Shirley King of King Reporting Service as Honorary Chair for Life of FCRA’s Ethics Committee presented the following article and discussed its impact with court reporters from around Florida at an FCRA Convention.

JAX 9/13/2010 article

Lawyers will be responsible for redacting confidential information in court filings

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from The Florida Bar News

Quick now, do you know what the “Notice of Confidential Information within Court Filings” is?

That form, part of Rule 2.420 of the Rules of Judicial Administration, must accompany any court filing as of Oct. 1 that includes confidential information. The form lists 19 specific items that should be confidential in court records, from Social Security and bank account numbers to juvenile delinquency records and grand jury records.

It’s part of a major overhaul of the rule, part of which became effective earlier this year and part of which becomes effective on Oct. 1, that changes the way confidential information is handled in court records and by judges.

If you don’t know about the form and the rule changes, you could wind up accidentally putting confidential information about your clients in the public record, where it eventually may be viewed online.

“The new Rule 2.420 information is so important that the Bar felt compelled to quickly respond to the need to disseminate this information Bar-wide,” said Terry Hill, director of the Bar’s Programs Division. “The best way to reach the masses was to utilize CLE delivery technology and make a two-hour program available to all Bar members as a 24/7 Online CLE, an on-demand program at no cost to the Bar member.”

“Every document that you file and everything you say in a filed document is going to have to be reviewed, and it’s going to be the filer’s burden to determine at the outset whether any of the 19 exemptions are applicable,” said Sandy Solomon, who chaired one of the many committees that had input on the rule. “It makes lawyers responsible for everything that gets into the public domain.”

That confidential information form helps the clerk identify confidential matters and ensure they don’t make their way into public records.

But the rule is more complex than just filling out a form. Lawyers who think a filing has information that should be kept confidential, but doesn’t fall within one of the 19 automatic exemptions in the form, must file a separate motion asking a judge to keep that information from the public eye. The rule sets out how to ask for that and what factors the judge must use in granting or denying the motion, plus a time limit for ruling.

Those motions, said Solomon, have “to be specific enough to address the issue without revealing confidential information.”

Similarly, if the clerk thinks a lawyer has wrongly claimed confidentiality under one of the 19 items in the confidential information form, the lawyer must be notified within five days. The lawyer then has 10 days to file a motion in court seeking to keep the information confidential, or the clerk can automatically make it public.

There are also rules, said Solomon, for notifying nonparties about confidential information requests, and procedures for those nonparties to petition the court, either to keep information confidential or to make it public.

Other parts of the rules, and corresponding sections of the Rules of Appellate Procedure, address handling confidential records on appeal.

It pays to know the rules. Lawyers can be sanctioned if they’re careless and allow confidential information to be made public, or if they ask for something to be kept confidential without a good faith belief that it should be kept under wraps.

“It’s intricate, there’s no question about it, and it deserves attention,” said Solomon. “I’ve circulated the new rule around to all of the lawyers and paralegals in my office, and we’ve conducted meetings to discuss the rules, and all of the lawyers will be required to take the upcoming (Bar) CLE on the rule.”

Marion County Clerk of Court David R. Ellspermann represented clerks as part of the process rewriting Rule 2.420. He said clerks are working hard to make the confidentiality rules work. He noted his office will have the confidential information form online, and some clerks are getting software to help scan filings to identify confidential information.

“This is a major, major change in the process of the judicial system, and it’s one that’s going to create a need for the courts and clerks to work together like they never have before,” Ellspermann said. Not the least of that, he said, will be clerks working with local bars and others to educate lawyers, clerks, and pro se litigants about the rule requirements.

Randy Long oversees technology issues for the Florida Association of Court Clerks. “We have to have a huge education process and program to be developed to get the word out to the bar and clerks and the citizenry who might be filing pro se,” said Long.

Solomon said many revisions to the rule have been effective since March, and some other revisions were approved even earlier. Only the section dealing with the 19 specific confidentiality exemptions and related matters go into effect Oct. 1. Yet he said many lawyers and judges remain unaware of such things as the basis on which rulings on confidentiality matters must be made and the time standards for handling motions and rulings.

There were two factors spurring changes to the rule, said Solomon. One was the revelation in news reports that some jurisdictions were keeping secret dockets to protect confidential information, but which resulted in some cases of closing information that should have been in the public domain.

The second impetus is the coming electronic revolution in the courts, which includes electronic recordkeeping and public access, as well as electronic filing.

The complexity and importance of the issue is reflected in the committees that were involved in drafting the rule. Much of the work was done by the Committee on Access to Court Records, which began with earlier recommendations from the Committee on Privacy and Court Records. At various times, the Rules of Judicial Administration, the Criminal Rules Procedure Committee, the Civil Rules Procedure Committee and the Appellate Rules Procedure Committee worked on the rule, as did the Special Joint Committee on Changes to Rule 2.420 and a special Consolidated Rules Committee, which Solomon chaired.

Besides those groups, comments were filed by various counties, court clerks, the First Amendment Foundation, the Reporters Committee for Freedom of the Press, the Florida Public Defender Association, and the Florida Prosecuting Attorneys Association, among others.

“This stuff is very interesting and very important work,” said Solomon. “The people who work on this are some of the brightest lawyers and judges from around the state.”

Want more information? Ellspermann and Long said lawyers can check with their local clerks, many of whom are preparing educational programs.

The Bar’s CLE will be available on its website, Bar members must have a 24/7 Online CLE account, which is available for free, from the Bar to view the seminar. Instructions for getting the account and viewing the CLE are on the site.

Those interested also can check the Supreme Court’s rulings on the subject: In re: Amendments to Florida Rule of Judicial Administration 2.240 – Sealing of Court Records & Dockets, case no. SC06-2136 and In re: Amendments to Florida Rule of Judicial Administration 2.420 and the Florida Rules of Appellate Procedure, case No. SC07-2050.