IN THE CIRCUIT
COURT, SIXTH JUDICIAL CIRCUIT
IN AND FOR
ADMINISTRATIVE ORDER NO. 2007-042 PA/PI-CIR
RE: SEALING OF COURT RECORDS
Florida
Rules of Judicial Administration 2.420(c)(7) and (8) provide that all records
of the judicial branch that are made confidential under the Florida or United
States Constitutions; Florida or federal law; Florida court rule; Florida
Statutes; Florida case law; or the Rules of the Judicial Qualifications
Commission are also confidential. Also,
in State v. Buenoano, 707 So. 2d 714, 718 (
Further,
Rule 2.420(c)(9) provides that any court record is confidential if, by case
decision or court rule, it is determined that confidentiality is required to (i) prevent a serious and imminent threat to the fair,
impartial, and orderly administration of justice;
(ii) protect trade secrets; (iii) protect a
compelling governmental interest; (iv) obtain
evidence to determine legal issues in a case;
(v) avoid substantial injury to innocent third parties; (vi) avoid substantial injury to a party by
disclosure of matters protected by a common law or privacy right not generally
inherent in the specific type of proceeding sought to be closed; or (vii) comply with established
public policy set forth in the Florida or United States Constitution or
statutes or Florida rules or case law.
Additionally, Rule 2.420(b)(1)(A)
defines “court records” as “the contents of the court file, including the
progress docket and other similar records generated to document activity in a
case . . . .”
Given these authorities and
inquiries by the Clerks of the Circuit Court in this circuit concerning the
propriety of sealing certain court records, the Court adopted Administrative
Order No. 2006-082 PA/PI-CIR to establish sealing procedures for progress
dockets, court files, and particular documents within court files. However, in April of 2007, the Florida
Supreme Court adopted interim emergency amendments to Rule 2.420. See In re: Amendments to
This Administrative Order does not address the sealing of
particular information within a document.
Nor does this Administrative Order affect or modify the statutory
process for sealing or expunging criminal history records. Further, this Administrative Order is not
intended to address the confidentiality of records admitted into evidence. See
Pursuant to the Chief Judge’s
authority under Rule of Judicial Administration 2.215 to exercise
administrative supervision over the courts within the circuit and to control
dockets; and in order to provide a uniform method for insuring the
confidentiality of court records when such confidentiality is required by law
or found warranted by court order, to insure that materials are not
unintentionally designated as confidential, and to provide a procedure whereby
the public can request review of orders to seal, it is hereby
ORDERED:
The Clerk of the
I.
Sealing
Court Materials Under Rules 2.420(c)(7) or (8) by Operation of Law Pursuant to
a Specific Statute, Rule or Other Legal Authority
A. Sealing a Court File and Progress Docket
When
both the court file and the progress docket are sealed by operation of law
pursuant to a specific statute, rule, or other legal authority, the Clerk of
the
1. Dependency, sections 39.0132(3)-(4), Florida Statutes.
2. Termination of Parental Rights, sections 39.814(3)-(4), Florida Statutes.
3. Adoption, section 63.162(2), Florida Statutes.
4. Surrogacy, section 742.16(9), Florida Statutes.
5. Children
and Families in Need of Services, sections 984.06(3)-(4),
Statutes.
6. Delinquency, section 985.05(2), Florida Statutes.
B. Sealing a Court File
When
a court file is sealed by operation of law pursuant to a specific statute,
rule, or other legal authority, the Clerk of the
1. Petitions Regarding Individuals Suspected of Being Infected With or
Exposed to a Sexually Transmissible Disease (including petitions for
writs of habeas corpus or immediate release), Chapter 384, Florida Statutes.
2. Petitions Regarding Individuals Suspected of Having Tuberculosis
(including petitions for immediate release), Chapter 392, Florida Statutes.
3. Waiver of Parental Notification of Termination of Pregnancy, sections
390.01114
-.01116 and
4. Baker Act (including petitions for writs of habeas corpus filed by
individuals held under the act), section 394.4615(1), Florida Statutes.
5. Marchman Act (including petitions for writs of habeas corpus filed by
individuals held under the act), section 397.501(7), Florida Statutes.
6. Petitions for Enforcement of an Order of the Department of Health
Regarding the Fitness of the Following Professionals to Practice:
a. Nurses, section 464.018(1)(j), Florida Statutes;
b. Acupuncturists, section 457.109(1)(o), Florida Statutes;
c. Medical Doctors, section 458.331(1)(s), Florida Statutes;
d. Psychologists, section 490.009(1)(p), Florida Statutes;
e. Osteopathic Physicians, section 459.015(1)(w);
f. Dentists and Dental Hygienists, section 466.028(1)(s),
g. Clinical Social Workers, Marriage and Family Therapists,
and Mental Health Counselors (including registered interns
and certificate holders), section 491.009(1)(p), Florida Statutes.
7. Sexual Violence Injunctions, sections 92.56, 119.071(2)(h)(2) and (j)(1),
and 784.046,
8. Application for Authorization of Attorney Fee Contract When Filed as
a Separate Proceeding Before Suit, Rules Regulating the
4-1.5(f)(4)(B)(ii).
If
the Clerk of the Circuit Court for
1. The Clerk shall not release any of the following materials absent an order of
the court authorizing such release in accordance with applicable statutory provisions:
i. clinical records under the Baker Act; or
ii. client records under the Marchman Act.
2. Any other materials shall be released only after the Clerk carefully reviews
the materials to ensure that any information that reveals the identity of the
patient, client, minor or abuse victim, including the names of any family
members of such persons, is redacted from the record prior to release.
C. Sealing a Document Within a Court File
When
a document within a court file is sealed by operation of law pursuant specific
statute, rule, or other legal authority, the Clerk of the
1. Domestic Violence Petitioner’s Request for Confidential Filing of
Address, sections 119.071(2)(j)(1) and 741.30, Florida Statutes, and
2. Inventory of Personal Representative, section 733.604(1), Florida Statutes.
3. Guardianship Reports, section 744.3701(1), Florida Statutes.
4. Birth Records, section 382.025, Florida Statutes.
5. Clinical Records of Detained Criminal Defendants Found Incompetent to
Proceed or
Acquitted by Reason of Insanity, section 916.107(8),
6. Medical Records, section 456.057(10), Florida Statutes.
7. Psychological and Psychiatric Evaluations, sections 456.057 and .059,
8. Presentence
Reports,
9. Notice
of Social Security Number,
10. Application
for Authorization of Attorney Fee Contract When Filed Simultaneously with
Complaint, Rules Regulating the
4-1.5(f)(4)(B)(ii).
11. Protected
Health Information Under the Health Insurance Portability and Accountability
Act of 1996 (HIPAA), Pub. L. No. 104-191, 110 Stat. 1936 (codified as amended in scattered sections
of 18, 26, 29 and 42 U.S.C.).
12. Violation of probation
reports, section 945.10(1)(b), Florida Statutes.
D. Removing a Party’s Name From the Progress Docket
When
the removal of a party’s name from the progress docket is dictated under
operation of law by a specific statute, rule or other legal authority, the
Clerk of the
1. For petitions to examine, detain, or compel treatment of individuals
suspected of being infected with sexually transmissible diseases or
tuberculosis pursuant to Chapters 384 or 392, Florida Statutes, including
petitions for habeas corpus or immediate release, by substituting “subject”
for the name of the individual in petitions to examine, detain, or compel treatment; and “petitioner” for the name of the individual in habeas corpus or immediate release cases.
2. For petitions to waive parental notification of termination of pregnancy filed pursuant to section 390.01116, Florida Statutes, by substituting the initials of
the minor or, if a sworn statement of true name and pseudonym is filed, the pseudonym.
3. For petitions alleging various health professionals’ unfitness to
practice as listed in Section I(B)(6) of this Order, by substituting “Respondent” for the health professional’s name.
4. For petitions seeking a sexual violence injunction pursuant to section
784.046, Florida Statutes, by substituting “Petitioner” for the name of the
alleged victim of sexual violence or the parents or legal guardians of a minor
who is the alleged victim of sexual violence.
5. For petitions filed under the Baker or Marchman Acts, including petitions
for writs of habeas corpus filed by persons held under these acts, by
substituting “subject” for the name of the patient or client in Baker or
Marchman Act cases; and “petitioner” for the name of the patient or client
in habeas corpus cases.
The Clerk of the Circuit Court of Pasco County and the Clerk of the Circuit Court of Pinellas County shall take all reasonable steps necessary to ensure that the docket of the court proceedings on the above-listed cases is available to the public on FACTS in Pasco County and CJIS in Pinellas County in a manner that does not disclose the identity of the protected party.
E. Other Circumstances
1. Paternity
If the Clerk of the Circuit Court of Pasco County or the Clerk of the Circuit Court of Pinellas County receives written notice, accompanied by a copy of a marriage license, that the biological mother in a paternity action has subsequently married the purported father, the Clerk is hereby authorized and directed to seal both the court file and the progress docket in the paternity action pursuant to section 742.091, Florida Statutes. No order of court or public notice shall be required before such sealing may be undertaken.
2. Criminal Investigative Records
The
Clerk of the
a. Grand jury notes, stenographers’ records, and transcripts, section 905.17,
b. Unexecuted search warrants or search warrants and their returns that are
part of an ongoing criminal
investigation, section 119.071(2)(c)(1),
c. Investigative
subpoenas, section 119.071(2)(c)(1),
d. Records and warrants pertaining to indictments or informations until the defendant is in custody or a period of one year has elapsed, Florida Rule of Criminal Procedure 3.140(l).
e. Applications for or orders authorizing a wiretap, pen register or trap and
trace device, or mobile tracking device, sections 119.071(2)(c)(1), 934.09(8)(c), 934.33, and 934.42, Florida Statutes.
f. Arrest warrants and supporting affidavits that are unexecuted or a
determination is made that execution cannot be made, Rule of Judicial Administration 2.420(c)(6).
II.
Sealing
Court Records Under a Court Order Issued Pursuant to Rule 2.420(c)(9)
A. Grounds for Entry of a Court Order
Pursuant to Florida Rule of Judicial Administration 2.420(c)(9), court records may be designated as confidential by a court order if it is determined that confidentiality is required for one of the following reasons:
1.
to prevent a serious
and imminent threat to the fair, impartial, and orderly administration of
justice;
2.
to protect trade
secrets;
3.
to protect a
compelling governmental interest;
4.
to obtain evidence to
determine legal issues in a case;
5.
to avoid substantial
injury to innocent third parties;
6.
to avoid substantial injury
to a party by disclosure of matters protected by a common law or privacy right
not generally inherent in the specific type of proceeding sought to be closed;
or
7.
to comply with
established public policy set forth in the
States Constitution or statutes or
B.
Procedure for Request
to Make Court Records Confidential
1.
Motion
Pursuant to Rule 2.420(c)(9), all requests to make any part
of a court record confidential pursuant to that subparagraph must be made by a
written motion entitled “Motion to Make Court Records Confidential” and include
the following information:
a. the particular court records the movant seeks
to make confidential;
b. the particular bases under Rule
2.420(c)(9)(A) for making such
records confidential; and
c. a
statement of whether all parties agree to making the records
confidential.
All motions must also include a signed certification by the
party making the request that the motion is being made in good faith and is
supported by a sound factual and legal basis.
The Clerk of Circuit Court may assess fees for the filing of such a
motion in accordance with section 28.24(25), Florida Statutes, or other
statutory authority.
2.
Hearing
In accordance with Rule 2.420(c)(9), except when a Motion
to Make Court Records Confidential represents that all parties agree to the
relief requested, the court must, as soon as practicable but in no event more
than 30 days after the filing of the motion, conduct a hearing before ruling on
the motion. Further, even if all parties
agree to the relief requested, the court may in its discretion hold a hearing
on the motion. Any hearing on such a motion
must be an open proceeding, except that any party may request that the court
conduct all or part of the hearing in
camera to protect the interests set forth in Rule 2.420(c)(9)(A). The court may in its discretion require prior
public notice in accordance with the procedure for providing public notice of
court orders set forth in Section II(B)(4) of this Order or by providing such
other public notice as the court deems appropriate.
The moving party is responsible for ensuring that a
complete record of the hearing is created, either by use of a court reporter or
by any recording device provided as a matter of right by the Court.
3. Requirements for Court Orders
Regardless of whether a hearing is conducted, any order of this circuit granting in whole or in part a Motion to Make Court Records Confidential shall specifically state:
a. the type of case in which the order is being entered;
b. the particular grounds under Rule 2.420(c)(9)(A) for making the records confidential;
c. whether the Court is ordering the sealing of the court file and the
progress docket, the court file, a particular document within the file,
or the removal of a party’s name from the progress docket; and
d. the names of those persons who are permitted to view the confidential
records without a further court order.
Further, any order directing that a party’s name be removed from the progress docket shall specify the term to be substituted for the party’s name (e.g., a pseudonym such as John Doe; a generic title such as “Petitioner;” or the use of the party’s initials). In preparing orders pursuant to Rule 2.420(c)(9), judges may use the form Order Granting/Denying Motion to Make Court Records Confidential Pursuant to Florida Rule of Judicial Administration 2.420(c)(9), Attachment A.
4. Interpretation of Court Orders
The Clerk of the Circuit Court of Pasco County and the Clerk of the Circuit Court of Pinellas County are hereby authorized and directed to seal materials in accordance with the designations in Section II(B)(3) as follows:
a. If the order directs sealing a court record, the Clerk shall seal both the court file and the progress docket. The docket entries will not be available on any public access system; however, the case number will remain on the system with a statement that the file and progress docket entries are sealed pursuant to a court order.
b. If the order directs sealing a court file and also directs that a party’s identity not be revealed, the Clerk shall seal the court file and remove the party’s name from the progress docket, substituting for the party’s name a term as directed by the Court; or, if no direction is given, a pseudonym, a general term such as “Petitioner,” or the party’s initials if the party is not generally identified by initials. The progress docket shall otherwise remain public; however, the Clerk of the Circuit Court of Pasco County and the Clerk of the Circuit Court of Pinellas County shall take all reasonable steps necessary to ensure that the docket of the court proceedings on the above-listed cases is available to the public on FACTS in Pasco County and CJIS in Pinellas County in a manner that does not disclose the identity of the protected party.
c. If the order directs sealing a court file and is silent regarding the progress docket, the Clerk shall seal the court file but maintain a public docket with no alternation of the parties’ names.
5. Posting of Order Authorizing Sealing
Upon the filing
of any court order authorizing the sealing of any court record, the Clerk of
the
III.
Administrative
Responsibilities of Clerk
A. Docket
The Clerk shall not seal the case number, docket number, or any other identifying number of a case that is sealed by court order pursuant to Rule of Judicial Administration 2.420(c)(9).
B. Confidentiality Pending Ruling on Motion to Make Court Records Confidential
Upon the filing of any Motion to Make Court Records Confidential, the Clerk must treat the records that are the subject of the Motion as confidential pending the Court’s ruling on the motion.
C. Unsealing for Purposes of Filing
The
Clerk of the
D. Unsealing for Purposes of Transmitting Record for Appellate Review
The
Clerk of the
E. Access by Parties and Attorneys
In all matters except adoption and surrogacy cases, notwithstanding the sealing of any court file or portion thereof by operation of law or court order, the Clerk of the Circuit Court of Pasco County and the Clerk of the Circuit Court of Pinellas County are hereby authorized to make all contents of a court file available to adult parties and their attorneys of record.
The contents of adoption and surrogacy files shall not be made available to any person absent a court order.
F. Requests for Access by the Public
If a member of the public or an entity requests, by party name, a court file in which the file and progress docket have been sealed or a party’s identity has been sealed, the Clerk of the Circuit Court of Pasco County and the Clerk of the Circuit Court of Pinellas County are hereby authorized and directed to inform the requesting person or entity that they are unable to confirm or deny the existence of such a file.
IV.
Procedure
for Contesting an Order to Seal By a Nonparty
A. Responsibilities of Moving Party
When a member of the press or the public seeks access to a particular sealed court file or to the court’s docket in an individual case, the motion shall be filed with the Clerk of the Circuit Court and a copy provided to the judge who entered the order sealing the file or removing a party’s name from the progress docket. If the judge who entered the order is no longer a judge of the Sixth Judicial Circuit, then a copy of the motion should be provided to the section judge. The movant must also serve all parties with a copy of the motion. If the movant is unable to ascertain the name and address at which to provide notice to the parties, the motion shall reference this Administrative Order and state in prominent or boldface type in the caption, “Confidential Party—Court Service Requested.”
B. Responsibilities of Judicial Assistant
If a motion is filed with the “Confidential Party—Court Service Requested” designation properly displayed, the judicial assistant is responsible for providing such notice. The judicial assistant shall provide such notice so as not to inadvertently reveal the identity of the parties to the movant.
C. Hearings
Except when a motion contesting a sealing order represents
that all parties agree to the relief requested, the court must conduct a
hearing before ruling on the motion.
Further, even if all parties agree to the relief requested, the court may
in its discretion hold a hearing on the motion.
Any hearing on such a motion must be an open proceeding, except that any
party may request that the court conduct all or part of the hearing in camera to protect the interests set
forth in Rule 2.420(c)(9)(A).
The moving party is responsible for ensuring that a complete record of the hearing is created, either by use of a court reporter or by any recording device provided as a matter of right by the Court.
V.
Definitions and Application
A.
Definitions. For purposes of this Administrative Order:
1. “Court file” means all of the materials
within a court file but not the progress docket.
2. “Document” means
a particular item within a court file.
3. In accordance with Florida Rule of Judicial
Administration
2.420(b)(1)(A), “court record” or “records” includes the
court file
and the progress docket.
4. “Sealing” has the following meanings:
i. When used in
connection with a court file, “sealing”
means to
either (1) maintain the file separately from publicly-
available
files in such as way as to insure that the sealed file is
not
accidentally made available to the public; or (2) physically
seal the
file by use of a seal.
ii. When
used in connection with a particular document,
“sealing”
means to place the document within an envelope or
other
type of container and to physically seal the container by
use of a
seal.
iii. When
used in connection with the progress docket, “sealing”
means to
remove the docket from any public access information
system. However, the case number shall remain public.
iv. When
used in connection with a party’s identity, “sealing”
means to
maintain the public docket on FACTS in
and CJIS in
the identity of the protected party.
B. Sealing or expunging of criminal history records. This Administrative Order does not apply to or affect the procedures in Chapter 943, Florida Statutes, for sealing or expunging criminal history records.
Administrative Order No. 2006-082 PA/PI-CIR is hereby rescinded.
DONE AND ORDERED in Chambers, at
_________________________________ DAVID A. DEMERS, Chief Judge
cc: All Judges
The Honorable Bernie McCabe, State Attorney
The Honorable Bob Dillinger, Public Defender
The
Honorable Ken Burke, Clerk of the Circuit Court,
The
Honorable Jed Pittman, Clerk of the Circuit Court,
Debbie Gay, Assistant Court Services Director, Pasco County Clerk’s Office
Carol Heath, Executive Director, Pinellas County Clerk’s Office
Gay Inskeep, Trial Courts Administrator
Kerry L.
Rice, Deputy Courts Administrator,
Bar
Associations,
Law
Libraries,
ATTACHMENT A
IN THE CIRCUIT/COUNTY COURT OF THE SIXTH JUDICIAL CIRCUIT
IN AND FOR
________________________ DIVISION
_______________________
v. Case No. ________________________
_______________________
ORDER GRANTING/DENYING MOTION TO MAKE COURT RECORDS CONFIDENTIAL PURSUANT
TO FLORIDA RULE OF JUDICIAL ADMINISTRATION 2.420(c)(9)
THIS MATTER is before the Court on the motion of ____________________ pursuant to Florida Rule of Judicial Administration 2.420(c)(9) for an order sealing the following information relative to this: _________________________________[specify type of case, such as civil action; dissolution of marriage; paternity, etc.] case:
[select all that apply]
_____ the party’s name on the progress docket.
_____ particular documents within the court file, specifically _____________________
_________________________________________________________________.
_____ the entire court file, but not the progress docket.
_____ the entire court file and the progress docket.
This motion was/was not contested and a hearing was/was not conducted [if conducted, include date].
Having considered the arguments of the parties, legal authority, and otherwise being fully advised, the Court DENIES the motion because the moving party has failed to establish that confidentiality of the information sought to be sealed is necessary to protect any interest under Rule 2.420(c)(9).
--
OR --
the Court GRANTS the motion as follows:
1. Confidentiality of the [information sought to be sealed] is required to protect the following interest(s): [select all that apply]
_____ a. Preventing a serious and imminent threat to the fair, impartial, and orderly administration of justice, specifically: _______________________________.
_____ b. A trade secret.
_____ c. A compelling government interest, specifically ______________.
_____ d. Obtaining evidence to determine the legal issues in a case;
_____ e. Avoiding substantial
injury to innocent third parties, specifically__________.
_____ f. Avoiding substantial injury to a party by the disclosure of matters protected by a common law or privacy right not generally inherent in this type of proceeding, specifically __________________________.
_____ g.
Complying with established public policy set forth in the
2. The Court further finds that no less restrictive measure is available to protect this/these interest(s), and that the degree, duration and manner of confidentiality ordered herein are no broader than necessary to protect the interest(s).
Wherefore, it is hereby ORDERED that:
The Clerk of the Circuit Court is hereby directed to seal immediately the following materials related to this matter and to keep such materials from public access: [select all that apply]
_____ 1. The party’s name on the progress docket. On the public progress docket, the Clerk of the Circuit Court shall substitute the following for the party’s name:_________
_________________________________. Further, the Clerk shall ensure that the party’s name is redacted from all public materials in the file and that the final judgment is recorded in a manner that does not reveal the identity of the party. However, the progress docket and the file shall otherwise remain available to the public.
_____ 2. The following documents within the court file:________________________
______________________________________. However, the file and progress docket shall otherwise remain available to the public subject to any substitution of a party’s name set forth above.
_____ 3. The entire court file. However, the progress docket shall remain open to the public subject to any substitution of a party’s name set forth above.
_____ 4. The
entire court file and the progress docket.
The progress docket shall not be available on any public information
system. However, the case number shall
remain public.
It is further ORDERED that any materials sealed pursuant to this Order shall be conditionally disclosed upon the entry of a further order by this Court finding that such opening is necessary for purposes of judicial or governmental accountability or First Amendment rights.
It is further ORDERED that any materials sealed pursuant to this Order may otherwise be disclosed only as follows:
1. to any judge of this Circuit for case-related reasons;
2. to the Chief Judge or his or her designee;
3. to the following specific individuals: __________________; or
4. by further order of the Court.
It is further ORDERED that, within 10 days of the date of this Order, the Clerk shall post a copy of this Order on the bulletin board of [specify courthouse at which order is being signed] and the Clerk’s website for a period of 30 days to provide public notice.
It is further ORDERED that the Clerk is hereby authorized to unseal any materials sealed pursuant to this Order for the purpose of filing, microfilming or imaging files, or transmitting a record to an a