Privacy and court records – Committee seeks public input

May 31, 2005

This op-ed appeared May 31 in the Tampa Tribune, St. Petersburg Times, Ft. Lauderdale Sun-Sentinel and other Florida newspapers.

By: Jon Mills
Jon Mills is Dean Emeritus of the University of Florida Levin College of Law, Professor of Law, Director of the Center for Governmental Responsibility, and served as Dean from 1999 to 2003. He was Speaker of the Florida House (1987-88).

As anyone who has followed recent news stories knows, the Internet has created a major clash between fundamental democratic values of open government and personal privacy – a clash only enhanced by its capacity to make information in Miami instantly available in Tokyo.

One view of the Internet’s impact was expressed by Scott McNealy, CEO of Sun Microsystems. He said, “You have zero privacy anyway, get over it.”

Many Floridians do not accept that response. For over a year, a Florida Supreme Court committee has sought to come up with a better answer in one very important area: Internet availability of public court records.

We have some initial recommendations. Now, we want to know what you think.

How do we balance the competing values of privacy and openness? The Internet makes possible greater openness, so indispensable to good government, and allows for greater convenience in accessing government services, including court records. However, such technology also places the privacy of Floridians at risk.

Should you be able to read court records over the Internet, avoiding trips to the courthouse and copy charges through use of the same technologies already widely deployed by banks, online retailers and private sector institutions?

Should others be able to access court records about your cases? Should government be allowed to take personal information from you, then give or sell that information to commercial data companies that compile detailed portfolios about consumers?

The issue of privacy of information has gotten a lot of attention recently. In February, ChoicePoint, Inc., the nation’s largest dealer of personal information, revealed that it sold the information portfolios of 145,000 people to a group of alleged identity thieves.

Over 10,000 Floridians were among those whose information was divulged. You may be one.

Many Floridians were shocked to learn detailed dossiers had been created about them. What everyone learned from the ChoicePoint debacle, and the Bank of America, Lexis-Nexis, and Time-Life revelations that followed, is that we are not protected. Technology and commerce are outpacing the law and public policy.

Government files are also a prime source of information collected by companies like ChoicePoint. State and local agencies and courts collect a wide range of information in the process of providing government services, from drivers’ licenses to building permits to probate of estates. Most of this information is open, and new information technologies make it possible for private entities to acquire it at little or no cost.

Florida’s reputation for open government is well deserved. We are the Sunshine State, not just because of our climate, but because of our abiding commitment to open government, codified in the Sunshine Amendment to the Florida Constitution.

Open records facilitate transparency in government. Transparency supports accountability in decision-making. Accountability improves responsiveness and performance.

Access to court records allows us all to decide for ourselves whether judges are administering justice fairly and consistent with the law. That public right distinguishes us from many other court systems in the world. To be sure, the constitution does not require electronic access to records, only that access be provided at the courthouse, but electronic access clearly would advance the cause of open government.

The Committee on Privacy and Court Records recognizes the great value in open government, and so plans to recommend that appropriate court records be accessible on the Internet. But the matter is far from closed. Here’s where we are now:

• A majority of the Committee supports a recommendation to publish non-confidential court records to the Internet. Some members strongly disagree.
• There is unanimity that this openness be balanced with a cautious set policies designed to protect privacy.
• Before records can be released electronically a number of precautionary measures must be taken by lawyers, clerks of court and judges to protect confidential information and to prevent unnecessary information from coming into court files to begin with.
• The Committee also proposes that, at least for now, records in juvenile, family and probate cases should not be released in electronic form.

Florida is an open state but also a state that recognizes privacy rights in our Constitution. The Committee’s proposals are an effort to strike a balance.
The Committee also recognizes that the problem of information privacy extends far beyond policies about court records. The legislative branches of state and federal government – the Florida Legislature and the United State Congress – have significant power to protect citizens and to set limits on the commercial exchange of personal information.

If citizens agree or disagree, they must make their voices heard.

The draft report and recommendations are available at the Florida Supreme Court Website at www.flcourts.org. Residents who care about the issues of open government and informational privacy may read the report, then provide input directly to the Committee before it finalizes its work. We encourage public comments through June 3, but will accept any comments until the report is finalized. As Chair of the Committee I urge anyone to comment, and I assure you we will consider all input seriously.