18 | The Summation
News from the Clerk of the Circuit Court and Comptroller Pam Childers
Rule 2.420 and SC20-1765: A Florida Supreme Court Rules Case You Should Know About
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the entire document should be made confidential per the rule.
Administration governs access to and the protection of judicial branch records, including court records. Under current form, rule 2.420 provides that clerks of court shall designate and maintain the confidentiality of certain information contained within the court record. The precise information clerks are entrusted to protect is described within rule 2.420, in an enumerated list of 23 categories (commonly referred to as “the list of 23”). Examples of information confidential by rule include: birth records; portions of death records; and bank account, credit card, and social security numbers. Filers, including attorneys and pro se parties, have a vital obligation under the rule as well. If the document to be filed contains confidential information then a filer must, at the time of filing, submit a Notice of Confidential Information within Court Filing (the “Notice”). The Notice must indicate that confidential information is contained within the filing and must either identify the precise location of the confidential information or indicate that
While there is a dual and independent obligation placed on the filer and clerks for both civil and criminal cases, under current practice, if a filer neglects to file a Notice, clerks will still independently identify and redact confidential information before releasing a court document to the public. Said another way, clerks review the record for confidential information regardless of whether a Notice is filed. The Escambia Clerk of Court and Comptroller (the “Clerk”) identifies confidential information through the use of software that identifies patterns in text to locate certain confidential information. The work of the software is then reviewed by well-trained and diligent deputy clerks to ensure proper redaction before court records are released.
ule 2.420 of the Florida Rules of General Practice and Judicial
However, on January 21, 2021, the Florida Supreme Court, on its own motion, entered an order eliminating the independent requirement of clerks of court to designate and redact confidential information filed within
certain civil cases. The order can be found on the Florida Supreme Court’s website by searching the docket for case number SC20-1765. Implementation of the rule change is delayed until July 1, 2021, to provide opportunity for the public to comment. Per the Court’s order, after July 1, 2021, rule 2.420 will be amended to provide that confidential information should only be redacted by clerks when: the filer of a document files a Notice of Confidential Information Within Court Filing; a Motion to Determine Confidentiality of Court Records is filed by the filer; the court enters an order deeming a filing confidential; or the case itself is confidential by law. With some very limited exceptions, the rule change will affect the following court types: Circuit Civil (CA), County Civil (CC), and Small Claims (SC). For all other court types, the Clerk will still review and redact court documents regardless of whether a Notice is filed. The reason for the change, as the Court described, is to address the news media’s concerns regarding delays in accessing certain court
records. Interested parties have seventy-five days from the date of the order to file comments. The obligation for filers to file the Notice when court documents contain confidential information has been present in rule 2.420 for years. Unfortunately, it is not a practice that is always followed and the failure to file the Notice doesn’t always present itself because the Clerk’s office has, and continues to, serve as a safety net for the inadvertent release of confidential information. If the rule change goes into effect unamended, the obligation to designate and identify confidential information will be placed solely upon the filer for the affected case types. Those attorneys and pro se parties that practice in civil will want to pay particular close attention to rule 2.420, the list of 23, and the outcome of SC20-1765. Failure to follow the then current rules could result in the inadvertent disclosure of confidential information of a client or party. Authored by Codey Leigh, General Counsel, on behalf of Pam Childers, Clerk of the Circuit Court and Comptroller.
