Clerk redaction rule change draws fierce comments
A new procedural rule ending mandatory clerk of court reviews for confidential information in some civil filings will cause logistical problems, likely lead to the release of personal data, and need a massive education program for both attorneys and pro se filers, according to comments filed with the Supreme Court.
But other filers claim critics are overreacting and the new rule will speed public access to court records and follows policies set in federal court and virtually every other state.
At issue is a change to Rule of Judicial Administration 2.420(d) announced by the court on January 21 and effective July 1. The change ends mandatory clerk review of small claims court filings and circuit and county court civil cases, except for Jimmy Ryce civil commitments, cases stemming from sexual assault, and medical malpractice filings. The amended rule makes the redaction of confidential information the exclusive duty of filers, who are already required to file a notice to the clerk when a document has protected information.
Clerks and filers would retain dual responsibility to identify confidential information in all other types of filings, including family, criminal, juvenile, and probate.
The court gave interested parties until April 6 to comment on the new rule. The Florida Court Clerks & Comptrollers, Brevard County Clerk of Court Rachel Sadoff, and a consortium of legal aid attorneys submitted briefs raising questions about the rule amendment. A coalition of several newspapers and TV stations and Miami Herald Senior Editor David Wilson submitted comments supporting the amendment. The Bar’s Rules of Judicial Administration Committee submitted a comment saying it was ready to work on any related rule changes that might be needed and recommending a massive education program for both lawyers and pro se parties about the need to identify confidential information in their filings so clerks can redact it.
The redaction issue has been strongly contended in recent years. Media companies argue that the advent of electronic filing has slowed access to new court submissions, with the required redaction review by clerks contributing significantly to that delay. Clerks and others have argued that the redaction notice required from filers in Rule 2.420 is widely ignored and without clerk review, sensitive information could be used for identify theft and would routinely make it into public court files including those that can be accessed online.
A special joint committee of the Rules of Judicial Administration Committee and the Florida Court Technology Commission studied the issue and the majority report, which was also supported by the full RJAC, recommended no change to the rule. A minority report recommended ending clerk redaction in civil cases. The court acted after receiving that report.
The RJAC noted in its comment that failing to tell clerks a filing has confidential information can lead to sanctions for attorneys.
“When considering that added significance, the Committee respectfully suggests that the Court support and encourage efforts by The Florida Bar to ensure that enhanced education and training for practitioners is expeditiously developed and made readily available,” the committee said, adding a similar program should be developed for pro se filers.
It also recommended that the court consider requiring a certificate for compliance with Rule 2.420 for every filing and that the statewide Florida courts e-filing portal be changed so for every document filed through the portal there is an electronic reminder about complying with the rule.
Lack of compliance was a major issue raised in the comments filed by the FCCC. For one-week last February, the group studied circuit and county civil and small claims filings in five counties that would be affected by the rule change.
That showed from a total of 46,853 filings in those courts, 500 had the confidentiality notice required in the rule, while another 9,835— almost 20 times as many — had confidential information that was filed without the notice and was caught by clerk review.
The FCCC said a massive education program could help with attorney compliance but might have trouble reaching pro se filers.
“Ironically, the act of education and warning the public of the rule change and need to personally identify their sensitive information may also attract bad actors who would now have open and easy access to find personal identifying information for their intended nefarious acts. Confidential information will be released, and the resulting harm to the public could be substantial,” the FCCC said.
Other FCCC reservations include:
• The court in its January 21 opinion said that in the specified civil cases that clerks do not have a responsibility to review, while the actual rule language says clerks “shall not be required,” which is permissive and not mandatory.
• Clerks’ case management software would have to be changed to exclude the enumerated civil and small claims cases from redaction. “This will require significant program changes to the Clerks’ CMS which will require additional time and expense to implement,” the filing said.
• While the new rule requires continued clerk redaction in Jimmy Ryce, sexual abuse, and medical malpractice civil cases, there is no separate category for the sexual abuse cases in civil cover sheets or the Summary Reporting System used to classify cases. Additional time will be needed to develop that.
• If the court does proceed with the new rule, it will take considerable time to educate lawyers and pro se filers and the July 1 effective date should be pushed back to at least January 1, 2022, and perhaps to July 1, 2022.
In her separate filing, Sadoff, the Brevard clerk, noted while the enumerated cases may have less confidential information than other case types, information still can be used for identity theft. She noted that small claims cases routinely have banks and credit card account numbers, Social Security numbers, and other information.
Sadoff also said clerks will still have to redact information in 15 other types of case filings and any savings from ending reviews of civil and small claims cases may be consumed by changes needed to identify those cases. She suggested the court give the clerks the option of continuing redaction for all cases.
The legal aid attorneys — about 175 lawyers representing 18 legal aid offices and organizations who have been cooperating for years under the name of the Housing Umbrella Group — said they rely on quick access to court records to help their clients but also expressed concern about information that might be released in eviction actions.
“Legal aid attorneys regularly rely on access to the online docket to obtain pleadings, advise clients, and draft answers. Even a short delay for redaction can cause problems for a tenant’s prospective attorney while trying to comply with the short deadlines,” the group’s filing said.
But it noted that leases and attachments in evictions can contain Social Security numbers, birth dates, bank account information, routing numbers, and other sensitive personal information.
The group proposed that clerks continue reviewing filings by pro se parties, who are unlikely to be aware of Rule 2.420, to catch that confidential information.
The coalition of news organizations, in its brief, argued that the switch to electronic court records has had the effect of slowing access by the press and public to new court filings. Among the states, only Florida and Vermont require clerk review of filings before they are public (it was uncertain in three states and 45 say filers only are responsible for redactions) and review is not done in the federal system, the comment said.
“Obtaining access can be difficult. Prioritizing the bureaucratic processes of 67 different counties often results in public access rights — rights protected by the Florida Constitution and the First Amendment — taking the proverbial backseat,” the media coalition said.
The coalition also estimated in 2017 redaction efforts costs clerks around $20 million and ending review for most civil cases would save some of that money.
The new rule is more limited than most other states, the group said.
“With such a limited approach as that employed by the Court, filers in Florida are no doubt capable of bearing the sole responsibility for redacting confidential information in the more routine civil matters,” the media coalition said, especially since lawyers and judges do the overwhelming volume of filing through the portal.
Court rulings around the country, the media coalition said, have interpreted the First Amendment as requiring speedy access to court records. In addition, the Florida Constitution, in its guarantee of privacy, mandates that, “This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law.”
The media coalition argued against delaying the effective date of the rule or making it optional for clerks.
“A permissive rule changes nothing and undermines the Court’s decision. Postponing the effective date, particularly considering the demonstrated constitutional infirmities with Florida’s access delays, also undermines the urgency repeatedly expressed by this Court,” the media coalition brief said.
Wilson, the Herald senior editor, said that the paper’s reporters can get electronic access quickly to federal court records but often experience significant delays seeing state court files. He also said that COVID-19 did not affect federal access but further slowed state access.
“If the lawyers who are responsible for most filings make redactions to e-filed documents, it would make much more sense. Court records could be uploaded to the online dockets without any issues, similar to the federal system, which has long facilitated access to filings, making PACER [the federal electronic records system] an invaluable journalistic resource,” Wilson said.
The FCCC, Sadoff, and the media coalition all requested to participate in oral arguments if the court chooses to hold them.
The comments came in In re: Amendments to Florida Rule of Judicial Administration 2.420, Case No. SC 20-1765. The docket page for the case is here.