Supreme Court seeks report on filing redaction
Minority position would place more weight on attorneys to ID protected information
While a narrow majority of a special committee is opposing changing a procedural rule to end at least some automatic clerk redaction of electronically filed court documents, the Supreme Court is also interested in hearing the minority view that in some cases attorneys alone should be responsible for identifying protected information.
On October 18, during the Bar’s Fall Meeting, the Rules of Judicial Administration Committee heard from both sides when the Ad Hoc Joint Subcommittee on Rule 2.420 reported on its activities.
The subcommittee had no recommendations and RJAC took no action other than hearing a discussion from committee members on the subcommittee’s work so far and members’ disagreements over redaction. The subcommittee is scheduled to file its final report with the court by the end of the year.
Supreme Court Clerk John Tomasino said if the committee ultimately decides not to recommend changing the rule, the court would find it “very helpful” if the final report also included a minority report, complete with proposed amendments to the procedural rule.
Fourth District Court of Appeal Judge Jeff Kuntz, who chairs the ad hoc subcommittee replied, “Then we will prepare them and addend them.”
The subcommittee, which has also overseen a non-substantive rewrite to condense Rule 2.420, was charged by the Supreme Court with reviewing a complaint from media groups that it was taking too long to get access to newly filed court documents in the court system’s new electronic filing and records system.
In the old paper filing system, some documents were available nearly instantaneously when dropped off at the courthouse. But in the electronic system, the statewide docketing average is nearly a day (although service parties get copies instantly) and it can take more time, perhaps two days or longer, for clerks to redact the documents.
Rule 2.420 lists 23 categories of information that are to automatically be removed from court filings before they are accessible by the public. Filers, including lawyers, are charged under the rule with filing a notification with the clerk when the document contains information in one of the 23 categories. (Filers must seek a hearing to protect other potentially confidential information as delineated in F.S. Ch. 119.)
Despite the rule, the committee has heard frequent stories about attorneys being poorly informed about the rule and failing to identify confidential information in their filed documents.
The rule also charges clerks to review filings and redact information falling under the 23 categories. That duty has been the focus of much of the subcommittee’s work.
In addition, public access to records in a “reasonable” time is mandated by the rule.
In the spring, the committee voted 6-4 against recommending any changes to Rule 2.420. At the time, some committee members argued that clerk redaction reviews for at least some filings, such as civil and small claims, should be ended.
Over the summer, the committee added two new members and again considered whether to recommend a rule change. On September 24, the subcommittee voted 6-5 to reject a motion calling on clerks to end redaction of lawyer-filed documents unless the notification form was included. Clerk redaction would continue for pro se filers. The motion also called for better education of lawyers on Rule 2.420.
The subcommittee, by an identical vote, rejected a motion to explore a New York state court process that makes new complaints and other court records promptly available on a website before they are docketed.
Debate at RJAC paralleled that on the subcommittee.
Marion County Clerk of Court David Ellspermann, a subcommittee member, said the Supreme Court has had committees studying confidentiality and court access for more than 15 years and has always sought to balance access with confidentiality, including delaying electronic access until it was satisfied sensitive information could be protected. Clerks had to go through a six-month testing period before they were allowed to put records online to show they could protect confidential information, he said.
“I don’t understand why there’s a push to release the information [sooner],” he said. “They [the Supreme Court] set the requirement and the expectation for us to be doing what we’re doing today. If the court wants to change that, then tell us and we’ll move forward.”
RJAC and subcommittee member Tom Hall, in response to a question, said a study from Sarasota showed about 6.5% of all filed documents had unredacted information that was caught by clerks and for civil cases it was about 4%.
“There’s a million and a half filings through the [statewide e-filing] portal every month. Multiply it out and it’s an enormous number of pages,” Hall said. “I am convinced there is a lot of confidential information that would get out if it were solely lawyers [doing redactions].”
Subcommittee member Murray Silverstein said only Florida and Vermont rely on clerks to redact court filings and clerks shouldn’t be backstopping attorneys who fail to submit the proper notice when their filings have protected information.
“Why are clerks performing a function that filers are supposed to be doing under the rule?” he asked. “It’s causing a delay in access.. . . If you do not file your notice [under Rule 2.420], the clerk should not be redacting. No notice, no redaction.”
He also said judges should take a strong position on enforcing penalties in the rule on lawyers who fail to file the notice and allow confidential information to become public.
Tampa attorney Carol LoCicero, who represents media organizations and spoke before Tomasino, said a reporter who visited 19 courthouses got quick access to that day’s filings in only five of them. She said she went to Broward County on October 8 and could get documents filed no later than September 23.
“It is our contention those delays are not lawful,” she said, adding with the subcommittee’s report, “There’s nothing with meat on the bones that’s actually going to the justices to consider what I think is a critical constitutional issue in our state.”
That likely changed with Tomasino’s statement, and Hall noted that the committee majority, which opposes a rule change, must have an opportunity in the final report to comment on the minority position.
Because that minority position probably will include a suggested procedural rule change, it will go to the Bar Board of Governors for its recommendation at the board’s December 13 meeting. The Florida Courts Technology Commission is also expected to review the report when it meets November 15.