March 4, 2021 | News
Automatic Clerk review for confidential information in civil filings ends in July
Rule change aims to speed access to court records
Effective July 1, clerks of court will no longer review civil filings to screen out confidential information before putting those documents in public court files, leaving it entirely up to lawyers to ensure their clients’ protected information remains safe.
The Supreme Court on January 21, acting on its own motion, amended Rule of Judicial Administration 2.420, which governs access to court records, to end the independent duty of clerks — separate from filing attorneys — to review civil and small claims filings, and identify and remove sensitive personal information that is protected under the rule.
The rule, adopted originally in 2010, mandates that “[t]he clerk’s responsibility under the [rule] is independent of the responsibility of the filer.”
Since that provision was adopted, “news media organizations in Florida have reported concerning delays in their access to nonconfidential court records, in part due to the requirement that the clerks of court independently review all new filings for confidential information,” the court said in its unanimous per curiam opinion.
“Accordingly, to address timely access to court records, we now amend subdivision (d)(1) to provide that, in certain civil cases, the clerk of court does not have an independent responsibility to identify and designate information as confidential. Instead, that is the sole responsibility of the filer.”
The opinion said civil circuit, civil county, and small claims cases are covered by the amended rule. The amendment won praise from the news media, but concerns from clerks and others.
“Our ultimate concern is the substantial delays that we experience throughout the state [in accessing court records], particularly when you’re routinely trying to report on new actions,” said attorney Carol LoCicero, who represents the coalition of news organizations that filed a report with the court complaining of delays in getting court records, including to newly filed actions.
“The review and redactions of complaints [by clerks] is a big reason that they’re held up,” she said. “My opinion is the risks there are low and filers are the most familiar with their filings and they are the best ones to discern what may or may not to be in the [public] court records,” she said.
Clerks of court have opposed lessening their redaction responsibilities, even though it means more work for their staffs.
“Florida court clerks take their role in the redaction of personal information from court records very seriously, as any misstep could potentially have serious safety implications,” said Tara S. Green, Clay County Clerk of Court and Comptroller and Florida Court Clerks & Comptrollers president. “We have previously expressed our concerns to the court and other stakeholders and will continue to do so through the formal comment process. The public expects clerks to protect confidential information. Not only would this change jeopardize the safety of individuals and their private information contained in court records, but we are concerned it could also result in needless lawsuits from any accidental release of confidential information.”
While there have been anecdotes about compliance on submitting the required notice when a filing contains sensitive information, there hasn’t been much hard data. The FCCC is assembling information now. One early finding came from three years of information in Marion County.
In circuit civil filings, in 2016, 286 filings had the required notice, while 2,108 contained protected information without the notice and which was found by clerks in their review. For 2017, the number was 207 notices and 1,985 cases with protected information and without notices. For 2018, it was 225 notices and 1,783 cases with protected information and without notices.
The FCCC also conducted a public survey in late 2019 that found 96% considered redaction by clerks to be an important function, with 86% considering it very important.
Paul Regensdorf, a member of the Civil Procedure Rules Committee and a former member of the Rules of Judicial Administration Committee who helped draft the initial version of Rule 2.420, said the court’s purpose for the rule was to provide protection for confidential information at the same time courts were making records available online.
He said the clerk backup on redaction is important because many lawyers don’t understand the rule and how it operates.
“The public no longer has this second layer of protection,” Regensdorf said. “Rather than fixing the system and providing adequate funding for the clerks to perform their duty in a timely and efficient manner, they’re eliminating the protection and turning those records over to the press and public immediately.
“It will require lawyers to up their game substantially on the protection of certain confidential records and I have serious doubts that lawyers in general will satisfactorily perform that duty.”
Rule 2.420 sets out 23 categories of information that are automatically confidential in court records, covering such things as Social Security numbers, health records, bank account numbers, addresses of domestic violence victims, estate inventories and accountings, and juvenile delinquency records. Filers — including lawyers — are required to identify information that falls in those exemptions and notify clerks when they submit information through the statewide e-filing portal.
They are also required to notify the clerk of information not in the automatic categories but that might be confidential under statute or other provisions and to seek a judicial determination on keeping that information confidential.
Clerks acting on those notices take the protected information out of public court files, although information that went before a judge would be returned if the judge determined the information was not protected.
Aside from acting on the notice, clerks are charged by the current rule with independently reviewing all filings looking for information that falls into the 23 categories.
Past discussions of the rule have included warnings that lawyers who don’t file the required notice could be open to malpractice or grievance actions if protected client information becomes public.
The court, in its opinion, said when the rule becomes effective clerks will only protect information in the civil and small claims cases when notified by filers, by court order, or when the case itself is confidential under law.
“We note that the amendments adopted in this opinion do not impact the existing procedure requiring the clerk of court to designate and maintain court records as confidential in all non-civil cases, including criminal cases, guardianship and probate cases, adoption proceedings, or juvenile dependency or juvenile delinquency cases. In non-civil cases, subdivision (d)(1) continues to require ‘the clerk of court to designate and maintain as confidential information governed’” by other parts of the rule.
The court said the July 1 effective date was to allow time for comments, and it specifically invited input from the Rules of Judicial Administration Committee and the Florida Court Clerks & Comptrollers. It set a 75-day deadline, or April 6, for comments.
The court acted in In re: Amendments to Florida Rule of Judicial Administration 2.420, Case No. SC20-1765.