Report on protecting private information in court files clears FCTC
Is the possibility that personal and otherwise confidential information will accidentally be released — with consequent liability for lawyers who failed to prevent it — worth it for faster public access to court records?
The Florida Courts Technology Commission approved the report from a special joint subcommittee that looked at that issue and found itself nearly split on the answer.
The report by the Ad Hoc Joint Subcommittee on Rule 2.420 was considered by the commission at its November 15 meeting in Orlando. Six members of the subcommittee favored no changes to Rule of Judicial Administration 2.420, which governs confidential information in court records. Five members favored a rule change that would end court clerks automatic redaction review of attorney’s civil case filings. That would leave all redaction responsibility with those filing attorneys.
That minority recommendation includes proposed amendments to Rule 2.420 that will be reviewed by the Bar Board of Governors at its December 13 meeting.
The joint FCTC and RJAC report on this referral is due at the Supreme Court by the end of the year.
The subcommittee was formed in reaction to a referral letter by the Supreme Court earlier this year after receiving information of complaints from media outlets that alleged it was taking too long to get access to newly filed electronic court documents and that, unlike the days of paper filings, only rarely were documents available the day they were filed.
The FCTC action “is not a request to support the majority [subcommittee] position or to support the minority position. It’s just a request that the report be approved so it can be submitted to the Supreme Court by December 31,” said Tom Hall, a member of the subcommittee who presented the report and who also supported the majority position at the FCTC meeting.
The dispute within the subcommittee centers about the Rule 2.420 requirement that when attorneys file documents containing confidential information covered by the rule’s 23 “automatic” categories, they must file a notice with the document so the clerk can redact that information before the files become public.
The subcommittee majority said the rule, and a 2010 Supreme Court opinion adopting the rule’s first iteration, requires clerks to conduct a separate review of filings and redact information covered by the rule’s 23 categories — even if attorneys don’t file the notice. The rule also requires that court files be made available in a “reasonable” time after a request to see them has been filed.
The six members of the subcommittee recommended no change be made to the rule. Five members (one subcommittee member did not vote) advocated a rule change to eliminate clerk review of the file prior to availability, which can take from several hours to a few days depending on a clerk’s policies and resources to do the redaction review. Those five members also favored exploring an online system, such as ones in New York and other states, that makes new civil court filings available online almost instantly and before they are reviewed or docketed.
The subcommittee was formed after media attorney Carol LoCicero wrote to Justice Ricky Polston, who is justice liaison to the RJAC and the FCTC, detailing that when a reporter visited 19 courthouses, he was able to get same-day access to filed documents at only five of them. In reaction, clerks claimed the report has erroneous information in some cases. The court then directed Supreme Court Clerk John Tomasino write a letter setting up the joint subcommittee to explore access to records and “to determine whether amendments to Florida Rule of Judicial Administration 2.420 are warranted.. . . The [Florida Courts Technology] Commission should provide any recommendations that do not involve rule amendments…that the Court will consider and act on administratively.”
The minority of the subcommittee favored two actions: Amend Rule 2.420 in three places “to clarify that a county clerk of court has no independent obligation to review [for confidential information] filings by members of The Florida Bar” and have an online portal “that could provide access to documents before those documents are made available by the local clerk” similar to systems in the federal courts and in California, New York, and other states.
Ending automatic clerk redaction, as proposed by the minority, would require amendments to Rule 2.420 and would apply to attorneys’ civil court case filings (which would not include criminal, family, probate, guardianship, sexual abuse, medical malpractice, Jimmy Ryce Act, and juvenile cases). Clerks would redact information in the rule’s 23 categories only when attorneys filed the required notice.
The subcommittee majority, according to the report, “does not recommend any changes to Rule 2.420 and does not recommend the Commission consider the non-rule [public portal] proposal.”
Subcommittee members had several vigorous debates on the issue, which played out in October when its findings were presented to the Rules of Judicial Administration Committee, and again in November at the FCTC and its Portal Subcommittee, which met the day before the full commission meeting.
FCTC member Murray Silverstein, who served on the subcommittee and supported its minority position, argued the court’s letter creating the subcommittee was in effect a conclusion that there are unreasonable delays in getting court records.
“We are giving the court what is basically a set of meeting minutes,” he said of the subcommittee’s final report. “What we’re going to deliver does not really create much in the way of potential remedies for the court to consider. I’m embarrassed and disappointed that we failed in our mission.”
(Silverstein explained after the meeting that his disappointment was that the minority report only contained possible rule amendments, but no narrative explaining the rationale for the rule changes. At the direction of FCTC Chair Lisa Munyon, Silverstein has prepared such a report for possible inclusion in the FCTC’s submission to the court.)
The minority position is “basically no notice [filed by the attorney], [then] no review redaction by the clerk because fundamentally this process is that of the filer, it’s the filer’s responsibility to protect his, her, [or] its confidential stuff,” Silverstein said. “Don’t put it in the court file and if you have to put it in the file, file a notice so the clerk can fulfill his responsibility of designating and protecting it.”
Silverstein said clerks of courts or subcommittee members with ties to clerks formed the majority that blocked the rule changes within the subcommittee.
But FCTC member and Manatee Clerk Angelina Colonneso said when the Supreme Court began studying online access to court records about 15 years ago, its emphasis was always on protecting the public’s confidential information. She said attorneys frequently don’t file the required notice, or file a notice for information that is not confidential under the rule of law.
“Cybercrime, misuse of information that gets out there…has turned itself over tenfold since  and it’s taken on a life of its own, and there hasn’t been a catchup with technology and confidentiality and information being out there,” she said. “Attorneys filing this [confidential] information [without a redaction notice] are subject to fines…and liability. I think there would be an uproar in the Bar if they understood exactly what this was about.”
Colonneso argued the issue also involves trust in the court system. If litigants find that their confidential information isn’t being protected for whatever reason, she said, there would be less confidence in the legal system.
Hall, during the Portal Subcommittee meeting, in answer to a question, said there would be no way to protect information that was accidentally released because courts have held that once someone receives such information, he or she has a right to disseminate it. That, he added, can lead to liability problems for attorneys.
If clerks stop automatically redacting, “candidly, attorneys are going to get sued,” Hall said.
The complete report from the Ad Hoc Joint Subcommittee on Rule 2.420 can be found here in the FCTC’s meeting materials, beginning on page 122: www.flcourts.org/content/download/542128/6113530/fctc-november-2019-meeting-packet2.pdf/.