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Panel offers rules on which court records should be available online

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Panel offers rules on which court records should be available online

Senior Editor

A wide-ranging recommendation about what information in court files should be deemed confidential and how such information can be protected while providing electronic access to court records has been made by a Supreme Court committee.

The Committee on Access to Court Records, chaired by 11th Circuit Judge Judith Kreeger, has prepared a filing to the high court with its recommendations for Rule of Judicial Administration 2.420. That rule governs public access to judicial branch records ( see Notice, here ).

Judge Kreeger Judge Kreeger said the access committee’s recommendations follow up on earlier work by the court’s Committee on Privacy and Court Records.

“That committee recommended the court move toward maintaining and having electronic access to digital records, but a major prong that needed to be accomplished before making court records remotely and electronically accessible was to create a process for protecting information that was by court rule or statutorily confidential,” she said.

The access committee’s recommendations reflect a problem that has been bedeviling efforts to provide online electronic access to court records — how to keep conficonfidential information, such as personal medical records, Social Security numbers, and sensitive financial information, accidentally from being released to anyone with a computer terminal and Internet access.

Another quandary has been trying to determine what type of information is confidential and what isn’t. The committee noted that court rules identify things that should be kept from public view.

State law also creates more than 1,000 exemptions from public records, and there is debate whether those exemptions should be included in court records through a doctrine known as “absorption.”

The report also addresses who is responsible for ensuring that confidential records remain confidential and aren’t accessible either at the courthouse or online.

In response to those questions, the committee recommends that the legislative exemptions not be automatically absorbed into court records.

It also proposed creating three categories of information: one for information that is clearly exempt under court rules or law; one for information that is clearly public; and one for information which a party may ask the court to declare that the information is confidential.

The committee came up with this proposed definition of “confidential” and “exempt” as they apply to court records:

“‘Confidential,’ as applied to information contained within a record of the judicial branch, means that such information is exempt from the public right of access under article I section 24(a) of the Florida Constitution and may be released only to the persons or organizations designated by law, statute, or court order. As applied to information contained within a court record, the term ‘exempt’ means that such information is confidential. Confidential information includes information that is confidential under this rule or under a court order entered pursuant to this rule. Restriction of access to confidential information shall be implemented in a manner that does not restrict access to any portion of the record that is not confidential.”

As for records that are automatically confidential and exempt from public scrutiny, the committee and a designated subcommittee studied all existing court and statutory exemptions, including the statutory exemptions that might be read as applying to court proceedings. Judge Kreeger said the University of Florida College of Law helped by reviewing Florida Statutes and finding all of the exemptions.

The subcommittee then classified them as whether they likely or not affected court operations or would be likely to be submitted as part of court records, she said.

From that, the committee proposed in its rule 19 subjects that are automatically exempt. Those include adoption records; Social Security numbers; bank account or credit card numbers; results of HIV tests; estate inventories; grand jury records; identifying information on minors seeking a waiver of parental notification for an abortion; Chapter 39 records on dependency, child abuse, neglect, abandonment; and juvenile delinquency records. Identifying the information which is to be kept confidential is the responsibility of the persons filing the documents, under the rule.

Clerks are also responsible for reviewing the folder to ensure the information is confidential, and Kreeger said the committee expects that computer software will assist with that job. The clerks will have five days to notify the filer if the clerks disagree that information should be designated as confidential, and maintain the confidentiality for another seven days while the filer decides whether to challenge that determination.

Most of the proposed rule changes deal with information in the second category, that which is not defined as automatically public or automatically confidential. The proposed rule changes set out procedures for filers to ask a court to find that the information should be kept from the public’s eyes.

“The burden is primarily on the filer to identify those which the filer believes may be confidential pursuant to one of the statutes,” Kreeger said. “Either the filer identifies, or a person related to that information if it’s not a filer, can use the mechanism that we set with the proposal to petition the court.”

The proposal makes minor changes to the rule section on determining confidentiality in circuit and county court noncriminal cases, except for one new subsection. That requires the party seeking the exemption to “set forth the specific legal authority and any applicable legal standards for determining such court records to be confidential.”

It also creates a new subdivision which provides: “Upon the request of persons seeking access, any Motion to Determine the Confidentiality of Court Records or any Motion to Vacate under this rule shall be deemed a priority case under rule 2.215(g).”

The proposal creates new sections of the rule to deal with determining the confidentiality of the second category information dealing with criminal records in the trial courts, criminal information in the appellate courts, and noncriminal information in the appellate courts.

The report from the access committee was reviewed briefly in September by the Rules of Judicial Administration Committee.

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