Confidentiality of court records and Motions to seal

Report
CONFIDENTIALITY OF
COURT RECORDS AND
MOTIONS TO SEAL
COURT RECORDS
Hon. Maria Espinosa Dennis
Circuit Court Judge
27th Annual View from the Bench
May 18, 2012
AUTHORITY
• RULE 2.420 OF THE FLORIDA RULES OF
JUDICIAL ADMINISTRATION
• ADMINISTRATIVE ORDER NO. 10-10
FLORIDA RULE OF JUDICIAL
ADMINISTRATION 2.420
• This Rule regulates what records are open to the public
and how they can be reviewed.
• Addresses access by the public to Court Records and to
administrative records of the Judicial Branch
• Fully Applicable on October 1, 2010.
• Background: Privacy vs. Public Access
• Public’s legitimate privacy interests and it’s desire to
have broad access to court records = Guidelines
RULE 2.420 FRJA
Defines “CONFIDENTIAL” as:
As applied to information contained within a record of the
judicial branch, means that such information is exempt from the
public right of access under Article I, Section 24(a) of the Florida
Constitution, and may be released only to the persons or
organizations designated by law, statute, or court order. The term
“EXEMPT” means that such information is “confidential”.
LISTS OF “CONFIDENTIAL”
DOCUMENTS
• 2.420(C) 1-6:
LIST OF RECORDS OF
JUDICIAL BRANCH
• 2.420(C) 7-10:
CATCH-ALL LIST
TYPE- II INFORMATION
• 2.420(D) 1-19:
COURT
LIST OF INFORMATION
CONTAINED WITHIN
RECORDS
TYPE – I INFORMATION
Rule 2.420(c) 1-6: Confidential &
Exempt Records
SETS FORTH A LIST OF CATEGORIES OF RECORDS OF
THE JUDICIAL BRANCH THAT SHALL BE
“CONFIDENTIAL” OR EXEMPT FROM PUBLIC ACCESS
Examples:
1.Trial and Appellate Court Memoranda, Drafts of
and Orders;
Opinions
2.Advisory Opinions that relate to Administration of Court;
3.Complaints alleging Misconduct against Judges (until PC is
established);
4.Copies of Arrest & Search Warrants retained by Clerks &
Judges (until execution of these warrants), etc.
RULE 2.420(C)7-10: CONFIDENTIAL &
EXEMPT RECORDS
• (C)(7): All records made confidential under the Florida & US
Constitution and Florida & Federal law;
• (C)(8): All records deemed confidential by court rule, bar rules, Florida
Statutes, case law and rules of JQC;
• (C)(9): Any court record determined to be confidential on grounds that
confidentiality is required to: **(MOST DISCRETION BY COURT)
•
•
•
•
•
•
Prevent serious, imminent threat to the administration of justice;
Protect trade secrets;
Protect compelling governmental interest;
Obtain evidence to determine legal issue in case;
Avoid substantial injury to party by disclosure of matters protected;
Comply with established Public Policy;
• (C)(10):The names and any identifying information of Judges mentioned in
advisory opinions of the Judicial Ethics Committee.
“TYPE-II” INFORMATION
• MAY be CONFIDENTIAL under subdivisions (c)(7)
or (c)(8), but that is NOT automatically confidential
• Refers to information that MAY be confidential under
subdivision (c)(9)
LIST OF CONFIDENTIAL INFORMATION
CONTAINED IN RECORDS PER RULE 2.420
(d)(1)(b)
• THESE ARE READILY IDENTIFIABLE TO
CLERKS OF THE COURT – (19 CATEGORIES):
“TYPE-I” INFORMATION:
1. Chapter 39 records pertaining to dependency
matters, termination of parental rights, guardian
ad litem, child abuse, neglect, and abandonment;
2. Adoption records;
3. Social Security, bank account, charge, debit, and
credit card numbers in court records, (unless
redaction is requested);
(cont.) List of confidential
information
4.
HIV test results and patient identity within the HIV
test results;
5.
Sexually transmitted diseases—test results and
identity within the test results when provided by
the Dept. of Health
6.
Birth and Death Certificates;
7.
Identifying Information in Petition by Minor for
Waiver of Parental Notice when seeking to
Terminate Pregnancy;
8.
Identifying Information in Clinical Mental Health
Records under the Baker Act;
9.
Records of Substance Abuse Service Providers
which pertain to the identity, diagnosis and
prognosis of individual receiving services;
10. Identifying Information in Clinical Records of
Detained Criminal defendants found Incompetent
or Acquitted by reason of Insanity;
11. Estate Inventories or Accountings;
12. Victim’s Address in Domestic Violence action on
Petitioner’s Request;
13. Information Identifying Victim’s of Sexual Offenses,
including Child Sexual Abuse;
14. Gestational Surrogacy Records;
15. Guardianship Reports & Orders appointing court
monitors in Guardianship records;
16. Grand Jury Records;
17. Information acquired by Courts and Law
Enforcement regarding family services for children;
18. Juvenile Delinquency Records;
19. Information disclosing the Identity of Persons
subject to Tuberculosis proceedings and
Records of the Dept. of Health in suspected
Tuberculosis cases.
PROCEDURES FOR DETERMINING
CONFIDENTIALITY OF COURT
RECORDS - 2.420(D)(2)
1.
GOOD FAITH REVIEW OF PLEADINGS BY FILER;
2.
FILE FORM “NOTICE OF CONFIDENTIAL
INFORMATION WITHIN COURT FILING”;
3.
CLERK OF COURT REVIEWS FILINGS;
4.
WRITTEN NOTICE TO FILER (BY CLERK) IF FINDS
INFORMATION NOT CONFIDENTIAL - WITHIN 5 DAYS;
5.
FILER MUST FILE “MOTION TO DETERMINE
CONFIDENTIALITY OF COURT RECORDS”;
6.
“OPEN” COURT HEARING WITHIN 30 DAYS W/CT.
REPORTER OR RECORDED DEVICE;
7.
POSTING OF COURT ORDER BY CLERK – (30 DAYS)
STEP #1 - GOOD FAITH
REQUIREMENT OF FILER
GOOD FAITH REVIEW BY FILER
ANY PERSON FILING A DOCUMENT WITH THE
COURT SHALL - IN GOOD FAITH -ASCERTAIN
WHETHER ANY INFORMATION CONTAINED
WITHIN THE DOCUMENT MAY BE CONFIDENTIAL
UNDER THIS RULE
Good Faith Review
EVEN IF THE INFORMATION IS NOT ITEMIZED
IN THE 2.420 (D)(1) LIST – (NOT ONE OF THE 19
ENUMERATED EXEMPTIONS)
STEP #2 – FILE NOTICE
FILE NOTICE WITH COURT
ANY PERSON FILING A DOCUMENT
CONTAINING CONFIDENTIAL INFORMATION
SHALL AT THE TIME OF FILING, FILE WITH
THE CLERK OF THE COURT, A:
“NOTICE OF OF CONFIDENTIAL
INFORMATION WITHIN COURT FILING”
EXCEPTIONS TO DUTIES OF
FILER RE TYPE-II INFORMATION
If the Filer has a good faith belief that the document contains
confidential information, the Filer MUST file a “Motion to
Determine Confidentiality of Court Records”, requesting a
judicial determination of confidentiality, UNLESS:
a. The Filer is the only person whose confidential information
is included in the document; or
b. The filer is the attorney representing all such persons and
a waiver of confidential status is intended.
*Any Interested Person may also request that Type-II Information
be maintained Confidential by filing a Motion to Determine
Confidentiality.
FORM – NOTICE OF CONFIDENTIAL
INFORMATION WITHIN COURT
FILING
• Sample Notice of Confidential Information here…..
NOTICE TO NON-PARTY
*SUBDIVISION (D)(4)
• REQUIRES FILER TO GIVE A NON-PARTY
NOTICE OF CERTAIN FILINGS INVOLVING
CONFIDENTIAL INFORMATION PERTAINING
TO THE NON-PARTY, when:
• 1. Notice of Confidential Information is filed;
• 2. Motion is filed seeking to determine that Information
contained in court files is confidential;
• 3. Motion to Vacate Order Determining Confidentiality;
4. Motion to Unseal Information/Records.
STEP #3 – CLERK OF
COURT REVIEW
• CLERK SHALL review the information identified by
the Filer to determine whether the information is
facially subject to the identified provision.
• If CLERK determines that the information IS NOT
subject to exemption, then the Clerk must give the Filer:
1. WRITTEN NOTICE of the determination
within 5 DAYS of filing, AND
2. Maintain the information as confidential for 10
DAYS, or until the Court rules on the motion to
determine confidentiality.
STEP #4 – FILE MOTION
FILE A MOTION TO DETERMINE
CONFIDENTIALITY OF COURT RECORDS
CONTENTS OF MOTION TO
DETERMINE CONFIDENTIALITY OF
COURT RECORDS
• GOVERNED BY RULE 2.420(E)
• Requires a WRITTEN MOTION, captioned “Motion to
Determine Confidentiality of Court Records”. The MOTION
must CONTAIN the following:
• 1. IDENTIFY the particular COURT RECORD sought to be
deemed confidential;
• 2. SPECIFY the BASIS for determining that such court records are
confidential; and
• 3. Specify LEGAL AUTHORITY and applicable legal standards
for determining such record to be confidential.
• 4. Must contain SIGNED CERTIFICATION by the movant or his
attorney that the motion is being made in GOOD FAITH and is
SUPPORTED by sound FACT and LEGAL BASIS.
STEP #5 - HEARING
HEARING
Unless all parties agree to the contrary, in writing, the Court
MUST:
•1. Hold a hearing no later than 30 days after the filing of the
motion;
•2. The hearing must be an OPEN PROCEEDING, unless an incamera hearing is requested to protect the interests of the parties;
•3. There must be a COMPLETE RECORD of the hearing:
either by court reporter or recording device;
•4. May require Public Notice;
•5. Court must issue RULING within 30 DAYS of hearing.
CONTENTS OF COURT ORDERS
GRANTING RELIEF
Any ORDER granting in whole or in part a Request to
Determine Confidentiality of Trial Court Records under Rule
2.420(e) MUST INCLUDE the following:
1. The TYPE OF CASE in which order is entered;
2. The particular GROUNDS for determining that the
information is confidential;
3. Whether any PARTY’S NAME is determined to be
CONFIDENTIAL and if so, the particular
PSEUDONYM to be substituted for the party’s
name;
4. Whether the PROGRESS DOCKET are determined
to be confidential;
5. The particular INFORMATION that is determined to
be CONFIDENTIAL (without revealing the
confidential information);
CONTENTS OF
ORDER(Cont.)
6. Identification of PERSONS who are
PERMITTED to VIEW the confidential
information;
7. FINDING that the degree, duration and manner
of confidentiality ordered BY the COURT are no
broader than necessary to protect the interests
which is the object of the motion, AND, no less
restrictive measures are available.
SAMPLE ORDER
Order Granting/Denying Motion to Seal Pursuant to
Florida Rule of Judicial Administration 2.420(c)(9)
SAMPLE ORDER
STEP #6 - POSTING
STEP #6 – POSTING
The Clerk of the Court MUST PUBLISH the ORDER,
within 10 days following the entry of the order by:
a.POSTING a copy of the Order on the CLERK’S
WEBSITE
and
b.POSTING in a PROMINENT location in the
COURTHOUSE.
The Order must remain posted in BOTH locations for no
less than 30 DAYS.
ADMINISTRATIVE ORDER
NO. 10-10
• IN RE: PROCEDURES AND CRITERIA FOR
SEALING COURT RECORDS
• EFFECTIVE NOVEMBER 15, 2010
• RESCINDS AND SUPERSEDES
ADMINISTRATIVE ORDER NO. 06-36
• TRACTS THE LANGUAGE OF RULE 2.420 OF
THE FLORIDA RULES OF JUDICIAL
ADMINISTRATION
• REQUIRES STRICT COMPLIANCE WITH RULE
2.420 OF THE FLORIDA RULES OF JUDICIAL
ADMINISTRATION IN ORDER TO SEAL TRIAL
COURT RECORDS.
SANCTIONS FOR NONCOMPLIANCE
• THE COURT CAN IMPOSE SANCTIONS AFTER:
• A) NOTICE
• B) HEARING
• AGAINST A PARTY/NON-PARTY AND/OR THEIR
ATTORNEY, IF:
1.
COURT DETERMINES THAT A DESIGNATION
MADE UNDER RULE 2.420(D) OR A MOTION
MADE UNDER RULE 2.420(D)(3) OR (E) WAS NOT
MADE IN GOOD FAITH AND WAS NOT
SUPPORTED BY SOUND FACTUAL OR LEGAL
BASIS, OR
2.
A DOCUMENT WAS FILED IN VIOLATION OF
RULE 2.420(D)(2) OR 2.420(D)(3), FRJA

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