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CONFIDENTIALITY OF COURT RECORDS AND MOTIONS TO SEAL COURT RECORDS

CONFIDENTIALITY OF COURT RECORDS AND MOTIONS TO SEAL COURT RECORDS. Hon. Maria Espinosa Dennis Circuit Court Judge 27 th Annual View from the Bench May 18, 2012. AUTHORITY. RULE 2.420 OF THE FLORIDA RULES OF JUDICIAL ADMINISTRATION ADMINISTRATIVE ORDER NO. 10-10.

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CONFIDENTIALITY OF COURT RECORDS AND MOTIONS TO SEAL COURT RECORDS

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  1. CONFIDENTIALITY OF COURT RECORDS AND MOTIONS TO SEAL COURT RECORDS Hon. Maria Espinosa Dennis Circuit Court Judge 27th Annual View from the Bench May 18, 2012

  2. AUTHORITY • RULE 2.420 OF THE FLORIDA RULES OF JUDICIAL ADMINISTRATION • ADMINISTRATIVE ORDER NO. 10-10

  3. FLORIDA RULE OF JUDICIAL ADMINISTRATION 2.420 • This Rule regulates what records are open to the public and how they can be reviewed. • Addresses access by the public to Court Records and to administrative records of the Judicial Branch • Fully Applicable on October 1, 2010. • Background: Privacy vs. Public Access • Public’s legitimate privacy interests and it’s desire to have broad access to court records = Guidelines

  4. RULE 2.420 FRJA Defines “CONFIDENTIAL” as: As applied to information contained within a record of the judicial branch, means that such information is exempt from the public right of access under Article I, Section 24(a) of the Florida Constitution, and may be released only to the persons or organizations designated by law, statute, or court order. The term “EXEMPT” means that such information is “confidential”.

  5. LISTS OF “CONFIDENTIAL” DOCUMENTS • 2.420(C) 1-6: LIST OF RECORDS OF JUDICIAL BRANCH • 2.420(C) 7-10: CATCH-ALL LIST TYPE- II INFORMATION • 2.420(D) 1-19: LIST OF INFORMATION CONTAINED WITHIN COURT RECORDS TYPE – I INFORMATION

  6. Rule 2.420(c) 1-6: Confidential & Exempt Records SETS FORTH A LIST OF CATEGORIES OF RECORDS OF THE JUDICIAL BRANCH THAT SHALL BE “CONFIDENTIAL” OR EXEMPT FROM PUBLIC ACCESS Examples: • Trial and Appellate Court Memoranda, Drafts of Opinions and Orders; • Advisory Opinions that relate to Administration of Court; • Complaints alleging Misconduct against Judges (until PC is established); • Copies of Arrest & Search Warrants retained by Clerks & Judges (until execution of these warrants), etc.

  7. RULE 2.420(C)7-10: CONFIDENTIAL & EXEMPT RECORDS • (C)(7): All records made confidential under the Florida & US Constitution and Florida & Federal law; • (C)(8): All records deemed confidential by court rule, bar rules, Florida Statutes, case law and rules of JQC; • (C)(9): Any court record determined to be confidential on grounds that confidentiality is required to: **(MOST DISCRETION BY COURT) • Prevent serious, imminent threat to the administration of justice; • Protect trade secrets; • Protect compelling governmental interest; • Obtain evidence to determine legal issue in case; • Avoid substantial injury to party by disclosure of matters protected; • Comply with established Public Policy; • (C)(10):The names and any identifying information of Judges mentioned in advisory opinions of the Judicial Ethics Committee.

  8. “TYPE-II” INFORMATION • MAY be CONFIDENTIAL under subdivisions (c)(7) or (c)(8), but that is NOT automatically confidential • Refers to information that MAY be confidential under subdivision (c)(9)

  9. LIST OF CONFIDENTIAL INFORMATION CONTAINED IN RECORDS PER RULE 2.420 (d)(1)(b) • THESE ARE READILY IDENTIFIABLE TO CLERKS OF THE COURT – (19 CATEGORIES): “TYPE-I” INFORMATION: 1. Chapter 39 records pertaining to dependency matters, termination of parental rights, guardian ad litem, child abuse, neglect, and abandonment; 2. Adoption records; 3. Social Security, bank account, charge, debit, and credit card numbers in court records, (unless redaction is requested);

  10. (cont.) List of confidential information 4. HIV test results and patient identity within the HIV test results; 5. Sexually transmitted diseases—test results and identity within the test results when provided by the Dept. of Health 6. Birth and Death Certificates; 7. Identifying Information in Petition by Minor for Waiver of Parental Notice when seeking to TerminatePregnancy; 8. Identifying Information in Clinical Mental Health Records under the Baker Act;

  11. 9. Records of Substance Abuse Service Providers which pertain to the identity, diagnosis and prognosis of individual receiving services; 10. Identifying Information in Clinical Records of Detained Criminal defendants found Incompetent or Acquitted by reason of Insanity; 11. Estate Inventories or Accountings; 12. Victim’s Address in Domestic Violence action on Petitioner’s Request; 13. Information Identifying Victim’s of Sexual Offenses, including Child Sexual Abuse; 14. Gestational Surrogacy Records;

  12. 15. Guardianship Reports & Orders appointing court monitors in Guardianship records; 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 Dept. of Health in suspected Tuberculosis cases.

  13. PROCEDURES FOR DETERMINING CONFIDENTIALITY OF COURT RECORDS - 2.420(D)(2) 1. GOOD FAITH REVIEW OF PLEADINGS BY FILER; 2. FILE FORM “NOTICE OF CONFIDENTIAL INFORMATION WITHIN COURT FILING”; 3. CLERK OF COURT REVIEWS FILINGS; 4. WRITTEN NOTICE TO FILER (BY CLERK) IF FINDS INFORMATION NOT CONFIDENTIAL - WITHIN 5 DAYS; 5. FILER MUST FILE “MOTION TO DETERMINE CONFIDENTIALITY OF COURT RECORDS”; 6. “OPEN” COURT HEARING WITHIN 30 DAYS W/CT. REPORTER OR RECORDED DEVICE; 7. POSTING OF COURT ORDER BY CLERK – (30 DAYS)

  14. STEP #1 - GOOD FAITH REQUIREMENT OF FILER GOOD FAITH REVIEW BY FILER ANY PERSON FILING A DOCUMENT WITH THE COURT SHALL - IN GOOD FAITH -ASCERTAIN WHETHER ANY INFORMATION CONTAINED WITHIN THE DOCUMENT MAY BE CONFIDENTIAL UNDER THIS RULE

  15. Good Faith Review EVEN IF THE INFORMATION IS NOT ITEMIZED IN THE 2.420 (D)(1) LIST – (NOT ONE OF THE 19 ENUMERATED EXEMPTIONS)

  16. STEP #2 – FILE NOTICE FILE NOTICE WITH COURT ANY PERSON FILING A DOCUMENT CONTAINING CONFIDENTIAL INFORMATION SHALL AT THE TIME OF FILING, FILE WITH THE CLERK OF THE COURT, A: “NOTICE OF OF CONFIDENTIAL INFORMATION WITHIN COURT FILING”

  17. EXCEPTIONS TO DUTIES OF FILER RE TYPE-II INFORMATION If the Filer has a good faith belief that the document contains confidential information, the Filer MUST file a “Motion to Determine Confidentiality of Court Records”, requesting a judicial determination of confidentiality, UNLESS: a. The Filer is the only person whose confidential information is included in the document; or b. The filer is the attorney representing all such persons and a waiver of confidential status is intended. *Any Interested Person may also request that Type-II Information be maintained Confidential by filing a Motion to Determine Confidentiality.

  18. FORM – NOTICE OF CONFIDENTIAL INFORMATION WITHIN COURT FILING • Sample Notice of Confidential Information here…..

  19. NOTICE TO NON-PARTY *SUBDIVISION (D)(4) • REQUIRES FILER TO GIVE A NON-PARTY NOTICE OF CERTAIN FILINGS INVOLVING CONFIDENTIAL INFORMATION PERTAINING TO THE NON-PARTY, when: • 1. Notice of Confidential Information is filed; • 2. Motion is filed seeking to determine that Information contained in court files is confidential; • 3. Motion to Vacate Order Determining Confidentiality; 4. Motion to Unseal Information/Records.

  20. STEP #3 – CLERK OF COURT REVIEW • CLERK SHALL review the information identified by the Filer to determine whether the information is facially subject to the identified provision. • If CLERK determines that the information IS NOTsubject to exemption, then the Clerk must give the Filer: 1. WRITTEN NOTICE of the determination within 5 DAYS of filing, AND 2. Maintain the information as confidential for 10 DAYS, or until the Court rules on the motion to determine confidentiality.

  21. STEP #4 – FILE MOTION FILE A MOTION TO DETERMINE CONFIDENTIALITY OF COURT RECORDS

  22. CONTENTS OF MOTION TO DETERMINE CONFIDENTIALITY OF COURT RECORDS • GOVERNED BY RULE 2.420(E) • Requires a WRITTEN MOTION, captioned “Motion to Determine Confidentiality of Court Records”. The MOTION must CONTAIN the following: • 1. IDENTIFY the particular COURT RECORD sought to be deemed confidential; • 2. SPECIFY the BASIS for determining that such court records are confidential; and • 3. Specify LEGAL AUTHORITY and applicable legal standards for determining such record to be confidential. • 4. Must contain SIGNED CERTIFICATION by the movant or his attorney that the motion is being made in GOOD FAITH and is SUPPORTED by sound FACT and LEGAL BASIS.

  23. STEP #5 - HEARING HEARING Unless all parties agree to the contrary, in writing, the Court MUST: • 1. Hold a hearing no later than 30 days after the filing of the motion; • 2. The hearing must be an OPEN PROCEEDING, unless an in-camera hearing is requested to protect the interests of the parties; • 3. There must be a COMPLETE RECORD of the hearing: either by court reporter or recording device; • 4. May require Public Notice; • 5. Court must issue RULING within 30 DAYS of hearing.

  24. CONTENTS OF COURT ORDERS GRANTING RELIEF Any ORDER granting in whole or in part a Request to Determine Confidentiality of Trial Court Records under Rule 2.420(e) MUST INCLUDE the following: 1. The TYPE OF CASE in which order is entered; 2. The particular GROUNDS for determining that the information is confidential; 3. Whether any PARTY’S NAME is determined to be CONFIDENTIAL and if so, the particular PSEUDONYM to be substituted for the party’s name; 4. Whether the PROGRESS DOCKET are determined to be confidential; 5. The particular INFORMATION that is determined to be CONFIDENTIAL (without revealing the confidential information);

  25. CONTENTS OF ORDER(Cont.) 6. Identification of PERSONS who are PERMITTED to VIEW the confidential information; 7. FINDING that the degree, duration and manner of confidentiality ordered BY the COURT are no broader than necessary to protect the interests which is the object of the motion, AND, no less restrictive measures are available.

  26. SAMPLE ORDER Order Granting/Denying Motion to Seal Pursuant to Florida Rule of Judicial Administration 2.420(c)(9) SAMPLE ORDER

  27. STEP #6 - POSTING

  28. STEP #6 – POSTING The Clerk of the Court MUST PUBLISH the ORDER, within 10 days following the entry of the order by: • POSTING a copy of the Order on the CLERK’S WEBSITE and • POSTING in a PROMINENT location in the COURTHOUSE. The Order must remain posted in BOTH locations for no less than 30 DAYS.

  29. ADMINISTRATIVE ORDER NO. 10-10 • IN RE: PROCEDURES AND CRITERIA FOR SEALING COURT RECORDS • EFFECTIVE NOVEMBER 15, 2010 • RESCINDS AND SUPERSEDES ADMINISTRATIVE ORDER NO. 06-36 • TRACTS THE LANGUAGE OF RULE 2.420 OF THE FLORIDA RULES OF JUDICIAL ADMINISTRATION • REQUIRES STRICT COMPLIANCE WITH RULE 2.420 OF THE FLORIDA RULES OF JUDICIAL ADMINISTRATION IN ORDER TO SEAL TRIAL COURT RECORDS.

  30. SANCTIONS FOR NON-COMPLIANCE • THE COURT CAN IMPOSE SANCTIONS AFTER: • A) NOTICE • B) HEARING • AGAINST A PARTY/NON-PARTY AND/OR THEIR ATTORNEY, IF: 1. COURT DETERMINES THAT A DESIGNATION MADE UNDER RULE 2.420(D) OR A MOTION MADE UNDER RULE 2.420(D)(3) OR (E) WAS NOT MADE IN GOOD FAITH AND WAS NOT SUPPORTED BY SOUND FACTUAL OR LEGAL BASIS, OR 2. A DOCUMENT WAS FILED IN VIOLATION OF RULE 2.420(D)(2) OR 2.420(D)(3), FRJA

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