In my first blog post in this series about securing private information in digital court records, I discussed Florida’s long history of getting court documents online. Florida is still going through the process. It has, in fact, lagged behind many other states and the federal courts in successfully getting documents online.
Other courts can learn from Florida’s experience, even those that already have documents online, indeed because of the lessons learned. While each state will have to make its own determination about how to protect confidential information within the court record, the approach Florida took is sound.
The main factor in Florida’s delay results from the Florida Supreme Court being cautious. The Court made it a priority to ensure confidential information contained in court files does not get disclosed to those not entitled to see it. In this article, I focus on the rules of procedure the Court passed to limit what does get into the court file. One of the first steps taken by the court was to identify the types of documents filed with the court that filers and court personnel must recognize high a high probability of containing confidential information.
Florida developed a manual system to classify which documents were most likely to contain confidential information. This highly manual process is essentially the same process automated redaction software uses to do the same thing: review a large sample set of documents to see which types of documents consistently include sensitive information. Obviously the manual system is time consuming and costly. Redaction software is not cheap. The reality is, however, it is cost effective when you consider the reduction in time court staff has to dedicate to securing confidential information when using intelligent redaction software.
The first step any court should take in keeping confidential or other sensitive information from being disclosed online is to limit what gets put in the court file in the first place. Florida certainly wasn’t the first to arrive at that partial solution. The federal courts, for example, have Federal Rule of Civil Procedure 5.2 - Privacy Protection for Filings Made with the Court. Courts putting documents online should look at that rule and Florida’s counterpart, Rule 2.425 - Minimization of the Filing of Sensitive Information.
Here is what both rules seek to keep out of court files:
Social security numbers and federal tax I.D. numbers
- Full birth dates
- Financial account numbers
- The names of minors
- Credit and debit card numbers
- Drivers license and passport numbers
- Telephone numbers
- Home addresses
- Brokerage account numbers
- Insurance policy account numbers
- Patient or health care numbers
- Email addresses, computer user names, passwords, and personal identification numbers (PINs).
Florida’s biggest effort to keep files free of confidential information can be found in a Florida rule of judicial administration – Rule 2.420. That rule specifically identifies 22 items that must be identified by the filer if the information is contained in a court filing.
The rule requires the clerk of the court to find that same information in a filing, if the filer fails to do so. The rule also establishes a procedure for identifying the information and a process to contest anything declared confidential and kept private from the public. The rule makes it clear that: “the public shall have access to all records of the judicial branch of government,” except specifically limited by the rule. It also provides: “Access to all electronic . . . records shall be governed by the Standards for Access to Electronic Court Records and Access Security Matrix, as adopted by the supreme court . . ..” It further provides that: “remote access to electronic court records shall be permitted in counties where the Supreme Court’s conditions for release of such records are met.” The next installment of this series will discuss the Florida Supreme Court’s conditions, including the security access matrix.
The critical part of the rule for this discussion is the part that creates the exemptions to the records being public. Twenty-two items are specifically identified as being exempt from disclosure and must be identified by the filer when filling. Those items include:
- Records relating to dependency matters, termination of parental rights, guardians ad litem, child abuse, neglect, and abandonment
- Adoption records
- Social Security, bank account
- Charge, debit, and credit card numbers
- HIV and sexually transmissible diseases test results
- Birth records and portions of death and fetal death records
- Information that can be used to identify a minor petitioning for a waiver of parental notice when seeking to terminate pregnancy
- Records of substance abuse service providers that pertain to the identity, diagnosis, and prognosis of and service provision to individuals
- Clinical records of criminal defendants found incompetent to proceed or acquitted by reason of insanity
- The victim’s address in a domestic violence action
- Protected information regarding victims of child abuse or sexual offenses
- Gestational surrogacy records
- Guardianship reports, orders appointing court monitors, and orders relating to findings of no probable cause in guardianship cases
- Grand jury records
- Records acquired by courts and law enforcement regarding family services for children
- Juvenile delinquency records
- Forensic behavioral health evaluations in criminal cases
- Eligibility screening, substance abuse screening, behavioral health evaluations, and treatment status reports for defendants referred to or considered for referral to a drug court program
While each state has to chart its own course when deciding how best to secure confidential information when putting court document online, there are two core best practices:
- Keep information not necessary out of the files.
- If confidential information must be filed, require the filer to specifically identify it so those documents can be redacted.
My next blog post will focus on the access security matrix that Florida designed to streamline the highly manual process of protecting private information within its court documents.
About the Author: Tom Hall
Tom Hall has spent more than 25 years working in the Florida Appellate Courts as law clerk, chief staff attorney and Clerk of the Florida Supreme Court. He was instrumental in effecting change throughout the court system and fostering improvements in both management and technology. Tom currently serves on the Rules of Judicial Administration and Appellate Court Rules Committees and is a member of the Vision 2016 Commission. Since retiring from the FL Supreme Court, Tom has returned to practicing appellate law and continues to advocate on behalf on numerous clients for improvements in the court system as president of TLH Consulting Group, LLC.