[*] Staff, Florida House of Representatives, Committee on Governmental Operations; B.A., 1970, Florida State University; M.Ed., University of Florida, 1973; Ph.D., University of Florida, 1979; J.D. with high honors, Florida State University, 1987. Return to text.

[1] See Fla. HB 1739 (1995); Fla. HB 1295 (1996); Fla. HB 39 (1997). These bills generally provided that except for instruments recorded in the Official Records, a clerk is to charge 15 cents per one-sided page for copying public records not more than 14 inches by 81/2 inches. Return to text.

[2] See Act effective June 3, 1994, ch. 94-348, 5, 1994 Fla. Laws 2487, 2489 (amending FLA. STAT. 28.24 (1993)). Return to text.

[3] See generally discussion infra Part III. Return to text.

[4] 675 So. 2d 674 (Fla. 4th DCA 1996). Return to text.

[5] See id. at 675. Return to text.

[6] See id. at 676; see also discussion infra Part III. Return to text.

[7] 660 So. 2d 255 (Fla. 1995); see also discussion infra Part IV. Return to text.

[8] See FLA. STAT. ch. 28 (1997). Return to text.

[9] See id. 28.222. Return to text.

[10] Id. 28.001(1). Return to text.

[11] See id. 28.222. Return to text.

[12] See id. 28.222(3)(a). Return to text.

[13] See id. 28.222(3). Return to text.

[14] See id. 28.24. Return to text.

[15] Id. 28.24(8)(a) (emphasis added). Return to text.

[16] Act effective July 1, 1963, ch. 63-45, 1, 1963 Fla. Laws 87, 88 (amending FLA. STAT. 28.24 (1961)) (emphasis added). Return to text.

[17] Act effective Aug. 1, 1970, ch. 70-134, 5, 1970 Fla. Laws 459, 461 (amending FLA. STAT. 28.24 (1969)) (emphasis added). Return to text.

[18] 85-80 Fla. Op. Att'y Gen. 227, 228 (1985) (emphasis added). Return to text.

[19] Id. at 230. Return to text.

[20] 91-76 Fla. Op. Att'y Gen. 237, 237 (1991). Return to text.

[21] See id. at 240. Return to text.

[22] See Act effective June 3, 1994, ch. 94-348, 1994 Fla. Laws 2487 (amending FLA. STAT 28.001(1) (1993)). Return to text.

[23] FLA. STAT 28.001(1) (1997). Return to text.

[24] Id. 28.001(2). Return to text.

[25] Id. 119.011(1) (emphasis added). Return to text.

[26] See supra text accompanying note 25; FLA. STAT. 28.001(2) (1997). Return to text.

[27] FLA. STAT. 119.011(1) (1997) (emphasis added). Return to text.

[28] See Locke v. Hawkes, 595 So. 2d 32, 36 (Fla. 1992); see also infra text accompanying notes 71-78. Return to text.

[29] See Haynie v. Carlton, No. 95-2247 (Fla. 9th Cir. Ct. Nov. 29, 1995). The Haynie court found that "the more specific statute establishing a schedule of fees which must be charged by the Clerk for certain services does not apply to the copying of judicial records." Id. at 3 (citations omitted). The court also noted that section 28.001(2), Florida Statutes, defines public records in relation to agency records under section 119.011. See id. Return to text.

[30] The author was the House Committee on Governmental Operations analyst on House Bill 2481 and was privy to committee and floor discussions, as well as discussions with those who sponsored the legislation. To the author's knowledge, no representations were made that this legislation would result in increased fees. In fact, representations were made that there would be no fiscal impact as a result of these provisions. See also Fla. H.R. Comm. on Govtl. Ops., HB 2481 (1994) Staff Analysis 1 (Apr. 15, 1994) (on file with comm.). Return to text.

[31] See FLA. CONST. art. I, 24. Return to text.

[32] See 94-60 Fla. Op. Att'y Gen. 170 (1994). The Attorney General stated that "[i]n addition to defining the terms 'Official records' and 'Public records' . . . Chapter 94-348 addresses a number of issues relating to the operation of the clerk's office. In light of the above constitutional mandate, the Legislature may have inadvertently rendered the act vulnerable to attack." Id. at 171. Return to text.

[33] Id. at 170-71. Return to text.

[34] Id. at 173. Return to text.

[35] See id. Return to text.

[36] Id. Return to text.

[37] Id. Return to text.

[38] 675 So. 2d 674 (Fla. 4th DCA 1996). Return to text.

[39] See id. at 675. Return to text.

[40] See id. Return to text.

[41] See id.; see also FLA. STAT. 28.24(8)(a) (1997). Return to text.

[42] See WFTV, 675 So. 2d at 678. Return to text.

[43] See id. at 679. Return to text.

[44] See id. at 677. Return to text.

[45] FLA. STAT. 119.07(1)(a) (1997). Return to text.

[46] 660 So. 2d 255 (Fla. 1995). Return to text.

[47] Id. at 257 (emphasis added). Return to text.

[48] WFTV, 675 So. 2d at 676. Return to text.

[49] See Fuller v. State ex rel. O'Donnell, 154 Fla. 368, 370, 17 So. 2d 607, 608 (1944); see also infra text accompanying notes 111-14. Return to text.

[50] WFTV, 675 So. 2d at 675-76 n.1. Return to text.

[51] If state constitutional provisions are ignored, there are federal constitutional provisions protecting access to judicial records. See Applications of NBC, Inc. v. Presser, 828 F.2d 340, 345 (6th Cir. 1987) (asserting that there is a First Amendment right of access to documents and records pertaining to court proceedings); Oregonian Publ'g Co. v. United States, 920 F.2d 1462, 1465 (9th Cir. 1990) (holding that there is a qualified First Amendment right of access to court proceedings and documents); Sentinel Communications v. Watts, 936 F.2d 1189, 1205 (11th Cir. 1991) (stating that "[t]he government may not profit by imposing licensing or permit fees on the exercise of first amendment rights . . . and is prohibited from raising revenue under the guise of defraying its administrative costs"). Return to text.

[52] 633 So. 2d 1 (Fla. 1993). Return to text.

[53] WFTV, 675 So. 2d at 676. Return to text.

[54] See Roesch, 633 So. 2d at 1. Return to text.

[55] See id. Return to text.

[56] See id. Return to text.

[57] See id. at 2. Return to text.

[58] FLA. STAT. 119.07(1)(a) (Supp. 1990). Return to text.

[59] See Act effective May 28, 1991, ch. 91-130, 1, 1991 Fla. Laws 1305, 1305-06 (amending FLA. STAT. 119.07(1)(a) (1989)). Return to text.

[60] FLA. STAT. 119.07(1)(a) (1997) (emphasis added). Return to text.

[61] 588 So. 2d 4 (Fla. 2d DCA 1991). Return to text.

[62] Id. at 5. Return to text.

[63] See FLA. CONST. art I, 24 (effective July 1, 1993). Return to text.

[64] See id. Return to text.

[65] 660 So. 2d 255 (Fla. 1995). Return to text.

[66] See id. at 255. Return to text.

[67] Id. at 256 (footnote omitted). Return to text.

[68] See FLA. R. JUD. ADMIN. 2.051. Return to text.

[69] See id. Return to text.

[70] See id. The WFTV court determined that "[i]n adopting the comprehensive provisions of [R]ule 2.051 governing access to court records, our supreme court did not adopt any provisions dealing with the costs to be charged to obtain copies of those records." WFTV, Inc. v. Wilken, 675 So. 2d 674, 676 (Fla. 4th DCA 1996). There are those, however, who would argue that Rule 2.051 does indirectly address fees for judicial records. Rule 2.051 provides that "[r]equests and responses to requests for access to public records under this rule shall be made in a reasonable manner." FLA. R. JUD. ADMIN. 2.051. The court in Haynie v. Carlton reasoned that Rule 2.051 simply requires a reasonable fee for copying court records. See Haynie v. Carlton, No. 95-2247 (Fla. 9th Cir. Ct. Nov. 29, 1995). Return to text.

[71] See Ake, 660 So. 2d at 256. Return to text.

[72] See id. Return to text.

[73] Id. at 255. Return to text.

[74] FLA. STAT. 119.12 (1997) (emphasis added). Return to text.

[75] Id. 119.011(2). Return to text.

[76] See Ake, 660 So. 2d at 257. Return to text.

[77] See Times Publ'g Co. v. Ake, 645 So. 2d 1003, 1005 (Fla. 2d DCA 1994). Return to text.

[78] Id. at 1004. The Second District Court referred to the judicial branch as a "co-equal" branch of government and cited the Florida Constitution in support of that proposition. See id. Contrary to those assertions, the Florida Constitution does not state that the three branches of government are "co-equal." It simply divides state government into three branches. As to the federal government, our founding fathers noted the disparity in the three branches of government, or as they called them, the three departments of government. Madison noted that "[t]he legislative department derives a superiority in our governments . . . . As the legislative department alone has access to the pockets of the people . . . and in all, a prevailing influence over the pecuniary rewards of those who fill the other departments." THE FEDERALIST NO. 48 (James Madison). However, "it is not possible to give to each department an equal power of self-defence. In republican government the legislative authority, necessarily, predominates." THE FEDERALIST NO. 51 (James Madison). Hamilton also acknowledged the non-equal status of the branches of government:

The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary on the contrary has no influence over either the sword or the purse, no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither Force nor Will but merely judgment . . . . It proves incontestibly that the judiciary is beyond comparison the weakest of the three departments . . . .
THE FEDERALIST NO. 78 (Alexander Hamilton). Return to text.

[79] Ake, 660 So. 2d at 255. Return to text.

[80] See id. at 257. Return to text.

[81] Id. (emphasis added). Return to text.

[82] FLA. STAT. 119.085 (1997) (emphasis added). Return to text.

[83] See id. Return to text.

[84] See discussion infra Part V.C. Return to text.

[85] Times Publ'g Co. v. Ake, 645 So. 2d 1003, 1005 (Fla. 2d DCA 1994) (emphasis added). Return to text.

[86] FLA. CONST. art. V, 15. Return to text.

[87] Times Publ'g Co. v. Ake, 660 So. 2d 255, 257 (Fla. 1995). Return to text.

[88] Ake, 645 So. 2d at 1005. Return to text.

[89] 398 So. 2d 446 (Fla. 1981). Return to text.

[90] See id. Return to text.

[91] Id. at 447. Return to text.

[92] This is not the first time the court has carved out exclusive jurisdiction where none existed. In In re Clarification of Florida Rules of Practice and Procedure, 281 So. 2d 204 (Fla. 1973), the court noted that the new constitutional provision-article V, section 2(a)-authorized the supreme court to adopt rules regarding "practice and procedure in all courts." Id. at 204. The court added that the Legislature had the constitutional authority to repeal such rules by a two-thirds vote, but concluded that the Legislature "has no constitutional authority to enact any law relating to practice and procedure." Id.

However, nothing in the Florida Constitution provides such exclusive jurisdiction. As noted by Ernest Means, had the framers of that constitutional provision intended exclusive jurisdiction in the court they could have clearly so provided. See Ernest Means, The Power to Regulate Practice and Procedure in the Florida Courts, 54 FLA. B.J., 276, 279 (1980).

[I]t is evident that the framers of the revision knew how to vest exclusive authority when they so intended. Section 15 of the same article forthrightly provides that the court "shall have exclusive jurisdiction to regulate the admission of persons to the practice of law and the discipline of persons admitted."
Id. at 279. Return to text.

[93] FLA. CONST. art. II, 3 (emphasis added). This constitutional provision is often misquoted as providing for three "co-equal" branches of government though the term "co-equal" is not used in the Florida Constitution. See supra note 78. Return to text.

[94] 589 So. 2d 260 (Fla. 1991). Return to text.

[95] See Times Publ'g Co. v. Ake, 660 So. 2d 255, 257 (Fla. 1995). Return to text.

[96] See Chiles, 589 So. 2d at 263. Return to text.

[97] Ake, 660 So. 2d at 256 (emphasis added) (citation omitted). Return to text.

[98] See id. at 255. For the text of the certified question, see supra text accompanying note 79. Return to text.

[99] Ake, 660 So. 2d at 257. Return to text.

[100] FLA. CONST. art. I, 24 (emphasis added). Return to text.

[101] Id. 24(d) (emphasis added). Return to text.

[102] Ake, 660 So. 2d at 257 (emphasis added). Return to text.

[103] See FLA. CONST. art. I, 24(d). Return to text.

[104] 608 So. 2d 472 (Fla. 1992). Return to text.

[105] See id. at 473. The court, in discussing article I, section 24, said that it "essentially provides that all records of the judicial branch shall be public except those exempted by Court rule in effect on the date of the adoption of the amendment [creating article I, section 24] or those exempted by the legislature." Id. at 472 (emphasis added). The court, at least in 1992, acknowledged that the Legislature has the authority to exempt judicial branch records. See id. Return to text.

[106] 651 So. 2d 1185 (Fla. 1995). Return to text.

[107] See Ake, 660 So. 2d at 257. Return to text.

[108] See In re Rule 2.051, 651 So. 2d at 1188. Return to text.

[109] See In re Fla. Rules, 608 So. 2d at 473. Return to text.

[110] The Florida Supreme Court has acknowledged this assertion. In its 1992 In re Fla. Rules opinion, it stated that "[b]ecause the proposed amendment [creating article I, section 24] prohibits the Court from later enacting a rule which would close any other records, the Court determined to deny such additional requests [for opening additional records] at this time." Id. Return to text.

[111] FLA. CONST. art. I, 24(d). Return to text.

[112] 154 Fla. 368, 17 So. 2d 607 (1944). Return to text.

[113] See id. at 369, 17 So. 2d at 608. The Fuller court stated:

The best-reasoned authority in this country holds that the right to inspect public records carries with it the right to make copies. This on the theory that the right to inspect would in many cases be valueless without the right to make copies . . . . To say that the agent can deny the right of the stockholder to inspect and make copies of the records of the corporation would give countenance to the very evil that Jefferson warned against in his famous aphorism, "Every government degenerates when trusted to the rulers of the people alone. The people themselves are the only safe depositories". Not only this, to uphold such a doctrine would make rubbish of the well known trilogy of Abraham Lincoln and in place of government of, for, and by the people, we would have government by petty autocrats.
Id. at 369, 17 So. 2d at 607 (citations omitted); see also Winter v. Playa del Sol, Inc., 353 So. 2d 598, 599 (Fla. 4th DCA 1977) (holding that the right to inspect public records carries with it the right to make copies). Return to text.

[114] See FLA. CONST. art. I, 24(a). Return to text.

[115] A list of public records exemptions for the Legislature can be found in section 11.0431, Florida Statutes. Other statutory provisions are also applicable to legislative records. See FLA. STAT. 15.07 (1997) (providing that the journal of the executive session of the Senate must be kept free from inspection or disclosure except upon order of the Senate or a court of competent jurisdiction); id. 11.26(1)(a) (providing that legislative employees are forbidden from revealing to anyone outside the area of their direct responsibility the contents or nature of any request for services made by any member of the Legislature except with the consent of the legislator making the request). Return to text.

[116] FLA. CONST. art I, 24(d) (emphasis added). Return to text.

[117] A discussion of the full ramifications of this assertion is beyond the scope of this Article. Return to text.

[118] See Times Publ'g Co. v. Ake, 660 So. 2d 255, 257 (1995). Return to text.