The drive to open up the work of Florida government has picked up a peculiar opponent. The same judges who preside over the public's right to know now want people to know a little less about the court.
As State Supreme Court Chief Justice Leander Shaw lobbies lawmakers to exempt the judiciary from a proposed constitutional amendment on open records, he and other members of the legal community threaten to unravel a package of reform that was prompted by the high court's own action. When the court declared in November the public has no constitutional right to see records of agencies that weren't created by the Legislature, it invited a constitutional remedy. The one it got, which includes a defined public right to legislative, administrative and judicial records, is a responsible reaction by a citizenry that deserves to monitor the work of its government.
While Shaw may have a point about access to court papers in pending cases, even Attorney General Bob Butterworth's office is ready to grant that exception. Language prepared by Deputy Attorney General Pete Antonacci declares that: "Nothing herein shall be construed to abrogate the authority of a trial or appellate court to control access to proceedings and records before it in a pending adjudicatory matter when necessary to preserve the fair, impartial and orderly administration of justice." What more do the judges want? To hide court policy memos? Judicial appointee information? Financial records?
Unfortunately, the court system is not immune to the kind of influences that are poisonous to the other branches of government. Seventeen years ago, two Supreme Court justices were chased from the court in a scandal that was uncovered, in part, by the leak of an internal court memorandum. In Hillsborough County, reporters from this newspaper were able to uncover abuse in the sealing of criminal records, in part using documents that court officials now say should not be constitutionally defined as public.
The potential for abuse aside, court officers need to recognize the power of the judiciary and the greater interests of justice that are served by opening up the process. While judges may not be used to people looking over their shoulders, they need to appreciate the value in it. And they need to learn to accept change. That refusal to change is clear within the Florida Bar, which ought to be representing its public clients but instead is using its legal clout to represent the status quo.
Antonacci, a member of the Bar himself, sees the incongruity: "Our best posture as lawyers is to shout to the world that we don't have anything to hide. Anything less than that does not serve the interests of justice."
Anything less also threatens to undermine the amendment that is now before the House of Representatives. Already, House attorney Tom Tedcastle is reacting to the pleas from judges and lawyers with the me-too approach: "If judicial gets it (exemption), the Legislature should get to do it." And the Senate has carved out a generous legislative exemption for "constituent mail." In a Legislature that includes far too many lawmakers who get indignant about sharing their records with the people who elect them, it is not hard to see what might happen. As the court continues to apply pressure, the potential for mischief is great.
Ultimately, the people to whom all branches of government must answer _ the public _ may end up having to resolve these questions themselves. If the judges and lawmakers can't put together an amendment that fairly opens up their work, Butterworth and public interest groups are ready to propose one themselves. People who must gather petitions to make their government more responsive are not likely to be so amused by games of official hide-and-seek.