THE EXTRAORDINARY WRITS: Order Excluding Press and Public

Petitions to review orders granting or denying access to judicial proceedings and records are within the original jurisdiction of the appellate court. Like any other petition initiating an original proceeding under Florida Rule of Appellate Procedure 9.100, a petition for review of an order granting or denying access must contain the following sections: (1) the basis for invoking appellate jurisdiction; (2) the facts upon which the petitioner relies; (3) the nature of the relief sought; and (4) an argument with appropriate citations of authority.

Rule 9.100(d) provides that such petition to review an order granting or denying access to a judicial proceeding or record shall be filed in the appellate court “as soon as practicable,” but no later than 30 days after rendition of the order to be reviewed. Circumstances often require the petitioner to seek review quickly in order to avoid a claim of mootness.

Once a petition has been filed to review an order granting or denying access to a judicial proceeding or record, the appellate court will immediately review the petition to determine whether a stay of the court order and proceedings in the lower court is appropriate. Under the provisions of Rule 9.100(d)(2), the appellate court may grant a stay on its own motion or on the motion of a party. Pending a ruling on the motion, the clerk and the judge of the lower tribunal shall treat those proceedings or records as confidential.

The standard of review that applies to a petition for review of an order excluding the press is the same as the standard that applies to a petition for writ of certiorari. The appellate court must determine whether the trial court violated procedural due process or whether its order departed from the essential requirements of the law.

An order restraining the press from publishing certain information is not within the class of orders that are reviewable under Rule 9.100(d). An order restraining the press is reviewable by certiorari. Jacksonville Television, Inc. v. Florida Dept. of Health and Rehabilitative Services, 659 So.2d 316 (Fla. 1st DCA 1994).

Written Orders

An order excluding the press or public is reviewed only if it is in writing. See Sarasota Herald-Tribune v. State, 924 So.2d 8 (Fla. 2d DCA 2005).

Sealing Files

Palm Beach Newspapers, Inc. v. Doe, 460 So.2d 406 (Fla. 4th DCA 1984) (petition for review of an order denying release of a transcript of a court hearing that had been closed to the public).

Access

Media General Operations, Inc. v. State, 933 So.2d 1199 (Fla. 2d DCA 2006) (review of an order sealing ex parte motions and related discovery material); Tribune Co. v. D.M.L., 566 So.2d 1333 (Fla. 2d DCA 1990) (order excluding the press from a Baker Act hearing). See WFTV, Inc. v. State, 704 So.2d 188 (Fla. 4th DCA 1997) (order prohibiting video and still camera 1 from photographing jurors).

Gag Orders

A gag order is subject to review under Rule 9.100(d). See Florida Freedom Newspapers, Inc. v. McCrary, 497 So.2d 652 (Fla. 1st DCA 1986) (review of an order prohibiting extrajudicial comments by county and state agents during the pendency of a criminal case).

Closure

Rule 9.100(d) can be used to seek review of an order closing a court hearing. Representatives of the press have a right to be heard before a hearing is closed. See Sarasota Herald-Tribune v. J.T.J., 502 So.2d 930 (Fla. 2d DCA 1987).

Standard

See Media General Operations, Inc. v. State, 933 So.2d 1199 (Fla. 2d DCA 2006).

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