OCTOBER 2023 BAR BULLETIN OCT 2023 | Page 19

JEFFREY LAMPERT

Until July 1 , 2021 , the Clerk ’ s Office was obligated to screen documents filed in Circuit Civil , County Court Civil and Small Claims cases before making filed documents public . Amendment to Rule 2.420 of the Rules of General Practice and Judicial Administration ( RGPJA ) removed that duty , leaving to filing parties sole responsibility for ensuring that confidential information is protected .

The obligation to preserve confidential information also applies in criminal and appellate non-criminal matters , which are beyond the scope of this column .

Protection of confidential information must be accomplished either by redacting the confidential information before filing a document , or filing a written notice to the Clerk that confidential information is contained in a document .

Failure to comply with Rule 2.420 RGPJA can be grounds for sanctions , and disciplinary proceedings . Conversely , sanctions may be imposed when an assertion that filed documents contain confidential information is found not to have been not made in good faith . Rule 2.420 ( i )

Rule 2.420 (( d )( 1 )( B )( i through xxiii ) defines confidential information . The list includes expected items--social security numbers , bank account numbers , credit card and debit card numbers , certain ( but not all ) addresses , names of certain minors , etc . Also , records of the judicial branch identified in Rule 2.420 ( c )( 1 -10 ) are confidential .

When a document containing unredacted confidential information is filed , the Clerk must be provided written notice of the confidential information . If the entire document is not confidential , the precise location where confidential information is located must be specified , using the “ Notice of Confidential Information within Court Filing ” ( the “ Notice ”) found as an Appendix to Rule 2.420 RGPJA .

The Notice must be filed , specify the case number , describe the confidential information with as much specificity as possible without actual disclosure , and include the statement found in Rule 2.420 ( d )( 4 )( D ) RGPJA addressing motions to determine confidentiality of court records , motions to unseal confidential records and motions to vacate orders deeming records confidential .

A filer realizing a prior filing contained confidential information without a Notice of Confidential Filing within Court Filing being filed , the same form Notice of Confidential Filing within Court Filing must be used .

If , upon the filing of the Notice , the Clerk determines the information is not subject to confidentiality protection , the Clerk must inform the filer of that decision within five ( 5 ) days of the filing . The Clerk will maintain the information as confidential for a period of ten ( 10 ) days , during which time the filer must file a Motion to Determine Confidentiality of Court Records to seek to maintain the confidentiality of the filing . If a Motion is not filed the documents will be made public .

A Motion to Determine Confidentiality of Court Records ( the “ Motion ”) may be made regarding information not specifically identified by the Rule , including trade secrets , settlement communications , items protected by prior orders of a court , tribunal documents or documents deemed confidential by law .

Unlike the Notice of Confidential Filing within Court Filing , there is no specific form Motion to Determine Confidentiality of Court Records . The content of the Motion must meet the requirements specified in Rule 2.420 ( e ).

A hearing on a Motion to Determine Confidentiality of Court Records must be conducted within thirty ( 30 ) days from date of the Motion ’ s filing . The hearing will be public , unless the Court determines the hearing should be in camera . The moving party must have the hearing reported by a Court Reporter or preserved by any device provided as a matter of right by the Court . The Court may , in its discretion , require prior public notice of the hearing .

A ruling on the Motion must be issued within thirty ( 30 ) days from the date of the hearing . An Order granting the Motion in whole or in part must state with as much specificity as possible , without violating the privileged information , the grounds , the type of information , who may view the information , and other parameters of Rule 2.420 ( e )( 4 ).

Once entered , an Order granting the Motion to Determine Confidentiality of Court Records must be posted within ten ( 10 ) days of entry on the Clerk ’ s website and in a prominent public location in the courthouse . Both postings must remain for no less than 30 days , unless the subject matter of the Motion is confidential under subdivisions ( c )( 7 ) and ( c )( 8 ) of the rule in which case the posting requirement is abated .

Oral Motions to Determine Confidentiality of Court Records are permitted , subject to the conditions imposed by Rule 2.420 ( h ).

Attorneys and their staff are accountable to their clients and opposing parties to ensure confidential information is not made public . The obligation to protect confidential information applies to all papers filed with the Clerk , current and prior .

Jeffrey Lampert has practiced law in Palm Beach , Broward , Martin and Saint Lucie Counties since 1979 , and focuses his practice in the areas of collections , bankruptcies , landlord-tenant FDCPA and family law .

PBCBA BAR BULLETIN 19