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Clerk review for confidential information in some civil filings ends July 1

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Lawyers will be responsible if they fail to identify confidential information that becomes public

RedactionBeginning July 1, Florida lawyers won’t have clerks of court backing them up to ensure confidential client information isn’t getting into public court files in most civil cases.

Clerks of court will end automatic reviews to redact confidential information in most civil filings, leaving it up to lawyers and other filers to tell clerks when protected information is in their court submissions.

That follows a June 10 Supreme Court order rejecting comments asking that it alter or delay an amendment to Rule of General Practice and Judicial Administration 2.420 it made in January on the court’s own motion.

Under that amendment, effective July 1, clerks will end automatic redaction review for small claims civil filings and all circuit and county court civil filings, except for Jimmy Ryce Civil commitments, cases stemming from sexual assault, and medical malpractice filings.

The change means clerks will no longer conduct an independent redaction review in those cases and will rely solely on a notice lawyers and other filers are required to submit when a filed document has confidential information as defined in Rule 2.420. Without the notice, that information will make its way into public electronic court files and the lawyer could be liable if the information is released and face disciplinary action.

Under the original rule, lawyers were required to file the notice, but clerks were also tasked with reviewing the filings to ensure confidential information was protected. The change will not affect filings in other court divisions, such as criminal, juvenile, and family law, where clerks will continue to review filings.

Although the notice requirement has been part of the rule for years, there has been extensive anecdotal evidence that lawyers either remain unaware of the requirement or fail to follow it.

The court had been considering comments it invited after it released the rule change in January. It had earlier declined to hold oral argument in the matter.

In its one paragraph order, the unanimous court said it had considered the comments and “The court having determined that no further amendments to the rule are warranted at this time, this case is hereby final.”

“We’re very pleased the court recognizes that impediments to access like clerk redaction cause delays, which impede transparency,” said Tampa attorney Carol LoCicero, who represented a consortium of media companies that supported the rule change.

“In accordance with the Florida Supreme Court’s amendment to Rule 2.420, ‘the Clerk of Court shall not be required to designate and maintain information as confidential unless the filer follows the notice procedures,’” said Clay County Clerk of Court Tara Green, president of the Florida Court Clerks & Comptrollers. “Beginning July 1, filers will be solely responsible for ensuring any confidential information contained in filings for civil and small claims cases is appropriately redacted or identified for redaction. We strongly suggest attorneys, legal professionals, and self-represented litigants review the amendment and become fully familiar with the rule change so that confidential information is not made public.”

A statement from the FCCC said, “Clerks are currently exploring options across county offices to address the amendment’s broad implementation.”

The media companies have been critical about how long it takes to gain access to new court filings, saying the automatic clerk redaction review causes unnecessary delays in the public and press being able to see court records.

In their comments arguing in favor of the changes, the media companies noted that only Florida and Vermont require clerk review before documents are made public, and the federal system also requires no review.

“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.

In extensive comments filed with the court, the FCCC and Brevard County Clerk of Court Rachel Sadoff said the change will result in confidential information becoming public and won’t save clerks that much work, time, or money.

As part of its comment, the FCCC looked at 46,853 filings from five counties over a one-week period in February. It found that 500 had the required Rule 2.420 notice to the clerk when they contained confidential information. But another 9,835 — almost 20 times as many — had protected information that had been filed without the notice and which was caught by clerks on their review.

Clerks also said they will have to change their case management software to exclude the civil and small claims cases from review and that will take time. More changes will be necessary to separate sexual abuse civil cases because there is currently no separate reporting category for those cases.

Clerks also said there won’t be time before July 1 to adequately educate lawyers and pro se filers about the requirement to file a notice when they submit confidential information, and that a massive education program will be needed.

Brevard County Clerk Sadoff noted clerks and filers will retain dual notice/review duties for all 15 other types of filings, such as criminal, juvenile, family law, probate, and other cases. She suggested any savings from ending civil and small claims reviews will be consumed by the needed case management changes to identify those cases.

“Our clerks of court in Florida’s 67 counties protect the public by reviewing and redacting confidential personal information included in court documents, and we take this responsibility very seriously,” Green said in her statement.

The June 10 order came In re: Amendments to Florida Rule of Judicial Administration 2.420, Case No. SC 20-1765. The docket page for the case is here.

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