A new policy on sealing data

 

pdanner@miamiherald.com

The Broward court clerk's office will soon require judges who order cases sealed to spell out precisely the types of information they don't want the public to see.

The new policy from clerk Howard Forman follows last month's findings by The Miami Herald that more than 100 lawsuits since 2001 are being hidden on a secret docket in Broward Circuit Court.

"Essentially we'll be seeking clarification from the judges if their orders to seal or make cases confidential aren't clear, " said the clerks' general counsel, Vanessa Steinerts.

Open courts are basic to the American legal system. Yet some Broward cases have been removed from the public docket and don't appear to exist because all mention of them is erased. Even case numbers are secret.

No state law or rule authorizes judges to put cases on a secret docket. And a federal appeals court with authority over Florida has said the practice is unconstitutional.

MISINTERPRETED ORDERS

Some Broward judges have said they did not intend to make entire cases disappear, just to seal off certain sensitive information. Chief Judge Dale Ross said Forman's staff might have misinterpreted court orders.

Forman, the elected custodian of court records in Broward, has acknowledged no mistakes. And his policy memo noted that Broward clerks have used a secret docket "for many years" without any judge objecting.

Still, Forman said he'll act to make sure there are no future misunderstandings about the intentions of judges.

At the same time, Forman denied The Miami Herald's public records request for a list of every civil case not available for public inspection. Forman said in an interview that it would be "presumptuous on my part" to release information made confidential by a judge's order.

The newspaper intends to file suit next week to obtain the docket records.

"We believe that our democratic system works best when everyone has access to the actions taken by our governments and our courts, " said Herald publisher Jesus Diaz Jr.

"It is The Miami Herald's duty to facilitate access to such information for the benefit of our readers. In the majority of cases, we work with governments and the courts to obtain needed information. But in those rare instances when we believe that our right to information necessary to inform the public is being blocked, we will resort to legal action, as we have unfortunately had to do in this particular case, " Diaz said.

Under Forman's new policy, clerks will follow "specific direction" from judges about whether "the physical case file should be sealed in whole or in part, and whether the case number, party names and docket information are intended to be displayed to the public or removed from public view."

If judges aren't specific, they'll be sent a form to fill out "to clarify" their intentions, according to Forman's policy memo.

'MOST APPROPRIATE'

Chief Judge Ross, in a memo to Forman, called the clerk's procedure "most appropriate. But I think the case law requires that there be some indication made as to the existence of a case(s)."

Cases previously "supersealed" - or removed from the public docket - by a judge's order would remain hidden under Forman's new policy.

So would thousands of other family law cases, like adoptions, that are now routinely supersealed under the clerk's blanket interpretation of the confidentiality requirements of state law.

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