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- 2007 - April - 27th -

Florida Supreme Court enacts interim rules for sealing civil records

Saying the public’s constitutional right of access to court records must remain inviolate, the Florida Supreme Court recently enacted emergency interim rules standardizing procedures for sealing court records in civil cases.

The rules include a prohibition on making case and docket numbers confidential and require clerks to post notices after a record is sealed. The rules, drafted by the Bar’s Rules of Judicial Administration Committee, also set out procedures for challenging the sealing of records. For now, the rules only apply to civil cases and the court has directed the appropriate committees to continue to study rules for sealing criminal cases and to determine whether similar procedures are needed to address requests to seal appellate court records.

The court acted April 5 in Case no. SC06-2136.

“This report addresses highly serious concerns first identified by Florida news media reports about hidden cases and secret dockets, sometimes called ‘supersealing,’” the unanimous court said. “These reports identified practices that, however unintentional, were clearly offensive to the spirit of laws and rules that ultimately rest on Florida’s well-established public policy of government in the sunshine.”

The court said it is “fully committed to safeguarding this right.”

Urgency to take action was ignited last summer by news reports in The Miami Herald of hiding files in secret dockets in Broward Circuit Court, as many as 400 civil cases, some about divorces and domestic violence involving judges, lawyers, police officers, politicians, and television personalities. Following that investigation, the South Florida Sun-Sentinel reported “all traces of 272 criminal cases dating back to 1988 vanished from citizens’ view.” Problems began cropping up in other circuits, too.

The court said the new rules identify a narrow category of court records where public access is automatically restricted by operation of state or federal law or court rule, such as in child dependency cases.

“Otherwise, our rules strongly disfavor court records that are hidden from public scrutiny,” the court said. “The rules provide only a limited veil that is restricted to a second category of court records where a set of carefully defined interests are involved.”

The court said the amendments to Rule 2.420 provide a procedural vehicle for making circuit and county court records in noncriminal cases confidential under Rule 2.420(c)(9) and for unsealing court records that have been made confidential under that rule.

“Most significant for our purposes here, by mandating that the case number, docket number, or other identifying number of a case cannot be made confidential, the removal from public view of all information acknowledging the existence of a case is expressly not allowed,” the court said.

The following are among the other procedures adopted by the court:

• A request to make court records in noncriminal cases confidential must be made by written motion.

• A public hearing must be held on any contested sealing motion and may be held on certain uncontested sealing motions.

• A sealing order issued by a court must state with specificity the grounds for sealing and the findings of the court that justify sealing.

• All sealing orders must be published to the public.

• A nonparty may file a motion to vacate a sealing order.

• A public hearing must be held on any contested motion to vacate a sealing order and may be held on certain uncontested motions to vacate.

• A court may impose sanctions on any party who files a sealing motion without a good-faith basis and without a sound factual and legal basis.

“These procedures, which are intended for use in noncriminal cases, are adopted in the same spirit of openness and transparency that has informed the court’s case law and rules of procedure throughout its modern history,” the court said. “Their adoption reaffirms our courts’ commitment to ensuring that the public has proper access to court records and case information, and this will prevent a recurrence of the practices that gave rise to the present concerns.”

The court, however, said the new procedures are not its final statement in this area.

“Given the importance of this issue, the court will continue to work with the appropriate committees to achieve uniform statewide procedures to address all aspects of this issue,” the court said. “Specifically, as for criminal case records, we refer the matter back to the appropriate committees for additional study. We also refer to the appropriate rules committees the issue of whether procedures similar to those adopted here are needed to address requests to seal appellate court records.”

The court noted that the procedures are only as good as the manner in which they are applied and enforced.

“In this respect, Florida’s trial courts and court clerks are the first line of action,” the court said. “We are confident that trial judges and clerks of court will remain ever vigilant of the courts’ longstanding presumption in favor of open records.”

— Courtesy The Florida Bar Journal

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