NEWS MEDIA UPDATE · FLORIDA · Secret Courts · April 10, 2007
State Supreme Court bans ‘super-sealing’ of cases
April 10, 2007 · The Florida Supreme Court issued an opinion last week prohibiting the removal of noncriminal cases from the public docket and changing the rules for sealing noncriminal court records.
The suggested changes stem from articles in The Miami Herald last year, which reported that more than 100 civil cases and an unknown number of criminal cases were not on public dockets in Broward Circuit Court since 1989.
Some of these involved prominent figures such as politicians, judges and police officers. Similar instances of disappearing cases have been found in courts in other Florida counties, including Palm Beach, Hillsborough, Sarasota, Pinellas and Pasco.
At the request of the Supreme Court, a Florida Bar committee studied the matter and filed a report proposing procedures for sealing court records.
On Thursday, the court issued an opinion announcing the adoption of amendments to the rules regarding the sealing of noncriminal trial court records.
The amendments address noncriminal records at the circuit and county court level. In its opinion, the court ordered the appropriate committees to study the issue of the sealing of criminal and appellate records.
“It’s a positive step towards getting statewide uniformity in what has to be done to seal judicial records,” said Scott Ponce, a media lawyer in Miami.
Under the amended rules, the case number, docket number, or other identifying number of a case cannot be made confidential, which means that the removal from public view of all information acknowledging the existence of a case is expressly not allowed.
This bans the practice known as “super-sealing,” where some cases had not only court records but also docket listings sealed, thus wiping the existence of the cases from public record.
The amended rules also mandate that a request to make court records in noncriminal cases confidential must be made by written motion. A public hearing must be held on any contested sealing motion and may be held on certain uncontested sealing motions.
Furthermore, a sealing order issued by a court must state with specificity the grounds for sealing and the findings of the court that justify sealing, and all sealing orders must be published to the public.
An outside party may file a motion to vacate a sealing order. A public hearing must be held on any contested motion to vacate a sealing order and may be held on certain uncontested motions to vacate.
In an attempt to curtail the number of sealing requests that are not legally justifiable, the court ruled that a court may impose sanctions on any party who files a sealing motion without a good-faith basis and without a sound factual and legal basis.
Florida media organizations had argued that the proponent of closure should bear the burden of establishing the propriety of closure in all such proceedings, including in any subsequent proceedings to vacate closure orders.
The Florida Bar committee disagreed, and the Supreme Court sided with the committee, writing that “it is reasonable to accord such an order a presumption of correctness and to require that the movant seeking to vacate such an order bear the burden of showing that the order is unsound.”
Additionally, prior notice before closure is not required — nor is a hearing in an uncontested motion to seal.
However, closure orders must be posted, and members of the public, including the press, then have the opportunity to challenge the sealing.
“As lawyers for the media, we’d like to have prior notice anytime anyone seeks closure to allow us to evaluate whether it is something we want to challenge,” Ponce said. “We didn’t get that, but we did get other safeguards to make sure that if something is sealed without prior notice that we do have the opportunity after closure to challenge that.”
The court praised the media for spotlighting the sealings, writing in the opinion: “This Court would never have learned of the concerns we seek to address here had it not been for the media. For that, Florida’s media are to be commended . . . . The free press has shown its value to the people of Florida by helping the judiciary identify and quickly correct unintended practices that tended to undermine public trust and confidence in our courts.”
(In re: Amendments to Florida Rule of Judicial Administration 2.420 — Sealing of Court Records and Dockets) — CS