Financial affidavits in domestic relations cases: sunshine trumps privacy, a proposed solution.

• Author: Kreeger, Judith L.
• Position: Personal financial information - Florida

In Florida, detailed personal financial information about parties to most family law cases is freely available to anyone who requests it from the clerk of court because Florida Family Law Rule of Procedure 12.285(a)(1) requires that parties to these cases file and serve on each other a detailed financial affidavit. (1) According to the 1998 amendment to that rule, a trial judge may not waive or modify this requirement. Florida has a firmly embedded jurisprudential policy that requires all court records to be available for public inspection, including all case filings. The law embodying that policy permits sealing of court records only in limited, specifically defined circumstances. As various committees explore use of computer technology to make all court filings readily available through the Internet, this raises concern about potential misuse of such personal financial information that would be readily available to any curiosity seeker at the click of a mouse. (2)

Parties to family law cases frequently request that the court seal their financial information, expressing concerns about publicly exposing intimate details of their financial lives. Often their concerns are not legally sufficient to remove those documents from public view. (3) This dilemma of family law parties exemplifies the Florida Supreme Court's second-class treatment of Floridians' rights to the privacy of their personal information. (4) Their privacy rights are theoretically protected under Art. I, [subsection] 23 and 24 of the Florida Constitution, the amendments that afford Floridians the right to be free of government intrusion into their private affairs subject to open government requirements.

A review of those two amendments to the Florida Constitution, the history that preceded adoption of those amendments, case law before and after the adoption of the amendments, Florida's "government in the sunshine" statutes, and applicable rules of procedure, as well as law review articles analyzing the status of Floridians' right to privacy indicates that no scholars have addressed the relatively new additional encroachment on privacy created by the 1998 version of Rule 12.285. None mention the court's express rejection of The Florida Bar request that the court restore the prior provision which allowed the trial judge to seal financial affidavits and other financial information in family law files upon the request of either party.

This research leads to a proposed amendment to Rule 12.285 that would allow the trial court, upon request, to seal financial affidavits of divorcing parties who have no minor children and who settle their cases without litigation. (5) This proposed amendment satisfies both the intents and purposes of Floridians' right to privacy and the purpose of Florida's "government in the sunshine" laws. (6) Since this amendment would partially restore a portion of the rule that had previously existed, it does not contravene the "open records" statute.

This article will trace the history of the adoption of Florida's constitutional right of privacy, and will review the informational privacy cases that preceded and followed the adoption of the privacy and "government in the sunshine" amendments, and the rules of judicial administration and family law procedure that limit the circumstances under which a trial court judge may seal documents contained in a court file.

The Right to Privacy

Pre-1980 History. In 1962, the Florida Second District Court of Appeal considered whether a newspaper that had published docket entries concerning a person who had voluntarily committed herself to narcotics rehabilitation treatment had violated her right to privacy. (7) Although applicable statutes had made the commitment proceeding itself a confidential process, the clerk's dockets by statute were public records. Significantly, that court recognized the invasion of the right of privacy as a distinct cause of action, citing the Florida Supreme Court's landmark holding in an "appropriation" case. (8)

In Byron, Harless, Schaffer, Reid & Assoc. v. State ex rel. Schellenberg, 360 So. 2d 83 (Fla. 1st DCA 1978), rev'd subnom., Shevin v. Byron, Harless, Schaffer, Reid & Assoc., 379 So. 2d 633 (Fla. 1980), the Florida First District Court of Appeal certified to the Florida Supreme Court a question of great public interest: whether a right of privacy exists under either the federal or the state constitution which renders Florida's Public Records Law, F.S. ch. 119 (1975), unconstitutional as applied to the facts of the case. The case involved the issue of whether written notes of a consultant who had prepared a report for a public agency (the Jacksonville Electric Authority) were subject to disclosure under Florida's public records law. The consultant claimed that to compel disclosure of his papers as public records would unconstitutionally invade his privacy rights.

Two years later, the Florida Supreme Court answered the Byron Harless question. The court characterized that privacy interest, which is called "informational" or "disclosural" privacy, as the "newest and the least defined," commenting that "the [U.S.] Supreme Court has provided little specific guidance on this aspect of the right of privacy, and neither Whalen (9) nor Nixon (10) resolves the question presented." (11) In finding no federal constitutional support for the consultant's position, the Florida Supreme Court was "guided" by another decision in which the U.S. Supreme Court found there was no government deprivation of a federally protected invasion of privacy when county officials released the name and photograph of a person who had been arrested for shoplifting. (12)

In Shevin, the Florida Supreme Court rejected the consultant's claim for Florida constitutional protection based on Art. I, [section] 12, which protects people from unreasonable searches and seizures and the unreasonable interception of private communications, stating that the only privacy interest [section] 12 protects is the same interest that the Fourth Amendment of the U.S. Constitution protects. (13) The court distinguished its prior holdings in privacy cases (14) referring to its earlier decision in Laird v. State, 342 So. 2d 962 (Fla. 1977), "which made clear that Florida has no general state constitutional right of privacy." In short, the Florida Supreme Court held that there was no federal or Florida constitutional right to privacy that limits access to one's personal information, (15) and that there was no common law right to such privacy. (16)

While the Byron Harless / Shevin case was progressing through the court system, in 1977-1978 the Florida Constitution Revision Commission conducted public meetings in various Florida locations. People who appeared before the commission expressed concerns about the ready access, exchange, and proliferation of their personal information, and they emphasized their desire for protection of the privacy of their personal information. (17) In those meetings and among the commissioners, Floridians expressed virtually no concern about any need for additional protection to preserve "behavioral privacy" [the right to autonomy of personal decisionmaking about one's own body]. Notwithstanding the concerns articulated, in 1978 Florida voters rejected a proposed amendment to the Florida Constitution which would have expressly provided a right of privacy. In his concurring/dissenting opinion to Byron Harless, Justice England noted that this proposed privacy amendment was packaged among 50 proposed amendments as "Revision No. 1" for a single "yes" or "no" vote by the voters. (18)

Florida's Constitutional Right of Privacy. In 1980, Florida became the fourth state to add to its constitution the right of its people to be free from invasion of their privacy, (19) in sweeping language:

Every natural person has the right to be let alone and free from governmental intrusion into the person's private life except as otherwise provided herein. This section shall not be construed to limit the public's right of access to public records and meetings as provided by law. (20)

The inclusion of the phrase "right to be let alone" from government intrusion in Florida's privacy amendment was by no means unintentional. Professor Patricia Dore, who assisted in drafting the privacy amendment, stated that the phrase was deliberately chosen as a means of distinguishing Florida's broad privacy right from the limited federal right announced in Katz v. U.S., 389 U.S. 347 (1967). (21)

Four years later, in a case tried before this constitutional amendment was adopted, the Florida Supreme Court decided that intimate personal information provided by tenants and prospective public housing tenants in their applications should be available for public access. (22) The Supreme Court upheld the public's right of access under F.S. Ch. 119, finding that there was no federal or common law right of privacy, and further holding that the Art. I, [section] 23 right of privacy specifically does not apply to public records.

In his special concurring opinion, Justice Overton expressed his concern "that we have not applied a balancing test I believe is required by the right of privacy provision contained in Art. I, [section] 23 of the Florida Constitution" (23) However, upon applying the balancing test, Justice Overton opined that this information must be available for public scrutiny in order to ensure public accountability of the housing authority and its officers. Justice Overton discussed at great length the different privacy interests accorded protection by the U.S. Supreme Court and Florida courts. He noted that while the U.S. Supreme Court had, to a limited extent, addressed the right of disclosural privacy, it had found protected governmental intrusions to be reasonable in a number of cases, and that the Florida Supreme Court had found there was no protectible right to disclosural privacy in the Shevin/Byron Harless...