1)        Introduction

The Florida Supreme Court adopted amendments to Rule of Judicial Administration 2.420 effective October 1, 2010.  In re:  Amendments to Florida Rule of Judicial Administration 2.420 and the Florida Rules of Appellate Procedure, 31 So.3d 756 (Fla. 2010).  The amendments do not alter existing law establishing certain records as confidential.  Rather, the amendments compile a list of 19 items previously determined to be confidential through other statutory provisions and require the filer of court records and the clerk of the circuit court to identify them as confidential.  The amendments also modify the procedures for sealing and unsealing of court records, establish procedures for criminal cases, and address sealing of appellate court records.

There are generally two types of information referenced in the new rule. “Type I” information includes items stated in subsections (c)(1) through (c)(6)[1] and the 19 items listed in subsection (d)(1)(B).  The specified 19 items are:

1)         Chapter 39 records relating to dependency matters, termination of parental rights, guardians ad litem, child abuse neglect, and abandonment.

2)         Adoption records.

3)         Social Security, bank account, charge, debit, and credit card numbers in court records.

4)         HIV test results and patient identity within those test results.

5)         Sexually transmitted diseases—test results and identity within the test results when provided by the Department of Health or the department’s authorized representative.

6)         Birth and death certificates, including court-issued delayed birth certificates and fetal death certificates.

7)         Identifying information in a petition by a minor for waiver of parental notice when seeking to terminate pregnancy.

8)         Identifying information in clinical mental health records under the Baker Act.

9)         Records of substance abuse service providers which pertain to the identity, diagnosis, and prognosis of and service provision to individuals who have received services from substance abuse service providers.

10)       Identifying information in clinical records detained criminal defendants found incompetent to proceed or acquitted by reason of insanity.

11)       Estate inventories and accountings.

12)       The victim’s address in a domestic violence action on petitioner’s request.

13)       Information identifying victims of sexual offenses, including child sexual abuse.

14)       Gestational surrogacy records.

15)       Guardianship reports and orders appointing court monitors in guardianship cases.

16)       Grand jury records.

17)       Information acquired by courts and law enforcement regarding family services for children.

18)       Juvenile delinquency records.

19)       Information disclosing the identity of persons subject to tuberculosis proceedings and records of the Department of Health in suspected tuberculosis cases.

“Type II” information is essentially a catch-all for information that is not automatically considered confidential like the items in Type I. Type II includes items contained in subsections (c)(7) or (c)(8), but not listed in the 19 items found in (d)(1)(B).

(c)(7)—All records made confidential under the Florida and United States Constitutions and Florida and federal law;

(c)(8)—All records presently deemed to be confidential by court rule, including the Rules for Admission to the Bar, by Florida Statutes, by prior case law of the State of Florida, and by the rules of the Judicial Qualifications Commission.

2)         Type I Information—Filing a “Notice of Confidential Information within Court Filing”

The Clerk of Court has an independent responsibility to ensure that Type I information is maintained as confidential.  Additionally, the filer of court documents must file a “Notice of Confidential Information within Court Filing” if the document contains Type I information.  The standard form “Notice of Confidential Information within Court Filing” is attached to this Memorandum.  The Notice must:

1)         Indicate that confidential information described in subdivision (d)(1)(B) is included within the document being filed;

2)         Identify the provision of subdivision (d)(1)(B) that applies to the identified information; and

3)         Identify the precise location of the confidential information within the document being filed.

The Clerk must then evaluate the filings to determine if they are facially subject to confidentiality according to the 19 categories.  If the Clerk determines that filed information is not subject to confidentiality under the identified provision, the Clerk shall notify the person who filed the document in writing within 5 days of the filing.  The Clerk shall then maintain the information as confidential for 10 days from the date the filer is notified.  The Clerk shall not maintain the information as confidential for more than 10 days unless the filer files a “Motion to Determine Confidentiality of Court Records”.

If the document is filed in one of the following types of cases, which are sealed and maintained by the Clerks of the Circuit Court as confidential, the Notice is not required:

1)   Dependency, sections 39.0132(3)-(4), Florida Statutes.

2)   Termination of Parental Rights, sections 39.814(3)-(4), Florida Statutes.

3)   Adoption, section 63.162(2), Florida Statutes.

4)   Surrogacy, section 742.16(9), Florida Statutes.

5)   Children and Families in Need of Services, sections 984.06(3)-(4), Florida Statutes.

6)   Delinquency, section 985.05(2), Florida Statutes.

7)   Waiver of Parental Notification of Termination of Pregnancy, sections

390.01114 -.01116 and Florida Juvenile Procedure Rule 8.835.

If a document from one of these case types listed in 1-7 is filed in any other case, the Notice must be filed with the document.

3)         Type II Information—Filing a “Motion to Determine Confidentiality of Court Records”

According to 2.420(d)(3), if the filer has ascertained that the documents being filed do not contain Type I information, the filer must still determine if there is any Type II information.  If the filer has a good faith belief that the document contains Type II information, the filer must file a “Motion to Determine Confidentiality of Court Records” unless (1) the person filing the information is the only individual whose confidential information is included in the document or is the attorney representing all such individuals, and (2) a knowing waiver of confidentiality is intended. The procedure for this Motion is found in either 2.420(e), (f), or (g), depending on the type of court or case involved.

4)         Request to Determine Confidentiality of Trial Court Records in Noncriminal Cases—2.420(e)

Former section 2.420(d) has been changed to current subsection (e).  This subdivision provides a procedure for seeking a judicial determination as to Type II information discussed above. The procedure is essentially the same as before the amendments. The Motion must:

1)         Identify the particular court records or a portion of a record that the movant seeks to have determined as confidential with as much specificity as possible without revealing the information subject to the confidentiality determination;

2)         Specify the bases for determining that such court records are confidential; and

3)         Set forth the specific legal authority and any applicable legal standards for determining such court records to be confidential.

The filer of the motion must indicate in the motion whether the motion is agreed to and must provide service on other parties and any affected non-parties. Non-parties must also be provided with a Notice that describes the confidential information with as much specificity as possible without revealing the confidential information.

If the motion is not agreed to, the filer must contact the judicial assistant for the section judge upon filing of the motion and set the matter so that a hearing can be held within 30 days of filing.

An affected non-party may also file a motion requesting that a file, document, or information in a court file be maintained as confidential.  The affected non-party must follow the same procedure as the filer to serve the motion and set the matter for hearing described above.

One major change is the addition of provisions to subsections (e)(2) and (e)(5) which provide for expedited consideration and rulings on motions to seal or unseal records. Subsection (e)(6) has also been revised to provide for sanctions for the failure to comply with the requirements for filing confidential information contained in (d)(2) or (d)(3).

5)         Request to Determine Confidentiality of Court Records in Criminal Cases—2.420(f)

Subsection (f) is new and provides the procedures for requesting a confidentiality determination for criminal trial and appellate court records. It is essentially the same procedure found in subsection (e).

6)         Request to Determine Confidentiality of Appellate Court Records in Noncriminal Cases—2.420(g)

Subsection (g) is also modeled after the new subsection (e) discussed above. It provides the procedure for determining whether appellate court records contain Type II information and should be considered confidential. The motion is the same as described above: “Motion to Determine Confidentiality of Court Records”. It may be made with respect to a record that was presented or presentable to a lower tribunal, but no determination concerning confidentiality was made by the lower tribunal, or a record presented to an appellate court in an original proceeding.

[1] These items have not been altered by the amendments. They generally include documents produced by the court such as trial memoranda, draft opinions, advisory opinions, or copies of arrest and search warrants retained by judges.

By: Timothy W. Sobczak, Esq.