In courtrooms around Florida, proceedings are routinely captured electronically and later transcribed. Both the written transcriptions and the original sound recordings are valuable. But the Florida Bar as well as the chief judge of the Pinellas-Pasco circuit court, among others, want to put the electronic record out of reach of the public. Like nearly all attempts to shield public records, it's a bad idea. The Florida Supreme Court, which will hear the request on Monday, needs to reject it.
The proposed statewide rule mirrors one first implemented in Pinellas-Pasco circuit courts when Judge David Demers was chief judge. It would establish written transcripts as the only official record of court proceedings and would allow judges to bar release of audio recordings. Backing statewide adoption is the Commission on Trial Court Performance and Accountability, committees of the Florida Bar and current Pinellas-Pasco Chief Judge Robert Morris.
Supporters of the changes claim that electronic recordings of proceedings are "precursor" records used to create a final, official transcript and therefore shouldn't be subject to public records law. But it's not a persuasive argument. The recordings are the full record of what transpired in open court, and not just notes or first drafts, the classic definition of a precursor record.
Morris defends the proposed changes as a way to prevent private conversations between a defense attorney and his client or other idle courtroom chitchat from being publicly distributed. But the state's public defenders, who vehemently oppose the proposed rules, say that anything that happens in open court is presumed public, and the electronic capture of confidential communications is "very rare."
The reality is that audio versions of court proceedings are invaluable. They are often available for review within hours, while the written transcription of a hearing or trial can take days or weeks. Moreover, audio recordings are a fuller and more complete picture of the proceedings, since they allow a listener to discern a speaker's nuances, such as whether a lawyer or witness was being sarcastic or sincere.
At least one open records advocate, the nonprofit First Amendment Foundation, believes the proposed rule may run afoul of Florida's Constitution. All public records are considered open unless a specific state law — not an administrative rule — is passed to close them.
The decision before the Florida Supreme Court is not that different from one two years ago, when it stepped in to stop trial courts from removing sensitive divorce and civil cases from court dockets as a way to hide them. The high court said at the time that "the public's constitutional right of access to court records must remain inviolate." That's an excellent precedent for the court to reject this bad idea.