By Gary Blankenship
A package of amendments that constitutes a “glitch bill” to fix “a complex rule” on protecting confidential information in court filings was heard in oral arguments at the Florida Supreme Court September 6.
Keith Park, chair of the Rules of Judicial Administration Committee, presented out-of-cycle amendments for Rule 2.420, which governs public access to judicial branch records and seeks to protect confidential information in court filings.
He said the committee has been working on revisions since major amendments to the rule were approved by the Supreme Court in 2010.
As the committee observed in its initial filing with the court, “Despite the best and valiant efforts of the drafters of the amended rule, it is not surprising that such a large body of work has encountered various implementation problems,” including lack of familiarity by lawyers, clerks, and judges. Some of those have been resolved with increasing familiarity with the rule, but “some of the issues involving the operation of the rule arise from the need to further amend the rule to correct errors and to clarify the rule’s intent.”
Park told the court that the committee, working with clerks, judges, and attorneys, “found what was wrong with the rule and what needed to be fixed. I’m not sure we’re done by any means. Many call this rule a beast. This is a very complex rule, and it’s probably a work in progress.”
The rule sets out 20 areas where information is presumed confidential and requires that filers identify that information so it can be removed from the public record by clerks. It also sets out ways for lawyers to get a judge’s determination on information that may be confidential but is not in the 20 defined areas.
Among the changes being proposed:
* Simplifying and making more general the form that must be included when confidential information is filed in one of the 20 areas defined in the rule. Park said the required form is so specific that in many cases it revealed the information that was sought to be kept confidential. Instead, the committee is proposing a simpler, more generic form that alerts the clerk that there is confidential information in the filing but not details about that information.
* Clarifying that judges and clerks are not “filers” under the definitions of the rule when they put things in court files.
* Allowing for oral motions for confidentiality of trial records with safeguards, so that all affected parties are notified and the practice is not abused.
* Clarifying that if information in one of the 20 categories is accidently included in the public part of court records that the filer can request, and the clerk can after-the-fact redact, the information.
* Clarifying that statutes governing confidential information and public records “trump” the rules. Park noted there are more than 1,000 statutes that affect confidential information, and the rules are intended to be a guide for determining when those statutes apply, but not a replacement for those statutes as some have assumed.
* Creating a new subdivision to allow access to confidential records for those with a legitimate reason to review those records.
* Consolidating service provisions into one subsection.
* Consolidating sanctions that currently are spread throughout the rule into one subdivision and making the sanctions consistent.
The only dispute during the oral arguments came from the Florida Public Defender Association. Robert Young, representing the association, asked the court to further amend the rule to automatically make confidential psychiatric and psychological evaluations of criminal defendants. Those reports, he said, not only contain sensitive information about the defendants, but may also have such information about witnesses, defendants, or other parties.
He said those evaluations typically include information covered by several of the 20 automatic exemption categories.
“It seems clear that this court has the power to look at contents of these things on a categorical basis and determine as a matter of categories that they almost certainly contain the things that trial judges find they contain [in a confidentiality hearing],” Young said. “The trial judge shouldn’t have to hold a hearing. The lawyers shouldn’t have to file the notice of confidentiality, because everyone knows when there’s a psychological evaluation there it has at least a half dozen of those 20 things in it.”
He contended the motions are never opposed.
But Paul Regensdorf, representing the Florida Courts Technology Commission and its Access Subcommittee, said the court lacks the authority to impose an automatic redaction.
He said a 1992 amendment to the Florida Constitution prohibited making any public record confidential, unless it was already in statute or in court rules or unless it was in an act passed by two-thirds of the Legislature.
“Sadly, you do not have that constitutional authority,” Regensdorf said. “. . . . There is no statute that says psychological evaluations are confidential, period.”
He also addressed the importance of Rule 2.420, which he said is needed as the court switches from the days of paper files to an electronic court system with information available via the Internet. That means an end to the days of “practical obscurity,” he noted, when the damage of putting confidential information in a file was minimized because it took a trip to the courthouse and an in-person request to see a file.
“It also means that the lawyers involved will have to learn a new system. They’ve got to be more vigilant,” Regensdorf said. “We’re entering a whole new world . . . because we’re going to have electronic access, and those things need to be scrubbed ahead of time, and it’s not a simple process.”
Park, in his rebuttal argument, noted the 20 automatic redaction categories are all supported by statute. While there is no such basis to grant the public defenders’ request, he said, there is widespread support for the defenders’ position.
“I think the Legislature should do something about that,” Park said, referring to the psychiatric reports. “I really find the fact that these records could be become public is distasteful.”
The oral argument was for In re: Amendments to Rule of Judicial Administration 2.420, case no. SC11-2466.