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

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 case. Commenting on the new privacy amendment to the Florida constitution, Justice Overton said "the unambiguous language of the new provision makes it clear that courts may not construe the provision in a manner which would impair the public's right of access to public records and meetings to assure governmental accountability." (24) He concluded his opinion by finding that the intrusion was reasonable for the necessary public accountability, which was a compelling public purpose. (25)

The next year (1985), the Florida Supreme Court again decided the issue of whether a public employee (this time a psychiatrist who worked in a public hospital) had a right to the privacy of information contained in his employment records. The court held that F.S. Ch. 119 trumped the doctor's right of privacy, once the information made its way into his employment records. Justice Overton, however, concurring only in the result, wanted the parties to brief the question of whether the doctor's informational privacy rights should trump the Public Records Act if disclosure of the information would endanger the doctor or other hospital employees.

After waxing eloquently about the "deeply rooted" concept of privacy, the Florida Supreme Court gave disclosural privacy short shrift in Winfield v. Division of Pari-Mutuel Wagering, 477 So. 2d 544 (Fla. 1985). (26) In Winfield, the court answered the certified question: "Does Art. I, [section] 23 of the Florida Constitution prevent the Division of Pari-Mutuel Wagering from subpoenaing a Florida citizen's bank records without notice?" Announcing that it had not yet enunciated the appropriate standard of review in assessing a claim of unconstitutional governmental intrusion into one's privacy rights under the Florida Constitution, the court said:

The right of privacy is a fundamental right which we believe demands the compelling state interest standard. This test shifts the burden of proof to the state to justify an intrusion on privacy. The burden can be met by demonstrating that the challenged regulation serves a compelling state interest and accomplishes its goal through the least intrusive means. (27)

After these strong statements that profess to uphold "strong" privacy rights, and after finding that the Winfields had a reasonable expectation for the privacy of their bank records, the court determined that the government had a compelling interest in pursuing its parimutuels investigation which outweighed the Winfields' rights of privacy, and that the government had used the least intrusive means to achieve that interest. The court offered no analysis about how it reached that conclusion.

Intermediate appellate courts in subsequent decisions have applied "strict scrutiny" (28) or "highly stringent" (29) standards of review in privacy cases. Interestingly enough, in 1998 the Florida Supreme Court noted it could cite no cases in Florida in which "government intrusion in personal decisionmaking survived the compelling state interest test." (30) The Third District Court of Appeal, balancing an individual's right of informational privacy against the public's right of access to government agency records, commented, "[T]he people and the legislature have balanced the competing interests. It is not within the scope of our authority to create new exemptions -- which is what we would be doing if we, in a balancing process, came down on the side of nondisclosure of nonexempt public documents." (31)

Openness of Court Records: Miami Herald v. Mclntosh and its Progeny

In 1976, in State ex rel Miami Herald Publishing Co. v. Mclntosh, 340 So. 2d 904 (Fla. 1976), the Florida Supreme Court established a three-pronged test for closure of court proceedings, declaring the presumption that court process in criminal cases is open and that people may be excluded only for "the most cogent reasons." According to this test, the person seeking closure must establish 1) that the measure limiting or denying access is necessary to prevent a serious and imminent threat to the administration of justice; 2) there are no less restrictive alternative measures available which would mitigate the danger; and 3) that the measure being considered will in fact achieve the court's protective purpose.

In 1987 the court decided in a criminal case that the press' right of access did not extend to discovery depositions in a civil case, (32) citing a decision of the U.S. Supreme Court. However, the court stated that its rationale also applied to criminal cases. (33) In so doing, the Florida Supreme Court balanced the privacy rights of parties and witnesses against the "public components of a trial," recognizing that parties have broad discovery rights that permit intrusion into people's affairs, and stating that "public access to discovery information at the moment it is first discovered presents unacceptable hazards to other constitutional rights because of uncertainty as to the nature and content of the information." (34)

The Next Eight Years

During the next decade, the Florida Supreme Court and Florida's intermediate appellate courts wrestled with the apparent conflict between individual rights to privacy of information and the openness of court, other government, and government agency records. In 1987, the Second District Court of Appeal decided that documents considered by a trial judge in sentencing a defendant were considered part of the court record and were presumptively open to public inspection. (35) Then in 1988 a Florida legislator's acrimonious divorce became the touchstone for the Florida Supreme Court to extend the presumption of openness to civil cases, including divorce cases, when that legislator sought to seal the entire court file of his divorce. After enunciating the standards for closure of a civil case, the court commented: "The parties seeking a dissolution of their marriage are not entitled to a private court proceeding just because they are required to utilize the judicial system. Dissolution proceedings are regulated by statute and are unique because the state is considered an interested third party to protect the public welfare." (36) The court declared limited content-based exceptions to the strong presumption of openness:

(a) to comply with established public policy set forth in the constitution, statutes, rules, or case law; (b) to protect trade secrets; (c) to protect a compelling governmental interest [e.g., national security; confidential informants]; (d) to obtain evidence to properly determine legal issues in a case; (e) to avoid substantial injury to innocent third parties [e.g., to protect young witnesses from offensive testimony; to protect children in a divorce]; or (f) to avoid substantial injury to a party by disclosure of matters protected by a common law or privacy right not generally inherent in the specific type of civil proceeding sought to be closed. We find that, under appropriate circumstances, the constitutional right of privacy established in Florida by the adoption of article I, section 23, could form a constitutional basis for closure under (e) or (f). (37)

The year after the Supreme Court decided the Barron case, the First District Court of Appeal was asked to decide in Peyton v. Browning, 541 So. 2d 1341 (Fla. 1st DCA 1989), whether financial affidavits sealed in a 1986 dissolution action pursuant to Fla. R. Civ. P. 1.611(a) should be unsealed on a motion filed in 1988 by a person who was not a party to the dissolution action. (38) Rule 1.611(a) then in effect allowed the court to seal financial information that parties were required to file in dissolution of marriages cases in which a party requested financial relief. The First District distinguished this case from Barron, commenting that "the closure order in Barron was not predicated on rule 1.611(a), (39) nor do we find anything in the opinion which could be read as the intent to amend or to abrogate the rule." So the First District reversed the trial court's order unsealing the financial affidavits, based on Rule 1.611(a), since Rule 1.611(a) was not amended or abrogated by the 1989 amendments to the Florida Rules of Civil Procedure.

In 1988, the Florida Supreme Court decided whether police use of "pen registers" to obtain information about outgoing calls made by suspects in a bookmaking investigation violated those suspects' right to privacy under Art. I, [section] 23 of the Florida Constitution. (40) The court held that the suspects' right of privacy was outweighed by the state's compelling interest in enforcing its criminal code. However, Justice Barkett began the majority opinion by writing eloquently of the "fundamental" right of privacy: "One of its ultimate goals is to foster the independence and individualism which is a distinguishing mark of our society and which can thrive only by assuring a zone of privacy into which not even government may intrude without invitation or consent." (41)

Notwithstanding the vigor of the pro-privacy language in that case, four years later, exercising its rulemaking authority, (42) the Florida Supreme Court promulgated Rule of Judicial Administration 2.051, which in effect codified the Barron case standards. In promulgating the rule, the court was prompted by a 1992 proposed amendment to the Florida Constitution which would have provided 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 or those exempted by the legislature. (43) Ironically, by special concurring opinion, Justice Overton, who had championed constitutional protection of the right of privacy in the late 1970s, emphasized his understanding that this rule brought no change regarding the presumption of openness of court records as set forth in Barron. That rule remains in effect, as the court originally crafted it.

Within the next two weeks (November 1992), Florida voters further amended the "government in the sunshine" provisions of their constitution by adding Art. I, [section] 24, which provides:

(a) Every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting in their behalf, except with respect to records exempted pursuant to this section or specifically made confidential by this Constitution. This section specifically includes the legislative, executive, and judicial branches of government and each agency or department created thereunder; counties, municipalities, and districts; and each constitutional officer, board, and commission, or entity created pursuant to law or this Constitution.

Applying that amendment four years later, the Florida Supreme Court said that this constitutional provision prohibits the court from later enacting a new rule which would close any records. (44)

Shortly after the effective date of Rule 2.051, and during the same month that Florida voters added Art. I, [section] 24 to their constitution, the Florida Supreme Court had occasion to decide whether the names and addresses on a client list of an alleged prostitute who was a defendant in a criminal prosecution should be disclosed to the media. The client list was included in discovery material that the state produced to the defense in preparation for trial. The persons identified on the client list asked the trial judge to deny access to that information, claiming protection from disclosure according to Art. I, [section] 23 of the Florida Constitution. (45)

Interestingly, the court discussed the openness of public records under F.S. Ch. 119, a statute the court had earlier held did not apply to records of a judicial proceeding, and then the three-pronged closure test for court proceedings it had established in Lewis. (46) However, the court then proceeded to apply the Barron standard for closure as being more appropriate for this case, in which the named clients were not parties to the case. The court determined that these alleged clients of the accused prostitute [the "Does"] had no privacy interest in their identifying information, and closure was not justified under Barron "because the Does' privacy rights are not implicated when they participate in a crime." (47) Of course, when the trial court ordered their identity disclosed, no one in the case had yet been convicted of a crime! Although the Florida Supreme Court decided the case on a "zone of privacy" basis, it again reiterated "this state's open government policy requires that information be available for public inspection unless the information fits under a legislatively created exemption." (48) One scholar analyzing the Doe case from a primacy approach (49) wrote: "Overall, the court's analysis was curt and conclusory, overlooking factors such as the language and the formative history of the state's constitutional right to privacy." (50) That same year, the Third District Court of Appeal reversed a trial court that had sealed a marital settlement agreement, pleadings and exhibits in a dissolution of marriage case. Recognizing the "strong presumption of openness" and that "parties to a dissolution proceeding are not entitled to a private court proceeding," the court nevertheless allowed the parties' financial affidavits to remain sealed, based upon the rule of procedure then in effect that authorized the court to seal financial affidavits and other financial information upon the request of either party. (51)

The Second District Court of Appeal decided in 1997 that a plaintiff in a tort case was not entitled to close his court file from public view, after applying the elements of Rule 2.051(c)(9). (52) In so doing, the court balanced the people's interest in public courts against the plaintiffs personal interest in keeping facts private, using as its test whether the plaintiff had a reasonable expectation of privacy in matters "inherent" in the litigation. (53)

The Florida Supreme Court amended Rule 1.611 in 1998 to eliminate the trial judge's discretion to seal financial affidavits. Now a family law litigant who wishes to seal his or her financial affidavit or any other information in court records must proceed under Code of Judicial Administration Rule 2.051, a formidable task. (54) Responding to committee concerns about such ready access to intimate financial information, the court said a trial judge could seal financial records on a showing that third parties are likely to use the information in an abusive manner. In its commentary to the amendment, the Supreme Court specified what a trial judge would have to find to justify sealing those records:

   For instance, if it is likely that access to the financial information
   would subject a party to abuse such as the use of the information by third
   parties for purposes unrelated to government or judicial accountability or
   to first amendment rights, then a trial judge has the authority to seal the
   financial information. In doing so, however, the order sealing the records
   should be conditional in that the financial information should be disclosed
   to any person who establishes that disclosure of the information is
   necessary for government or judicial accountability or has a proper first
   amendment right to the information. This clarification should alleviate
   some of the committees' concerns because it explains that trial judges have
   the ability to protect the privacy interests of parties that could be
   adversely affected by new technology. (55)

The author has not found any case testing a trial judge's sealing or declining to seal financial affidavits in a family law case since the Supreme Court promulgated this amendment. In Salczman v. Joquiel, 26 Fla. L. Weekly D234 (Fla. 3d DCA 2001), the Florida Third District Court of Appeal held that a husband and wife who asked the court to dissolve their childless marriage and to enforce their antenuptial agreement should not have been required to file financial affidavits because they did not ask the court for "permanent financial relief."

Of the categories of personal information that should be protected by Florida's constitutional right to privacy, medical records enjoy greater sanctity, perhaps because they are also specifically protected by Florida statutes. Ironically citing Winfield, (56) the Fourth District Court of Appeal in State v. Rutherford brushed aside a person's analogous claim of the right to privacy of financial records, giving far more weight to a person's right to privacy of his or her medical records. (57)

Thus, in final analysis, Florida courts do not protect a person's right to the privacy of personal information from disclosure, unless that information happens to be specifically protected by rule or by statute (e.g., medical information and records). Although courts articulate the balancing test they must perform in deciding these cases where claims for public access conflict with privacy rights, they are quick to jettison the privacy right when informational (rather than behavioral) privacy is at issue.

The Proposed Rule

The author proposes an amendment to Family Law Rule of Procedure 12.285, to protect a person's right to the privacy of intimate financial information that the court does not use and does not need in accomplishing resolution of certain simple domestic relations actions: those in which neither party sought permanent financial relief. The proposed amendment is consistent with the reasoning of Judge Lehan in his concurring/dissenting opinion in Tribune Co. v Cannella, 438 So. 2d 516 (Fla. 2d DCA 1983). In this case, the court addressed the conflict between the media's right of access under Florida Public Records Act (58) and a public employee's right of privacy claim to restrict media access to certain personal information contained in his employment records. That issue parallels the conflict between the same open records laws and the divorcing person's right of privacy to financial information. In his opinion, Judge Lehan quoted one scholar who wrote, after the Supreme Court decided Shevin,

[P]rivacy and open records can be compatible but accommodation requires acknowledging the value of each. The right to know demands public exposure of recorded official action, but that right should apply with less force to personal information supplied by private citizens. If citizenship in a functioning democracy requires general access to government files, limited but genuine interests also demand restricted areas of nonaccess. (59)

This author's proposed amendment would provide:

The court may seal financial affidavits and other records containing financial information upon request of either party if: (a) the parties have no minor children, have filed a written settlement agreement, and seek to dissolve their marriage and to have their agreement approved by the court and there is no litigation concerning financial issues, or (b) the court's jurisdiction is limited, and the court lacks jurisdiction to determine any financial issues.

The present rule requires that all parties file financial affidavits so that the court can use them in determining requests for monetary relief: issues of alimony, child support, equitable distribution, and attorneys' fees. (60) In cases to which the proposed amendment would apply, the parties have not asked that the court determine any monetary issues. They ask only that the court find that their marriage is irretrievably broken, and that the court determine they entered into a valid and binding contract by which they resolved their issues.

The public interest in financial records of parties to family law cases is its interest in the judicial process, the accountability of members of the judicial branch. In each case where parties who do not have minor children have resolved their differences by contract, the court may not rewrite, alter or change that contract, but must uphold it unless it is against public policy. (61) In those cases, the court's role is limited to the sole issue of determining the existence of a valid contract. Since financial affidavits are irrelevant to that issue, (62) neither the state nor the public should have any interest in the parties' intimate financial information, much less a compelling interest. (63) Thus the individual's right to the privacy of his or her financial information should prevail.

The amendment would not apply to cases in which the parties have minor children, because the author recognizes the state's compelling interest, as a matter of public policy, in assuring that parents adequately support their minor children according to statutory guidelines (64) and that the state's trial judges require such support. The amendment would not apply to cases in which the parties settle during litigation, because the author recognizes that a trial judge's pretrial decisions (e.g., temporary support, discovery rulings, etc.) when weighed against parties' financial constraints, may lead them to settle their cases on terms that initially would not have been acceptable. In those cases, the state and the public have an interest in the accountability of trial judges' decisionmaking processes.

Thus this proposed amendment would protect the individual's right to the privacy of his or her intimate financial information, yielding to the state's compelling interest in that information when the support of its dependent children and dependent former spouses are at stake, but it would do so by the least intrusive means.

(1) The rule requires that parties file such affidavits "in any proceeding for an initial or supplemental request for permanent financial relief, including, but not limited to, a request for child support, alimony, equitable distribution of assets or debts, or attorneys' fees, suit money, or costs."

(2) Judge Martha Warner, remarks at a continuing legal education course offered by The Florida Bar (October 20, 2000). Although flagrant misuse of such information might subject the misuser to an action in tort, Cape Publications, Inc. v. Hitchner, 514 So. 2d 1136 (Fla. 5th D.C.A. 1987), press and broadcast media nevertheless have the right to publish information they obtain from court records. See, for example, Doe v. American Lawyer Media, 639 So. 2d 1021 (Fla. 3d D.C.A. 1994).

(3) No reported Florida appellate case has determined whether the financial affidavit of a family law litigant was properly or improperly sealed by a trial court judge. However, during the writer's more than eight years presiding as a family law trial judge, a significant number of litigants have requested that their financial affidavits (and sometimes other court documents) be sealed. These litigants bear the burden of persuading the court that leaving their documents in public view would cause a consequence that meets the limited right of closure provided by Rule of Judicial Administration 2.051, which allows closure when confidentiality is required to "(i) prevent a serious and imminent threat to the fair, impartial, and orderly administration of justice; (ii) protect trade secrets; (iii) protect a compelling governmental interest; (iv) obtain evidence to determine legal issues in a case; (v) avoid substantial injury to innocent third parties; (vi) avoid substantial injury to a party by disclosure of matters protected by a common law or privacy right not generally inherent in the specific type of proceeding sought to be closed; (vii) comply with established public policy set forth in the Florida or United States Constitution or statutes or Florida rules or case law."

(4) Two scholars have compared the Florida Supreme Court's treatment of informational privacy [the individual's interest in avoiding public disclosure of personal, intimate matters] to the court's treatment of behavioral privacy [the individual's interest in preserving the autonomy of making personal decisions]. Daniel Gordon noted the court's rather scant analysis of the compelling state interest standard when applied to informational cases, as contrasted to significant, detailed analysis when applied to the behavioral (decisional autonomy) cases. Daniel Gordon, Upside Down Intentions: Weakening the State Constitutional Right to Privacy, a Florida Story of Intrigue and a Lack of Historical Integrity, 71 TEMP. L. REV. 579 (1998). John Sanchez concluded, after reviewing the 13-year history of appellate cases construing and applying Art. I, [section] 23 of the Florida Constitution: "Thirteen years of parsing section 23 have taken the luster off privacy's promise. So far, hopes outrun reality. The cases bring sharply into focus that all too often privacy plays second banana to competing interests." John Sanchez, Constitutional Privacy in Florida: Between the Idea and the Reality Falls the Shadow, 18 NOVA L. REV. 775, 800 (1994).

(5) A recent assessment of six Florida judicial circuits revealed that in 71 percent of all dissolution of marriage cases, the parties have no issues when their cases are filed. They simply want to dissolve their marriage, and in those in which the court has personal jurisdiction, they want the court to confirm their agreement that they made before filing their case. Family Court Assessment-Dissolutions of Marriage (unpublished report, on file with Office of the State Court Administrator, Tallahassee, Florida).

(6) The Florida 1977 Constitution Revision Commission recognized the potential conflict between the individual right to privacy and the public's right to know, when the commission chair created a single Committee on Ethics, Privacy and Elections to explore that interrelationship. Gerald B.Cope, Jr., To Be Let Alone: Florida's Proposed Right of Privacy, 6 FLA. ST. U. L. REV. 671, 674 (1978). In that article, the author, Judge Cope, who is now a member of Florida's Third District Court of Appeal, refers to his earlier article Toward a Right of Privacy as a Matter of State Constitutional Law, 5 FLA. ST. U. L. REV. 631 (1977).

(7) Patterson v. Tribune, 146 So. 2d 623 (Fla. 2d D.C.A. 1962), cert. denied, 151 So. 2d 306 (Fla. 1963).

(8) Cason v. Baskin, 30 So. 2d 635 (Fla. 1947), in which Ms. Cason sued authoress Marjorie Kinnan Baskin for having depicted her in a recognizable form in her book Cross Creek, thereby having appropriated her likeness and thus invading her right to privacy.

(9) Whalen v. Roe, 429 U.S. 589 (1977).

(10) Nixon v. Administrator of General Services, 433 U.S. 425 (1977).

(11) Shevin v. Byron Harless, Schaffer, Reid & Assoc., 379 So. 2d 633,637 (Fla. 1980).

(12) Paul v. Davis, 424 U.S. 693 (1976).

(13) Shevin, 379 So. 2d at 639.

(14) In Re Grand Jury Investigation, 287 So. 2d 43 (Fla. 1973); Hagaman v. Andrews, 232 So. 2d 1 (Fla. 1970); and Cason v. Baskin, 155 Fla. 198, 20 So. 2d 243 (1944).

(15) The Florida Supreme Court categorized the limited protection the U.S. Supreme Court gave to protect privacy interests: "[A]n individual's interest in being secure from unwarranted governmental surveillance and intrusion into his private affairs; a person's interest in decisional autonomy on personally intimate matters; and an individual's interest in protecting against the disclosure of personal matters.... "[citations omitted] As to the last category of interests, the court described this interest as the "newest and least defined." The Florida Supreme Court said that while some day the U.S. Supreme Court "may some day breathe some life into [this] privacy interest," it did not see this right as federally protected. Shevin, 379 So. 2d at 637. It further found no Florida constitutional protection for a privacy interest beyond a person's interest in being secure from unwarranted governmental intrusion. 379 So. 2d at 639.

(16) Shevin, 379 So. 2d at 639.

(17) Daniel R. Gordon, Upside Down Intentions: Weakening the State Constitutional Right to Privacy, a Florida Story of Intrigue and a Lack of Historical Integrity, 71 TEMP. L. REV. 579,588 (1998). Interestingly, the author comments on the meetings of the recent Constitution Revision Commission (1997-98), where the public overwhelmingly articulated concern about behavioral privacy issues (e.g., right to abortions, right to die, physician-assisted suicide, etc.), but gave scant attention to issues of informational privacy. A search of the commission's website, www.law.fsu.edu/crc, on September 1, 2000, shows that the commission considered only three proposals to revise art. I, [section] 23: a proposal to prohibit the sale of personal information from a database [Proposal No. 57]; a proposal to protect people against nongovernmental intrusion for commercial purposes [Proposal No. 171]; and a proposal prohibiting partial birth abortions [Proposal No. 97]. A citizens guide published at that time described the right to privacy as a "frequently discussed" issue that may be considered by the Commission, but in describing that issue, it enumerated seven behavioral privacy concerns, and no concerns about informational privacy. www.law.fsu.edu/crc/collins/Potential.html.

(18) Shevin, 379 So. 2d at 641, where Justice England wrote, "Nor would I be deterred from an examination of Florida's Constitution by the fact that an express right of privacy was proposed as an amendment to the Constitution in 1978, but rejected by the voters. The amendment was one of at least fifty amendments packaged by the Commission as `Revision No. 1' for a single `yes' or `no' vote by the voters. It is difficult for me to consider the rejection of this package of amendments as the rejection of a right of privacy (or any other specific proposal in the package, for that matter)." (citations omitted.)

(19) In so doing, Florida joined Alaska, California, and Montana, all of whom had adopted strong, freestanding rights of privacy as separate sections of their state constitutions in 1972. Cope, supra note 6, at 673, 681-682.

(20) FLA. CONST. art. I, [section] 23.

(21) See Patricia A. Dore, Of Rights Lost and Gained, 6 FLA. ST. U. L. REV. 609, 652-53 n.268 (1978), discussed in Stall v. State, 570 So. 2d 257, 265 (1990) (Kogan, J., dissenting), certiorari denied, 501 U.S. 1250; Mozo v. State, 632 So. 2d 623 (Fla. 4th D.C.A. 1994), review granted, 640 So. 2d 1108, approved, 655 So. 2d 1115 (1995), rehearing denied.

(22) Forsberg v. Housing Authority of the City of Miami Beach, 455 So. 2d 373 (Fla. 1984).

(23) Id.

(24) Id.

(25) In a 1997 law review article, however, Justice Overton and a co*author verbalized the parade of horribles enabled by the availability of all sorts of personal information and the ease of capitalizing on that availability. After reviewing existing federal and state law, they stated, "Equally clear is the fact that informational privacy is not adequately protected." Justice Ben F. Overton and Katherine E. Giddings, The Right of Privacy in Florida in the Age of Technology and the Twenty-First Century: A Need for Protection from Private and Commercial Intrusion, FLA. ST. U. L. REV. 26 (1997). The authors adhered to advocating open access to public records as provided by law, but they proposed legislation to protect people against commercial use of private information and heightened individual vigilence over protecting the integrity of private information.

(26) In that case, the Department of Business Regulation had issued subpoenaes for the Winfields' bank records, without notice to them, in the course of an investigation into the pari-mutuel industry.

(27) Id. Interestingly, the court here cited Roe v. Wade, 410 U.S. 113 (1973), a behavioral privacy case. Legal scholars contrast the Florida Supreme Court's strong protection of this privacy right to make personal decisions with their "lick and a promise" treatment of the right to informational privacy. For one justice's articulation of the differing analytical processes in informational privacy cases contrasted with decisional privacy cases, see Justice Kogan's dissenting opinion in Krischer v, McIver, 697 So. 2d 97,114 (Fla. 1997).

(28) State v. Presidential Women's Center, 707 So. 2d 1145 (Fla. 4th D.C.A. 1998).

(29) In State v. Rutherford, 707 So. 2d 1129 (Fla. 4th D.C.A. 1997), which considered whether the prosecutor could subpoena hospital records to obtain a patient's medical information without the patient's consent, the court said, "[a] principal aim of the privacy amendment is to secure informational privacy, to afford individuals some protection against the increasing collection, retention, and use of information relating to all facets of an individual's life," citing Rasmussen v. South Florida Blood Serv., Inc., 500 So. 2d 533, 536 (Fla.1987). The court then analyzed "[w]here a right to privacy attaches, the state may vindicate an encroachment on that right if it demonstrates that the intrusion is justified by a compelling state interest and that the state has used the least intrusive means to accomplish its goal."

(30) Van Eiff v. Azicri, 720 So. 2d 510 (Fla. 1998). In that case, the Court determined whether a section of the Florida grandparent visitation statute violated the parents' rights of decisional privacy.

(31) Wallace v. Guzman, 687 So. 2d 1351, 1354 (Fla. 3d D.C.A. 1997). In Wallace, the wife of a member of a government agency asserted a privacy interest in her and her husband's personal financial information given to that agency. Her husband's joint financial information was held to be available for public inspection because the legislature had created no exemption for such spouses, the court saying although certainly the legislature must have been aware of joint filings and disclosures, it gave no exemption for public records containing their personal information.

(32) Palm Beach Newspapers v. Burk, 504 So. 2d 378 (1987).

(33) Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984).

(34) Palm Beach Newspapers, 504 So. 2d at 383 n.33.

(35) Sarasota Herald Tribune v. Holtzendorf, 507 So. 2d 667 (Fla. 3d D.C.A. 1987).

(36) Barron v. Florida Freedom Newspapers, 531 So. 2d 113 (1988). 37 Id. at 118.

(37) Id. at 118

(38) Mr. Browning, who sought access to these financial affidavits, was then involved in commercial litigation with the former husband, and he sought those records to help him in his case.

(39) In Barron, the trial court was asked to seal the entire court file concerning the Senator's divorce, not just the financial affidavits.

(40) Shaktman v. State, 553 So. 2d 148 (Fla. 1989).

(41) Id. at 150.

(42) FLA. CONST. art. V, [section] 2(a). See also Z & 0 Realty Associates v. Lakow, 519 So. 2d 3 (Fla. 3d D.C.A. 1987).

(43) In re:Amendments to Florida Rules of Judicial Administration -- Public Access, 608 So. 2d 472 (Fla. 1992)

(44) Florida Board of Bar Examiners Re: Amendments to the Rules of the Supreme Court of Florida Relating to Admissions to the Bar, 676 So. 2d 372 (Fla. 1996). In this case the court declined to amend Rules Relating to Admissions to the Bar to authorize release to Bar applicants documents the Bar had obtained from other sources, citing the need to foster candid responses to the Bar's inquiries about applicants for admission.

(45) Post-Newsweek Stations v. Doe, 612 So. 2d 549 (Fla. 1992).

(46) Miami Herald Publishing Co. v. Lewis 426 So. 2d I (Fla. 1982).

(47) Post-Newsweek Stations, 612 So. 2d at 552.

(48) Id. at 553.

(49) Under the primacy approach, state courts avoid utilizing the Federal Constitution until the state constitution fails to protect an activity protected by the Federal Constitution. Thus "[w]hen called upon to decide matters of fundamental rights, Florida's state courts are bound under federal principles to give primacy to our state Constitution, and to give independent legal import to every phrase and clause contained therein." Traylor v. State, 596 So. 2d 957, 962 (Fla. 1992).

(50) Daniel Gordon, Good Intentions--Questionable Results: Florida Tries the Primacy Model, 18 NOVA L. REV. 759, 770 (Winter 1994).

(51) Sonderling v. Sonderling, 600 So. 2d 1285 (Fla. 3d D.C.A. 1992).

(52) Carnegie v. Tedder, 698 So. 2d 1310 (Fla. 2d D.C.A. 1997).

(53) Id. at 1312.

(54) For an analogous situation, see Smithwick v. Television 12 of Jacksonville, Inc., 730 So. 2d 795 (Fla. 1st D.C.A. 1995), where a physician who had been sued for malpractice and settled his case tried unsuccessfully to seal or to remove certain discovery documents that were included in court records.

(55) Amendments to Florida Family Law Rules of Procedure, 723 So. 2d 208,210 (Fla. 1998).

(56) The citation is ironic because although in Winfield the Florida Supreme Court recognized a person's right to the privacy of confidential financial information, it gave that right short shrift when balanced against the state's interest in enforcing its pari-mutuel gambling laws.

(57) State v. Rutherford, 707 So. 2d 1129 (Fla. 4th DCA 1997). The Fourth District Court of Appeal said, "[T]he [Winfield] court held that the amendment covered a citizen's bank records in the custody of a financial institution, materials considerably less "private" than hospital or medical records, traditional matters for which a person might have a legitimate expectation of privacy.

(58) FLA. STAT. ch. 119.

(59) Federal Constitutional Privacy and the Florida Public Records Law: Resolving the Conflict, 33 U. FLA. L. REV. 313 (1981).

(60) Peyton v. Browning, 541 So. 2d 1341 (Fla. 1st D.C.A. 1989).

(61) Petracca v. Petracca, So. 2d 905 (Fla. 4th D.C.A. 1998).

(62) Salczman, 26 Fla. L. Weekly D234.

(63) For the Florida Supreme Court's recent adherence to the compelling state interest standard, once a person's privacy right has been implicated, see Krischer v. McIver, 697 So. 97,102 (Fla. 1997). Interestingly, in Krischer, a behavioral privacy case, the Court cites Winfield v. Division of Pari-Mutuel Wagering, an informational privacy case, for the compelling state interest test.

(64) See Woodward v. Berkery, 714 So. 2d 1027 (Fla. 4th D.C.A. 1998), where the mother of singer Tom Jones' (the stage name of Mr. Woodward) child sought extensive discovery of his financial information in an action to modify a New York court-approved "non-modifiable" agreement for child support. In discussing the Florida constitutional right of privacy, the Court commented, "[I]t seems apparent to us that personal finances are among those private matters kept secret by most people. The Fourth District recognized that ready access to such private financial worth information may become an undue source of embarrassment and a undue pressure to a litigant, and misuse of such information may be incurable by any subsequent court action. Since that financial information was not material to any issue reasonably likely to be contested (and it was sought primarily to embarrass and bring undue pressure on Mr. Woodward), the court found no compelling state interest that outweighed his right to privacy. The Florida Fifth District Court of Appeal notes the contrast between the Fourth District's degree of protection of a person's right to the privacy of his financial information in Woodward compared to the Supreme Court's lackluster protection in Winfield, in Compton v. West Volusia Hospital Authority , 727 So. 2d 379, 382 (Fla. 5th D.C.A. 1999).

Judge Judith L. Kreeger is a circuit judge in Dade County and is the presiding judge for the Dade County grand jury. Prior to serving on the bench, she was a partner in Kreeger & Kreeger, P.A. Judge Kreeger is a member of the Florida Supreme Court Family Court Steering Committee. She received her B.A. from Randolph Macon Women's College and her J.D. from the University of Miami School of Law.

This column is submitted on behalf of the Family Law Section, Norman D. Levin, chair, and Peter L. Gladstone, editor.