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Court records access rule is getting a lot of attention

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Rule booksThere may be no more scrutinized Florida court procedural rule than Rule of Judicial Administration 2.420.

Titled “Public Access to Judicial Branch Records,” it runs for 19 pages and has been called perhaps the longest and most complex of any court procedural rule.

The basic rule encompasses two sentences. One explains the authority for the rule under the Florida Constitution and the second reads: “The public shall have access to all records of the judicial branch of government, except as provided below.”

Defining and regulating those exceptions takes the remainder of the 19 pages. The rule covers both court administrative records and court case files (which takes up the majority of the rule), but the most scrutiny and debate is focused on the subdivision that seeks to protect client confidential information that may find its way into case files.

Here’s a quick look at recent developments affecting the rule:

• In its soon-to-be filed regular-cycle report, the proposed Rules of Judicial Administration are condensed. The subcommittee that did the work set its goals to shorten and simplify the rule without making substantive changes and was able to cut the length by about one third.

• That same RJAC subcommittee is now embarking on reviewing and addressing substantive rule concerns that arose during the review of the rule.

• Notwithstanding that pending substantive review, a special ad hoc subcommittee, formed by the Supreme Court, submitted a “No Action Report” in December after the joint subcommittee reviewed complaints from media outlets that alleged clerks take too long to review and redact court filings before those filings become public. While the subcommittee majority opposed a rule amendment, a minority submitted separate proposals calling for an end to automatic clerk redaction under Rule 2.420 for some to all civil court filings. Two of those proposals keep redactions for non-attorney filers and one of those proposals also keeps clerk redactions for “family, probate, guardianship, sex abuse, medical malpractice, Jimmy Ryce Act or juvenile cases” filed by attorneys. For the text of the three alternative rule amendments, click here and then select the “Access to Court Records – No Action Report.pdf” link and go to pages 54-56.

• Another special committee, again created by the Supreme Court, is looking at how the Marsy’s Law victims’ rights amendment approved by voters in November 2018 affects procedural rules. The subcommittee has for consideration a Rule 2.420 amendment, and a minor change to Rule 2.425, proposed by Florida Court Clerks & Comptrollers that would have law enforcement, or whoever initiates a criminal case, offer the victim a form to select whether to use the privacy sections of Marsy’s Law.

Anecdotal evidence offered at various forums has suggested that many Florida lawyers do not understand their obligations under Rule 2.420 to protect confidential client information, and that clerks’ review and redaction of the 23 automatic privacy areas spelled out in the rule has prevented considerable disclosure of private information.

Much of the recent debate over the rule has focused on whether that automatic review by clerks should be ended. Supporters of that change say it’s wrong for lawyers to abdicate their responsibility under the rule and rely on clerks, especially when it slows access to court records and perhaps technological improvements to handling court records. Opponents say clients would bear the brunt of confidential information becoming public when lawyers don’t follow the rule, perhaps lessening public trust in the legal system. They also have said lawyers who fail to protect the information could face sanctions from judges, possible discipline by the Bar, and lawsuits from clients.

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