New rule causing delays in viewing public court files

Associated PressMarch 10, 2013 

ORLANDO -- It seems like a reasonable idea: before the records in a criminal or civil case can be made public, Florida's clerks of court must purge them of all Social Security, credit card and bank numbers.

But in many of the state's 67 counties, that task has caused delays in the release of records that are available to the public under Florida's public records laws.

Even though many records lack such information, every file has to be screened to make sure they are free of personal information under a new law that went into effect last year.

Delays in getting the court records can prevent infor-mation about cases from being released in a timely manner. This is important not only to the media,

but to individuals and businesses that need quick access to cases they wish to learn about.

The Associated Press and newspapers throughout the state visited every county's clerk of court offices in recent weeks to see whether each is complying with the law and how much of a delay it is causing in the release of information. The project, under the direction of the Florida Society of News Editors, was done in conjunction with this year's Sunshine Week, an annual initiative starting Sunday to promote greater transparency in government. In order to test the effect of the new requirement, representatives from 31 news organizations requested to view the hard copies of two civil cases and two criminal cases in all 67 counties. The criminal cases were generally a week old and six months old, as were the civil cases. Requests for 268 records were made.

A reporter who went to the the Manatee County Clerk of Courts office was told she could not view the physical files because Manatee County fully implemented an electronic system in 2008. The reporter, who did not identify herself as such, was directed to a room of computer terminals to access and print public records. An assistant was available to answer any questions.

Judges and attorneys use the electronic system to view and submit documents. The public can also access the system by subscribing on their personal devices. The system allows court cases to be searched by name, file type, date and case number.

A majority of documents are redacted before being uploaded to the database. Some are categorized as "viewable on request." Those documents can be requested online and an alert is sent to the email account of the person requesting the documents when they can be viewed.

The Herald reporter had to request documents on three of four cases. A three-day eviction notice and lease contract was not immediately available on an eviction case filed Feb. 5. Several documents, including complaint exhibits and a motion for final summary judgement of foreclosure, was unavailable on a county foreclosure case from Aug. 15, 2012. An application for criminal indigent status was not readily available on a burglary case from Aug. 15, 2012. All documents were ready to be viewed in a possession of controlled substance case filed Feb. 7, 2013.

All of the "viewable on request" documents became available within 45 minutes, giving a clerk's employee time to review the document for any necessary redaction. Few documents, by law, remain confidential.

Overall, the news organizations found:

n In just over half of the counties, there was a delay in retrieving the records -- whether it was because personal information needed to be redacted, because the file wasn't yet in the clerk's office or because the file couldn't be found.

n The need to review and redact a file of personal information led to some kind of delay in more than a fifth of the total records requested by the news organizations.

n Of the 61 files that required some kind of personal information removed, the delay was a day or more in almost two-thirds of the cases. In four cases, the delay was three days.

n In seven cases, no answer was given about how long it would take to remove the personal information, or a tester was told she would be contacted by the clerks' office when the redacting was finished but was never contacted.

n In other cases, court records couldn't be retrieved because a deputy clerk was out with a sick child, a clerk's office employee said she was too busy to retrieve them and, six times, computer problems prevented the records from being looked up electronically.

n The testers were asked to identify themselves in 18 counties, even though that is not required under state law -- the records are supposed to be available to anyone.

Although Florida's public records laws don't spell out how long it should take to retrieve a record, the courts have ruled that a record should be produced in no more time than it takes to retrieve the record and review and redact exempt information, said attorney Jon Kaney, who has chaired the Florida Bar's media law committee.

"So the reasonable time to review a document looking for exempt numbers ordinarily should be a matter of hours not days," Kaney said. "There is no allowance in the right of access for 'getting around to it.' The duty to provide access to records is equal in dignity to any other duty of a records custodian."

The mandate that personal information be removed from court records went into effect last year during a period of major transition for court clerk offices statewide. The 67 clerks of courts are required to convert to an electronic system by the end of this year and the clerks offices are in various stages of meeting that goal. The redaction requirement was added to Florida's public records to protect privacy as files become available electronically and more easily shared.

"I think there are still growing pains here," said Jon Mills, a University of Florida law professor and former Florida House speaker. "The removal of personal information, things like Social Security and other things, we always knew that was going to be important, and not necessarily easy."

In most cases where retrieval was delayed, the reason was personal information needed to be redacted. But in Wakulla County in the Panhandle, two criminal files couldn't be retrieved because they were in the office of the deputy clerk, who was out with a sick child.

In Hardee County, computers that were meant for members of the public to view files electronically only showed the cases' dockets -- the list of documents filed -- but didn't provide access to actual documents. An employee, in an attempt to assist, tried finding the documents on her computer behind the counter but was unable to get them. The media representative was told he could view the hard copies since the electronic versions were unavailable, even though he had been told only minutes before that he couldn't view hard copies unless he was an attorney in the case.

In the 31 counties where there was no delay, hard copies were available in 20 counties and the cases could only be viewed electronically by computers in the clerks' offices in the other 11. The counties where hard copies were available tended to be in rural counties where cases only could be viewed electronically tended to be in larger counties in central Florida and along the Gulf Coast.

As the clerks' offices transition from paper to electronic, many offer members of the public the ability to review both hard copies and electronic files. In Lake County, recently redacted cases can be retrieved electronically without delay on the offices' computers. But retrieving hard copies took one day for civil files and three days for criminal files as deputy clerks needed time to remove personal information.

Lake County Clerk of the Circuit Court Neil Kelly said the conversion to an electronic system eventually will speed up the time it takes to redact personal information.

"As time goes on, the old (unredacted) files become less in demand," Kelly said. "Over time, everything will be electronic and it will be redacted as it goes through."

The clerks weren't given any extra money to comply with the redaction requirement.

About $1.3 million was spent on redaction software in the Orange County Clerk of Courts Office, where the four court files were obtained electronically without any delay by the news organizations' representative.

It has been a greater headache at a time of major budget cuts in smaller counties. The Walton County Clerk of Courts Office spent $54,000 on software that only redacts the personal numbers. A staff member still must go through a file that needs redacting to make sure that other information, such as the names of juveniles or confidential informants, isn't included in the file. Documents aren't automatically reviewed for redacting information when a file is created because prosecutors and public defenders need to see the unedited file, said Linda Warren, director of court services at the Walton County Clerk of Courts Office.

When a public records request is made, staff members must retrieve the files from the records department, make copies, read through them, cross out sensitive information and then put the redacted version in the hard file. The redacted version is then reviewed by a supervisor.

When the member of the public is done viewing it under the observation of a staff member, the redacted version is shredded and the original copy is returned to the file, Warren said.

"It's a big burden," Warren said. "There is no choice but to redact after the fact."

The redaction usually only takes a few hours, Warren said, but the experience of the media representative was quite different. She was told to leave her phone number and she would be contacted when the files were available. She never was.

When questioned about that, Warren said a review showed the worker who had helped the media representative that day had been filling-in since there was a shortage of workers.

-- Herald reporterElizabeth Johnsoncontributed to this story.

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