In Re: Amendments to Florida Rules of General Practice and Judicial Administration 2.420 and 2.533 ( 2023 )

Supreme Court of Florida
____________
No. SC2023-0014
____________
IN RE: AMENDMENTS TO FLORIDA RULES OF GENERAL
PRACTICE AND JUDICIAL ADMINISTRATION 2.420 AND 2.533.
May 11, 2023
CORRECTED OPINION
PER CURIAM.
The Florida Bar’s Rules of General Practice and Judicial
Administration Committee (Committee) has filed a report proposing
amendments to Florida Rule of General Practice and Judicial
Administration 2.420 (Public Access to and Protection of Judicial
Branch Records) and the addition of new rule 2.533 (Oaths and
Affirmations in Court). 1 The Committee and the Board of Governors
of The Florida Bar unanimously approved the proposed
amendments. The proposal was previously published for comment
by the Committee, but no comments were received.
1. We have jurisdiction. See art. V, § 2(a), Fla. Const; Fla. R.
Gen. Prac. & Jud. Admin. 2.140(b)(1).
Having considered the proposed amendments, the Court
hereby amends rule 2.420 and adopts rule 2.533 as proposed by
the Committee, with a minor modification to rule 2.533 for
consistency with rule 2.530 (Communication Technology). Among
other amendments, rule 2.420 is amended to include “documents
related to the settlement of a minor’s claim or the settlement of a
claim for a ward” as information that the clerk of court must
maintain as confidential in accordance with section 744.3701,
Florida Statutes (2022). New rule 2.533 addresses who is
authorized to administer oaths to jurors and witnesses in court.
The Florida Rules of General Practice and Judicial
Administration are hereby amended as set forth in the appendix to
this opinion. New language is indicated by underscoring; deletions
are indicated by struck-through type. The amendments shall
become effective July 1, 2023, at 12:01 a.m. Because the
amendments were not published for comment prior to their
adoption, interested persons shall have seventy-five days from the
date of this opinion in which to file comments with the Court. 2
2. All comments must be filed with the Court on or before
July 25, 2023, with a certificate of service verifying that a copy has
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It is so ordered.
MUÑIZ, C.J., and CANADY, LABARGA, COURIEL, GROSSHANS,
and FRANCIS, JJ., concur.
THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER
THE EFFECTIVE DATE OF THESE AMENDMENTS.
Original Proceeding – Florida Rules of General Practice and Judicial
Administration
Hon. Stephen R. Jewett, Chair, Rules of General Practice and
Judicial Administration Committee, Orlando, Florida, Joshua E.
Doyle, Executive Director, The Florida Bar, Tallahassee, Florida,
and Kelly Noel Smith, Staff Liaison, The Florida Bar, Tallahassee,
Florida,
for Petitioner
been served on the Committee Chair, the Honorable Stephen R.
Jewett, Ninth Judicial Circuit of Florida, 425 North Orange Avenue,
Suite 465-A, Orlando, Florida 32801, ctjusj2@ocnjcc.org, and on
the Bar Staff Liaisons to the Committee, Elizabeth Clark Tarbert,
651 East Jefferson Street, Tallahassee, Florida 32399-2300,
etarbert@floridabar.org, and Kelly Smith, 651 East Jefferson Street,
Tallahassee, Florida 32399-2300, ksmith@floridabar.org, as well as
a separate request for oral argument if the person filing the
comment wishes to participate in oral argument, which may be
scheduled in this case. The Committee Chair has until August 15,
2023, to file a response to any comments filed with the Court. If
filed by an attorney in good standing with The Florida Bar, the
comment must be electronically filed via the Florida Courts E-Filing
Portal (Portal). If filed by a nonlawyer or a lawyer not licensed to
practice in Florida, the comment may be, but is not required to be,
filed via the Portal. Any person unable to submit a comment
electronically must mail or hand-deliver the originally signed
comment to the Florida Supreme Court, Office of the Clerk, 500
South Duval Street, Tallahassee, Florida 32399-1927.
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APPENDIX
RULE 2.420. PUBLIC ACCESS TO AND PROTECTION OF
JUDICIAL BRANCH RECORDS
(a) Scope and Purpose. Subject to the rulemaking power of
the Florida Supreme Court provided by article V, section 2, Florida
Constitution, the following rule shall governs public access to and
the protection of the records of the judicial branch of government.
The public shall havehas access to all records of the judicial branch
of government, except as provided below. Access to all electronic
and other court records shall beis governed by the Standards for
Access to Electronic Court Records and Access Security Matrix, as
adopted by the supreme court in Administrative Order AOSC14-19
or the then-current Standards for Access. Remote access to
electronic court records shall beis permitted in counties where the
supreme court’s conditions for release of suchthose records are
met.
(b) Definitions.
(1) “Records of the judicial branch” are all records,
regardless of physical form, characteristics, or means of
transmission, made or received in connection with the transaction
of official business by any judicial branch entity and consist of:
(A) [No Change]
(B) “administrative records,” which are all other
records made or received pursuant tounder court rule, law, or
ordinance, or in connection with the transaction of official business
by any judicial branch entity.
(2) [No Change]
(3) “Custodian.” The custodian of all administrative
records of any court is the chief justice or chief judge of that court,
except that each justice or judge is the custodian of all records that
are solely within the possession of that justice or judge. At the
conclusion of service on a court, each justice or judge shallmust
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deliver to the court’s chief justice or chief judge any records of the
judicial branch in the possession of the departing justice or judge.
As to all other records, the custodian is the official charged with the
responsibility for the care, safekeeping, and supervision of such
records. All references to “custodian” mean the custodian or the
custodian’s designee.
(4) “Confidential,” 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.
As applied to information contained within a court record, the term
“exempt” means that such information is confidential. Confidential
information includes information that is confidential under this rule
or under a court order entered pursuant tounder this rule. To the
extent reasonably practicable, restriction of access to confidential
information shall beis implemented in a manner that does not
restrict access to any portion of the record that is not confidential.
(5)-(6) [No Change]
(c) Confidential and Exempt Records. The following
records of the judicial branch shall beare confidential:.
(1) [No Change]
(2) Memoranda or advisory opinions that relate to the
administration of the court and that require confidentiality to
protect a compelling governmental interest, including, but not
limited to, maintaining court security, facilitating a criminal
investigation, or protecting public safety, which cannot be
adequately protected by less restrictive measures. The degree,
duration, and manner of confidentiality imposed shallmust be no
broader than necessary to protect the compelling governmental
interest involved, and a finding shall be made that no less-
restrictive measures are available to protect this interest must be
made. The decision that confidentiality is required with respect to
suchthese administrative memorandum or written advisory opinion
shall beis made by the chief judge;
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(3) (A) [No Change]
(B) Complaints alleging misconduct against other
entities or individuals licensed or regulated by the courts, until a
finding of probable cause or no probable cause is established,
unless otherwise provided. SuchThe finding should be made within
the time limit set by law or rule. If no time limit is set, the finding
should be made within a reasonable period of time;
(4) Periodic evaluations implemented solely to assist
judges in improving their performance, all information gathered to
form the bases for the evaluations, and the results generated
therefrom;
(5) Only the names and qualifications of persons
applying to serve or serving as unpaid volunteers to assist the
court, at the court’s request and direction, shall beare accessible to
the public. All other information contained in the applications by
and evaluations of persons applying to serve or serving as unpaid
volunteers shall beare confidential unless made public by court
order based upon a showing of materiality in a pending court
proceeding or upon a showing of good cause;
(6) Copies of arrest and search warrants and
supporting affidavits retained by judges, clerks, or other court
personnel until execution of saidthe warrants or until a
determination is made by law enforcement authorities that
execution cannot be made;
(7)-(10) [No Change]
(d) Procedures for Determining Confidentiality of Court
Records.
(1) Except as provided in this subdivision (d)(1)(C), the
clerk of the court shallmust designate and maintain the
confidentiality of any information contained within a court record
that is described in this subdivision (d)(1)(A) or (d)(1)(B) of this rule.
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(A) The clerk of the court shallmust maintain as
confidential information described by any of subdivisions (c)(1)
through (c)(6) of this rule;
(B) Except as provided by court order, the clerk of
the court shallmust maintain as confidential information subject to
subdivision (c)(7) or (c)(8) of this rule that is currently confidential
or exempt from section 119.07, Florida Statutes, and article I,
section 24(a) of the Florida Constitution as specifically stated in any
of the following statutes or as they may be amended or renumbered:
(i)-(ii) [No Change]
(iii) Social Security, bank account, charge,
debit, and credit card numbers. § 119.0714(1)(i)–(j), (2)(a)–(e), Fla.
Stat. (Unless redaction is requested pursuant tounder §
119.0714(2), Fla. Stat., this information is exempt only as of
January 1, 2012.)
(iv)-(xiv) [No Change]
(xv) Guardianship reports, orders appointing
court monitors, and orders relating to findings of no probable cause
in guardianship cases, and documents related to the settlement of a
minor’s claim or the settlement of a claim for a ward. §§ 744.1076,
744.3025, 744.3701, Fla. Stat.
(xvi)-(xxiii) [No Change]
(C) In civil cases, the clerk of the court shallis not be
required to designate and maintain information as confidential
unless the filer follows the notice procedures set forth in
subdivision (d)(2), the filer files a Motion to Determine
Confidentiality of Court Records as set forth in subdivision (d)(3),
and the filing is deemed confidential by court order, or the case
itself is confidential by law. “Civil cases” as used in this rule
includes only civil case types in the circuit, county, or small claims
courts (identified by the Court Type Designator CA, CC, and SC in
the uniform case numbering system), except those case types listed
as “Viewable on Request (VOR)” in the Standards for Access to
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Electronic Court Records and Access Security Matrix, as adopted by
the supreme court in Administrative Order AOSC14-19 or the then-
current standards for access.
(2) The filer of any document containing confidential
information described in subdivision (d)(1)(B) shallmust, at the time
of filing, file with the clerk a “Notice of Confidential Information
within Court Filing” in order to indicate that confidential
information described in subdivision (d)(1)(B) of this rule is included
within the document being filed and also indicate that either the
entire document is confidential or identify the precise location of the
confidential information within the document being filed. If an
entire court file is maintained as confidential, the filer of a
document in such athat file is not required to file the notice form. A
form Notice of Confidential Information within Court Filing
accompanies this rule.
(A) If any document in a court file contains
confidential information as described in subdivision (d)(1)(B), the
filer, a party, or any affected non-party may file the Notice of
Confidential Information within Court Filing if the document was
not initially filed with a Notice of Confidential Information within
Court Filing and the confidential information is not maintained as
confidential by the clerk. The Notice of Confidential Information
within Court Filing filed pursuant tounder this subdivision must
also state the title and type of document, date of filing (if known),
date of document, docket entry number, indicate that either the
entire document is confidential or identify the precise location of the
confidential information within the document, and provide any
other information the clerk may require to locate the confidential
information.
(B) The clerk of court shallmust review filings
identified as containing confidential information to determine
whether the purported confidential information is facially subject to
confidentiality under subdivision (d)(1)(B). If the clerk determines
that filed information is not subject to confidentiality under
subdivision (d)(1)(B), the clerk shallmust notify the filer of the Notice
of Confidential Information within Court Filing in writing within 5
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days of filing the notice and thereafter shallmust maintain the
information as confidential for 10 days from the date suchthe
notification by the clerk is served. The information shallmust not be
held as confidential for more than that 10-day period, unless a
motion has been filed pursuant tounder subdivision (d)(3).
(3) The filer of a document with the court shallmust
ascertain whether any information contained within the document
may be confidential under subdivision (c) of this rule
notwithstanding that sucheven if the information is not itemized at
subdivision (d)(1) of this rule. If the filer believes in good faith that
information is confidential but is not described in subdivision (d)(1)
of this rule, the filer shallmay request that the information be
maintained as confidential by filing a “Motion to Determine
Confidentiality of Court Records” under the procedures set forth in
subdivision (e), (f), or (g), unless:
(A) the filer is the only individual whose
confidential information is included in the document to be filed or is
the attorney representing all such individualsthe filer; and
(B) [No Change]
(4) If a notice of confidential information is filed
pursuant tounder subdivision (d)(2), or a motion is filed pursuant
tounder subdivision (e)(1) or (g)(1) seeking to determine that
information contained in court records is confidential, or a motion
is filed pursuant tounder subdivision (e)(5) or (g)(5) seeking to
vacate an order that has determined that information in a court
record is confidential or seeking to unseal information designated
as confidential by the clerk of court, then the person filing the
notice or motion shallmust give notice of suchthat filing to any
affected non-party. Notice pursuant tounder this provision must:
(A)-(C) [No Change]
(D) include the applicable statement that:
(i) in the case of a motion to determine
confidentiality of court records, a statement that if the if a motion to
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determine confidentiality of court records is denied then the subject
material will not be treated as confidential by the clerk; and
(ii) in the case of a motion to unseal
confidential records or a motion to vacate an order deeming records
confidential, a statement that if the if a motion to unseal
confidential records or vacate an order deeming records confidential
is granted, the subject material will no longer be treated as
confidential by the clerk.
Any notice described hereinin this subdivision must be served
pursuant tounder subdivision (k), if applicable, together with the
motion that gave rise to the notice in accordance with subdivision
(e)(5) or (g)(5).
(5) Except when the entire court file is maintained as
confidential, if If a judge, magistrate, or hearing officer files any
document containing confidential information, the confidential
information within the document must be identified as
“confidential” and the title of the document must include the word
“confidential.,” except when the entire court file is maintained as
confidential. The clerk must maintain the confidentiality of the
identified confidential information. A copy of the document edited to
omit the confidential information shallmust be provided to the clerk
for filing and recording purposes.
(e) Request to Determine Confidentiality of Trial Court
Records in Noncriminal Cases.
(1) A request to determine the confidentiality of trial
court records in noncriminal cases under subdivision (c) must be
made in the form of a written motion captioned “Motion to
Determine Confidentiality of Court Records.” A motion made under
this subdivision must:
(A) [No Change]
(B) specify the bases for determining that suchthe
court records are confidential without revealing confidential
information; and
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(C) set forth the specific legal authority and any
applicable legal standards for determining suchthe court records to
be confidential without revealing confidential information.
(2) Any written motion made under this subdivision
must include a signed certification by the party or the attorney for
the party making the request that the motion is made in good faith
and is supported by a sound factual and legal basis. Information
that is the subject to suchof a motion under this subdivision must
be treated as confidential by the clerk pending the court’s ruling on
the motion. A response to a written motion filed under this
subdivision may be served within 10 days of service of the motion.
Notwithstanding any of the foregoing, the court may not determine
that the case number, docket number, or other number used by the
clerk’s office to identify the case file is confidential.
(23) Except when a motion filed under subdivision (e)(1)
represents that all parties agree to all of the relief requested, the
court must, as soon as practicable but no later than 30 days after
the filing of a motion under this subdivision, hold a hearing before
ruling on the motion. Whether or not any motion filed under
subdivision (e)(1) is agreed to by the parties, the court may in its
discretion hold a hearing on suchthe motion. Any hearing held
under this subdivision must be an open proceeding, except that any
person may request that the court conduct all or part of the hearing
in camera to protect the interests set forth in subdivision (c). Any
person may request expedited consideration of and ruling on the
motion. The movant shall beis responsible for ensuring that a
complete record of any hearing held pursuant tounder this
subdivision is created, either by use of a court reporter or by any
recording device that is provided as a matter of right by the court.
The court may in its discretion require prior public notice of the
hearing on such a motion in accordance with the procedure for
providing public notice of court orders set forth in subdivision
(e)(45) or by providing such other public notice as the court deems
appropriate. The court must issue a ruling on the motion within 30
days of the hearing.
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(34) Any order granting in whole or in part a motion filed
under subdivision (e) must state the following with as much
specificity as possible without revealing the confidential
information:
(A)-(G) [No Change]
(H) that the clerk of the court is directed to
publish the order in accordance with subdivision (e)(45).
(45) Except as provided by law or court rule, notice must
be given of any written order granting in whole or in part a motion
made under subdivision (e)(1) as follows:
(A) [No Change]
(B) the order must remain posted in both locations
for no less than 30 days. This subdivision shalldoes not apply to
orders determining that court records are confidential under
subdivision (c)(7) or (c)(8).
(56) If a nonparty requests that the court vacate all or
part of an order issued under subdivision (e) or requests that the
court order the unsealing of records designated as confidential
under subdivision (d), the request must be made by a written
motion, filed in that court, that states with as much specificity as
possible the bases for the motion. The motion must set forth the
specific legal authority and any applicable legal standards
supporting the motion. The movant must serve all parties and all
affected non-parties with a copy of the motion. Except when a
motion filed under this subdivision represents that all parties and
affected non-parties agree to all of the relief requested, the court
must, as soon as practicable but no later than 30 days after the
filing of a motion under this subdivision, hold a hearing on the
motion. Regardless of whether any motion filed under this
subdivision is agreed to by the parties and affected non-parties, the
court may in its discretion hold a hearing on such motion. Any
person may request expedited consideration of and ruling on the
motion. Any hearing held under this subdivision must be an open
proceeding, except that any person may request that the court
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conduct all or part of the hearing in camera to protect the interests
set forth in subdivision (c). The court must issue a ruling on the
motion within 30 days of the hearing. The movant shall beis
responsible for ensuring that a complete record of any hearing held
under this subdivision be created, either by use of a court reporter
or by any recording device that is provided as a matter of right by
the court. This subdivision shalldoes not apply to orders
determining that court records are confidential under subdivision
(c)(7) or (c)(8).
(f) Request to Determine Confidentiality of Court
Records in Criminal Cases.
(1) Subdivisions (e) and (h) shall apply to any motion by
the state, a defendant, or an affected non-party to determine the
confidentiality of trial court records in criminal cases under
subdivision (c), except as provided in subdivision (f)(3). As to any
motion filed in the trial court under subdivision (f)(3), the following
procedure shall applyapplies:
(A) Unless the motion represents that the state,
defendant(s), and all affected non-parties subject to the motion
agree to all of the relief requested, theThe court must hold a hearing
on the motion filed under this subdivision within 15 days of the
filing of the motion, unless the motion represents that the state,
defendant(s), and all affected non-parties subject to the motion
agree to all of the relief requested. Any hearing held under this
subdivision must be an open proceeding, except that any person
may request that the court conduct all or part of the hearing in
camera to protect the interests set forth in subdivision (c)(9)(A).
(B) The court shallmust issue a written ruling on a
motion filed under this subdivision within 10 days of the hearing on
a contested motion or within 10 days of the filing of an agreed
motion.
(2) Subdivision (g) shall applyies to any motion to
determine the confidentiality of appellate court records under
subdivision (c), except as provided in subdivision (f)(3). As to any
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motion filed in the appellate court under subdivision (f)(3), the
following procedure shall applyapplies:
(A)-(B) [No Change]
(C) The court shallmust issue a written ruling on a
motion filed under this subdivision within 10 days of the filing of a
response on a contested motion or within 10 days of the filing of an
uncontested motion.
(3) Any motion to determine whether a court record
that pertains to a plea agreement, substantial assistance
agreement, or other court record that reveals the identity of a
confidential informant or active criminal investigative information is
confidential under subdivision (c)(9)(A)(i), (c)(9)(A)(iii), (c)(9)(A)(v), or
(c)(9)(A)(vii) of this rule may be made in the form of a written motion
captioned “Motion to Determine Confidentiality of Court Records.”
Any motion made pursuant tounder this subdivision must be
treated as confidential and indicated on the docket by generic title
only, pending a ruling on the motion or further order of the court.
As to any motion made under this subdivision, the following
procedure shall applyapplies:
(A) Information that is the subject of suchthe
motion must be treated as confidential by the clerk pending the
court’s ruling on the motion. Filings containing the information
must be indicated on the docket in a manner that does not reveal
the confidential nature of the information.
(B) The provisions of subdivisions (e)(34)(A)–(G),
(g)(7), (h), and (j), shall apply to motions made under this
subdivision. The provisions of subdivisions (e)(1), (e)(23), (e)(34)(H),
(e)(45), and (e)(56) shalldo not apply to motions made under this
subdivision.
(C) No order entered under this subdivision may
authorize or approve the sealing of court records for any period
longer than is necessary to achieve the objective of the motion, and
in no event longer than 120 days. Extensions of an order issued
hereunder this subdivision may be granted for 60–day periods, but
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each such extension may be ordered only upon the filing of another
motion in accordance with the procedures set forth under this
subdivision. In the event of an appeal or review of a matter in which
an order is entered under this subdivision, the lower tribunal
shallmust retain jurisdiction to consider motions to extend orders
issued hereunder this subdivision during the course of the appeal
or review proceeding.
(D) The clerk of the court shallmust not publish
any order of the court issued hereunder this subdivision in
accordance with subdivision (e)(45) or (g)(4) unless directed by the
court. The docket shallmust indicate only the entry of the order.
(4) [No Change]
(g) Request to Determine Confidentiality of Appellate
Court Records in Noncriminal Cases.
(1) Subdivision (e)(1) shall applyies to any motion filed
in the appellate court to determine the confidentiality of appellate
court records in noncriminal cases under subdivision (c). Such a
motion may be made with respect to a record that was presented or
presentable to a lower tribunal, but no determination concerning
confidentiality was made by the lower tribunal, or a record
presented to an appellate court in an original proceeding.
(2) A response to a motion filed under subdivision (g)(1)
may be served within 10 days of service of the motion. The court
shallmust issue a written ruling on a written motion filed under this
subdivision within 30 days of the filing of a response on a contested
motion or within 30 days of the filing of an uncontested written
motion.
(3) Any order granting in whole or in part a motion filed
under subdivision (g)(1) must be in compliance with the guidelines
set forth in subdivisions (e)(34)(A)–(e)(34)(H). Any order requiring the
sealing of an appellate court record operates to also make those
same records confidential in the lower tribunal during the pendency
of the appellate proceeding.
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(4) Except as provided by law, within 10 days following
the entry of an order granting a motion under subdivision (g)(1), the
clerk of the appellate court must post a copy of the order on the
clerk’s website and must provide a copy of the order to the clerk of
the lower tribunal, with directions that the clerk of the lower
tribunal shallmust seal the records identified in the order. The
order must remain posted by the clerk of the appellate court for no
less than 30 days.
(5)-(6) [No Change]
(7) UponOn conclusion of the appellate proceeding, the
lower tribunal may, upon appropriate motion showing changed
circumstances, revisit the appellate court’s order directing that the
records be sealed.
(8) Records of a lower tribunal determined to be
confidential by that tribunal must be treated as confidential during
any review proceedings. In any case where information has been
determined to be confidential under this rule, the clerk of the lower
tribunal shallmust so indicate that in the index transmitted to the
appellate court. If the information was determined to be confidential
in an order, the clerk’s index must identify suchthe order by date or
docket number. This subdivision does not preclude review by an
appellate court, under Florida Rule of Appellate Procedure 9.100(d),
or affect the standard of review by an appellate court, of an order by
a lower tribunal determining that a court record is confidential.
(h) Oral Motions to Determine Confidentiality of Trial
Court Records.
(1) Notwithstanding the written notice requirements of
subdivision (d)(2) and written motion requirements of subdivisions
(d)(3), (e)(1), and (f), the movant may make an oral motion to
determine the confidentiality of trial court records under
subdivision (c), provided:
(A)-(D) [No Change]
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(E) except for oral motions under subdivision (f)(3),
the provisions of subdivision (e)(23) shall apply to the oral motion,
procedure and hearing;
(F) the provisions of subdivision (f)(1)(A) and
(f)(1)(B) and (f)(3) shall apply to any oral motion under subdivision
(f)(3); and
(G) [No Change]
(2) The court may deny any oral motion made pursuant
tounder subdivision (h)(1) if the court finds that that movant had
the ability to timely comply with the written notice requirements in
subdivision (d) or the written motion requirements of subdivision
(d)(3), (e)(1), or (f), as applicable, or the movant failed to provide
adequate notice to the parties and affected non-parties of the
confidentiality issues to be presented to the court.
(3) Until the court renders a decision regarding the
confidentiality issues raised in any oral motion, all references to
purported confidential information as set forth in the oral motion
shallmust occur in a manner that does not allow public access to
such information.
(4) If the court grants in whole or in part any oral
motion to determine confidentiality, the court shallmust issue a
written order that does not reveal the confidential information and
complies with the applicable subdivision of this rule as follows:
(A) For any oral motion under subdivision (e) or
(f)(1), except subdivisions (f)(1)(A) and (f)(1)(B), the written order
must be issued within 30 days of the hearing and must comply with
subdivision (e)(34).
(B) [No Change]
(i) Sanctions. After notice and an opportunity to respond,
and upon determining that a motion, filing, or other activity
described below was not made in good faith and was not supported
by a sound legal or factual basis, the court may impose sanctions
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against any party or non-party and/or their attorney, if that party
or non-party and/or their attorney, in violation of the applicable
provisions of this rule:
(1)-(6) [No Change]
Nothing in this subdivision is intended to limit the authority of
a court to enforce any court order entered pursuant tounder this
rule.
(j) Procedure for Obtaining Access to Confidential Court
Records.
(1)-(4) [No Change]
(5) The filer of confidential court records, that filer’s
attorney of record, or that filer’s agent as authorized by that filer in
writing may obtain access to such confidential records pursuant
tounder this subdivision.
(6) Unless otherwise provided, an order granting access
to confidential court records under this subdivision shalldoes not
alter the confidential status of the record.
(k) Procedure for Service on Victims and Affected Non-
parties and When Addresses Are Confidential.
(1) In criminal cases, when the defendant is required
tomust serve any notice or motion described in this rule on an
alleged victim of a crime, service shallmust be on the state attorney,
who shallmust send or forward the notice or motion to the alleged
victim.
(2) Except as set forth in subdivision (k)(1), when
serving any notice or motion described in this rule on any affected
non-party whose name or address is not confidential, the filer or
movant shallmust use reasonable efforts to locate the affected non-
party and may serve suchthe affected non-party by any method set
forth in Florida Rule of General Practice and Judicial
Administration 2.516.
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(3) Except as set forth in subdivision (k)(1), when
serving any notice or motion described in this rule and the name or
address of any party or affected non-party is confidential, the filer
or movant must state prominently in the caption of the notice or
motion “Confidential Party or Confidential Affected Non-Party —
Court Service Requested.” When a notice or motion so designated is
filed, the court shall beis responsible for providing a copy of the
notice or motion to the party or affected non-party, by any method
permitted in Florida Rule of General Practice and Judicial
Administration 2.516, in such a way as to not reveal the
confidential information.
(l) Denial of Access Request for Administrative Records.
Expedited review of denials of access to administrative records of
the judicial branch shallmust be provided through an action for
mandamus or other appropriate relief, in the following manner:
(1) When a judge who has denied a request for access
to records is the custodian, the action shallmust be filed in the
court having appellate jurisdiction to review the decisions of the
judge denying access. UpOn order issued by the appellate court, the
judge denying access to records shallmust file a sealed copy of the
requested records with the appellate court.
(2) All other actions under this rule shallmust be filed
in the circuit court of the circuit in which such denial of access
occurs.
(m) Procedure for Public Access to Judicial Branch
Records. Requests and responses to requests for access to records
under this rule shallmust be made in a reasonable manner.
(1) Requests for access to judicial branch records
shallmust be in writing and shallmust be directed to the custodian.
The request shallmust provide sufficient specificity to enable the
custodian to identify the requested records. The reason for the
request is not required to be disclosed.
(2) The custodian shall beis solely responsible for
providing access to the records of the custodian’s entity. The
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custodian shallmust determine whether the requested record is
subject to this rule and, if so, whether the record or portions of the
record are exempt from disclosure. The custodian shallmust
determine the form in which the record is provided. If the request is
denied, the custodian shallmust state in writing the basis for the
denial.
(3) Fees for copies of records in all entities in the
judicial branch of government, except for copies of court records,
shallmust be the same as those provided in section 119.07, Florida
Statutes.
Committee Note
1995 Amendment. This rule was adopted to conform to the
1992 addition of article I, section 24, to the Florida Constitution.
Amendments to this rule were adopted in response to the 1994
recommendations of the Study Committee on Confidentiality of
Records of the Judicial Branch.
Subdivision (b) has been added by amendment and provides a
definition of “judicial records” that is consistent with the definition
of “court records” contained in rule 2.075(a)(1) [renumbered as
2.430(a)(1) in 2006] and the definition of “public records” contained
in chapter 119, Florida Statutes. The word “exhibits” used in this
definition of judicial records is intended to refer only to
documentary evidence and does not refer to tangible items of
evidence such as firearms, narcotics, etc. Judicial records within
this definition include all judicial records and data regardless of the
form in which they are kept. Reformatting of information may be
necessary to protect copyrighted material. Seigle v. Barry, 422 So.
2d 63 (Fla. 4th DCA 1982), review denied, 431 So. 2d 988 (Fla.
1983).
The definition of “judicial records” also includes official
business information transmitted via an electronic mail (e-mail)
system. The judicial branch is presently experimenting with this
new technology. For example, e-mail is currently being used by the
judicial branch to transmit between judges and staff multiple
matters in the courts including direct communications between
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judges and staff and other judges, proposed drafts of opinions and
orders, memoranda concerning pending cases, proposed jury
instructions, and even votes on proposed opinions. All of this type
of information is exempt from public disclosure under rules
2.051(c)(1) and (c)(2) [renumbered as 2.420(c)(1) and (c)(2) in 2006].
With few exceptions, these examples of e-mail transmissions are
sent and received between judicial officials and employees within a
particular court’s jurisdiction. This type of e-mail is by its very
nature almost always exempt from public record disclosure
pursuant tounder rule 2.051(c). In addition, official business e-mail
transmissions sent to or received by judicial officials or employees
using dial-in equipment, as well as the use of on-line outside
research facilities such as Westlaw, would also be exempt e-mail
under rule 2.051(c). On the other hand, we recognize that not all e-
mail sent and received within a particular court’s jurisdiction will
fall into an exception under rule 2.051(c). The fact that a non-
exempt e-mail message made or received in connection with official
court business is transmitted intra-court does not relieve judicial
officials or employees from the obligation of properly having a
record made of such messages so they will be available to the public
similar to any other written communications. It appears that official
business e-mail that is sent or received by persons outside a
particular court’s jurisdiction is largely non-exempt and is subject
to recording in some form as a public record. Each court should
develop a means to properly make a record of non-exempt official
business e-mail by either electronically storing the mail or by
making a hard copy. It is important to note that, although official
business communicated by e-mail transmissions is a matter of
public record under the rule, the exemptions provided in rule
2.051(c) exempt many of these judge/staff transmissions from the
public record. E-mail may also include transmissions that are
clearly not official business and are, consequently, not required to
be recorded as a public record. Each court should also publish an
e-mail address for public access. The individual e-mail addresses of
judicial officials and staff are exempt under rule 2.051(c)(2) to
protect the compelling interests of maintaining the uninterrupted
use of the computer for research, word-processing, preparation of
opinions, and communication during trials, and to ensure computer
security.
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Subdivision (c)(3) was amended by creating subparts (a) and
(b) to distinguish between the provisions governing the
confidentiality of complaints against judges and complaints against
other individuals or entities licensed or regulated by the Supreme
Court.
Subdivision (c)(5) was amended to make public the
qualifications of persons applying to serve or serving the court as
unpaid volunteers such as guardians ad litem, mediators, and
arbitrators and to make public the applications and evaluations of
such persons upon a showing of materiality in a pending court
proceeding or upon a showing of good cause.
Subdivision (c)(9) has also been amended. Subdivision (c)(9)
was adopted to incorporate the holdings of judicial decisions
establishing that confidentiality may be required to protect the
rights of defendants, litigants, or third parties; to further the
administration of justice; or to otherwise promote a compelling
governmental interest. Barron v. Florida Freedom Newspapers, Inc.,
531 So. 2d 113 (Fla.1988); Miami Herald Publishing Co. v. Lewis,
426 So. 2d 1 (Fla.1982). Such confidentiality may be implemented
by court rule, as well as by judicial decision, where necessary for
the effective administration of justice. See, e.g., Fla.R.Crim.P. 3.470,
(Sealed Verdict); Fla.R.Crim.P. 3.712, (Presentence Investigation
Reports); Fla.R.Civ.P. 1.280(c), (Protective Orders).
Subdivision (c)(9)(D) requires that, except where otherwise
provided by law or rule of court, reasonable notice shall be given to
the public of any order closing a court record. This subdivision is
not applicable to court proceedings. Unlike the closure of court
proceedings, which has been held to require notice and hearing
prior tobefore closure, see Miami Herald Publishing Co. v. Lewis,
426 So. 2d 1 (Fla.1982), the closure of court records has not
required prior notice. Requiring prior notice of closure of a court
record may be impractical and burdensome in emergency
circumstances or when closure of a court record requiring
confidentiality is requested during a judicial proceeding. Providing
reasonable notice to the public of the entry of a closure order and
an opportunity to be heard on the closure issue adequately protects
the competing interests of confidentiality and public access to
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judicial records. See Florida Freedom Newspapers, Inc. v. Sirmons,
508 So. 2d 462 (Fla. 1st DCA 1987), approved, Barron v. Florida
Freedom Newspapers, Inc., 531 So. 2d 113 (Fla.1988); State ex rel.
Tallahassee Democrat v. Cooksey, 371 So. 2d 207 (Fla. 1st DCA
1979). Subdivision (c)(9)(D), however, does not preclude the giving
of prior notice of closure of a court record, and the court may elect
to give prior notice in appropriate cases.
2002 Court Commentary-2007 Court Commentary
[No Change]
2007 Committee Commentary
[No Change]
APPENDIX TO RULE 2.420
IN THE .....(NAME OF
COURT).....,
FLORIDA
CASE NO.: ..........
Plaintiff/Petitioner,
v.
Defendant/Respondent.
/
NOTICE OF CONFIDENTIAL INFORMATION
WITHIN COURT FILING
Pursuant toUnder Florida Rule of General Practice and
Judicial Administration 2.420(d)(2), I hereby certify:
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( )(1) I am filing herewith athe attached document containing
confidential information as described in Rule 2.420(d)(1)(B) and
that:
(a) The title/type of document is , and:
(b)( ) the entire document is confidential, or
( ) the confidential information within the document is
precisely located at: .
OR
( )(2) A document was previously filed in this case that
contains confidential information as described in Rule
2.420(d)(1)(B), but a Notice of Confidential Information within Court
Filing was not filed with the document and the confidential
information was not maintained as confidential by the clerk of the
court. I hereby notify the clerk that this confidential information is
located as follows:
(a) Title/type of document: ;
(b) Date of filing (if known): ;
(c) Date of document: ;
(d) Docket entry number: ;
(e) ( ) Entire document is confidential, or
( ) Precise location of confidential information in document:
.
Filer’s Signature
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing was furnished by
(e-mail) (delivery) (mail) (fax) on: (All parties and Affected Non-
Parties. Note: If the name or address of a Party or Affected Non-
Party is confidential DO NOT include such information in this
Certificate of Service. Instead, serve the State Attorney or request
Court Service. See Rule 2.420(k)) , on ,
20 .
Name ..........
Address ..........
Phone ..........
Florida Bar No. (if
applicable)..........
E-mail address ..........
Note: The clerk of court shallmust review filings identified as
containing confidential information to determine whether the
information is facially subject to confidentiality under subdivision
(d)(1)(B). The clerk shallmust notify the filer in writing within 5
days if the clerk determines that the information is NOT subject to
confidentiality, and the records shallmust not be held as
confidential for more than 10 days, unless a motion is filed
pursuant tounder subdivision (d)(3) of the Rule. Fla. R. Gen. Prac.
& Jud. Admin. 2.420(d)(2).
RULE 2.533. OATHS AND AFFIRMATIONS IN COURT
Oaths and affirmations to jurors and witnesses in court may
be administered by or before:
(a) any judge, clerk, or deputy clerk of any court within this
state; or
(b) any person authorized to administer oaths in the State of
Florida.
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