Real electronic filing may finally make its way to Florida courts in the not-too-distant future. But before that happens, the Florida Supreme Court wants to make sure that there isn’t too much private information in court filings for the public to access.
On June 30, 2011, the Court adopted sweeping new rules about what information can and can’t be put in the court file. Florida litigators who want to avoid the sanctions that can be imposed for violating the new rules shouldn’t wait too long to become familiar with them — they are going into effect on October 1, 2011.
For the time being, the privacy rules don’t affect criminal cases, for the most part, but they affect all civil cases. And the reprieve in criminal cases isn’t likely to last very long.
Here is a breakdown of the Rule changes you need to know:
Florida Rule of Judicial Administration 2.425
Rule of Judicial Administration 2.425, which was added by the Court’s June 30, 2011 Amendments, contains the overarching principles. So if you learn that Rule (and remember to apply it in whatever context you find yourself) you’ll be most of the way there. But one caution: Rule 2.425 only states a default rule — it gives way to conflicting Rules, statutes, and orders.
This chart spells out the types of information that are subject to Rule 2.425:
Restricted Info: Can include in a filing? Exceptions:Child’s Name Initials only Orders re: time-sharing, parental responsibility, or child support. Any document re: child’s ownership of real property. Birthdates Year only Any party’s full birthdate in writ of attachment or notice to payor. Child’s full birthdate when
necessary for jurisdiction.
Social Sec. #s No General exceptions
Bank Account #s No General exceptions
Credit/Debit Card # No General exceptions
Charge Account # No General exceptions
Drivers License # Last 4 digits only General exceptions Passport # Last 4 digits only General exceptions Taxpayer ID # Last 4 digits only General exceptions Employee ID # Last 4 digits only General exceptions Phone # Last 4 digits only General exceptions Insurance Policy # Last 4 digits only General exceptions Loan # Last 4 digits only General exceptions Patient/health care # Last 4 digits only General exceptions Customer Accont # Last 4 digits only General exceptions Email address Truncated General exceptions User name Truncated General exceptions Password Truncated General exceptions PIN #s Truncated General exceptions
Other sensitive info: Truncated as per court order
- Statute, Rule or Order authorizes the inclusion of the information in a filing
- Account number is necessary to identify property at issue in a case.
- Information that is “relevant and material to an issue before the court.” [!!! This looks to me like an exception that you could drive a truck through. It’ll be interesting to see how courts interpret it.]
- Records in an administrative, agency, appellate, or review proceeding.
- Information used by the clerk or the court for file and case management purposes.
- Criminal cases are temporarily exempt.
- Traffic court cases are temporarily exempt.
- Small claims cases are temporarily exempt.
A Few Other Notes:
What effect does Rule 2.425 have on parties’ ability to obtain a protective order? According to the Rule itself, none. But I’d be surprised if judges’ opinions on what information should be kept private were not influenced by the views of the Supreme Court as expressed in Rule 2.425.
The Rule also claims that it “does not affect the application of constitutional provisions, statutes, or rules of court regarding confidential information or access to public information.” I’m not sure how that could be so, but again, we’ll see how courts interpret that subsection.
The Court is also amending quite a few other Rules to accomodate Rule 2.425. Changes are being made to the Rules of Civil Procedure, particularly with regard to filing discovery documents, the Family Law Rules of Procedure, the Rules of Appellate Procedure, Probate Rules, and to a lesser extent, Criminal Procedure and Small Claims Rules, as well as several forms.
The amendments to those rules and forms are listed below.
Corresponding Amendments to Rules of Appellate, Civil Procedure, Criminal Procedure, Family Law Rules of Procedure, and Probate Rules:
Rule 2.425 impacts just about every Florida litigator, and a large number of Rules in various practice areas are being amended to conform to it. The Family Rules seem to have taken the hardest hit. Here are the Rules that have been amended:
Rule 9.050 is being added to the Florida Rules of Appellate Procedure 9.050. Under this Rule, all appellate briefs, petitions, replies, appendices, motions, notices, stipulations, and responses filed with the court comply with rule 2.425.
Civil Procedure Rules
1.280 — The addition of Rule of Civil Procedure 1.280(f), governing discovery filed with the court, is the most significant change to the Rules of Civil Procedure. Under this subsection, discovery can’t be filed with the court unless it complies with Rule 2.425, and it can only be filed when there is “good cause” to do so. Good cause exists only where another Rule or a court order permits it. Sanctions can be imposed on violators.
The Court explained that it imposed the “good cause” limitation to deter parties from “abuses of personal information obtained during discovery.”
1.310 — Requires compliance with 1.280(f) and 2.425 any time deposition transcripts are filed.
1.340 — Requires compliance with 1.280(f) and 2.425 any time interrogatory answers are filed.
1.350 — Requires compliance with 1.280(f) and 2.425 any time documents produced in discovery are filed
Rule 3.140(c)(4) of the Florida Rules of Criminal Procedure will no longer require including a defendant’s social security number in charging documents.
Rule 3.211 — Amended to make Rule 2.420 apply in determining whether initial competency reports should be confidential.
Rule 3.212 — Amended to make Rule 2.420 apply in determining whether ongoing competency reports should be confidential.
Rule 3.218 — Amended to make Rule 2.420 apply in determining whether semi-annual reports on continuing commitment of defendants found not guilty by reason of insanity should be confidential.
Rule 3.219 — Amended to make Rule 2.420 apply in determining whether reports on compliance with conditions and treatment progress of conditionally released defendants should be confidential.
Civil Judgment Forms
Forms 1.988, 1.990, 1.991, 1.993, 1.994 & 1.995 — Amended such that only the last 4 digits of parties’ social security numbers are required.
Family Law Rules of Procedure
12.105 — No financial affidavits or settlement agreements need be filed in a simplified dissolution case.
12.130(c) — Requires compliance with Rule 2.425 for all documents attached to pleadings.
12.280 — Makes Rule 2.425 apply to all discovery filed with the court.
12.285 (a)(3) — Mandatory disclosure documents, other than financial affidavits and child support guidelines worksheets, generally shouldn’t be filed. If filed, they must comply with Rule 2.425. Financial affidavits may not be filed in simplified dissolution cases.
12.287 — Financial affidavits themselves shouldn’t be filed in enforcement or contempt proceedings; a notice of service of the affidavit should be filed.
12.340 — Interrogatories shouldn’t be filed unless admitted into evidence and comply with Rule 2.425
12.363 — Evaluations of minor children shouldn’t be filed unless admitted into evidence and complies with Rule 2.425.
12.370 — Requests for admissions and responses must comply with Rule 2.425; documents attached to Requests shouldn’t be filed.
12.410 — Subpoenas and notices of subpoenas must comply with Rule 2.425
12.440(a) — Pre-trial filings must comply with Rule 2.425.
12.540 — Motions for Relief from judgment and attachments must comply with Rule 2.425.
12.560 — Civil Form 1.977 (fact information sheet) shouldn’t be filed except by court order.
12.620 — Inventories filed by receivers must comply with Rule 2.425.
The Court also amended the Family Law Rules of Procedure Forms corresponding to these changes. Form 905(d) is being amended so that no statement of the best interests of children is included, and Form 12.943 is being modified so that certain financial information isn’t included.
Rules 5.200; 5.210; and 5.530 will now require that the last four digits of the decedent’s social security number be included, rather than the entire number.
Small Claims Rules
Rule 7.140(e) will now require judges to help pro se litigants with handling private information.
Small Claims Forms
Form 7.340 is being modified so that only the last 4 digits of the defendant’s social security number is written on the judgment, and the Enforcement Paragraph says that the defendant shouldn’t file the Fact Information Sheet.