provision is problematic. However, he added that although there may be loopholes in the proposal that need to be closed, “At its core, it’s an incredible first step to establish uniformity and to let judges and the public know that there are procedures that need to be followed.”
A public comment period must precede any decision by the Supreme Court. Craig Waters, a spokesman for the Office of the Chief Justice, predicts that a large number of interested parties involved will submit comments.