AMEND. TO FL. FAMILY LAW RULES OF PROC.

• Decision Date: 29 October 1998
• Docket Number: No. 89,955.,89,955.
• Citation: 723 So.2d 208
• Parties: AMENDMENTS TO THE FLORIDA FAMILY LAW RULES OF PROCEDURE.
• Court: Florida Supreme Court

723 So.2d 208

AMENDMENTS TO THE FLORIDA FAMILY LAW RULES OF PROCEDURE.

No. 89,955.

Supreme Court of Florida.

October 29, 1998.

Durand Adams, Chair of the Family Court Steering Committee, Bradenton, and George S. Reynolds, III, Chair of the Family Law Rules Committee, and John F. Harkness, Jr., Executive Director of The Florida Bar, Tallahassee, for Petitioners.

OVERTON, Justice.

In February 1998, this Court issued an opinion in which we amended a number of the Florida Family Law Rules and completely amended the Florida Family Law Forms. See Amendments to the Family Law Rules of Procedure, 713 So.2d 1 (Fla.1998) (Family Law Opinion). In that opinion, we also rejected a number of rule amendment proposals. In doing so, however, we stated that:

[W]e believe that many of the proposed changes that we have declined to approve in this opinion may have merit. As such, we will allow revisions to the proposed changes and/or additional comments to the matters discussed in this opinion to be submitted to this Court no later than May 1, 1998. This Court may set any of those issues on which comment is received for oral argument during the Court's June 1998 oral argument calendar.

Id. at 9-10. Both the Family Law Rules Committee (rules committee) and the Family Court Steering Committee (steering committee) filed petitions prior to the May 1 deadline asking that we readdress a number of issues. The committees also asked that we change some of the rules and forms for clarification purposes or to correct errors or omissions in the forms. After hearing oral argument and reviewing other comments received we address below each of the issues raised by the committees.

Rule Regulating the Florida Bar 10-2.1

Under Rule Regulating the Florida Bar 10-2.1, certain information must be disclosed any time a nonlawyer assists a person in the completion of a form. In our Family Law Opinion, this Court concluded that this information need not be disclosed on domestic and repeat violence petition forms because such disclosure might place the preparer at risk. Although we amended the family law forms accordingly, we did not amend rule 10-2.1 to reflect this exception to the disclosure requirement. In its petition, the steering committee has requested that we modify the rule to reflect this exception. We approve this request and modify rule 10-2.1 as set forth in appendix A to this opinion.

Florida Family Law Rule 12.170— Counterclaims and Crossclaims

The steering committee also asks that we amend Florida Family Law Rule 12.170 to clarify that the rule governs both counterclaims and crossclaims. Although this Court's opinion in In re Family Law Rules of Procedure, 663 So.2d 1049 (Fla.1995), provided that the rule governed both counterclaims and crossclaims, apparently, when West Group published the opinion, it erroneously omitted counterclaims from the rule. See In re Family Law Rules of Procedure, 663 So.2d 1049, 1063 (Fla.1995)

. To eliminate any confusion regarding this issue, we restate in this opinion that rule 12.170 governs both crossclaims and counterclaims. In appendix A we restate the rule in full to ensure that counterclaims are included in the rule.

Rule 12.280—General Provisions Governing Discovery and Rule 12.400—Confidentiality of Records and Proceedings

Both committees ask that we find, as a matter of public policy, that any financial information filed in a family law case may be sealed by the court at the request of one or both of the parties. Currently, the sealing of court records in family law cases is governed by article I, section 24, of the Florida Constitution; Rule of Judicial Administration 2.051; and Barron v. Florida Freedom Newspapers, Inc., 531 So.2d 113 (Fla.1988). See Fla. Fam. L.R. 12.280, 12.400. According to the committees, the application of the principles set forth in those provisions and in Barron are too restrictive. Because financial affidavits must be filed with the court, the committees assert that parties will be reluctant to reveal information knowing that the information will be contained in a document open to the public. Additionally, they contend that, with the advent of new technology and the consequent ability to access court records via computer, third parties will be likely to abuse the system by using the financial information to their advantage.

In Barron, we reiterated that a strong presumption of openness in judicial proceedings exists and we specifically found that such a presumption applies to both civil and criminal proceedings. We noted that public access to court proceedings and records was important to assure testimonial trustworthiness; in providing a wholesome effect on all officers of the court for purposes of moving those officers to a strict conscientiousness in the performance of duty; in allowing nonparties the opportunity of learning whether they are affected; and in instilling a strong confidence in judicial remedies, which would be absent under a system of secrecy. In other words, as particularly pertinent here, public access to court proceedings and records is essential to ensure that judicial remedies are consistent, that family law files are open for independent review, and that confidence in family law proceedings is not undermined. Were we to allow for the sealing of financial affidavits upon request, we would be eliminating an important factor of government accountability that is necessary to ensure similar treatment for similarly situated litigants.

As we stated in Barron, closure of court proceedings or records should occur only under limited circumstances and in this regard family law proceedings should not be given special consideration. Moreover, we also noted in Barron that the legislature was free to enact legislation limiting public access to family law proceedings, but because it had not done so, family law proceedings must be cloaked with a presumption of openness. Barron was issued in 1988 and the legislature has not provided any additional provisions for closure in family law proceedings since the issuance of that opinion. Moreover, since our decision in Barron, the legislature proposed and the public subsequently enacted article I, section 24, of the Florida Constitution, which provides in pertinent part:

Every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf, except with respect to records exempted pursuant to this section or specifically made confidential by this Constitution. This section specifically includes the legislative, executive, and judicial branches of government and each agency or department created thereunder; counties, municipalities, and districts; and each constitutional officer, board, and commission, or entity created pursuant to law or this Constitution.

Art. I, § 24(a). Under this provision, any person has the right to inspect court files unless those files are specifically exempted from public inspection. As indicated above, neither the legislature nor this Court has specifically exempted financial information in family law proceedings from public inspection. In fact, just prior to the adoption of section 24(a), we adopted rule 2.051 to clarify when court records could be deemed to be confidential. See In re Amendments to the Florida Rules of Judicial Administration-Public Access To Judicial Records, 608 So.2d 472 (Fla.1992)

. In doing so, we expressly approved the principles of Barron by including them in the body of the rule. See Rule 2.051(c)(9). That fact is specifically noted in the 1995 commentary to rule 2.051. We conclude that the committees' request to allow the routine sealing of such records must be denied.

While we understand and are sympathetic to the committees' concerns regarding the loss of privacy inherent in the filing of financial affidavits, we simply cannot find that public policy dictates the regular sealing of this type of information. In fact, as the discussion above illustrates, public policy dictates just the opposite conclusion, that is, that such records are presumed to be public.

We emphasize that, although we have previously stated in other opinions our conclusion that a presumption of openness applies to family law proceedings, this does not mean that financial records in those proceedings can never be sealed. Under the Family Law Rules, the sealing of records is governed by rule 2.051. Under that rule, a court is permitted to seal any court record where, among other things, confidentiality is required to protect trade secrets, to avoid substantial injury to innocent third parties, or to avoid substantial injury to a party by disclosure of matters protected by a common law or privacy right not generally inherent in the specific type of proceeding sought to be closed. Under the rule, it is within the discretion of the trial judge to seal financial records in family law proceedings if the trial judge finds it necessary to do so because it has been shown that third parties are likely to use this information in an abusive manner.

For instance, if it is likely that access to the financial information would subject a party to abuse such as the use of the information by third parties for purposes unrelated to government or judicial accountability or to first amendment rights, then a trial judge has the authority to seal the financial information. In doing so, however, the order sealing the records should be conditional in that the financial information should be disclosed to any person who establishes that disclosure of the information is necessary for government or judicial accountability or has a proper first amendment right to the information. This clarification should alleviate some of the committees' concerns because it explains that trial judges have the ability to protect the privacy interests of parties that could be adversely...