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Court's Recording Practices Questioned

Jasmina Meyer, Highlands Today

The chief judge of the Tenth Judicial District Court said Friday he will review the policy on audio recordings in the courtrooms.

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By JIM KONKOLY

Highlands Today

Published: February 14, 2009

Updated: 02/14/2009 08:25 am

SEBRING - The chief judge of the Tenth Judicial District Court said Friday he will review the policy on audio recordings in the courtrooms.

Specifically, Judge J. David Langford said he will review the practice of having a back-up audio recording running continuously in courtrooms, from 8 a.m. to 8 p.m. every work day, even when the court is in recess or not in session.

Concerns have been raised whether the back-up recordings capture private conversations, particularly the privileged attorney-client communications.

"I am extremely glad that he is going to review it," said Rex Dimmig, the director of the Tenth Judicial Circuit Public Defender's Office. "There is great concern on our part about that."

Nick Sudzina, court administrator, said the back-up audio recording runs constantly to ensure that a record of court proceedings is maintained if the primary recording system either malfunctions or is not turned on.

"The reason the redundant system runs all the time," Langford said, "is that if there is human error in forgetting to turn on the primary system. That was the policy decision that was made in regards to that...

"If there is human error, we're not stuck with a gap in the record."

Dimmig said the public defender's office expressed "great objection" to judges about the back-up audio recording system several years ago when the electronic court reporting system was started.

"That creates massive problems for us because many times the only place where we can conduct a conversation with our clients is in the courtroom," he said. At times, he said, "the judges don't want us leaving the courtroom."

Dimmig said producing verbatim records of court proceedings can be done without a back-up recording system running all the time, even when there are no judicial proceedings in the courtroom.

"I don't believe that a person's constitutional rights should be potentially jeopardized as a safeguard against human error," he said. "There have got to be better ways of protecting against human mistakes."

Because the back-up recording runs continuously, Dimmig said, "at a time when we would normally believe it possible to conduct a confidential conversation with our clients, there is a recording going on, and we aren't ever completely certain as to who can get access to that recording."

The back-up audio recordings are public record, according to Langford and Sudzina.

Both said release of a back-up tape in a public records request is made only after review to make sure nothing is released contrary to the law.

"We would not release anything that is exempt . . . including attorney-client conversations," Langford said.

Sudzina said the court administrator's staff would review a back-up tape and redact anything from public release that is obviously an exempt or privileged conversation, particularly attorney-client conversations. If there is any question about the release of a portion of the back-up tape, he said, that decision is made by the chief judge of the court.

Dimmig said he sees potential privacy problems in the review of a back-up tape by anybody.

"Why should the judge be able to hear a confidential attorney-client conversation?" he asked. "The whole reason for a conversation being confidential is that nobody hears it."

The court's policy on the back-up audio recordings and their release in a public records request are not written, Sudzina said.

"We have policies in place that we do not release unauthorized information," Sudzina said. Rules on use of the back-up system are in "an unwritten policy," he said, adding that "all of the judges are aware of it."

Sandra Chance, professor of media law and executive director of the Freedom of Information Center at the University of Florida, said having a written policy on all aspects of a back-up audio recording system would be "the best practice."

"I know that other court systems are developing written policies on how the recording systems are operating and under what circumstances and when and how they are available (as public records)," Chance said.

"I guess it would be incumbent upon the tenth circuit (court), if they don't have a (written) policy, that they do spend some time looking at this situation, because there are a lot of potential invasions of privacy."

Langford said he will review policies on the back-up recordings simply because concerns have been expressed.

"I've never had this come up since I have been the chief judge," he said. Langford became chief judge of the district court in January 2007.

Langford said he doesn't dispute use of the back-up tape running continually as a safeguard to ensure that verbatim transcripts of courts proceedings are maintained.

"However, I am going to review that policy," he said. "Whenever an issue is raised, you don't ignore it, you always look into it."

The judge said he would discuss the policy with Sudzina and Jannet Lewis, the court's information technology officer.

"Before it's all said and done, it will probably be brought up at a judges' meeting, too," he said.

Langford added that "no policy lasts forever. You review it as circumstances change."

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