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Florida

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Carol Jean LoCicero, Mark R. Caramanica, Allison Kirkwood Simpson, and Jon M. Philipson
Thomas & LoCicero PL
601 South Boulevard
Tampa, FL 33606
Phone: (813) 984-3060
www.tlolawfirm.com

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I. Introduction: Access rights in the jurisdiction

A. The roots of access rights

The Florida Supreme Court has acknowledged that the Richmond Newspapers decision established a First Amendment right to attend criminal trials. Most Florida decisions discussing access to judicial proceedings, however, are grounded in Florida’s strong common law rights of access to all stages of criminal and civil proceedings and that common law right is discussed in greater detail below. The Florida Supreme Court has expressly stated that “there is no first amendment right of access to pretrial discovery material.” Florida Freedom Newspapers, Inc. v. McCrary, 520 So. 2d 32, 36 (Fla. 1988). There is also no First Amendment right of access to criminal depositions or deposition transcripts that are not filed with the court. Palm Beach Newspapers, Inc. v. Burk, 504 So. 2d 378, 382 (Fla. 1987) (citing Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984)). The Florida Supreme Court has also disclaimed a First Amendment right to attend pretrial suppression hearings or other pretrial hearings. Miami Herald Publ’g Co. v. Lewis, 426 So. 2d 1, 6 (Fla. 1983). The open meetings provision found in Article I, Section 24 of the Florida Constitution does not include meetings of the judiciary, so there is no Florida Constitutional right of access to attend judicial proceedings.

There is a constitutional right of access under the Florida Constitution to judicial branch records, encompassing both court administrative records and civil and criminal judicial records. See Art. I, § 24 (a), Fla. Const. Without grounding its holding on the constitutional arguments, the court in Sarasota Herald-Tribune v. State, 924 So.2d 8 (Fla. 2d DCA 2005), acknowledged that, once exhibits are admitted as evidence in a criminal trial, the First Amendment right of access likely attaches.

Florida has recognized a “strong” common-law presumption of access to both criminal and civil proceedings and their records. Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113, 116 (Fla. 1988). This presumption continues through the appellate process. Id. at 118.

Numerous provisions of Florida law provide for access to the courts. Article I, Section 16(a) of the Florida Constitution provides criminal defendants with a right, upon demand, to a “speedy and public trial.” Article I, Section 24 (a) gives “every person” a constitutional right of access to public records, including the records of the judicial branch. Florida Rule of Judicial Administration 2.420 provides for public access to records of the judicial branch (consisting of filed court records and administrative records), identifies court records that are automatically confidential (such as, for example, social security and bank account numbers, certain juvenile records, and the identities of victims of sexual or child abuse), and delineates procedures for determining confidentiality of both civil and criminal court records. (Rule 2.420 does not apply to judicial proceedings.)

Florida Rule of Judicial Administration 2.450 relates to cameras and other electronic coverage of judicial proceedings. Florida Rule of Criminal Procedure 3.220 governs criminal discovery. Access to records online is governed by Florida Supreme Court Administrative Order No. AOSC14-19 (and as subsequently amended regarding the contours of the “Access Security Matrix,” which defines various levels of online access based on user role and document type).   In re Amendments to Florida Rule of Judicial Admin. 2.420, 153 So. 3d 896, 899 (Fla. 2014).  The Florida Supreme Court may designate cases as “high profile,” making the related court documents available through its website at http://www.floridasupremecourt.org/pub_info/index.shtml. Chief judges of the various District Courts of Appeal and circuit courts may also enter orders designating cases “high profile,” and making imaged court records in those cases available online. Typically, clerks of court provide a link to high profile cases from the respective clerk’s home page.

Links to Florida court websites can be found at http://www.flcourts.org. Most trial and appellate courts have entered administrative orders impacting access to proceedings, records and courtrooms. Most courts will also have a court contact person, such as a public information officer, media specialist or court administrator’s office employee, designated to assist the media regarding access to proceedings. Check the applicable court’s website for further information.

Chapter 119, Florida Statutes, governs the records of the executive branch, which includes many criminal discovery records in the hands of State Attorneys and law enforcement.

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B. Overcoming a presumption of openness

To overcome the presumption of openness in criminal proceedings, a proponent of closure must satisfy the three-part test set forth in Miami Herald Publishing Co. v. Lewis, 426 So. 2d 1, 6 (Fla. 1983) (hereinafter, the “Lewis Test”). That test requires that (1) closure is necessary to prevent a serious and imminent threat to the administration of justice; (2) no alternatives are available, other than change of venue, which would protect a defendant’s right to a fair trial; and (3) closure would be effective in protecting the rights of the accused, without being broader than necessary to accomplish this purpose. Id.

This test is modified for civil proceedings. Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113 (Fla. 1988). Under Barron, to overcome the strong presumption of openness in civil proceedings a proponent of closure must satisfy a three-prong test. The first prong requires a proponent to show that closure is necessary “(a) to comply with established public policy set forth in the constitution, statutes, or case law; (b) to protect trade secrets; (c) to protect a compelling government interest [e.g., national security; confidential informants]; (d) to obtain evidence to properly determine legal issues in a case; (e) to avoid substantial injury to innocent third parties [e.g., to protect young witnesses from offensive testimony; to protect children in a divorce]; or (f) to avoid substantial injury to a party by disclosure of matter protected by a common law or privacy right not generally inherent in the specific type of civil proceeding sought to be closed.” Id. at 118. For privacy concerns, “it is generally the content of the subject matter rather than the status of the party that determines whether a privacy interest exists” that permits closure. Id. However, the privacy interest can be negated where “the content of the subject matter directly concerns a position of public trust held by the individual seeking closure.” Id. Second, the court must find that no reasonable alternatives exist to reach the desired result. Id. Finally, if no reasonable alternative exists, then the court must ensure that the means are the least restrictive necessary to accomplish the goal. Id.

The Barron standards also govern access to civil court records. That test has also been applied to criminal cases in which non-parties raise objections, such as ones based on privacy concerns, to disclosure of court records. Post-Newsweek Stations, Fla. Inc. v. Doe, 612 So. 2d 549 (Fla. 1992).

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C. Procedural prerequisites to closure

At least one member of the media must generally be given notice of a motion for closure of a criminal proceeding and be given an opportunity to be heard on the motion. Miami Herald Publ’g Co. v. Lewis, 426 So. 2d 1, 7-8 (Fla. 1983). The notice given to the media should inform them of the reason for the hearing. Palm Beach Newspapers, Inc. v. Cook, 434 So. 2d 355, 359 (Fla. Dist. Ct. App. 1983). An evidentiary hearing at which findings of fact should be made by the court must be held. Lewis, 426 So. 2d at 7-8. The proponent of closure has the burden of producing evidence and proving by a greater weight of the evidence that closure is necessary. A transcript of any closed hearing should later be made available to the media when the danger of prejudice has dissipated.

In the context of civil proceedings, the “heavy” burden of proof “shall always be on the party seeking closure.” Barron v. Florida Freedom Newspapers, Inc., 531 So.2d 113, 118-119 (Fla. 1988). Under Barron, to overcome the strong presumption of openness in civil proceedings a proponent of closure must satisfy a three-prong test. The first prong requires a proponent to show that closure is necessary: “(a) to comply with established public policy set forth in the constitution, statutes, or case law; (b) to protect trade secrets; (c) to protect a compelling government interest [e.g., national security; confidential informants]; (d) to obtain evidence to properly determine legal issues in a case; (e) to avoid substantial injury to innocent third parties [e.g., to protect young witnesses from offensive testimony; to protect children in a divorce]; or (f) to avoid substantial injury to a party by disclosure of matter protected by a common law or privacy right not generally inherent in the specific type of civil proceeding sought to be closed.” 531 So. 2dat 118. For privacy concerns, “it is generally the content of the subject matter rather than the status of the party that determines whether a privacy interest exists” that permits closure. Id. However, the privacy interest can be negated where “the content of the subject matter directly concerns a position of public trust held by the individual seeking closure.” Id. Second, the court must find that no reasonable alternatives exist to reach the desired result. Id. Finally, if no reasonable alternative exists, then the court must ensure that the means are the least restrictive necessary to accomplish the goal. Id. Florida Rule of Judicial Administration 2.420 establishes procedures for filing motions to seal records in non-criminal cases and references the Barron standards.

Florida courts have generally not held that notice is a prerequisite to motions to seal court records. However, at least one district court of appeal has held that if the media is already a party to the action, the media party must be provided notice and opportunity to be heard on motions the defendant intended to file under seal. Media Gen. Operations v. State, 933 So. 2d 1199, 1201 (Fla. 2d DCA 2006).

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II. Procedure for asserting right of access to proceedings and records

A. Media standing to challenge closure

The news media have standing to intervene and challenge closures of court proceedings and records.  See, e.g., Sarasota Herald-Tribune v. Talley, 523 So. 2d 1163 (Fla. 2d DCA 1988); Times Publ’g Co. v. Pennick, 433 So. 2d 1281 (Fla. 2d DCA 1983); News-Press Publ’g Co. v. State, 345 So. 2d 865 (Fla. 2d DCA 1977).

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B. Procedure for requesting access in criminal cases

Florida courts have not established a particular method to be used for objecting to closure motions or orders. Limited intervention, motions seeking access, and written and oral responses to closure motions may be options, depending on the circumstances. Motions to seal are governed by the procedures in Florida Rule of Judicial Administration 2.420. Telephonic hearings are also available under the procedures established in Rule of Judicial Administration 2.530.

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C. Procedure for requesting access in civil matters

Florida courts have not established a particular method to be used for objecting to closure motions or orders. Limited intervention, motions seeking access, and written and oral responses to closure motions may be options, depending on the circumstances. Motions to seal are governed by the procedures in Florida Rule of Judicial Administration 2.420. Telephonic hearings are also available under the procedures established in Rule of Judicial Administration 2.530.

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D. Obtaining review of initial court decisions

Florida Rule of Appellate Procedure 9.100(d) specifically provides for appellate jurisdiction immediately to review closure orders, whether written or oral, which restrict access to any judicial proceedings or judicial records. The rule also requires that the appellate court immediately consider the petition to decide if a stay of the lower court’s proceedings is appropriate. Fla. R. App. P. 9.100(d)(2).

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III. Access to criminal proceedings

A. In general

“[T]he public and press have a fundamental right of access to all judicial proceedings.” State ex rel. Miami Herald Publ’g v. McIntosh, 340 So. 2d 904, 908 (Fla. 1976). However, according to the Florida courts, this is not necessarily a First Amendment right of access, but instead a common law right. Compare Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113, 118 (Fla. 1988) (recognizing a common law right of access in both criminal and civil proceedings) with Miami Herald Publ’g Co. v. Lewis, 426 So. 2d 1, 6 (Fla. 1983) (explaining that there is no First Amendment right to attend pretrial suppression hearings or other pretrial hearings).

Where a criminal defendant seeks to close records or proceedings in his or her case, the defendant must overcome the presumption of openness and satisfy the Lewis test by showing: (1) closure is necessary to prevent a serious and imminent threat to the administration of justice; (2) no alternatives are available, other than change of venue, which would protect a defendant’s right to a fair trial; and (3) closure would be effective in protecting the rights of the accused, without being broader than necessary to accomplish this purpose. 426 So. 2d at 6.

Florida Rule of Judicial Administration 2.450 governs courtroom use of electronic devices by the news media such as television and photographic cameras. Rule 2.450 makes Florida state courts presumptively open to electronic media. See also In re Post-Newsweek Stations Fla. Inc., 370 So. 2d 764 (Fla. 1979). However, courts have the authority to prohibit filming or photographing of particular trial participants, such as witnesses or jurors, upon a finding that such coverage will have a substantial effect upon the particular individual which would be qualitatively different from traditional media coverage. In re Post-Newsweek Stations Fla. Inc., 370 So. 2d 764 (Fla. 1979); State v. Green, 395 So. 2d 532 (Fla. 1981). But cf. Sunbeam Television Corp. v. State, 723 So. 2d 275 (Fla. Dist Ct. App. 1998) (finding on rehearing en banc that an interest in insulating jurors from undue influence in a high-profile case in which juror names and addresses were sealed could support a prohibition against videotaping jurors’ faces).  See also Morris Publ’g Co., LLC v. State, No. 1D10-226, 2010 WL 363318 (Fla. 1st DCA Jan. 20, 2010) (noting that while Rule 2.450 does not apply to the regulation of laptop computers in the courtroom, trial judge has inherent authority to prohibit any device causing a distraction, and further remanding to permit such use of a laptop by news media unless trial judge finds factual basis that such use would cause disruption).

With respect to electronic coverage, courts also retain the authority to “(i) control the conduct of proceedings before the court; (ii) ensure decorum and prevent distractions, and (iii) ensure the fair administration of justice in the pending cause.” Fla. R. Jud. Admin. 2.450(a).

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B. Pretrial proceedings

There is no First Amendment right of access to criminal depositions or deposition transcripts that are not filed with the court, according to Florida law. Palm Beach Newspapers, Inc. v. Burk, 504 So. 2d 378, 382 (Fla. 1987) (citing Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984)). Accord Post-Newsweek Stations, Florida, Inc. v. State, 510 So. 2d 896 (Fla. 1987) (media not entitled to notice and opportunity to attend pretrial discovery depositions in criminal cases).

The Florida Supreme Court has also disclaimed a First Amendment right to attend pretrial suppression hearings or other pretrial hearings, albeit in a case decided before Press-Enterprise II, in which the Supreme Court recognized the right of access to preliminary hearings in criminal cases. Miami Herald Publ’g Co. v. Lewis, 426 So. 2d 1, 6 (Fla. 1983). However, pretrial hearings are presumptively open. Id. at 8. Recently, the First District Court of Appeal held that the public’s qualified right of access under the First and Fourteenth Amendments, attaches to the jury section proceedings, including challenges of jurors when a trial court limited the media’s access to an audio feed in an overflow room, which was not shut off at times. Morris Publ’g Grp. v. State, 136 So. 3d 770, 780-84 (Fla. 1st DCA 2014).

Florida also provides for access to digital recordings of proceedings as court records. In Re Amendments to Fla. R. Jud. Admin. & Fla. R. App. P. – Implementation of Comm’n on Trial Ct. Performance & Accountability Recommendations, 13 So. 3d 1044, 1047 (Fla. 2009).

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C. Criminal trials

Typically, courts will apply the Lewis test to any attempt to close a portion of a criminal trial, and the trial should be presumptively open. Miami Herald Publ’g Co. v. Lewis, 426 So. 2d 1 (Fla. 1983). The Lewis factors are (1) closure is necessary to prevent a serious and imminent threat to the administration of justice; (2) no alternatives are available, other than change of venue, which would protect a defendant’s right to a fair trial; and (3) closure would be effective in protecting the rights of the accused, without being broader than necessary to accomplish this purpose. Id. at 6.

Florida Statutes Section 918.16 does provide for only limited access to courtrooms when a person under 16 years of age or a person with an intellectual disability testifies concerning any sex offense. Fla. Stat. § 918.16(1). Similarly, when the victim of a sex offense, regardless of age or mental faculties, testifies regarding the offense, Section 918.16 provides for limited access to the proceeding. Fla. Stat. § 918.16(2). Included among those permitted to attend by the statute are newspaper and broadcast reporters. Fla. Stat. § 918.16(1)-(2). The Florida Supreme Court has held that the statute meets the requirements set forth in Waller. Kovaleski v. State, 103 So. 3d 859, 861 (Fla. 2012).  Protecting the victim upon request is a compelling state interest, satisfying the first prong of Waller; partial closure is both narrowly tailored and the most reasonable alternative to total closure, satisfying the second and third prongs; and proper application of the statute to the case satisfies the fourth prong of Waller. Id. Reflecting such determinations in the record will allow for proper appellate review. Id.

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D. Post-trial proceedings

The Lewis test and procedural requirements are equally applicable to an attempted closure of a sentencing hearing. Miami Herald Publ’g Co. v. Lewis, 426 So. 2d 1 (Fla. 1983); Palm Beach Newspapers Inc. v. Cook, 434 So. 2d 355, 358 (Fla. Dist. Ct. App. 1983). Similarly, closure of an arraignment and sentencing of a defendant who pled guilty must also be evaluated using the Lewis test. Palm Beach Newspapers, Inc. v. Nourse, 413 So. 2d 467, 469 (Fla. Dist. Ct. App. 1982).

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E. Appellate proceedings

The common law right of access continues into the appellate process in Florida. Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113, 118 (Fla. 1988). Florida Supreme Court oral arguments are streamed live online and archived. The practices of the District Courts of Appeal vary. You may access the websites for the various appellate courts via http://www.flcourts.org.

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IV. Access to criminal court records

A. In general

The Florida Supreme Court’s decision in Miami Herald Publishing Co. v. Lewis, 426 So. 2d 1, 6 (Fla. 1983), applies to closure of criminal court records as well as proceedings. Thus, a proponent of closure must overcome the presumption of openness and satisfy the Lewis test defined above.

In addition, the Florida Constitution provides a right of access to judicial branch records, including criminal court records. Art. I, §24, Fla. Const. Florida Rule of Judicial Administration 2.420 governs confidentiality of some criminal court records.

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B. Arrest records

There is a constitutional right of access to records held by executive branch agencies, including law enforcement agencies and State Attorneys. Even so, access to arrest records is generally controlled by statute. Generally, arrest and crime reports are open to the public. See e.g., Op. Att’y Gen. Fla. 91-74 (1991); Op. Att’y Gen. Fla. 80-96 (1980). Florida Statutes Section 119.071(2)(c)1, however, exempts active criminal intelligence information and active criminal investigative information from public access. Criminal intelligence information is defined as “information with respect to an identifiable person or group of persons collected by a criminal justice agency in an effort to anticipate, prevent, or monitor possible criminal activity.” Fla. Stat. § 119.011(3)(a). Criminal investigative information is “information with respect to an identifiable person or group of persons compiled by a criminal justice agency in the course of conducting a criminal investigation of a specific act or omission, including, but not limited to, information derived from laboratory tests, reports of investigators or informants, or any type of surveillance.” Fla. Stat. § 119.011(3)(b). However, to be exempt, the information must also be active. For criminal intelligence information to be active, it must be “related to intelligence gathering conducted with a reasonable, good faith belief that it will lead to detection of ongoing or reasonably anticipated criminal activities.” Fla. Stat. § 119.011(3)(d)1. Similarly, for criminal investigative information to be active it must be “related to an ongoing investigation which is continuing with a reasonable, good faith anticipation of securing an arrest or prosecution in the foreseeable future. Both types of information are also considered active “while such information is directly related to pending prosecutions or appeals. Id.

Even when the information is active and meets the definition of criminal intelligence or investigative information, the following categories of information are not covered by these two exemptions: (1) the time, date, location, and nature of a reported crime; (2) the name, sex, age, and address of a person arrested or of the victim of the crime, with limited statutory exceptions; (3) the time, date, and location of the incident and of the arrest; and (4) the crime charged. Fla. Stat. § 119.011(3)(c). Documents given to the criminal defendant through discovery also do not fall under the active criminal intelligence or investigative information exemptions, with limited statutory exceptions. Fla. Stat. § 119.011(3)(c)5. Informations and indictments also are not considered active criminal intelligence or investigative information. Fla. Stat. § 119.011(3)(c)6.

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C. Dockets

Dockets are a type of court record, access to which is governed by Article I, Section 24 of the Florida Constitution and Florida Rule of Judicial Administration 2.420. The requirements for closure of a docket are the same as for the closure of courts records in the underlying case. Many circuits in Florida make their dockets available online. Courts may not make the case number, docket number or other similar number confidential. Cf. Rule 2.420(d)(2)(A). This provision was added to address super sealer problems involving sealed case files and completely sealed dockets.

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Florida Rule of Judicial Administration 2.420(c)(6) exempts from disclosure “copies of arrest and search warrants and supporting affidavits retained by judges, clerks, or other court personnel until execution of said warrants or until a determination is made by law enforcement authorities that execution cannot be made.” Although this provision of the Rule provides for disclosure under certain circumstances, a somewhat conflicting provision of Florida’s Public Record Law, Section 119.071(2)(c)(1), prohibits the disclosure of “active criminal intelligence information and active criminal investigative information.”

In Florida Publishing Co. v. State, 706 So. 2d 54 (Fla. Dist. Ct. App. 1998), the First District Court of Appeal interpreted collectively Section 119.071(2)(c)(1) and the rule. The court held that Rule 2.420 specifically adopts the exemption for records of active criminal investigations, sealing search warrant affidavits and materials indefinitely because they are deemed to be exempt from public records requests.

At least one lower court has questioned the decision in Florida Publishing. In Florida Freedom Newspaper v. State, 2004 WL 1669663 (Fla. Cir. Ct. 2004), the Fourteenth Judicial Circuit held that applying the “blanket rule” established in Florida Publishing to keep both executed and unexecuted search warrants confidential was unconstitutional. Id. at 2. “Any closure order must be narrowly applied and drawn with great specificity.” Id. citing Miami Herald Publishing Co. v. Lewis, 426 So. 2d 1 (Fla. 1982). Thus, if a court follows the reasoning in Florida Freedom Newspaper, the proponent of closure of criminal court records, including warrants, must overcome the presumption of openness by meeting the requirements of the Lewis test, defined above.

Although the Florida statutes do not address wiretap recordings expressly, any wiretap recording that constitutes “active criminal intelligence information and active criminal investigative information” is likely to be considered confidential under Florida’s Public Record Law, Section 119.071(2)(c)(1). Additionally, the Florida Supreme Court has noted that, in applying the Lewis test to determine if closure of a public record is warranted, the court should “exclude the contents of a confession or of a wiretap, or the nature of the evidence seized, when the issues involved relate to the manner in which the prosecution obtained this material.” Lewis, 426 So. 2d at 8–9.

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E. Discovery materials

Generally, the right of public access to discovery materials provided by the prosecution to the defense is triggered when the defense receives discovery under Florida Rule of Criminal Procedure 3.220. Florida Freedom Newspapers, Inc. v. McCrary, 520 So. 2d 32 (Fla. 1988), and Miami Herald Publishing Co. v. Lewis, 426 So. 2d 1 (Fla. 1983), govern attempts to seal pretrial discovery records in criminal cases. Thus, to justify closure of criminal court records, including pretrial discovery, the proponent of closure must overcome the presumption of openness and show that (1) closure is necessary to prevent a serious and imminent threat to the administration of justice; (2) no alternatives are available, other than change of venue, which would protect a defendant’s right to a fair trial; and (3) closure would be effective in protecting the rights of the accused, without being broader than necessary to accomplish this purpose. Lewis, 426 So. 2d at 6.

Where criminal discovery records are sought to be closed by non-parties, the Florida Supreme Court has adopted the Barron test. Post-Newsweek Stations, Fla. Inc. v. Doe, 612 So. 2d 549 (Fla. 1992). Under Barron, to overcome the strong presumption of openness in civil proceedings a proponent of closure must satisfy a three-prong test. The first prong requires a proponent to show that closure is necessary: “(a) to comply with established public policy set forth in the constitution, statutes, or case law; (b) to protect trade secrets; (c) to protect a compelling government interest [e.g., national security; confidential informants]; (d) to obtain evidence to properly determine legal issues in a case; (e) to avoid substantial injury to innocent third parties [e.g., to protect young witnesses from offensive testimony; to protect children in a divorce]; or (f) to avoid substantial injury to a party by disclosure of matter protected by a common law or privacy right not generally inherent in the specific type of civil proceeding sought to be closed.” 531 So. 2dat 118. For privacy concerns, “it is generally the content of the subject matter rather than the status of the party that determines whether a privacy interest exists” that permits closure. Id. However, the privacy interest can be negated where “the content of the subject matter directly concerns a position of public trust held by the individual seeking closure.” Id. Second, the court must find that no reasonable alternatives exist to reach the desired result. Id. Finally, if no reasonable alternative exists, then the court must ensure that the means are the least restrictive necessary to accomplish the goal. Id.

There is no right of access to unfiled discovery materials such as deposition transcripts. Palm Beach Newspapers v. Burk, 504 So. 2d 378 (Fla. 1987); Lewis v. State, 958 So. 2d 1027 (Fla. Dist. Ct. App. 2007) (while Burk applied to unfiled deposition transcripts made during an ongoing, active criminal prosecution, materials related to defendant’s prosecution, including deposition transcripts, are subject to disclosure after the case becomes final under Florida’s public records law).

Over the past few years, a number of trial courts in Florida have adopted a procedure in high profile criminal cases governing the release of discovery materials provided to the defendant by the prosecution. Under that procedure, the materials are provided to the defense but are withheld from public access for a period of time to enable the defendant to object to the release of particular records. Once that time period has expired, the non-objectionable documents are automatically released. The court often does an in camera review of documents identified by the defense to determine whether they should be publicly released.

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F. Pretrial motions and records

The presumption of access attaches to criminal court records at any stage of a judicial proceeding. Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113 (Fla. 1988). The Florida Supreme Court held, in Miami Herald Publishing Co. v. Lewis, 426 So. 2d 1 (Fla. 1983), that to justify closure of a criminal court record, including pretrial motions, the proponent of closure must overcome the presumption of openness with the Lewis test. 426 So. 2d at 6.

Pretrial motions to make court records confidential often arise in the suppression context where the defense claims disclosure would prejudice the defendant’s Sixth Amendment rights. Typically, such motions involve sealing confessions. According to Florida statute, any information revealing the “substance of a confession” of a person arrested is exempt from disclosure until such time as the criminal case is finally determined by adjudication, dismissal or other final disposition. Fla. Stat. § 119.071(2)(e). In Times Pub. Co. v. State, 827 So.2d 1040, 1042 (Fla. Dist. Ct. App. 2002), the Second District Court of Appeal held that the lower court’s decision to seal an entire interview transcript and tape—when a substantial portion was unrelated to the defendant’s confession—constituted a departure from the essential requirements of law, and only that portion that could be characterized as the substance of the defendant’s confession could be sealed.

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G. Trial records

The public has a presumptive right of access to all trial records in the custody of the court, including case dockets, transcripts, exhibits filed with the court as evidence, motions, etc. See Sarasota Herald-Tribune v. State, 924 So. 2d 8 (Fla. Dist. Ct. App. 2005) (overturning closure order which excluded the media from viewing evidence formally introduced at criminal trial).

In Miami Herald Publishing Co. v. Lewis, 426 So. 2d 1 (Fla. 1983), the Florida Supreme Court held that to justify closure of a criminal court record, including trial records, the proponent of closure must overcome the presumption of openness with the Lewis test. 426 So. 2d at 6.

In cases dealing with graphic crime scene or autopsy photographs, Florida courts in high profile cases have often fashioned a remedy that permits the press to review such evidence, but prohibits copying the photographs. See, e.g., Sarasota Herald-Tribune v. State, 924 So. 2d 8 (Fla. Dist. Ct. App. 2005).

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H. Post-trial records

The public has a presumptive right of access to all court records. Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113 (Fla. 1988). Florida courts have also found a presumptive public right of access to many post-trial records, including juror interviews, jury misconduct hearings, records of sentencing proceedings, and civil settlement agreements.

To justify closure of a criminal court record, including post-trial records, the Lewis test again governs.

Florida Criminal Procedure and Corrections Code Section 948.015 specifically addresses presentence investigation reports (PSI). Any circuit court of the state, when the defendant in a criminal case has been found guilty or has entered a plea of nolo contendere or guilty, may refer the case to the Department of Corrections for investigation and a sentencing recommendation. The Florida Department of Corrections prepares these reports for the purpose of aiding the judge in making a determination of a defendant’s sentence. A PSI typically includes a defendant’s prior criminal history, personal background, etc. The report includes a section for input from the victim of the crime, which provides the court with information regarding restitution for losses, damages and injuries to the victim, as well as a section on the victim’s recommendations as to the sentence. The victim has the right to request that the Assistant State Attorney permit the victim to review a copy of the PSI report prior to the sentencing hearing.

According to Rule 3.712 of the Florida Rules of Criminal Procedure, the presentence investigation report shall not be a public record and shall be available only to the following persons under the following stated conditions: (a) to the sentencing court to assist it in determining an appropriate sentence; (b) to persons or agencies having a legitimate professional interest in the information that it would contain; (c) to reviewing courts if relevant to an issue on which an appeal has been taken. (d) to the parties as rule 3.713 provides. Fla. R. Crim. P. 3.713 provides that the trial judge may disclose to both parties the contents of the presentence investigation prior to sentencing.

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I. Appellate records

As with other court records, appellate court records are also presumptively open. Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113, 118 (Fla. 1988). Florida Rule of Judicial Administration 2.420(f) and (g) address requests to determine the confidentiality of appellate court records in criminal cases. The Rule does not require a hearing, but does require an expeditious ruling on a motion. A request to unseal appellate court records must be made in a written motion filed in the appellate court.

In the case of appellate criminal court records, the test in Miami Herald Publishing Co. v. Lewis, 426 So. 2d 1, 6 (Fla. 1983), should apply. To justify closure, the proponent of closure must overcome the presumption of openness and show that (1) closure is necessary to prevent a serious and imminent threat to the administration of justice; (2) no alternatives are available, other than change of venue, which would protect a defendant’s right to a fair trial; and (3) closure would be effective in protecting the rights of the accused, without being broader than necessary to accomplish this purpose. Requests for closure of appellate court records are rare.

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J. Other criminal court records issues

E-filing is authorized by the Florida Supreme Court on a circuit-by-circuit basis. The Court is currently reviewing the pilot program and considering how to expand remote electronic access to court records.

Digital recordings of court proceedings are accessible public court records in Florida.

At least one appellate court has supported a journalist’s ability to live blog during a high profile criminal trial in Duval County (Jacksonville, Florida). See Morris Publishing Co. v. State, Case No. 1D10-226 (Fla. Dist. Ct. App. Jan. 20, 2010).

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V. Access to civil proceedings

A. In general

Like proceedings in criminal cases, civil proceedings, too, are presumptively open. Under Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113, 116 (Fla. 1988), to overcome the strong presumption of openness in civil proceedings, a proponent of closure must satisfy a three-prong test. The first prong requires a proponent to show that closure is necessary: “(a) to comply with established public policy set forth in the constitution, statutes, or case law; (b) to protect trade secrets; (c) to protect a compelling government interest [e.g., national security; confidential informants]; (d) to obtain evidence to properly determine legal issues in a case; (e) to avoid substantial injury to innocent third parties [e.g., to protect young witnesses from offensive testimony; to protect children in a divorce]; or (f) to avoid substantial injury to a party by disclosure of matter protected by a common law or privacy right not generally inherent in the specific type of civil proceeding sought to be closed.” Id. at 118. For privacy concerns, “it is generally the content of the subject matter rather than the status of the party that determines whether a privacy interest exists” that permits closure. Id. However, the privacy interest can be negated where “the content of the subject matter directly concerns a position of public trust held by the individual seeking closure.” Id. Second, the court must find that no reasonable alternatives exist to reach the desired result. Id. Finally, if no reasonable alternative exists, then the court must ensure that the means and the least restrictive necessary to accomplish the goal. Id.

The Court reiterated its support for the Barron standards and explained that “public access to court proceedings and records [is] important to assure testimonial trustworthiness; in providing a wholesome effect on all officers of the court for purposes of moving those officers to a strict conscientiousness in the performance of duty; in allowing nonparties the opportunity of learning whether they are affected; and in instilling a strong confidence in judicial remedies, which would be absent under a system of secrecy.” In Re: Amendments to the Florida Family Law Rules of Procedure, 723 So. 2d 208, 209 (Fla. 1998).

Access to judicial records is further governed by Florida Rule of Judicial Administration 2.420, with standards for access to electronic court records governed by Florida Supreme Court Administrative Order 14-19, as amended.

Also, Florida Rule of Judicial Administration 2.450 makes Florida state courts presumptively open to electronic media. See also In re Post-Newsweek Stations Fla. Inc., 370 So. 2d 764 (Fla. 1979).

Florida Rule of Appellate Procedure 9.100(d) provides for expedited, original appellate jurisdiction of any order preventing (or granting) the public or press access to judicial proceedings or records.

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B. Pre-trial proceedings

Civil court proceedings are presumptively open. Under Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113, 116 (Fla. 1988), to overcome the strong presumption of openness in civil proceedings a proponent of closure must satisfy a three-prong test. The first prong requires a proponent to show that closure is necessary: “(a) to comply with established public policy set forth in the constitution, statutes, or case law; (b) to protect trade secrets; (c) to protect a compelling government interest [e.g., national security; confidential informants]; (d) to obtain evidence to properly determine legal issues in a case; (e) to avoid substantial injury to innocent third parties [e.g., to protect young witnesses from offensive testimony; to protect children in a divorce]; or (f) to avoid substantial injury to a party by disclosure of matter protected by a common law or privacy right not generally inherent in the specific type of civil proceeding sought to be closed.” Id. at 118. For privacy concerns, “it is generally the content of the subject matter rather than the status of the party that determines whether a privacy interest exists” that permits closure. Id. However, the privacy interest can be negated where “the content of the subject matter directly concerns a position of public trust held by the individual seeking closure.” Id. Second, the court must find that no reasonable alternatives exist to reach the desired result. Id. Finally, if no reasonable alternative exists, then the court must ensure that the means and the least restrictive necessary to accomplish the goal. Id.

Florida Supreme Court held in Palm Beach Newspapers v. Burk, 504 So. 2d 378 (Fla. 1987), that the press does not have a qualified right to attend depositions or obtain copies of unfiled deposition transcripts in either civil or criminal proceedings. See also SCI Funeral Services of Florida, Inc. v. Light, 811 So. 2d 796 (Fla. Dist. Ct. App. 2002) (upholding protective order closing depositions to the media based on privacy concerns).

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C. Trials

Civil trials in Florida are presumptively open. Under Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113, 116 (Fla. 1988), to overcome the strong presumption of openness in civil proceedings a proponent of closure must satisfy a three-prong test. The first prong requires a proponent to show that closure is necessary: “(a) to comply with established public policy set forth in the constitution, statutes, or case law; (b) to protect trade secrets; (c) to protect a compelling government interest [e.g., national security; confidential informants]; (d) to obtain evidence to properly determine legal issues in a case; (e) to avoid substantial injury to innocent third parties [e.g., to protect young witnesses from offensive testimony; to protect children in a divorce]; or (f) to avoid substantial injury to a party by disclosure of matter protected by a common law or privacy right not generally inherent in the specific type of civil proceeding sought to be closed.” Id. at 118. For privacy concerns, “it is generally the content of the subject matter rather than the status of the party that determines whether a privacy interest exists” that permits closure. Id. However, the privacy interest can be negated where “the content of the subject matter directly concerns a position of public trust held by the individual seeking closure.” Id. Second, the court must find that no reasonable alternatives exist to reach the desired result. Id. Finally, if no reasonable alternative exists, then the court must ensure that the means and the least restrictive necessary to accomplish the goal. Id.

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D. Post-trial proceedings

Post-trial civil proceedings are presumptively open. Under Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113, 116 (Fla. 1988), to overcome the strong presumption of openness in civil proceedings a proponent of closure must satisfy a three-prong test. The first prong requires a proponent to show that closure is necessary: “(a) to comply with established public policy set forth in the constitution, statutes, or case law; (b) to protect trade secrets; (c) to protect a compelling government interest [e.g., national security; confidential informants]; (d) to obtain evidence to properly determine legal issues in a case; (e) to avoid substantial injury to innocent third parties [e.g., to protect young witnesses from offensive testimony; to protect children in a divorce]; or (f) to avoid substantial injury to a party by disclosure of matter protected by a common law or privacy right not generally inherent in the specific type of civil proceeding sought to be closed.” Id. at 118. For privacy concerns, “it is generally the content of the subject matter rather than the status of the party that determines whether a privacy interest exists” that permits closure. Id. However, the privacy interest can be negated where “the content of the subject matter directly concerns a position of public trust held by the individual seeking closure.” Id. Second, the court must find that no reasonable alternatives exist to reach the desired result. Id. Finally, if no reasonable alternative exists, then the court must ensure that the means and the least restrictive necessary to accomplish the goal. Id.

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E. Appellate proceedings

The common law right of access continues through the appellate process in Florida. Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113, 118 (Fla. 1988). Oral arguments are streamed live online at individual Florida appellate court websites, with some appellate courts archiving past arguments and making them available online.

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VI. Access to civil records

A. In general

Article I, Section 24 (a) gives “every person” a constitutional right of access to public records, including the records of the judicial branch. Although Florida constitutionally guarantees its citizens a right of privacy, that right is subordinate to the right of access to public records. See Art. I § 23, Fla. Const.

Florida Rule of Judicial Administration 2.420 governs access to civil court records. That provision provides for closure in only a limited number of circumstances that are consistent with the test for closure of civil court proceedings and records, as outlined in Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113, 116 (Fla. 1988). To overcome the strong presumption of openness in civil proceedings, a proponent of closure must satisfy a three-prong test. The first prong requires a proponent to show that confidentiality is required to (a) prevent a serious and imminent threat to the fair, impartial, and orderly administration of justice; (b) to protect trade secrets; (c) to protect a compelling government interest; (d) to obtain evidence to properly determine legal issues in a case; (e) to avoid substantial injury to innocent third parties; (f) to avoid substantial injury to a party by disclosure of matter protected by a common law or privacy right not generally inherent in the specific type of proceeding sought to be closed; or (g) to comply with established public policy set forth in the Florida or United States Constitution or statutes or Florida rules or case law. Fla. R. Jud. Admin. 2.420(c)(9)(A). Second, “the degree, duration, and manner of confidentiality ordered by the court shall be no broader than necessary to protect the interests” which are sought to be protected. Fla. R. Jud. Admin. 2.420(c)(9)(B). Finally, there must be no less restrictive alternatives available to the court to protect the asserted interests. Fla. R. Jud. Admin. 2.420(c)(9)(C).

In order to protect the public’s right of access, courts are obligated to ensure sealing is done in accordance with Barron and Rule Florida Rule of Judicial Administration 2.420, even if the parties agree or stipulate as to the sealing of certain documents. See Rocket Grp., LLC v. Jatib, 114 So. 3d 398, 400-01 (Fla. Dist Ct. App. 2013).

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B. Dockets

Dockets are a type of judicial record encompassed by Barron and Florida’s constitutional right of access to court records. Florida Rule of Judicial Administration 2.420 specifies the process for closing court records and addresses dockets. “Court records” are defined to include “the contents of the court file, including the progress docket and other similar records generated to document activity in a case . . .” Fla. R. Jud. Admin. 2.420(b)(1)(A). The Barron and Lewis (426 So. 2d 1 (Fla. 1982)) tests again substantively govern any closure motions related to dockets. However, the court may not make confidential the case number, docket number, or other number used by the clerk’s office to identify the case file. Fla. R. Jud. Admin. 2.420(e)(1). This docket provision was added to address “super sealing” problems involving closed case files and completely sealed dockets.

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C. Discovery materials

Pretrial motions and records are a type of judicial record encompassed by Barron and Florida’s constitutional right of access to court records. Florida Rule of Judicial Administration 2.420 controls motions to seal to this type of civil court record and specifies procedures. Under Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113, 116 (Fla. 1988), to overcome the strong presumption of openness in civil proceedings, a proponent of closure must satisfy a three-prong test. The first prong requires a proponent to show that closure is necessary: “(a) to comply with established public policy set forth in the constitution, statutes, or case law; (b) to protect trade secrets; (c) to protect a compelling government interest [e.g., national security; confidential informants]; (d) to obtain evidence to properly determine legal issues in a case; (e) to avoid substantial injury to innocent third parties [e.g., to protect young witnesses from offensive testimony; to protect children in a divorce]; or (f) to avoid substantial injury to a party by disclosure of matter protected by a common law or privacy right not generally inherent in the specific type of civil proceeding sought to be closed.” Id. at 118. For privacy concerns, “it is generally the content of the subject matter rather than the status of the party that determines whether a privacy interest exists” that permits closure. Id. However, the privacy interest can be negated where “the content of the subject matter directly concerns a position of public trust held by the individual seeking closure.” Id. Second, the court must find that no reasonable alternatives exist to reach the desired result. Id. Finally, if no reasonable alternative exists then the court must ensure that the means and the least restrictive necessary to accomplish the goal. Id. See also Fla. R. Jud. Admin. 2.420(c)(9). Dispositive motions and records are treated the same as other pretrial motions. The right of access to civil records does not extend to unfiled transcripts of depositions in civil cases. Miami Herald Publ’g Co. v. Gridley, 510 So. 2d 884 (Fla. 1987). Any discovery documents or deposition transcripts, however, that are filed become public. See, e.g., Lewis v. State, 958 So. 2d 1027 (Fla. Dist. Ct. App. 2007) (materials related to defendant’s prosecution, including depositions, are subject to disclosure after the case becomes final under Florida’s public records law).

Motions to seal court records will be denied (often without prejudice) if the proponent fails to address the sealing standards announced in BarronSee e.g., Gulliver Sch., Inc. v. Snay, 137 So. 3d 1031 (Fla. Dist. Ct. App. 2013); BDO Seidman, LLP v. Banco Espirito Santo Int’l, Ltd., 201 So. 3d 1 (Fla. Dist. Ct. App. 2009).

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D. Pre-trial motions and records

Trial records, including evidence, are encompassed by Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113, 116 (Fla. 1988) and Florida’s constitutional right of access to court records. Civil court records may be closed only consistent with Florida Rule of Judicial Administration 2.420, as well. That provision provides for closure in only a limited number of circumstances that are consistent with the test for closure of civil court proceedings, as outlined in Barron. Thus, to overcome the strong presumption of openness in civil proceedings a proponent of closure must satisfy a three-prong test. The first prong requires a proponent to show that confidentiality is required to (a) prevent a serious and imminent threat to the fair, impartial, and orderly administration of justice; (b) to protect trade secrets; (c) to protect a compelling government interest; (d) to obtain evidence to properly determine legal issues in a case; (e) to avoid substantial injury to innocent third parties; (f) to avoid substantial injury to a party by disclosure of matter protected by a common law or privacy right not generally inherent in the specific type of proceeding sought to be closed; or (g) to comply with established public policy set forth in the Florida or United States Constitution or statutes or Florida rules or case law. Fla. R. Jud. Admin. 2.420(c)(9)(A). Second, “the degree, duration, and manner of confidentiality ordered by the court shall be no broader than necessary to protect the interests” which are sought to be protected. Fla. R. Jud. Admin. 2.420(c)(9)(B). Finally, there must be no less restrictive alternatives available to the court to protect the asserted interests. Fla. R. Jud. Admin. 2.420(c)(9)(C). See also Bainter v. League of Women Voters of Florida, 150 So. 3d 1115, 1118-19 (Fla. 2014) (requiring trial court to unseal 538 pages of documents admitted into evidence and sealed trial transcript); Sarasota Herald-Tribune v. State, 924 So. 2d 8 (Fla. Dist. Ct. App. 2005) (overturning order restricting access to photographs entered into evidence at criminal trial).

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E. Trial records

Settlement agreements filed with a court are presumptively open. Miami Herald Publ’g Co. v. Collazo, 329 So. 2d 333 (Fla. Dist. Ct. App. 1976). To seal such documents, a proponent of closure must satisfy a three-prong test to overcome the strong presumption of openness in civil proceedings. Under Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113, 116 (Fla. 1988), the first prong requires a proponent to show that closure is necessary: “(a) to comply with established public policy set forth in the constitution, statutes, or case law; (b) to protect trade secrets; (c) to protect a compelling government interest [e.g., national security; confidential informants]; (d) to obtain evidence to properly determine legal issues in a case; (e) to avoid substantial injury to innocent third parties [e.g., to protect young witnesses from offensive testimony; to protect children in a divorce]; or (f) to avoid substantial injury to a party by disclosure of matter protected by a common law or privacy right not generally inherent in the specific type of civil proceeding sought to be closed.” Id. at 118. For privacy concerns, “it is generally the content of the subject matter rather than the status of the party that determines whether a privacy interest exists” that permits closure. Id. However, the privacy interest can be negated where “the content of the subject matter directly concerns a position of public trust held by the individual seeking closure.” Id. Second, the court must find that no reasonable alternatives exist to reach the desired result. Id. Finally, if no reasonable alternative exists then the court must ensure that the means and the least restrictive necessary to accomplish the goal. Id. See also Fla. R. Jud. Admin. 2.420(c)(9).

However, the Sunshine in Litigation Act generally prohibits secret settlement agreements involving government entities. If such agreements are not filed with the court, they are accessible from the government agency or its attorney under Article I, Section 24 of the Florida Constitution and Chapter 119, Florida Statutes, even if there is a confidentiality provision contained in the agreement.

Section 69.081(8)(a) provides that “[a]ny portion of an agreement or contract which has the purpose or effect of concealing information relating to the settlement or resolution of any claim or action against the state, its agencies, or subdivisions or against any municipality or constitutionally created body or commission is void, contrary to public policy, and may not be enforced.” Section 69.081(8)(b) provides that “[a]ny person having custody of any document, record, contract, or agreement relating to any settlement as set forth in this section shall maintain said public records in compliance with chapter 119 [Florida’s Public Records Act].” Section 69.081(8) can also be used to void agreements that would silence a source who signed a settlement agreement containing a confidentiality provision prohibiting the source from discussing the settlement.

The Sunshine in Litigation Act also prohibits secret settlement agreements or the entry of judgments that conceal a “public hazard,” as defined in the act. See §69.081(3), Fla. Stat.

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F. Settlement records

Post-trial records are encompassed by Barron and Florida’s constitutional right of access to court records. Such records may only be closed consistent with Florida Rule of Judicial Administration 2.420. Under Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113, 116 (Fla. 1988), to overcome the strong presumption of openness in civil proceedings, including post-trial records, a proponent of closure must satisfy a three-prong test. The first prong requires a proponent to show that closure is necessary: “(a) to comply with established public policy set forth in the constitution, statutes, or case law; (b) to protect trade secrets; (c) to protect a compelling government interest [e.g., national security; confidential informants]; (d) to obtain evidence to properly determine legal issues in a case; (e) to avoid substantial injury to innocent third parties [e.g., to protect young witnesses from offensive testimony; to protect children in a divorce]; or (f) to avoid substantial injury to a party by disclosure of matter protected by a common law or privacy right not generally inherent in the specific type of civil proceeding sought to be closed.” Id. at 118. For privacy concerns, “it is generally the content of the subject matter rather than the status of the party that determines whether a privacy interest exists” that permits closure. Id. However, the privacy interest can be negated where “the content of the subject matter directly concerns a position of public trust held by the individual seeking closure.” Id. Second, the court must find that no reasonable alternatives exist to reach the desired result. Id. Finally, if no reasonable alternative exists then the court must ensure that the means and the least restrictive necessary to accomplish the goal. Id. See also Fla. R. Jud. Admin. 2.420(c)(9).

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G. Post-trial records

As with other court records, appellate court records are also presumptively open. Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113, 118 (Fla. 1988). Florida Rule of Judicial Administration 2.420 addresses public access to Florida court records and some provisions of the current rule could impact access to appellate court records. Florida Rule of Judicial Administration 2.420(g) addresses requests to determine the confidentiality of appellate court records in non-criminal cases. Unlike motions to seal trial court records, no hearing is held on a motion to seal appellate court records. A request to unseal appellate court records must be made in a written motion filed in the appellate court.

Under Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113, 116 (Fla. 1988), to overcome the strong presumption of openness in civil proceedings, including appellate records, a proponent of closure must satisfy a three-prong test. The first prong requires a proponent to show that closure is necessary: “(a) to comply with established public policy set forth in the constitution, statutes, or case law; (b) to protect trade secrets; (c) to protect a compelling government interest [e.g., national security; confidential informants]; (d) to obtain evidence to properly determine legal issues in a case; (e) to avoid substantial injury to innocent third parties [e.g., to protect young witnesses from offensive testimony; to protect children in a divorce]; or (f) to avoid substantial injury to a party by disclosure of matter protected by a common law or privacy right not generally inherent in the specific type of civil proceeding sought to be closed.” Id. at 118. For privacy concerns, “it is generally the content of the subject matter rather than the status of the party that determines whether a privacy interest exists” that permits closure. Id. However, the privacy interest can be negated where “the content of the subject matter directly concerns a position of public trust held by the individual seeking closure.” Id. Second, the court must find that no reasonable alternatives exist to reach the desired result. Id. Finally, if no reasonable alternative exists then the court must ensure that the means and the least restrictive necessary to accomplish the goal. Id.

Requests for closure of civil appellate court records are rare. Motions to seal court records will be denied (often without prejudice) if the proponent fails to address the sealing standards announced in BarronSee e.g., Gulliver Sch., Inc. v. Snay, 137 So. 3d 1031 (Fla. Dist. Ct. App. 2013); BDO Seidman, LLP v. Banco Espirito Santo Int’l, Ltd., Nos. 3D07-2746, 3D07-2472, 2009 WL 928484 (Fla. Dist. Ct. App. Apr. 8, 2009).

Access to records online is governed by Florida Supreme Court Administrative Order 14-19, as amended. Links to Florida court websites can be found at www.flcourts.org. Florida’s district courts of appeal and the Florida Supreme Court may designate cases as “high profile,” making the related court documents available through the court’s website. The Florida Supreme Court’s high profile cases pages can currently be found at http://www.floridasupremecourt.org/pub_info/index.shtml. Most appellate court clerks are good contacts for any questions concerning access to appellate court records.

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H. Appellate records

Access to records online is currently governed by Florida Supreme Court Administrative Order 14-19, as amended. Currently all but a small number of counties are in the process of implementing pilot programs to provide free, online access to court records. Access levels will be governed by the Access Security Matrix Standards adopted by the Florida Supreme Court in AOSC 14-19. This initiative is an outgrowth of the Manatee County (Bradenton, Florida) pilot program to provide court records free online. Remote electronic access to dockets is also provided in most circuits, at both the trial and appellate levels. Upon request, however, clerks are authorized to send court records via email. In addition, court records in cases designated “high profile” are made available online.

Digital recordings of court proceedings are accessible public court records in Florida.

At least one appellate court has supported a journalist’s ability to use a laptop computer in the courtroom to live blog during a high profile criminal trial in Duval County (Jacksonville, Florida). See Morris Publishing Co. v. State, No. 1D10-226, 2010 WL 363318 (Fla. Dist. Ct. App. Jan. 20, 2010).

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I. Other civil court records issues

VII. Jury and grand jury access

A. Access to voir dire

Jury selection is generally open. Florida courts have applied Press-Enterprise I in holding that “[t]he right to a public trial in criminal cases includes the voir dire process.” Moore v. State, 765 So. 2d 925, 926 (Fla. Dist. Ct. App. 2000). The Moore court further held that an order closing voir dire must be based upon the four prong requirements in Waller v. Georgia, 467 U.S. 39 (1984): (1) the party seeking closure must put forth an overriding interest that is likely to be prejudiced, (2) the closure must be no broader than necessary to protect the alleged interest, (3) the court must consider the reasonable alternatives to closure, and (4) the court must make findings which are sufficient to support the closure. Moore, 765 So. 2d at 926-27.  See also Morris Publ’g Grp., LLC v. State, 136 So. 3d 770, 780 (Fla. Dist. Ct. App. 2014) (“Our first decision point is to determine whether the qualified right of public access to criminal trials, guaranteed by the First and Fourteenth Amendments, attaches to the jury selection proceedings at issue. We conclude that Press–Enterprise I is directly controlling and answers that question affirmatively.”).

Grand proceedings and deliberations are closed under Chapter 905, Florida Statutes. See also Fla. R. Jud. Admin. 2.420(d)(1)(B)(xvi) (noting the clerk must automatically close Chapter 905 grand jury records).

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B. Juror identities, questionnaires and other records

No Florida appellate courts have specifically addressed the issue of anonymous juries. While anonymous juries are virtually unheard of in Florida, courts in high-profile criminal cases have been willing to restrict or delay access to juror information. See State of Florida v. Casey Marie Anthony, No.: 48-2008-CF-015606-AO, Order Granting in Part Motion to Intervene for the Limited Purpose of Seeking Release of Juror Information Once Jury is Discharged, July, 26, 2011 (Fla. Cir. Ct. 2011) (ordering that after October 25, 2011, court personnel could, upon request, release seated juror names for jurors that have not previously disclosed their identities); State of Florida v. George Zimmerman, No. 12-CF-1083-A, Order Directing that Jurors’ Identities Be Kept Confidential, June 5, 2013 (Fla. Cir. Ct. 2013) (forbidding the Clerk of Court from releasing to the public names of jurors called to be part of venire, requiring jurors to be referred to by number during voir dire, and forbidding sitting jurors to be identified or photographed during the course of trial); State of Florida v. George Zimmerman, No. 12-CF-1083-A, Order Regarding Jurors’ Identities, Mar. 21, 2014 (Fla. Cir. Ct. 2014) (ordering release of juror names only, eight months after trial concluded); State of Florida v. Dunn, No. 16-2012-CF-11572-AXXX-MA, Order Directing that Jurors’ Identities be Kept Confidential, Feb. 3, 2014 (Fla. Cir. Ct. 2014) (ordering juror information to be kept confidential until 60 days after trial concludes).

Jury closure questions also often involve camera access to jurors during voir dire and the trial. The Florida Supreme Court rejected an attempt to grant trial judges broader discretion to prohibit photographing or filming jurors’ faces. In re Amendments to the Rules of Judicial Admin., 915 So. 2d 157, 160-61 (Fla. 2005). Instead, attempts by parties and courts to shield jurors from the media with bans on photographing or filming jurors’ faces should be analyzed like other restrictions on electronic media coverage, applying Florida Rule of Judicial Administration 2.450 and the Florida Supreme Court’s Post-Newsweek decision. To prohibit photographing jurors, a court must find that the coverage will have a substantial effect upon the juror that would be qualitatively different from the effect of traditional media coverage. 370 So. 2d 764, 778-79 (Fla. 1979). However, at least two courts have allowed restrictions on photographing or filming jurors faces to be based upon group concerns rather than concerns with individual jurors. Sunbeam Television Corp. v. State, 723 So. 2d 275, 280 (Fla. Dist. Ct. App. 1999) (en banc); Times Publ’g Co. v. State, 632 So. 2d 1072, 1075 (Fla. Dist. Ct. App. 1994). In addition, a court must consider whether “less restrictive measures” to closure would suffice. State v. Palm Beach Newspapers, Inc., 395 So. 2d 544, 548 (Fla. 1981).

Litigation in this area has most often focused on access to judicial records which include juror names and information. See Sarasota Herald-Tribune v. State, 916 So. 2d 904, 908 (Fla. Dist. Ct. App. 2005) (reviewing trial court order which, among other things, required the clerk of court to “not release to any person the names, addresses, or any other identifying information concerning potential jurors in this case”). In the hands of the court, a record containing juror information is a judicial record, access to which is governed by Article I, Section 24 of Florida’s Constitution, the Barron and Lewis cases and Florida Rule of Judicial Administration 2.420. Those standards are discussed in greater detail above.

Juror notes are promptly collected and destroyed by the court at the conclusion of the trial and following the discharge of the jury. Fla. R. Jud. Admin. 2.430(k).

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C. Grand jury proceedings and records

Section 905.24, Florida Statutes, provides for the secrecy of grand juries in Florida: “[g]rand jury proceedings are secret, and a grand juror or an interpreter . . . shall not disclose the nature or substance of the deliberations or vote of the grand jury.”

The courts so jealously guard that veil of grand jury secrecy that they have closed proceedings merely ancillary to the grand jury session. In Palm Beach Newspapers, Inc. v. Doe, 460 So. 2d 406, 409 (Fla. Dist. Ct. App. 1984), the court held that the grand jury statute required closure of ancillary hearings conducted out of the grand jury’s presence, but while the grand jury was in session. Likewise, the court in Tribune v. State, 543 So. 2d 757, 759 (Fla. Dist. Ct. App. 1989), determined the grand jury statute mandated closure of motions to repress and hearings on the motions. Although most of the interests in grand jury secrecy are protected if the grand jury session itself is closed, the courts have been receptive to arguments which urge that the cloak of secrecy be extended beyond the grand jury session itself.

Florida Statutes Section 905.17(1) (2009) proscribes the release of the notes, records, and transcripts of a grand jury. An intentional violation of those provisions constitutes indirect criminal contempt of court. § 905.17(4), Fla. Stat. (2009). (If information is leaked to the press, the prosecutor or the court might seek information from a journalist to punish the source for contempt.) See also Fla. R. Jud. Admin. 2.420(d)(1)(B)(xvi) (the clerk must automatically seal Chapter 905 grand jury records).

However, once the investigation is no longer active, the cloak of grand jury secrecy does not prevent criminal investigative records submitted to a grand jury from disclosure under the Florida Public Records Act — if the records were compiled independent of and prior to the grand jury session. Tribune v. State, 543 So. 2d 757, 759 (Fla. Dist. Ct. App. 1989) (law enforcement files provided to grand jurors for review must be disclosed to the public after the grand jury refused to return an indictment).

Whether or not an indictment is returned, the grand jury subsequently may issue a report or presentment. That report will contain the grand jury’s findings and may make recommendations. Section 905.28(1), Florida Statutes, provides a mechanism for redacting or suppressing presentments that name unindicted individuals:

A report or presentment of the grand jury relating to an individual that is not accompanied by a true bill or indictment is confidential and exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution and shall not be made public or be published until the individual concerned has been furnished a copy thereof and given 15 days to file with the circuit court a motion to repress or expunge the report or that portion which is improper and unlawful.

That provision is intended to prohibit the release of presentments until the expiration of the 15-day period (if no motion to repress is filed) or the resolution of a motion to repress. The Second District Court of Appeal in Tribune v. State (In re Grand Jury Investigation, Spring Term, 1988), 528 So. 2d 51, 53 (Fla. Dist. Ct. App. 1988), held that motions to repress or expunge and proceedings concerning such motions are secret, even when the behavior of public officials is involved.

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D. Interviewing jurors

Petit Jurors: Limitations on the speech of petit jurors or the media to speak to petit jurors are treated as prior restraints and are presumptively unconstitutional. See Sentinel Communications Co. v. Watson, 615 So. 2d 768, 772–73 (Fla. Dist. Ct. App. 1993).

Grand Jurors: Section 905.27, Florida Statutes, prohibits grand jurors, state attorneys and all other court personnel from disclosing to anyone, except under certain narrowly-specified circumstances, the testimony of a witness examined before the grand jury or other evidence received by it. The statute declares it unlawful:

for any person knowingly to publish, broadcast, disclose, divulge, or communicate to any other person, . . . in any manner whatsoever, any testimony of a witness examined before the grand jury, or the content, gist, or import thereof, except when such testimony is or has been disclosed in a court proceeding.

§ 905.27(2), Fla. Stat. Violation of this provision is a first degree misdemeanor. Fla. Stat. § 905.27(4). A similar provision restrains the speech of statewide grand juries, which have specific, limited jurisdiction. § 905.395, Fla. Stat. Violation of this provision is a third degree felony. Id.

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VIII. Proceedings involving minors

A. Delinquency

Delinquency hearings are presumptively “open to the public, and no person may be excluded except upon special order of the court.” Fla. Stat. § 985.035(1). The statute also specifically provides that, except as provided in subsection (1), “nothing in this statute shall prohibit the publication of proceedings in a hearing.” § 985.035(2). However, the court, in its discretion, “may close any hearing to the public when the public interest and the welfare of the child are best served by so doing.” Fla. Stat. § 985.035(1).

Juvenile court records are closed to inspection except in limited circumstances. Fla. Stat. § 985.045(2). See also Fla.R. Jud. Admin. 2.420(d)(1)(B)(xvii) (noting that clerks must automatically seal delinquency records). The child, parents, guardians, or legal custodians of the child, and a variety of law enforcement agencies, may inspect the court records. Fla. Stat. § 985.045(2). Otherwise, a court order is necessary in which the court finds that the person requesting access has “a proper interest” in the requested records. Id. There is a limited right of access for the compilation of statistical information for authorized representatives of recognized organizations, such as the media. Id.; see also Op. Att’y Gen. Fla. 91–32 (1991) (allowing access to a newspaper of general circulation under a similar provision of another such statute). Typically, orders allowing access for such research purposes will provide that identifying information be redacted.

A law enforcement agency may release for publication the “name, photograph, address, and crime or arrest report” of a child taken into custody “for a violation of law which, if committed by an adult, would be a felony.” Fla. Stat. § 985.04(2)(a)1.a. The law enforcement agency may also reveal the identity of a child: (1) “charged with a violation of law, which if committed by an adult, would be a felony,” (2) “found to have committed an offense which, if committed by an adult, would be a felony”, or (3) “transferred to adult court pursuant to part X of this chapter.” Fla. Stat. § 985.04(2)(a)1.b-d. Law enforcement agencies should release such juvenile offender records, unless some other justifiable reason exists for keeping the record confidential.

The law enforcement agency is not confined to release of the name, photograph, and address of the juvenile, but also may release other background information regarding the offense or arrest. Op. Att’y Gen. Fla. 94-91 (1994); see also Fla. Stat. § 985.04(2) (releasable information includes the crime or arrest report of the child). Further, law enforcement records which “have been transmitted to and are in the hands of a criminal justice agency such as the Department of Juvenile Justice” also may be released. Op. Att’y Gen. Fla. 94-91 (1994). The only information that remains non-public are those law enforcement records of juveniles arrested for a felony prior to October 1, 1994. Op. Att’y Gen. Fla. 95-19 (1995).

If the juvenile has committed some other delinquent act, which, if committed by an adult, would be a crime but not a felony, the record is confidential and only will be released to specified, interested agencies, certain relatives, and upon order of the court. Fla. Stat. § 985.04(1) (information obtained by the Department of Juvenile Justice, Florida Commission on Offender Review, the Department of Corrections, circuit juvenile justice circuit boards, any law enforcement agent or any licensed professional community agency participating in the assessment or treatment of a juvenile is confidential); see also Harvard ex rel. J.H. v. Vill. of Palm Springs, 98 So. 3d 645 (Fla. 4th DCA 2012) (permitting release of juvenile record to victim was discretionary, rather than mandatory, and videotaped interview of minor was exempt from public records request).

However, reporters wishing to obtain generalized information for research purposes should be aware that there is a conditional, limited right of access in this provision for the compilation of statistical information in this statute as well. See Fla. Stat. § 985.04(7)(a).

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B. Dependency

Adjudicatory hearings involving custody and permanent placement of children and other dependency proceedings are presumed open, except upon special order of the presiding judge. Fla. Stat. § 39.507(2). The special order provision allows the presiding judge to close the hearing upon a determination that the public interest or the welfare of the child is served best by a closed proceeding. Id.

However, adjudicatory hearings involving termination of parental rights are automatically confidential under Section 39.809(4), Florida Statutes. Natural Parents of J.B. v. Dep’t of Children and Family Servs., 780 So. 2d 6 (Fla. 2001); see also Dep’t of Children & Family Servs. v. Carter, 851 So. 2d 197, 199 (Fla. 5th DCA 2003) (stating in dicta that “it seems intuitively clear that proceedings for the termination of parental rights are substantially more intrusive than dependency actions”).

Termination of parental rights and dependency records are closed, except to those deemed by the court as showing a proper interest. Fla. Stat. §§ 39.0132(3), 39.814(3); see also Fla. R. Jud. Admin 2.420(d)(1)(B)(i) (noting that clerks must automatically seal dependency records). On certain occasions, the public may show such a proper interest. Often requests for access to such closed files overlap with requests for access to the confidential files of the Department of Children and Families (“DCF”) that may not have been filed with the court. The test for showing a “proper interest” is therefore similar to the good cause standard for access to DCF’s records. See Fla. Stat. 39.2021 (balancing need for oversight of the court or DCF with the privacy and best interests of the child). For example, in Department of Health & Rehabilitative Services v. In the Interest of A.N., 604 So. 2d 11, 11 (Fla. 3d DCA 1992) (per curiam), the appellate court upheld a circuit judge’s decision to disclose the full court record despite the confidentiality provisions. Noting that the guardian ad litem had supported waiver of the confidentiality provision, the court stated:

[W]e conclude that the circuit court was acting within its discretionary powers when it determined that disclosure of the full record would best correct any speculation, rumor or innuendo circulating about the instant family and that disclosure was in the best interest of the dependent children.

Id. (citations omitted). Similar reasoning was employed by a trial court judge in Hillsborough County, Florida, who found that disclosure of portions of the child’s court record was in the best interest of the dependent child. In the Interest of E.S., No. 89741, Div. C (Fla. Cir. Ct. Jan. 29, 1997).

Public interest may be found where the need for citizens to have information to adequately evaluate the actions of the department and the court system in protecting children under Section 39.001, Florida Statutes. F.S. 39.2021(1); see In re Records of Dept. of Children & Family Services, 873 So.2d 506 (Fla. 2d DCA 2004). A trial court judge in Lake County found that release of a dependency court file was in the public interest. In re Interest of R.S., J.C., No. 2002-DP-0286-GS (Fla. Cir. Ct. March 9, 2004).

Additionally, the media may be permitted access to termination of parental rights and dependency records for the compilation of statistics or other quantitative data. See Fla. Stat. §§ 39.0132(3), 39.814(3). In such situations, the court may impose certain conditions “upon their use and disposition” as the court deems proper and may “punish by contempt proceedings any violation of those conditions.” See Op. Att’y Gen. Fla. 91-32 (1991) (allowing The Tampa Tribune access to juvenile dependency court statistics for research purposes). Often, identifying information is redacted.

Further, Section 28.2221, Florida Statutes, provides that the Clerk may not place an image or copy of a court file, record, or paper relating to matters or cases arising under the Rules of Juvenile Procedure on a publicly available website for general public display.

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C. Other proceedings involving minors

Hearings in adoption proceedings are closed. Fla. Stat. § 63.162(1). Court files for adoption cases are also closed. Fla. Stat. § 63.162(2). In that regard, identifying information regarding the birth parents, adoptive parents, and adoptee may not be disclosed unless a birth parent, adoptive parent, or adoptee has authorized in writing the release of such information concerning himself or herself; see also Fla. R. Jud. Admin. 2.420(d)(1)(B)(ii) (noting that clerks must automatically seal adoption records). So, for example, the names of parties and adopted children are confidential, but not the case numbers. A.D. v. M.D.M., 920 so. 2d 857 (Fla. 4th DCA 2006). The court has discretion to restrict access to paternity hearings, as well. Fla. Stat. § 742.031(1).

Dissolution proceedings and records are presumptively open, and the standards of Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113 (Fla. 1988), apply. Barron itself involved dissolution proceedings. Under Barron, to overcome the strong presumption of openness in civil proceedings, a proponent of closure must satisfy a three-prong test. The first prong requires a proponent to show that closure is necessary. One reason that closure may be necessary is for “to avoid substantial injury to innocent third parties [e.g., to protect young witnesses from offensive testimony; to protect children in a divorce].” Id. at 118. For privacy concerns, “it is generally the content of the subject matter rather than the status of the party that determines whether a privacy interest exists” that permits closure. Id. However, the privacy interest can be negated where “the content of the subject matter directly concerns a position of public trust held by the individual seeking closure.” Id. Second, the court must find that no reasonable alternatives exist to reach the desired result. Id. Finally, if no reasonable alternative exists then the court must ensure that the means are the least restrictive necessary to accomplish the goal. Id.

Section 28.2221, Florida Statutes, provides that the Clerk may not place an image or copy of a court file, record, or paper relating to matters or cases arising under the Rules of Family Law on a publicly available website for general public display.

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D. Prohibitions on photographing or identifying juveniles

Section 119.071(2)(h)1., Florida Statutes, provides, in part, a comprehensive exemption from disclosure for information which would “reveal the identity of the victims” of child abuse, such as the photograph, name, address, or other fact or information. The exemption applies to “criminal intelligence information or criminal investigative information” or other criminal record, including those portions of court records and court proceedings, which may reveal the victim’s identity. Id. Section 119.071(2)(j)2, Florida Statutes, provides that identifying information in a videotaped statement of a minor who is alleged to be or who is a victim of a sexual offense prohibited in the cited laws which reveals the minor’s identity, including, but not limited to, the minor’s face; the minor’s home, school, church, or employment telephone number; the minor’s home, school, church, or employment address; the name of the minor’s school, church, or place of employment; or the personal assets of the minor; and which identifies the minor as a victim, held by a law enforcement agency, is confidential. Access shall be provided, however, to authorized governmental agencies when necessary for the agency’s duties. Id.

Thus, information revealing the identity of victims of child abuse or sexual battery must be deleted from the copy of the report of domestic violence which is sent by a law enforcement agency to the nearest domestic violence center pursuant to Section 741.29(2), Florida Statutes. Op. Att’y Gen. Fla. 92-14 (1992); see also Palm Beach Cnty. Police Benevolent Assoc. v. Neumann, 796 So. 2d 1278 (Fla. 4th DCA 2001) (applying exemption to information identifying a child abuse victim which was contained in files prepared as part of an internal investigation conducted in accordance with Section112.533, Florida Statutes) However, the identity of a child abuse victim who died from suspected abuse is not confidential. Op. Att’y Gen. Fla. 90-103 (1990).

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E. Minor testimony in non-juvenile courts

Section 918.16, Florida Statutes, provides for only limited access to courtrooms when a person under 16 years of age or a person with an intellectual disability, including mental retardation, testifies concerning any sex offense. Fla. Stat. § 918.16(1). Similarly, when the victim of a sex offense, regardless of age or mental faculties, testifies regarding the offense, Section 918.16 provides for limited access to the proceeding. Fla. Stat. § 918.16(2). Newspaper and broadcast reporters are included among those permitted to attend. Fla. Stat. § 918.16(1)-(2).

However, there is dispute among the appellate courts in Florida over how this statute interacts with the First and Sixth Amendment rights of access and a public trial, respectively. Initially, two of the five district courts have held that application of the test for closure enunciated in the U.S. Supreme Court’s Waller v. Georgia decision is required even when the court is only ordering the partial closure described in Section 918.16. Alonso v. State, 821 So. 2d 423, 426 (Fla. 3d DCA 2002), disapproved by Kovaleski v. State, 103 So.3d 859 (Fla. 2012); Pritchett v. State, 566 So. 2d 6, 7 (Fla. 2d DCA 1990). The other three districts do not require application of the Waller test for partial closures, only for full closures. Kovaleski v. State, 1 So. 3d 254, 258 (Fla. 4th DCA 2009), aff’d 103 So.3d 859 (Fla. 2012); Hobbs v. State, 820 So. 2d 347, 349 (Fla. 1st DCA 2002); Clements v. State, 742 So. 2d 338, 341 (Fla. 5th DCA 1999). However, recently, a First District Court of Appeal panel applied the balancing test when allowing media access to a criminal voir dire. Morris Publ’g Grp., LLC v. State, 136 So.3d 770, 779-80 (Fla. 1st DCA 2014).  

Nonetheless, even in the Third District where the Waller test must generally be applied, if the Court permits contemporaneous access via a television monitor to the testimony in question, the Waller test need not be applied. Lena v. State, 901 So. 2d 227, 230–31 (Fla. 3d DCA 2005).

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IX. Special proceedings

A. Tribal Courts in the jurisdiction

Florida has assumed jurisdiction over criminal offenses within Indian reservations as well as civil cases arising within Indian reservations. Fla. Stat. 285.16(1). Although there are no access cases in this context, the Florida Supreme Court’s decisions in Miami Herald Publ’g Co. v. Lewis, 426 So. 2d 1 (Fla. 1982), and Barron v. Florida Freedom Newspapers, 531 So. 2d 113 (Fla. 1988), would most likely apply.

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B. Probate

Probate records filed with the clerk of court are subject to disclosure absent a specific statutory provision or court rule that makes them confidential. Op. Att’y Gen. Fla. 89-94 (1989).

Probate inventories (and amended inventories) are sealed and may be reviewed only by the personal representative, attorney of record, an “interested person,” as defined in Section 731.201, Florida Statutes, or by a court order upon a showing of good cause (23). See Fla. Stat. § 733.604(1); see also Fla. R. Jud. Admin. 2.420(d)(1)(B)(xi) (noting that probate inventories must be automatically sealed by clerks).

Section 28.2221, Florida Statutes, provides that the Clerk may not place an image or copy of a court file, record, or paper relating to matters or cases governed by the Florida Probate Rules on a publicly available website for general public display.

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C. Competency and commitment proceedings

Guardianship hearings for alleged incapacitated persons or adjudicated wards are open or closed based upon the request of the incapacitated person or ward. Fla. Stat. § 744.1095. An election to close a hearing is made before the hearing by filing a written notice. Fla. Prob. R. 5.540(b). Florida Statutes Sections 744.1076 and 744.3701 also restrict access to certain guardianship records. Reports may be subject to inspection as determined by the court or upon a showing of good cause. §744.1076; see also Fla. R. Jud. Admin 2.420(d)(1)(B)(xv) (noting clerks must close certain guardianship records).

Closure of an involuntary commitment hearing under the Florida Mental Health Act, also known as the Baker Act, has been found to be proper based upon public policy. Tribune Co. v. D.M.L., 566 So. 2d 1333, 1335 (Fla. 2d DCA 1990) (closure of proceeding justified by statutory requirement that a mentally ill person’s clinical records are confidential since those same confidential records are an integral part of a Baker Act hearing). Such hearings are generally treated as being categorically closed. Baker Act court records and files are automatically sealed by clerks of court. See Fla. R. Jud. Admin. 2.420(d)(1)(viii) (clerks should automatically close “clinical records” under Chapter 394, known as “the Baker Act.”)

Chapter 397 of the Florida Statutes is known as the “Hal S. Marchman Alcohol and Other Drug Services Act.” It provides for the involuntary or voluntary assessment and stabilization of a person allegedly abusing substances like drugs or alcohol, and provides for treatment of substance abuse. The records of service providers which “pertain to the identity, diagnosis, and prognosis of and service provision” to any individual are confidential and exempt from public disclosure. Fla. R. Jud. Admin. 2.420(d)(1)(B)(ix) (noting that these records must be sealed automatically by clerks). Such records may not be disclosed without the written consent of the individual to whom they pertain except as provided for treatment in Section 397.501, Florida Statutes. Any oral argument, review of evidence, or hearing on the application must be held in the judge’s chambers or in some manner which ensures that identifying information is not disclosed to anyone other than a party to the proceeding, the individual, or the person holding the record, unless the individual requests an open hearing. The proceeding may include an examination by the judge of the records referred to in the application. Id. Typically, the records and proceedings under this Act are treated as categorically closed.

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D. Attorney and judicial discipline

The Florida Supreme Court has exclusive jurisdiction to regulate the admission of persons to the practice of law and the discipline of persons admitted. Fla. Const. Art. V, § 15.

In proceedings related to judicial discipline, until formal charges against a justice or judge are filed by the investigative panel with the clerk of the Supreme Court of Florida, all proceedings by or before the Judicial Qualifications Commission are confidential. Upon a finding of probable cause and the filing by the investigative panel with the clerk of formal charges against a justice or judge, such charges and all further proceedings before the commission shall be public. Fla. Const. Art. V, § 12(a)(4).

Attorney discipline claims are generally handled initially by Bar grievance committees. An attorney’s claim that The Florida Bar violated the Sunshine Law by refusing to allow him to attend a grievance committee meeting of the Bar was rejected in The Florida Bar v. Committe, 916 So. 2d 741 (Fla. 2005) (per curiam). The Court stated that “[t]he grievance committee meetings of the Bar are private, and therefore the Bar is justified in prohibiting [the attorney] from attendance.” Id. at 744–45. In Committe, the Court reviewed prior case law involving the application of the open government laws to The Bar, and reiterated its holding in The Florida Bar: in re Advisory Opinion, 398 So. 2d 446, 447 (Fla. 1981), that “[n]either the legislature nor the governor can control what is purely a judicial function.” Id. at 745.

Bar grievance records generally become available only upon a finding of probable cause. See R. Regulating Fla. Bar 3-7.1.

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E. Immigration proceedings

F. Other proceedings

X. Restrictions on participants in litigation

A. Media standing to challenge third-party gag orders

The media has standing to challenge gag orders on participants in court proceedings. E.g., Florida Freedom Newspapers v. McCrary, 520 So. 2d 32 (Fla. 1988); Sarasota Herald-Tribune v. Talley, 523 So. 2d 1163 (Fla. 2d DCA 1988) (per curiam); Times Publ’g Co. v. Pennick, 433 So. 2d 1281 (Fla. 2d DCA 1983) (per curiam). In fact, it is reversible error and a departure from the essential requirements of law to issue a gag order “without prior notice and opportunity to be heard by at least one member of the media.” Talley, 523 So. 2d at 1163.

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B. Gag orders on the press

The Florida Supreme Court has stated that gag orders on the press and other non-participants should only be permitted for comments that present a “clear and present danger of miscarriage of justice might arise” from the statements. State ex rel. Miami Herald Publ’g Co. v. McIntosh, 340 So. 2d 904, 910–11 (Fla. 1977). Gag orders against the media are extremely rare, even when the media is a party to a lawsuit.

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C. Gag orders on participants

Gag orders may only be entered when necessary to ensure a fair trial and must be narrowly tailored to preclude only extrajudicial comments that are substantially likely to materially prejudice the trial. Rodriguez v. Feinstein, 734 So. 2d 1162, 1164 (Fla. 3d DCA 1999). Any such order must be supported by “findings that it was necessary to ensure a fair trial.” Id. Moreover, a gag order must provide a “workable method” of preserving the fairness of the trial. Nebraska Press, 427 U.S. at 565; see Dippolito v. State, 225 So. 3d 233, 242 (Fla. 4th DCA 2017) (granting a gag order when the defendant opposing the order did not propose an alternative less restrictive than a gag order).

The Florida Supreme Court has approved a court order in which only the state attorney’s office and sheriff’s departments were limited in their comments based upon prior, public, prejudicial statements, but that rejected a broader prohibition on public comments as being too broad. See Florida Freedom Newspapers, 520 So. 2d at 33. Rather than entering an overly broad gag order restricting all extrajudicial comment, courts can simply admonish attorneys to adhere to Florida Rule of Professional Conduct 4-3.6. See State v. Evans, 31 Media L. Rep. 1346 (Fla. Cir. Ct. Dec. 9, 2002); State v. Davis, 19 Media L. Rep. 1121 (Fla. Cir. Ct. June 15, 1991). Rule 4-3.6 addresses the professional responsibilities of attorneys regarding prejudicial extrajudicial statements.

Even if a gag order is warranted, it must terminate once a jury is selected, because restrictions on extrajudicial comment beyond that point would be unnecessary. News-Journal Corp. v. Foxman, 559 So. 2d 1227, 1228 (Fla. 5th DCA. 1990) (per curiam). Therefore, even if a gag order is appropriate, it must expire once the jury is sworn.

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D. Interviewing judges

The Code of Judicial Conduct for the State of Florida is available at http://www.floridasupremecourt.org/decisions/ethics/index.shtml. Among the canons of conduct, a judge shall uphold the integrity and independence of the judiciary; avoid impropriety and the appearance of impropriety in all of the judge’s activities; perform the duties of judicial office impartially and diligently; and regulate extrajudicial activities to minimize the risk of conflict with judicial duties. No specific rule or canon applies to judicial interaction with the media and consenting to media interviews, but any such judicial conduct must conform with the Judicial Code of Conduct. Florida judges virtually never comment on pending cases and only rarely comment on cases that have concluded.

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XI. Other issues

A. Interests often cited in opposing a presumption of access

The most common interests cited by proponents of closure in criminal matters are fair trial rights and privacy interests. E.g., Post-Newsweek Stations, Fla. Inc. v. Doe, 612 So. 2d 549 (Fla. 1992) (involving asserted privacy interest of non-parties in criminal records); Florida Freedom Newspapers, Inc. v. McCrary, 520 So. 2d 32, 36 (Fla. 1988) (fair trial rights objection to access to criminal court records); Miami Herald Publ’g Co. v. Lewis, 426 So. 2d 1, 6 (Fla. 1982) (fair trial rights objection to access to criminal court proceeding).

The Florida Supreme Court in Barron also enunciated a list of potential interests that could justify closure of civil proceedings and records. Closure is only permitted when necessary: “(a) to comply with established public policy set forth in the constitution, statutes, rules, or case law; (b) to protect trade secrets; (c) to protect a compelling government interest [e.g., national security; confidential informants]; (d) to obtain evidence to properly determine legal issues in a case; (e) to avoid substantial injury to innocent third parties [e.g., to protect young witnesses from offensive testimony; to protect children in a divorce]; or (f) to avoid substantial injury to a party by disclosure of matter protected by a common law or privacy right not generally inherent in the specific type of civil proceeding sought to be closed.” Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113, 118 (Fla. 1988) (involving an asserted privacy interest of a party in medical and financial records).

At least one Florida court has affirmed a closure order to protect the identity of an undercover police officer. Palm Beach Newspapers, Inc. v. Cook, 434 So. 2d 355, 359–60 (Fla. 4th DCA 1983). Closure of proceedings or records to protect confidential informants and other compelling government interests was also recognized as a reason that might justify closure in Barron, 531 So. 2d at 118.

Furthermore, Chapter 119 exempts information which discloses the identity of a confidential informant. Fla. Stat. § 119.071(2)(f); see also Fla. R. Jud. Admin. 2.420(f)(3) (establishing special restricted motion practice for court records involving plea agreements and substantial assistance agreements). The confidential informant exemption is not contingent upon the informant being active. Christy v. Palm Beach Cnty Sheriff’s Office, 698 So. 2d 1365, 1368 (Fla. 4th DCA 1997); Salcines v. Tampa Television, 454 So. 2d 639, 641 (Fla. 2d DCA 1984). Furthermore, redaction is appropriate to remove the identifying information, not withholding of the entire document. Ocala Star Banner Corp. v. McGhee, 643 So. 2d 1196 (Fla. 5th DCA 1994). Similarly, Florida law makes information identifying undercover personnel of a criminal justice agency exempt from public disclosure. Fla. Stat. § 119.071(4)(c).

Recently, the Florida Legislature amended Chapter 119 of the Florida Statutes to exempt from disclosure the identifying information of a witness to a murder for a period of two years after the date on which the witness observed the murder, with certain exceptions. Fla. Stat. § 119.071(2)(m); see Palm Beach Cty. Sheriff’s Office v. Sun-Sentinel Co., 226 So. 3d 969, 974 (Fla. 4th DCA 2017) (applying the new statute even if the witness were a victim).

Florida courts have also recognized that the protection of trade secrets might justify closure of a record or proceeding. E.g., Fla. R. Jud. Admin. 2.420(c)(9)(A)(ii); Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113, 118 (Fla. 1988); State ex rel. Gore Newspaper Co. v. Tyson, 313 So. 2d 777, 782 (Fla. 4th DCA. 1975), overruled on other grounds by English v. McCrary, 348 So. 2d 293 (Fla. 1977).

Exemptions to Florida’s Public Records Act do not automatically apply to close court records. See In re Amendments to Florida Rule of Judicial Admin. 2.420-Sealing of Court Records and Dockets, 954 So. 2d 16, 17 (Fla. 2007) (per curiam). However, proponents of closure often cite such exemptions in their motions. The Florida Legislature has created a number of specific exemptions from Florida’s Public Records Act for trade secrets. See, e.g., Fla. Stat. § 1004.78(2) (trade secrets produced in technology research within community colleges); Fla. Stat. § 365.174 (proprietary confidential business information and trade secrets submitted by wireless 911 provider to specified agencies); Fla. Stat. § 570.544(8) (trade secrets contained in records of the Division of Consumer Services of the Department of Agriculture and Consumer Services); Fla. Stat. § 627.6699(8)(c) (trade secrets involving small employer health insurance carriers); see also Fla. Stat. § 288.9626 (creating an exemption for material relating to, among other things, potential trade secrets held by the Florida Opportunity Fund and the Institute for the Commercialization of Public Research).

The Florida Supreme Court recognized national security as a possible basis for closure of both court proceedings and records in Barron, 531 So. 2d at 118.

The Florida Supreme Court in Barron v. Florida Freedom Newspapers, Inc., expressly noted that closure of proceedings or records could be based upon protecting a young witness from “offensive” testimony. 531 So. 2d at 118.  However, Barron likely does not afford victims of sexual assault privacy in civil cases in which they are plaintiffs. John Doe 1-Through John Doe-4 v. Museum of Sci. & History of Jacksonville, Inc., Nos. 92-32567-CI-CI, Div. 32, 1994 WL 741009 at *5–*7 (Fla. Cir. Ct. June 8, 1994). The reason is that “Barron rules out closure based upon privacy interests of parties in the subject matter of the case itself.” Id. at *5.

In the high profile case of Florida v. William Kennedy Smith, case no. 91-5482-CF-A-02 (Fla. Cir. Ct. 1991), the victim testified in public and the court allowed cameras in the courtroom, but required any such footage to include a blue dot over the victim’s face.

Privacy has also been asserted and recognized as a basis for closure on a number of occasions, especially where it is records which are at issue. E.g., Post-Newsweek Stations, Fla. Inc. v. Doe, 612 So. 2d 549 (Fla. 1993) (privacy interests of non-parties in criminal case recognized as possible basis for closure of records; however, no right of privacy exists to engage in criminal behavior); Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113 (Fla. 1988) (privacy interest recognized for civil litigants). Florida Rule of Judicial Administration 2.420 and Florida Rule of Criminal Procedure 3.220 also recognize privacy as possible bases for closure of records. See also Forsberg v. Hous. Auth. of Miami Beach, 455 So. 2d 373 (Fla. 1984) (explaining that there is “no state constitutional right of privacy which would shield” public records of defendant housing authority); Art. I § 23, Fla. Const. (establishing a right of privacy under Florida Constitution, which is subordinate to public’s right of access to public records and meetings).

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B. Cameras and other technology in the courtroom

Florida Rule of Judicial Administration Rule 2.450 governs camera access to Florida courtrooms. In April 2009, the Florida Supreme Court commemorated the 30th Anniversary of the implementation of the rule providing broad access for cameras and other technology in the courtroom. See In re Post-Newsweek Stations Fla. Inc., 370 So. 2d 764 (Fla. 1979). Camera access is permitted in both the trial and appellate courts. Generally, the media covering the proceeding use a single pool video camera.

Oral arguments in the Florida Supreme Court and many district courts of appeal are streamed live and archived.

Rule 2.450 further states that Florida state courts are presumptively open to electronic media. See also In re Post-Newsweek Stations Fla. Inc., 370 So. 2d 764 (Fla. 1979). Camera issues are also addressed in many circuits by administrative order. E.g., Photographing, Recording or Broadcasting in Courthouse Facilities, Admin. Order No. S-2007-038 (Fla. 13th Cir. Ct. Mar. 28, 2007), http://www.fljud13.org/Portals/0/AO/DOCS/2007-038.pdf. Orders excluding electronic media access or coverage are subject to expedited appellate review. See Fla. R. Jud. Admin. 2.450(i) (citing Fla. R. App. P. 9.100(d)).

Where trial and appellate proceedings are open to the public, cameras are also permitted. Proceedings that are closed to the public, such as adoption proceedings, also are closed to the electronic media. Both the Florida Supreme Court and the First District Court of Appeal broadcast all or most of their oral arguments online. There is no rule or law, however, that requires this statewide.

Except by court order, there is no limitation on taking or use specific footage. However, courts have the authority to prohibit the filming or photographing of particular trial participants, such as witnesses or jurors, upon a finding that such coverage will have a substantial effect upon the particular individual which would be “qualitatively different” from the effect of traditional media coverage. In re Post-Newsweek Stations Fla. Inc., 370 So. 2d at 779; State v. Green, 395 So. 2d 532 (Fla. 1981). But cf. Sunbeam Television Corp. v. State, 723 So. 2d 275 (Fla. 3d DCA 1998) (finding on rehearing en banc that an interest in insulating jurors from undue influence in a high-profile case in which juror names and addresses were sealed could support a prohibition against videotaping jurors’ faces).

Courts also retain the authority to “(i) control the conduct of proceedings before the court; (ii) ensure decorum and prevent distractions, and (iii) ensure the fair administration of justice in the pending cause.” Fla. R. Jud. Admin. 2.450(a).

At least one Florida law purports to restrict the broadcasting of an identifiable photograph or voice of a child victim of certain sexual acts without the written consent of the victim. Fla. Stat. § 92.56(5) (2014). The constitutionality of this provision has not been challenged.

Still cameras are specifically included within Rule 2.450 and permitted in Florida courtrooms, as described in the rule.

The lone authority in Florida on live blogging and tweeting is an order from the First District Court of Appeal in Morris Publ’g Co. v. State, No. 1D10-226, 2010 WL 363318 (Fla. 1st DCA Jan. 20, 2010). The court held that the Florida Rules of Judicial Administration did not apply to the use of a laptop computer in a courtroom. Instead, the trial court’s inherent authority to control proceedings governs the use of laptops. If a court makes specific factual findings and concludes that use of a laptop or other device “cannot be accommodated without undue distraction or disruption” then the court can ban such conduct. Id. Live blogging continued in the criminal trial underlying this decision.

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C. Tips for covering courts in the jurisdiction

Requests for court records are not required to be in writing. Obtaining paper court records from court clerks can be very expensive. By statute, clerks are permitted to charge $1.00 per page. Ask for a copy to be emailed to you. The Florida Supreme Court Administrative Order AOSC 07-49 (In re: Revised Interim Policy on Electronic Release of Court Records) was addressed in 2015 to reflect extensions and procedures regarding certain county pilot programs related to electronic records. See AOSC 15-30.

All Administrative Orders can be viewed at http://www.floridasupremecourt.org/clerk/adminorders/index.shtml. Administrative Orders are open to the public and are also posted on each court’s website.

Administrative orders and customary practices often vary by circuit. Information on each of the courts in Florida can be found at www.flcourts.org.

Contact the respective court’s administrator’s office and the relevant judicial assistant prior to setting up cameras. Some circuits employ media specialists.

When present in person, journalists should rise and orally object in open court to the closure of proceedings and request that the court recess briefly to enable the journalist to contact counsel. Otherwise, counsel should be contacted immediately when the media becomes aware of a closure so that the court may be made aware of the objection on an expedited basis. If the circumstances permit, a written response to any closure motion and/or a motion to intervene may be filed. Some courts will permit oral arguments only.

Florida’s court system is divided primarily into four levels: county courts, circuit courts, district courts of appeal and the Florida Supreme Court.

County courts are trial courts of limited jurisdiction. County courts have general jurisdiction over actions at law in which the amount at issue does not exceed $15,000. County courts also have jurisdiction over small claims, criminal traffic cases, misdemeanor cases, cases involving violations of county and municipal ordinances, limited types of dissolution cases, and most landlord and tenant actions.

Circuit courts are Florida’s trial courts of general jurisdiction. Circuit courts have exclusive original jurisdiction over cases in which the amount at issue exceeds $15,000, not including interest and costs. The circuit courts also have jurisdiction over probate matters, domestic relations cases, juvenile matters, criminal felony cases, competency cases, and all cases in equity. Circuit courts also act as appellate courts for county courts.

The five District Courts of Appeal have jurisdiction to hear appeals that may be taken as a matter of right from final judgments or orders of trial courts which are not directly appealable to the Florida Supreme Court or a circuit court.

The Florida Supreme Court must consider appeals from trial court final judgments imposing the death penalty and orders in bond validation proceedings. The Florida Supreme Court must also hear district court decisions which declare a state statute or provision of Florida’s Constitution invalid, as well as rulings by public service commissions regarding electric, gas, or telephone rates or service. The Florida Supreme Court may also review decisions of district courts in a variety of circumstances including questions certified by the district court as a question of great public importance, among other things.

Contact the respective clerk’s office for the court in which the proceeding took place for individual fees related to transcripts of court proceedings. Fees are also usually listed on each individual court’s website. The cost for paper copies will vary based on the length of the transcript.

Regarding high-profile cases, check local rules and administrative orders for that court. Links to Florida court websites, including the local rules for each court, can be found at www.flcourts.org. Many, if not all courts, including appellate courts and the Florida Supreme Court have administrative rules for access to high profile cases. Most will also have a court contact person, such as a public information officer to contact regarding the proceedings. Check the applicable court’s website for further information. If a case has been designated as a high profile case by the chief judge, court records in the case will be posted online. You can ask for such a designation as well.

The best place to find decorum tips is in the local court’s rules and administrative orders found on each circuit’s website. You can browse and search for each individual Florida court website at www.flcourts.org. Cellphones should be turned off or silenced prior to entering the courtroom or chambers. Items such as laptops may be permitted as long as it does not cause disturbance. Cellphones must be checked upon entering the Florida Supreme Court building. In certain federal buildings, cellphones are not permitted by anyone other than licensed Florida Bar attorneys and staff.

If you want access to a particular proceeding, it may be helpful to contact the local public information officer and/or the judicial assistant for the presiding judge. This allows the court to hold the hearing in the courtroom rather than in chambers if there is a need for additional space to accommodate your presence. It is typical practice for journalists to notify the presiding judge and/or the court administrator or court media specialist to make arrangements for camera coverage. The list of current judges and their staff is commonly located on the website of each specific court.

General information and directives for each Florida court can be found at www.flcourts.org. The Florida Bar Reporter’s Handbook is a good additional resource regarding the operation of Florida’s courts. Additionally, the Government-in-the-Sunshine Manual is a reference for compliance with Florida’s Public Records and Open Meetings Laws and contains some information on access to court records. That manual can be located online. The 2017 Manual can be found at http://myfloridalegal.com/webfiles.nsf/WF/MNOS-AXJGEU/$file/2018+Government+in+the+Sunshine+Manual.pdf. The website affiliated with the Florida Attorney General can also be a helpful resource, found at http://www.myflsunshine.com.

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