In re Implementation of Comm. on Privacy

• Decision Date: 30 June 2011
• Docket Number: No. SC08-2443,SC08-2443
• Parties: In re: IMPLEMENTATION OF COMMITTEE ON PRIVACY AND COURT RECORDS RECOMMENDATIONS—AMENDMENTS TO THE FLORIDA RULES OF CIVIL PROCEDURE; THE FLORIDA RULES OF JUDICIAL ADMINISTRATION; THE FLORIDA RULES OF CRIMINAL PROCEDURE; THE FLORIDA PROBATE RULES; THE FLORIDA SMALL CLAIMS RULES; THE FLORIDA RULES OF APPELLATE PROCEDURE; AND THE FLORIDA FAMILY LAW RULES OF PROCEDURE.
• Court: Florida Supreme Court

IN RE: IMPLEMENTATION OF COMMITTEE ON PRIVACY

AND COURT RECORDS RECOMMENDATIONS—AMENDMENTS TO

THE FLORIDA RULES OF CIVIL PROCEDURE; THE FLORIDA RULES OF

JUDICIAL ADMINISTRATION; THE FLORIDA RULES OF CRIMINAL

PROCEDURE; THE FLORIDA PROBATE RULES; THE FLORIDA

SMALL CLAIMS RULES; THE FLORIDA RULES OF APPELLATE

PROCEDURE; AND THE FLORIDA FAMILY LAW RULES OF PROCEDURE.

No. SC08-2443

Supreme Court of Florida

June 30, 2011

PER CURIAM.

We have for consideration proposed amendments to the Florida rules of court and forms intended to minimize the amount of unnecessary personal information included in documents filed with the courts.¹ Reducing the amount of extraneous personal information in court records is another necessary step in the Court's ongoing effort to provide the public with electronic access tononconfidential court records.² As part of that effort, we recently adopted procedures that allow clerks of court to readily identify and screen from the public confidential information filed with the courts and refine the procedures for sealing and unsealing court records. See In re Amends. to Fla. Rule of Jud. Admin. 2.420 & Fla. Rules of App. Pro., 31 So. 3d 756, 757 (Fla. 2010) (recognizing that refinement of rule governing confidential court records was a necessary step in providing the public electronic access to court records).

The amendments at issue here further implement recommendations of the Committee on Privacy and Court Records (Privacy Committee) and are the result of the combined efforts of the Committee on Access to Court Records (AccessCommittee), its successor, the Florida Court Technology Commission's Subcommittee on Access to Court Records (Access Subcommittee),³ and the Florida Bar Rules Committees. After considering the various proposals and comments filed in this case, and hearing oral argument, we amend the rules and forms to minimize the personal information filed with the court. Most notably, we adopt new Rule of Judicial Administration 2.425 (Minimization of the Filing of Sensitive Information) to govern the filing of sensitive personal information, which is the linchpin of the minimization efforts. We take this opportunity to emphasize that in order to avoid the electronic dissemination of sensitive personal information unnecessary to court proceedings, both attorneys and pro se litigants must be vigilant to file only authorized documents that comply with the requirements adopted here.

The newly enacted rules provide for sanctions for violations of these rules. However, continual education and a change in mindset for all those involved in the litigation process are necessary for these rules to work as intended. After all, with the benefits of electronic access to documents comes the responsibility to minimize unnecessary personal information in court records. With those beginning cautions,we explain the evolution of the amendments and the substance of the major amendments.

BACKGROUND

The Privacy Committee was created in November 2003 and charged with providing recommendations to the Court regarding electronic access to court records. See In re Comm. on Privacy and Court Records, Fla. Admin. Order No. AOSC04-04 (Feb. 12, 2004) (substituted for AOSC03-49). As relevant to the amendments at issue here, the Privacy Committee was charged with recommending strategies for reducing the amount of unnecessary personal information in court records. Id. at 5. After the Privacy Committee submitted its report and recommendations⁴ and the Court held public hearings on the recommendations, an administrative order was issued partially implementing the Privacy Committee's recommendations.⁵ That administrative order noted the Court's agreement with the Privacy Committee that the Florida judicial branch should have a goal of providing electronic access to nonconfidential court records when appropriate conditions are met, one of which is minimizing the amount ofunnecessary personal information in court records.⁶ By separate administrative order, the Access Committee was created to assist the Court in implementing a number of the Privacy Committee recommendations,⁷ including the "minimization" recommendations addressed here.⁸

As relevant here, the Privacy Committee reported as follows:

Florida court files commonly contain information which is not required by law or rule and which is not needed by the court for purposes of adjudication or case management. Once entered into a court file this information becomes a matter of public record. Much of this information is personal or sensitive in nature. The Committee perceives that there is not a clear understanding on the part of attorneys and the general public of the negative effects on personal privacy of placing unnecessary information in a court record.

Privacy Committee Report at 56. The inclusion of unnecessary personal information in court filings is of special concern because providing electronic access, which would include internet access, to court records will make nonconfidential personal information contained in those records more readily accessible to the public.

To mitigate this concern, the Privacy Committee made four recommendations intended to minimize the filing of extraneous personal information. Privacy Committee Recommendation Seven urges the review and revision of court rules and forms to avoid the filing of personal information that is not necessary for adjudication or case management.⁹ Recommendation Eight recommends the study of a court rule to prohibit the filing of unauthorized documents.¹⁰ Recommendation Nine suggests clarifying Family Law Rule of Procedure 12.285 (Mandatory Disclosure) to avoid the unnecessary filing of financial information in family law cases.¹¹ And Recommendation Ten urges the adoption of a rule that prohibits the filing of discovery information with the court unless the information is filed for good cause and that provides for sanctions if the rule is violated.¹² These "minimization" recommendations were referred to the Florida Bar rules committees to propose rule and form amendments implementing the recommendations.¹³ The rules committees' proposals were then referred to theAccess Committee for consideration¹⁴ and preparation of an omnibus petition of proposed rule amendments. The Access Committee's petit ion of proposed amendments, as well as revised and new proposals offered by the rules committees are before the Court here.

In considering the proposals, the Court had the benefit of comments from interested persons, as well as responses and input from the Access Subcommittee (successor to the Access Committee)¹⁵ and the various rules committees on a number of issues of concern to the Court. See In re Implementation of Comm. on Privacy & Court Records Recommendations, No. SC08-2443 (Fla. order filed April 1, 2010) (seeking input on a number of issues); see also In re Implementation of Comm. on Privacy & Court Records Recommendations, No. SC08-2443 (Fla.order filed May 19, 2010) (seeking input on suggested new rule 2.425). In response to the Court's concern about consistency among the various rules proposed to govern the filing of sensitive personal information, the committees now urge the adoption of new Rule of Judicial Administration 2.425 (Minimization of the Filing of Sensitive Information) and conforming amendments to the other bodies of rules and forms.

After considering the various proposals, we amend the Florida Rules of Civil Procedure, the Florida Rules of Judicial Administration, the Florida Rules of Criminal Procedure, the Florida Probate Rules, the Florida Small Claims Rules, the Florida Rules of Appellate Procedure, and the Florida Family Law Rules of Procedure and forms, as reflected in the appendix to this opinion. We discuss the more significant amendments below.

AMENDMENTS

New Rule of Judicial Administration 2.425 and Other Amendments Limiting

the Filing of Extraneous Personal Information

New rule 2.425 (Minimization of the Filing of Sensitive Information) is the centerpiece of the amendments adopted in this case. The new rule governs the filing of sensitive personal information in all types of cases, except traffic and criminal proceedings.¹⁶ It implements Privacy Committee RecommendationSeven, which urges revision of court rules and forms to avoid the filing of personal information that is not necessary for adjudication or case management.¹⁷ The new rule of judicial administration sets forth the categories of personal information that must not be filed or must be truncated or redacted before filing, and provides exceptions that allow for the filing of complete information in appropriate circumstances.

The new rule serves as a companion to recently amended Rule of Judicial Administration 2.420 (Public Access to Judicial Branch Records).¹⁸ New rule 2.425 provides the procedures for protecting personal information being filed with the court; while rule 2.420 governs the procedures for determining the confidentiality of information after it has been filed and for providing public access to nonconfidential information. Rule 2.425 is loosely modeled after Federal Rule of Civil Procedure 5.2 (Privacy Protection for Filings Made with the Court). The most important provisions of the new rule are discussed below.

First, under subdivision (a) (Limitations for Court Filings) of the new rule, unless exempted by subdivision (b) (Exceptions), or authorized by statute, another rule, or court order,¹⁹ personal information of the type listed either must not be filed or must be truncated or redacted before filing. Under subdivisions (a)(1) and (a)(2) only the initials of a minor and the year of birth of a person's birth date may be included in filings, and under subdivision (a)(3), no portion of a social security number, bank account number, credit card account number, charge account number, or debit account number can be filed,²⁰ unless the number falls within one of the subdivision (b) exceptions, or is authorized...