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Florida Supreme Court Issues Opinion on Access to Judicial Branch Records

On March 18, 2010, after 6 1/2 years of meetings by numerous Court and Bar committees, invitations to comment and oral argument, the FSC amended the Rules of Judicial Administration as they relate to public access to judicial branch records.  In case number SC07-2050, the court amended rule 2.420 to provide procedures for the clerks of court to identify a narrow set of records as confidential, procedures for sealing and unsealing court records, with special  procedures for criminal cases, and related appellate procedures.

Recognizing that not all judicial branch records should be made immediately available for public access, in its opinion the court defines the term "confidential," clarifies those records defined as confidential that may not be released except as provided in the rule or that are exempt from the right of public access under article I, section 24(a) of the Florida Constitution, and which may be released only to the persons or organizations designated by law, statute or court order.  The court also made clear that the restriction to access to confidential information will be implemented in a manner that does not restrict access to the portion of the record that is not confidential.

The supreme court also set forth procedures for the clerks of court to designate court records as confidential and limited some records that must be automatically designated confidential to a "finite set" of nineteen statutory exemptions as well as provided a mechanism for a file to seek judicial determination of confidentiality for those records not automatically designated confidential by the clerk.

One of the more important aspects of the amendment to rule 2.420 is the provisions for requesting a confidentiality determination for criminal trial and appellate records.  A new subdivision of the rule is intended to protect the identities of confidential informants and balances the established policy of protecting public disclosure of information that reveals the identity of a confidential informant or concerns an active criminal investigation with the public's constitutional right to access to court records. 

The court, in an effort to narrowly apply the more restrictive procedures that apply to confidential informants and active criminal investigations, plea agreements, and substantial assistance agreements, put in place a procedure that requires a requestor of confidentiality to file a motion with the trial court and the clerk to treat the motion as confidential pending a ruling on the motion.  To ensure the clerk is not creating "false" or "hidden or secret dockets," the motion must be shown on the clerk's docket by the generic title, "Motion to Determine Confidentiality of Court Records," as are other motions to seal trial court records filed under the rule. 

Finally, in addition to amending rule 2.420, the court amended rules 9.040 and 9.100 and created procedures for sealing appellate court records and for expedited rulings on motions made under the rule.

Prepared by:  Tom Bateman

tbateman@lawfla.com

Election Law Update

The Eleventh Circuit Court of Appeals reversed the determination of the United States District Court for the Southern District of Florida that Miami-Dade County Ordinance 06-167 was unconstitutional because it was overbroad on its face, vague and failed a strict scrutiny analysis.  Dermer v. Miami-Dade County, Case No. 08-15061 (11^th Cir. March 15, 2010). 

 

The Ordinance provides:

 

It shall be unlawful for any person, entity, or elector intentionally to make or cause to be made any false statement concerning the contents or effect of any petition for initiative, referendum, or recall submitted pursuant to Article 7 of the Miami-Dade County Home Rule Charter to any person who is requested to sign any such petition or who makes an inquiry with reference to any such petition and who relies on such statement.

 

The Eleventh Circuit noted that the complainant “failed to provide the court anything more than generalizations.”

 

He refrained from submitting any detail, such as where, when, or how he intends to exercise his right to free speech in the future, that illuminates the specifics of his claimed injury.  Without such elaboration, his mere assertion of a chill is insufficient to demonstrate an injury in fact.

 

Slip opinion p. 6. Consequently, the Court concluded that the complainant lacked standing to bring the action and that the cause of action was not yet ripe for adjudication.  The remanded the case with instructions to dismiss the complaint for lack or subject matter jurisdiction.

 

Prepared by:    Mark Herron

    mherron@lawfla.com

Election Law Update

Election Law: Determining “Willfulness”

 

In order for the Florida Elections Commission to have jurisdiction to impose sanctions for violations of Florida’s elections laws, it must determine that the alleged violation involved either “the willful performance of an act prohibited by [chapter 106] or chapter 104 of the willful failure to perform an act required by [chapter 106] or chapter 104.”  See Section 106.25(3), Florida Statutes.

 

Prior to January 1, 2008, what constituted a “willful” violation was statutorily defined. See Section 106.37, Florida Statutes.  Subsequent to the repeal of Section 106.37, the Florida Elections Commission promulgated a rule – Rule 2B-1.002, Florida Administrative Code – which defined “willfulness” in essentially the same terms as the repealed statutory provision. 

 

In a challenge to the validity of the rule, an administrative law judge declared that Rule 2B-1.002, Florida Administrative Code, was “an invalid exercise of delegated legislative authority,” because in promulgating the rule, the FEC exceeded delegated legislative authority and the rule enlarges, modifies, or contravenes the specific provisions of law being implemented. Blair v. Florida Elections Commission, Case No. 09-4732RX (DOAH Final Order March 8, 2010).

 

Posted by:  Mark Herron

    mherron@lawfla.com

First District Court of Appeal Update

Government-in-the-Sunshine

 

“[N]othing in this decision gives the public the right to be more than spectators.”  Wood v. Marston, 443 So. 2d 934, 937 (Fla. 1983). 

 

Relying on this language, which it concedes is dicta, the First District Court of Appeal held that the phrase, “open to the public,” in Florida’s government-in-the-sunshine law, Section 286.011(1), Florida Statutes, did not grant the public the right to speak at a public hearing.  Kessler v. Community Maritime Park Associates, Inc., Case No. 1D09-1695 (Fla. 1st DCA March 10, 2010, which can be found here.

 

Rather, the Court concluded that the remedy sought – the right to speak at a public hearing of a not-for-profit corporation charged by the City of Pensacola with overseeing the development of a parcel of public waterfront property – “is more appropriately left to the legislative process or the local public officials to whom the … board members are accountable.” Slip opinion at p. 4.

 

Prepared by:    Mark Herron

    mherron@lawfla.com