In this post I will review the how the Florida Supreme Court, through its various administrations, has addressed privacy from the early days of the internet to the present in regards to electronic access to court records.
Judicial Management Council of Florida
Privacy and Electronic Access to Court Records
Report and Recommendations [Nov. 15, 2001]
Early on, the Court recognized that the internet would pose solutions to access and problems to privacy of the records maintained by the Florida Clerks of Courts. The Judicial Management Council of Florida [JMF] initiated a report on the subject that was published on November 15, 2001. In it the report recognized the emerging issues the internet would have on how the courts operated in Florida.
The emergence of electronic information management technology and the Internet are causing widespread transformations in American society. New ways of communicating and sharing information are changing the way people interact with cultural, economic, and governmental institutions. Such changes do not always occur smoothly, and difficult issues have arisen. Among the most challenging of these issues is that of personal privacy. The balance between the free flow of information and the protection of personal privacy has been altered; institutions and individuals are now grappling with how a new balance should be struck.
-Judicial Management Council of Florida: Privacy and Electronic Access to Court Records, Report and Recommendations (Published November 15, 2001)
The concern was many-fold. They realized that information was soon to be at everyone’s fingertips – and not just obvious information. Obscure information will now be as easy to find and retrieve as the obvious information.
This expanded capacity creates the ability to use information in ways that were previously impossible or impractical. Personal information – from shopping preferences to personal finances to digital photographs – can be handled in bulk and used for commercial purposes. Information can be exploited for criminal or voyeuristic purposes more easily.
One of the folds that was of great concern was that the people would discover how much of their information was being sold. Moreover, they would learn that the government, that typically requires the disclosure of personal information, would be the one selling that same information. With this in mind, they realized that “[t]he sensitive nature of information in court files must be carefully considered as Florida contemplates electronic access to court records.”
The publication then posed questions as to whether the Supreme Court had the power to implement a statewide procedure for access to electronic information and, if so, how it should be implemented.
Electronic access holds great promise for the courts in terms of improved access and efficiency. But adaptation to new ways of communicating requires a period of transition, during which older practices, customs and expectations are transformed to accommodate the new technology.
From this came a series of Florida Supreme Court reports which follow.
In re Report and Recommendations of the Judicial Management Council of Florida on Privacy and Electronic Access to Court Records
The Courts initial report was an affirmation of the JMF report, which answered the several questions posed within the report.
We agree that, in the management of court records, information protected by statute or court rules must remain secure from improper disclosure. Furthermore, in addressing this issue, we must ensure that public trust and confidence in the courts is not undermined, citizens’ privacy rights are respected, and access and privacy policies are consistently applied in all parts of the state. Therefore, we agree that the potential impacts of electronic access must be considered and that comprehensive policies that set out guidelines on electronic access to court records must be developed and uniformly implemented.
-832 So.2d 712, 715
However, at the time, the Florida Legislature was also interested in this topic and, under the Legislature’s Study Committee on Public Records (CS/SB 1679), a moratorium on access to public records online had been imposed. So the Court decided to wait on the results of the legislative study before proceeding further.
Study Committee on Public Records, February 15, 2003
On February 15, 2003, the Legislature’s Study Committee on Public Records [SCPR] published its report. The SCPR “focused on the effect of advanced information management technologies, including the Internet, on the collection and dissemination of information contained in court records and official records, and the interplay with the right of privacy.” It came up with several recommendations:
- The Florida Supreme Court should re-examine Court Rules regarding filing of documents containing personal information.
- Official records should be made freely available electronically.
- There should be a two-year moratorium on certain records being available online.
- The Florida Supreme Court should adopt Rules regarding the procedure for dissemination of public records electronically.
- The Florida Supreme Court should review categories of information the courts collect to determine the confidential status needed.
- Recommend that the Legislature review such categories of information to determine the need for confidentiality.
The SCPR came up with these recommendations after several meetings, both public and private. This put the ball back into the Court’s hands in many respects. On November 25, 2003, the Florida Supreme Court acknowledged the SCPR’s report, in AOSC03-49 (later amended in AOSC04-4), and appointed a committee to further investigate the recommendations.
On August 15, 2005, the Committee on Privacy and Court Records provided its recommendations.
Report and Recommendations of the Committee on Privacy and Court Records, August 15, 2005.
The committee report starts out acknowledging all who helped and what the digital age means to the Courts, the Clerk of Courts, and all the information they hold and sell.
Court systems, like other institutions, are in the midst of significant changes in the way they conduct business, changes compelled by the emergence of digital technology. The replacement of paper documents with digital records is not merely an efficiency improvement ancillary to the general conduct of court business. Digitization is changing the ways in which information can flow and spread, and in so doing is creating possibilities that did not exist with paper records. No institution is immune from the transforming force of the digital age. We have entered a new world.
The committee suggested that in the long term digital records should not be treated differently from paper records, however, during the transition from paper to digital documents some safe guards should be implemented to make sure privacy is maintained and thoughtful Rule changes can be developed. The committee’s task would be to make the transition into the digital era as smooth as possible knowing the enormity of what was being asked of them.
It developed the roles of the Florida Supreme Court and the Legislature during, and other agencies, during this process.
In sum, oversight of the management of court records and the administration of policies regarding access to them is within the general supervisory powers of the Supreme Court and the chief judicial officers, but also implicates in significant degree the Legislature, the clerks of court and the Florida Association of Court Clerks. The ability to make court records available electronically is contingent on these entities working effectively together, a condition which requires clear understanding and respect for the relative roles of each.
The committee also pointed out the Right to access public records and the Right of privacy as it squares with the enormous amount of personal information that the courts collect. Court Rules had been developed before the digital era and they had to be re-examined under these new conditions. They came up with three recommendations:
- The Committee recommends that the Florida Legislature enact laws that effectively protect the interests of Floridians regarding personal information in the possession of state agencies and data companies.
- Any system of access to court records must identify and protect information that is confidential.
- The Supreme Court should direct that ongoing education be undertaken and appropriate public notices be provided regarding the loss of privacy and its consequences that can occur due to the unnecessary filing of personal information in court records.
- The Committee recommends that the Supreme Court designate a judicial branch _governance structure to coordinate and oversee policies regarding all aspects of court records, including public access, privacy protection, filing processes, records maintenance, and access, dissemination, retention and destruction of records.
- The Committee recommends that Rule 2.051 be revised.
- The Committee recommends that the Supreme Court direct the appropriate rules committees to propose revision to court rules to provide that psycho-social evaluations, psychological evaluations, and guardian ad litem reports be placed under seal by the clerk of court and unsealed only by judicial order on a showing of good cause.
- The Committee recommends that the Supreme Court direct the Treatment-Based Drug Court Steering Committee to make recommendations regarding the appropriate scope of confidentiality regarding medical, mental health and drug treatment information within drug court cases.
- The Committee recommends that the Supreme Court direct a comprehensive judicial branch initiative to review and revise rules of court and approved court forms across all case types for the purpose of modifying rules and forms to avoid the filing of personal information which is not necessary for adjudication or case management.
- The Committee recommends that the Supreme Court consider study of a court rule to prohibit the filing of documents that are not authorized by court rule or statute, or seeking relief by the court.
There were many recommendations made by the committee. They exposed the great task that lay ahead for all involved and why it took many years before access became what it is today. The entire report was 155 pages long.
On June 30, 2006, the Florida Supreme Court, in AOSC06-20, adopted the recommendations of the report and provided an interim policy for the electronic release of court records (AOSC06-21). On September 7, 2007, the recommendations were further modified in AOSC07-49.
Final Report and Recommendations, September 2, 2008
The major task assigned to the committee was to propose revisions to Rule of Judicial Administration 2.420 (formerly 2.051)
Confidentiality and Rule 2.420
The problem the committee faced was that Rule 2.420, written prior to the wide use of the internet, viewed electronic records in that era. It applied every statutory exemption to all court records in its previous form. That had to change.
They also wanted to put the responsibility on “filers” (attorneys) when records contained confidential information. This meant that filers would have to redact or notify the Clerk about confidential information being contained in the documents they filed. This was not meant to, and did not, relieve the constitutional mandate to protect confidential information by the judicial branch.
The problem facing the Clerks was that over 19 million documents are filed annually. How could they possibly ensure the protection of all confidential information those documents may or may not contain? On top of that, the Supreme Court found that “absorption” of some statutory and federal exemptions did apply to court records, and that others could be obtained by the filer.
These amendments created a new motion process through which a party could request that circuit or county court records in a non-criminal case be made confidential under Rule of Judicial Administration 2.420(c)(9). This motion process, in new subdivision 2.420(d), provided formal procedures for filers to certify that a motion to make records confidential meets certain requirements.
Analysis and Preliminary Proposal
The committee directed the Rule 2.420 “Workgroup” to come up with recommendations for the full committee to use to assist in directing the amendment of the Rule. The Workgroup came up with a framework to assist in this process. This involved three categories to help conceptualize the types of confidential information within court records.
- TYPE I: Information that is subject to clearly applicable court rule or statutory exemption and is readily identifiable.
- TYPE II: Information which is subject to a clearly applicable court rule or statutory exemption but which is not readily identifiable or information which is not clearly subject to a court rule or statutory exemption.
- TYPE III: Information which is not subject to a court rule or statutory exemption.
The Workgroup then came up with proposed revisions to the rule by incorporating the three identified “Types.”
Type I information would be itemized within the rule. Filers of that information would be required to identify such information within their filing. The clerk would have to substantiate the information as confidential and, if so, regardless of notification, maintain the information as confidential.
Type II information would be information a filer or affected person could request, by motion, to determine if such information was in fact confidential.
Type III information would be information that was not type I information and not determined to be type II information and would be open to the public.
The Workgroup then itemized what records meet the criteria of confidentiality, under court standards, that could be found in a statutory exemption. This was a monumental task which required looking at all statutes that seemingly provided an exemption to the Sunshine law and public records preference.
The Workgroup directed that indicia of applicability include whether the statutory language, on its face, indicated legislative intent that the exemption apply to court records, and whether the underlying public policy strongly supported applying the exemption to court records.
The Workgroup came up with 19 exemptions for Type I information. These included mostly obvious records, such as juvenile records, expunged records, records indicating personal information, such as HIV status, social security numbers, etc. These we published in Rule 2.420.
In Re: Standards for Access to Electronic Court Records, AOSC14-19, Amended. – May 23, 2014.
The Florida Supreme Court adopted most of the recommendations by the committee regarding Rule 2.420. They also gave the Clerk of Courts notice on when they were to adopt these recommendations regarding different levels of access to electronic records:
Clerks currently providing limited online Internet access, pursuant to the authority of AOSC07-49, may continue to provide that service so long as the clerk applies to FCTC’s Access Governance Board for approval to provide online access consistent with this amended administrative order within 60 days from its issuance; otherwise the clerk shall terminate such limited online Internet access currently provided pursuant to AOSC07-49.
On April 27, 2016, the Florida Supreme Court (in AOSC16-14) approved 48 requesting Counties the ability to provide electronic access to court records. Since then all 67 Florida Counties have been approved and provide electronic access to court records.
Protecting Confidential Information
In order to abide by Rule 2.420, Clerks of the various counties have come up with different ways to deal with the many records being filed each day. Some have decided to review the record, as it is filed, and provide unhindered access to those records that contain none of the specific 19 areas for confidentiality. Other Clerks will provide a link to the specific record and will review the record only when it has been requested to be viewed. Records that do contain confidential information will be redacted before they are made public.
Additionally, Rule 2.420 provides the ability to request a record be sealed (made so people do not have unfettered access to it). This is not equivalent to having a record sealed pursuant to s. 943.059, Fla. Stat. However, it will remove it from the easy access that electronic records on the internet currently allow.
The Florida Supreme Court and the Committees it appointed did an excellent job over 15 years to ensure the protection of confidential information while continuing to follow Florida’s long standing Sunshine Laws as Florida moved into the internet era.