Closed Case?

Closed Case?

Florida Supreme Court Chief Justice Harry Lee Anstead shuts down the flow of judicial records over the Internet.

By Sean Roth

Real Estate Editor

Users of public information in Sarasota and Manatee counties have had it as good or better than other areas of the state and nation. Both R.B. "Chips" Shore, clerk of Court of Manatee County, and Karen Rushing, clerk of Court for Sarasota County, are progressives who've used the Internet to make judicial records available worldwide. Unfortunately, on March 1 that came to an end.

Online court records have been under attack for several years primarily because of concerns that the easy availability of the records could lead to abuse. The writing was on the wall in early 2002 when the Florida Judicial Management Council, an ad hoc committee charged with suggesting a policy on electronic court records, recommended a moratorium on electronic access.

In July, the Legislature, which had held its own independent study group, passed two bills that curtailed the display of official records on the Internet. One of the bills removed images of military discharges, death certificates and documents related to family, juvenile and probate law from any public Web site. The second law required court clerks to redact all financial (bank account, debit, charge and credit card numbers) and social security numbers from public records by Jan. 1, 2006, and upon request.

In response, both court clerks created subscription sites, in addition to their public sites, which allowed access documents that they were no longer allowed to display on a "publicly available" Web site.

In the November 2003 election, the public overwhelmingly approved Amendment 4 to the Florida constitution. That amendment requires that future exemptions to Florida's Sunshine Law - which requires that public records and meetings be open to the public - be approved by a two-thirds vote in both chambers of the Florida Legislature.

Later that month, Florida Chief Justice Harry Lee Anstead's administrative order decreed that no court record "be released in any electronic form by any Florida clerk of court" after Jan. 1, 2004. The order allowed exceptions for official records, attorneys of record, governmental agencies record-keeping, dockets, court calendars, traffic cases and records that have been manually inspected by the clerk of court or a deputy clerk of court. The order also created a select committee to develop a comprehensive policy.

The two local clerks kept their court record system live after the first of the year, citing the manually inspected clause in the administrative order. "We have trained our staff to examine each page of a court record irrespective of this court order," Rushing says of her office.

On Feb. 12, Anstead responded by amending his order. In the new order, the judge writes that the "manually inspected" exemption applies only to "solitarily and individually" requested records that are e-mailed. The order went into effect in March.

Prior to the March deadline, Shore said, "That pretty much shuts down everything. I am waiting for the attorneys to help me decide what I should do in response. It just saves so much money (for both the clerks and the public). I have no intentions of taking it off if I can avoid it."

But as the March 1 deadline approached no legal avenue appeared, and both clerks of court removed the court section of their public site and their separate subscriber Web site. Shore estimated that the change will cost his office about $100,000 a year, primarily in additional employee salaries. Rushing says she has not defined the exact cost of the additional burden.

"We are not sure yet what percentage of folks will have their needs met by a docket entry," she says. "Following the order, there are plenty of people complaining. I would hope that this committee would get to work quickly to resolve the unanswered questions."

In that respect, the amended order could not have come at a worse time. Revision 7 to Article 5 of the Florida constitution, which turns control of clerk and court funding over to the Legislature, has left both clerks budgets tighter than usual.

As for private businesses, the amended order is a mixed bag.

"I imagine that there will be entrepreneurs, who will gather information and sell it for a premium price," Rushing says. "That existed for many, many years prior to the Internet."

Pam Ricco, spokeswoman for the Florida Bankers Association, says that while the organization has not taken a position against the order, it is watching the situation. "We do have concerns that it could slow down the verification process," Ricco says. "We are keeping an eye on it."

The Sarasota Bar Association has not yet taken a position on the order.

Overall, the title industry has reacted the most vigorously of any of the businesses. Lee Huszagh, executive secretary/treasurer for the Florida Land Title Association, says the order will cause longer wait times for customers.

"I am not exactly sure what the economic impact is going to be," Huszagh says, "but it will definitely cost. I know it is going to slow the process up. It is simply not practical driving to a county (courthouse) that is four hundred miles away to prepare a document. We will probably wind up paying the clerks for access to whatever database they have available."

Huszagh says the industry will also likely hire businesses in each county to access the records.

"We have hired Fred Dudley, an attorney with Akerman Senterfitt (in Tallahassee)," Huszagh says. "We want to get a modification of the administrative order to allow business users access."

Dudley, who is also representing Shore's office, says he is considering several ways for his clients to challenge the order, but that there is no obvious rapid method of appeal. "A private citizen could demand access ... and then go to circuit court to sue that agency," Dudley say. "But that could then go to an appellate court and ultimately to the district court. That would take a minimum of three years. It would likely take closer to five to six years to be considered. There is also the possibility of appealing it to the entire court."

Another wrinkle has been the question of legality. "It appears that the Florida constitution gives the sole power to regulate public records to the Legislature," Dudley says. "Even if the (Florida) Supreme Court were to hear the challenge I'm not sure if they would be able to fix it. Violation of an administrative order could bring a potential contempt of court charge, (but this administrative order) is not punishable by any state statute that I know of. Who would even bring these charges? At the same time, I must say I am not going to advise anyone to ignore a court order."

"We are still researching our options," Shore says. "We have had other stakeholders contact us about joining us, specifically a couple of newspapers and the title industry. I have received numerous letters and e-mails regarding our taking images off. All those comments have been positive about continuing to give the public access to the images."