The Florida Bar

Florida Bar News

Clerks: We don’t have authority to protect victim info under Marsy’s Law

Senior Editor Top Stories

Two other recent statutory public record exemptions are also problematic

Florida Supreme CourtFlorida’s clerks of court say they lack the authority to keep confidential information under the recently approved victims’ rights constitutional amendment, known as Marsy’s Law, and have asked the Florida Supreme Court for help by July 1.

In a June 17 letter to Chief Justice Charles Canady, Florida Court Clerks & Comptrollers Chief Executive Officer Chris Hart said clerks are also struggling with two statutory public records law exemptions created by the Legislature last spring affecting protective injunctions and voluntary and involuntary admissions for mental-health treatment.

Hart also said even if clerks had the authority on their own to remove information under Marsy’s Law, it would be nearly impossible unless filers notify the clerks when submitting documents.

Canady said the court is looking at the request.

“The Court is reviewing the issues raised in the letter with the help of staff and of the appropriate Bar committees,” Canady said. “We understand that these are serious issues that require careful and expeditious consideration.”

The Bar’s Rules of Judicial Administration Committee has already assigned a subcommittee to review the clerks’ concerns and it will share a report at the committee’s June 28 meeting at the Bar’s Annual Convention.

Hart noted in his letter that while clerks maintain court case files, control of the files resides with the courts, and clerks are bound by Rule of Judicial Administration 2.420 on what information they may keep as confidential.

That rule identifies 22 automatically exempted categories of information, such as bank account numbers, health information, and the like, that clerks as a ministerial function may remove from otherwise public court records. Any other constitutional exemption or one of the 1,133 statutory public records exemptions require the filer to seek a court hearing to have the information kept as confidential, according to the rule.

Neither Marsy’s law nor the two new statutory exemptions “have been specifically (absorbed) into the list of 22 [automatically exempted categories in Rule 2.420]” and consequently “information and records allegedly made confidential by these statutory exemptions and Marsy’s Law are subject to being released by the clerks,” Hart wrote.

He continued: “The Marsy’s Law change is of particular concern. Clerks have no authority to automatically keep that information confidential. Yet currently the public, law enforcement, and even state attorneys expect clerks to do so when a ‘notice’ is filed. Some agencies believe it applies to all cases involving a victim, no matter the crime nor whether it is a civil or criminal case. Given the breadth of the amendment, it is understandable for them to have reached that conclusion. However, in the long run, the most difficult aspect for clerks in trying to protect victim information on an ongoing basis is that without some notice when such information is filed in a case — if this Court were to determine that a notice pursuant to Florida Rule of Judicial Administration 2.420(d)(2) alone is sufficient to keep the information confidential — it would be virtually impossible to identify such information.”

Hart noted that under Times Publishing Co. v. Ake, 660 So.2d 255 (Fla. 1995), clerks may not protect “new statutory and constitutional exemptions” to public records until they receive direction from the court.

“FCCC would request this Court, under Ake, provide direction to clerks on how to proceed” with Marsy’s law and the new statutory exemptions, Hart wrote.

He asked that the court make that determination by July 1 and also suggested that the court establish a standing committee, with judges, attorneys, clerks, and others as members, to automatically review future statutory and constitutional public records exemptions.

Marsy’s Law was placed on last November’s general election ballot by the Constitution Revision Commission. It largely placed the state’s victims’ right statutes in the Constitution, but also included a provision allowing victims to request that identifying information be kept out of public records.

The statutes enacted by the Legislature provide that identifying information in certain protective injunctions remains confidential until the respondent has been served and petitions for voluntary and involuntary admission for mental health-treatment and related court orders and records are confidential. Both of those statutes are effective on July 1.

News in Photos