In Re: Amendments to Florida Rule of Judicial Administration 2.420 – 2017 Fast-Track Report ( 2018 )

Supreme Court of Florida
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No. SC17-2053
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IN RE: AMENDMENTS TO FLORIDA RULE OF JUDICIAL
ADMINISTRATION 2.420 - 2017 FAST-TRACK REPORT.
[January 18, 2018]
PER CURIAM.
We have for consideration amendments to Florida Rule of Judicial
Administration 2.420 (Public Access to and Protection of Judicial Branch Records)
proposed by The Florida Bar’s Rules of Judicial Administration Committee (RJA
Committee) in response to new legislation. See Fla. R. Jud. Admin. 2.140(e). We
have jurisdiction1 and amend the rule as proposed by the RJA Committee and
approved by the Executive Committee of the Board of Governors of The Florida
Bar.
Rule 2.420(d)(1)(B) (Procedures for Determining Confidentiality of Court
Records) lists the information in court records that the clerk of court must
1. See art. V, § 2(a), Fla. Const.
designate and maintain as confidential. Subdivision (d)(1)(B)(ix) currently lists
records of substance abuse service providers that are confidential under section
397.501(7), Florida Statutes (2017), as one of the categories of court records the
clerk of court must keep confidential. We amend subdivision (d)(1)(B)(ix), as
proposed, to add “all petitions, court orders, and related records for involuntary
assessment and stabilization of an individual,” which are confidential under newly
enacted section 397.6760, Florida Statutes (2017),2 at the end of that subdivision.
We also adopt all of the purely technical proposed amendments to rule 2.420.
Accordingly, the Florida Rules of Judicial Administration are amended as
reflected in the appendix to this opinion. New language is indicated by
underscoring; deletions are indicated by struck-through type. The amendments
shall become effective immediately upon the release of this opinion. Because the
amendments were not published for comment prior to their adoption, interested
persons shall have sixty days from the date of this opinion in which to file
comments with the Court.3
2. See ch. 2017-25, §§ 1, 3 Laws of Fla. (creating § 397.6760 (Court
records; confidentiality), Fla. Stat., effective July 1, 2017).
3. All comments must be filed with the Court on or before March 13, 2018,
with a certificate of service verifying that a copy has been served on the
Committee Chair, Judson Lee Cohen, 14125 N.W. 80th Avenue, Suite 400, Miami
Lakes, Florida 33016-2350, jcohen@weinsteincohen.com, and on the Bar Staff
Liaison to the Committee, Krys Godwin, 651 E. Jefferson Street, Tallahassee,
Florida 32399-2300, kgodwin@floridabar.org, as well as a separate request for oral
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It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON,
and LAWSON, JJ., concur.
THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE
EFFECTIVE DATE OF THESE AMENDMENTS.
Original Proceeding – Florida Rules of Judicial Administration
Judson Lee Cohen, Chair, Rules of Judicial Administration Committee, Miami
Lakes, Florida; and Joshua E. Doyle, Executive Director, and Krys Godwin, Staff
Liaison, The Florida Bar, Tallahassee, Florida,
for Petitioner
argument if the person filing the comment wishes to participate in oral argument,
which may be scheduled in this case. The Committee Chair has until April 9,
2018, to file a response to any comments filed with the Court. If filed by an
attorney in good standing with The Florida Bar, the comment must be
electronically filed via the Florida Courts E-Filing Portal (Portal) in accordance
with In re Electronic Filing in the Supreme Court of Florida via the Florida Courts
E-Filing Portal, Fla. Admin. Order No. AOSC13-7 (Feb. 18, 2013). If filed by a
nonlawyer or a lawyer not licensed to practice in Florida, the comment may be, but
is not required to be, filed via the Portal. Comments filed via the Portal must be
submitted in Microsoft Word 97 or higher. See In re Electronic Filing in the
Florida Supreme Court, Fla. Admin. Order No. AOSC17-27 (May 9, 2017). Any
person unable to submit a comment electronically must mail or hand-deliver the
originally signed comment to the Florida Supreme Court, Office of the Clerk, 500
South Duval Street, Tallahassee, Florida 32399-1927; no additional copies are
required or will be accepted.
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APPENDIX
RULE 2.420. PUBLIC ACCESS TO AND PROTECTION OF
JUDICIAL BRANCH RECORDS
(a) – (b) [No Change]
(c) Confidential and Exempt Records. The following records of the
judicial branch shall be confidential:
(1) – (8) [No Change]
(9) Any court record determined to be confidential in case decision
or court rule on the grounds that:
(A) confidentiality is required to:
(i) - (vii) [No Change]
(B) the degree, duration, and manner of confidentiality
ordered by the court shall be no broader than necessary to protect the interests set
forth in subdivision (c)(9)(A); and
(C) no less restrictive measures are available to protect the
interests set forth in subdivision (c)(9)(A).
(10) [No Change]
(d) Procedures for Determining Confidentiality of Court Records.
(1) The clerk of the court shall designate and maintain the
confidentiality of any information contained within a court record that is described
in subdivision (d)(1)(A) or (d)(1)(B) of this rule. The following information shall
be maintained as confidential:
(A) information described by any of subdivisions (c)(1)
through (c)(6) of this rule; and
(B) except as provided by court order, information subject to
subdivision (c)(7) or (c)(8) of this rule that is currently confidential or exempt from
section 119.07, Florida Statutes, and article I, section 24(a) of the Florida
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Constitution as specifically stated in any of the following statutes or as they may
be amended or renumbered:
(i) - (viii) [No Change]
(ix) Records of substance abuse service providers
which pertain to the identity, diagnosis, and prognosis of and service provision to
individuals., § 397.501(7), Fla. Stat., and all petitions, court orders, and related
records for involuntary assessment and stabilization of an individual, § 397.6760,
Fla. Stat.
(x) - (xxii) [No Change]
(2) The filer of any document containing confidential information
described in subdivision (d)(1)(B) shall, at the time of filing, file with the clerk a
“Notice of Confidential Information within Court Filing” in order to indicate that
confidential information described in subdivision (d)(1)(B) of this rule is included
within the document being filed and also indicate that either the entire document is
confidential or identify the precise location of the confidential information within
the document being filed. If an entire court file is maintained as confidential, the
filer of a document in such a file is not required to file the notice form. A form
Notice of Confidential Information within Court Filing accompanies this rule.
(A) [No Change]
(B) The clerk of court shall review filings identified as
containing confidential information to determine whether the purported
confidential information is facially subject to confidentiality under subdivision
(d)(1)(B). If the clerk determines that filed information is not subject to
confidentiality under subdivision (d)(1)(B), the clerk shall notify the filer of the
Notice of Confidential Information within Court Filing in writing within 5 days of
filing the notice and thereafter shall maintain the information as confidential for 10
days from the date such notification by the clerk is served. The information shall
not be held as confidential for more than that 10-day period, unless a motion has
been filed pursuant to subdivision (d)(3).
(3) The filer of a document with the court shall ascertain whether
any information contained within the document may be confidential under
subdivision (c) of this rule notwithstanding that such information is not itemized at
subdivision (d)(1) of this rule. If the filer believes in good faith that information is
confidential but is not described in subdivision (d)(1) of this rule, the filer shall
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request that the information be maintained as confidential by filing a “Motion to
Determine Confidentiality of Court Records” under the procedures set forth in
subdivision (e), (f), or (g), unless:
(A) – (B) [No Change]
(4) – (5) [No Change]
(e) Request to Determine Confidentiality of Trial Court Records in
Noncriminal Cases.
(1) – (2) [No Change]
(3) Any order granting in whole or in part a motion filed under
subdivision (e) must state the following with as much specificity as possible
without revealing the confidential information:
(A) Tthe type of case in which the order is being entered;
(B) Tthe particular grounds under subdivision (c) for
determining the information is confidential;
(C) Wwhether any party’s name determined to be
confidential and, if so, the particular pseudonym or other term to be substituted for
the party’s name;
(D) Wwhether the progress docket or similar records
generated to document activity in the case are determined to be confidential;
(E) Tthe particular information that is determined to be
confidential;
(F) Iidentification of persons who are permitted to view the
confidential information;
(G) Tthat the court finds that: (i) the degree, duration, and
manner of confidentiality ordered by the court are no broader than necessary to
protect the interests set forth in subdivision (c); and (ii) no less restrictive measures
are available to protect the interests set forth in subdivision (c); and
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(H) Tthat the clerk of the court is directed to publish the order
in accordance with subdivision (e)(4).
(4) – (5) [No Change]
(f) Request to Determine Confidentiality of Court Records in
Criminal Cases.
(1) Subdivisions (e) and (h) shall apply to any motion by the state,
a defendant, or an affected non-party to determine the confidentiality of trial court
records in criminal cases under subdivision (c), except as provided in subdivision
(f)(3). As to any motion filed in the trial court under subdivision (f)(3), the
following procedure shall apply:
(A) Unless the motion represents that the Sstate,
defendant(s), and all affected non-parties subject to the motion agree to all of the
relief requested, the court must hold a hearing on the motion filed under this
subdivision within 15 days of the filing of the motion. Any hearing held under this
subdivision must be an open proceeding, except that any person may request that
the court conduct all or part of the hearing in camera to protect the interests set
forth in subdivision (c)(9)(A).
(B) [No Change]
(2) – (4) [No Change]
(g) Request to Determine Confidentiality of Appellate Court Records
in Noncriminal Cases.
(1) – (2) [No Change]
(3) Any order granting in whole or in part a motion filed under
subdivision (g)(1) must be in compliance with the guidelines set forth in
subdivisions (e)(3)(A)–(e)(3)(H). Any order requiring the sealing of an appellate
court record operates to also make those same records confidential in the lower
tribunal during the pendency of the appellate proceeding.
(4) – (8) [No Change]
(h) Oral Motions to Determine Confidentiality of Trial Court
Records.
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(1) Notwithstanding the written notice requirements of subdivision
(d)(2) and written motion requirements of subdivisions (d)(3), (e)(1), and (f), the
movant may make an oral motion to determine the confidentiality of trial court
records under subdivision (c), provided:
(A) – (E)
(F) the provisions of subdivision (f)(1)(A) and (f)(1)(B) and
(f)(3) shall apply to any oral motion under subdivision (f)(3); and
(G) [No Change]
(2) – (3) [No Change]
(4) If the court grants in whole or in part any oral motion to
determine confidentiality, the court shall issue a written order that does not reveal
the confidential information and complies with the applicable subdivision of this
rule as follows:
(A) For any oral motion under subdivision (e) or (f)(1),
except subdivisions (f)(1)(A) and (f)(1)(B), the written order must be issued within
30 days of the hearing and must comply with subdivision (e)(3).
(B) [No Change]
(i) Sanctions. After notice and an opportunity to respond, and upon
determining that a motion, filing, or other activity described below was not made
in good faith and was not supported by a sound legal or factual basis, the court may
impose sanctions against any party or non-party and/or their attorney, if that party
or non-party and/or their attorney, in violation of the applicable provisions of this
rule:
(1) – (4) [No Change]
(5) makes public or attempts to make public by motion or
otherwise information that should be maintained as confidential under subdivision
(c), (d), (e), (f), (g), or (h); or
(6) [No Change]
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Nothing in this subdivision is intended to limit the authority of a court to
enforce any court order entered pursuant to this rule.
(j) – (m) [No Change]
Committee Note
[No Change]
APPENDIX TO RULE 2.420
[No Change]
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