RULES OF JUDICIAL ADMINISTRATION COMMITTEE AGENDA Friday, June 28, 2019 1:00-5:30 Boca Raton Resort & Club Boca Raton, Florida

Conference call number: 1-888-376-5050 Conference code: 7458962145#

I. CALL TO ORDER—Eduardo Sánchez, Chair

A. Attendance roster and roll call; introduction of guests B. Approval of minutes of January 2019 meeting. Page 5 Approval of minutes of June 2019 conference call meeting. Page 16

II. CHAIR’S REPORT—Eduardo Sánchez

A. Out-of-Cycle Reports/Court Action

3. SC18-1554, In re: Amendments to the Florida Rules of Judicial Administration—Parental Leave. Oral argument was scheduled by the Court and will be heard on August 27. B. Publishing for Comment The following rules will be published for comment, which comments will be addressed in the October meeting 1. 2020 Regular-Cycle Report: Rule 2.110 (Scope and Purpose); Rule 2.265 (Municipal Ordinance Violations); Rule 2.330 (Disqualification of Trial Judges); Rule 2.420 (Public Access to and Protection of Judicial Branch Records); Rule 2.505 (Attorneys); Rule 2.510 (Foreign Attorneys)

2. Joint Out-of-Cycle Report: Rule 2.345 (Electronic Signature of Court Official); Rule 2.511 (Florida Courts E-Filing Portal); Rule 2.514 (Computing and Extending Time); Rule 2.515 (Signature and Certificates of Attorneys and PartiesRepresentations to Court; Rule 2.516 (Service of Pleadings and Documents); Rule 2.520 (Documents); Rule 2.525 (Electonic

Filing); and Rule 3.030 (Service and Filing of Pleadings, Papers, and Documents)

III. SUBCOMMITTEE REPORTS

A. Subcommittee A—Craig Leen, Chair

19-RJA-04; Review of 2019 Legislation impacting Rule 2.420. These are a recent assignment that will be addressed in a time-sensitive manner. The Laws of Florida, which may impact the rules, may be found beginning on page 17.

B. Subcommittee B—Hon. Richard A. Nielsen, Chair No business at this time. C. Subcommittee C—Michael Korn, Chair

1. 15-RJA-19; Rule 2.450 (Technological Coverage of Judicial Proceedings). The subcommittee is continuing to discuss this matter. 2. 18-RJA-08; Rule 2.545 (Case Management). This is a concern raised by the Family Law Rules Committee. The subcommittee is continuing to discuss this matter. For this report, please see page 78. 3. 19-RJA-03; Court referral regarding Rule 2.516; see page 82. D. Subcommittee D—Marynelle Hardee, Chair

No business at this time.

F. Ad Hoc Rule 2.420 Subcommittee—Tom Hall & Amy Borman, Co-Chairs

Verbal update of subcommittee’s work will be shared

G. Ad Hoc Rule 2.540 Subcommittee—Hon. Richard A. Nielsen, Chair

1. 18-RJA-06: Therapy Animals.

RJAC June 2019 Agenda Page 2 of 175 2. 18-RJA-10: Rule 2.540 (Requests for Accommodations by Persons with Disabilities).

For this report, please see page 105.

H. Ad Hoc Rule 2.421 Subcommittee—Sandy Solomon,

Chair Rule 2.421 (Ex Parte Motion to Seal Document) – proposed rule presented for consideration due to concern raised in Criminal Procedure Rules Committe e on page 107.

I. IOP Subcommittee—Hon. Samantha Ward, Chair

No business at this time. J. Drafting Subcommittee—John Crabtree, Chair

No business at this time. K. Liaison Subcommittee—Sandy Solomon, Chair

Verbal report from Subcommittee Chair. L. Fast-Track Subcommittee—Ed Sánchez, Chair

IV. FCTC Workgroup—Tom Hall/Justin Horan

Verbal report of inter-committee work and communication. V. Information to Share

1. Local Rule. A draft local rule was shared with the committee for comment. Comment was shared informally by RJAC member and formally by other Bar committees. No action is required. 2. ADR referral. These proposed rules were reviewed by appropriate committees and by the RJAC leadership. No action is required.

A link to see either of these is at: Additional Information

RJAC June 2019 Agenda Page 3 of 175 VI. NEW BUSINESS

1. Remote Testimony, joint committee concern needs further address. This matter was returned to the various committees due to Board of Governors questions . Se e pa ge 13 3.

2. Constitutional Revision regarding Marsy’s Law is not defined within the statutes, yet courts and rules of court may be impacted. Discussion for the committee is whether an open discussion meeting should be scheduled, in addition to the regularly scheduled Bar meetings. See page 166.

3. Concern raised by Dr. Grant regarding incomplete service of a Notice of Arraignment and a subsequent arrest warrant. See page 171. VI. ANNOUNCEMENTS AND ADJOURNMENT

1. Appreciation of Chair 2. Next meetings:

a. The Florida Bar Fall Meeting; October 16-18, 2019, Tampa Airport Marriott, Tampa b. The Florida Bar Winter Meeting, February 5-8, 2020, Hyatt Regency Orlando, Orlando Please note this different date!

RJAC June 2019 Agenda Page 4 of 175 RULES OF JUDICIAL ADMINISTRATION COMMITTEE MINUTES Friday, January 18, 2019

I. CALL TO ORDER—Eduardo Sánchez, Chair

The Chair called the meeting to order at 1:09.

A. Attendance roster and roll call; introduction of guests

Chair introduced Michael Tanner, Board of Governors Liaison.

B. Approval of minutes of October 2018.

Motion approve (Leen/Gagliardi)- passed by acclamation.

Approval of minutes of December 4, 2019 meeting.

Motion approve (Leen/Sasso) – passed by acclamation.

II. CHAIR’S REPORT—Eduardo Sánchez

A. Out-of-Cycle Reports/Court Action

1. SC17-882, In re: Amendments to the Florida Rules of Civil Procedure, the Florida Rules of Judicial Administration, the Florida Rules of Criminal Procedure, and the Florida Rules of Appellate Procedure – Electronic Service. Opinion was published October 25, 2018; rule amendment took effect January 1, 2019.

2. SC18-1554, In re: Amendments to the Florida Rules of Judicial Administration—Parental Leave. The Committee filed a No Action Report to the Court on September 11, 2018. On September 14, 2018, the Court chose to treat this as a proper out-of-cycle report. The proposed rule was published for comment and the Committee responded. Awaiting the Court’s next action.

Chair stated we filed report and comments now till April 1, 2019. Next we can respond with majority/minority reports and thus RJA will have work to do on this.

B. 2020 Regular-Cycle/Out-of-Cycle Pending Submission

1. Rule 2.330 (Disqualification of Trial Judges). Final approval of proposed amendments in June 2017 by a vote of 26-4.

RJAC June 2019 Agenda Page 5 of 175 2. Electronic Documents Proposed Rules: Rule 2.345 (Electronic Signature of Court Official); Rule 2.511 (Florida Courts E-Filing Portal); Rule 2.514 (Computing and Extending Time); Rule 2.516 (Service); Rule 2.520 (Documents); Rule 2.525 (Filing).

3. Rule 2.110 (Scope and Purpose): Approved by a vote of 40-0-1; second amendments approved by a vote of 39-0.

4. Rule 2.265 (Municipal Ordinance Violations): Approved by a vote of 31-0.

5. Rule 2.510 (Foreign Attorneys): Approved by a vote of 32-0-1.

III. SUBCOMMITTEE REPORTS

A. Subcommittee A—Craig Leen, Chair

1. 18-RJA-09: Rule 2.330 (Disqualification of Trial Judges). This matter was raised by Gary Fox.

Craig Leen said that this should be referred to Michael Sasso. Explained that referral concerning a situation where an attorney ran against a sitting judge and then the firm tried to disqualify judge on the firm’s cases. Referral wanted language added to address this. Michael Sasso said there is a statute on disqualification of judges and there is a 1st DCA case, see memo, there is no need to address this by rule and that it should be done by statute. Refer this to Bar GC is recommendation. So no action by RJA except refer to Bar GC.

2. 10-RJA-10: Rule 2.540 (Requests for Accommodations by Persons with Disabilities). This matter was raised by subcommittee chair.

Craig Leen made this referral based on ADA changes and what the responsibilities are for an ADA coordinator. Also, he asks whether the duties of an ADA coordinator should be expanded to include out of court matters? Kevin Cook will be working on this. Judge Nielsen is the chair of the other subcommittee that is looking at service animals. It was decided there will be an ad-hoc subcommittee to combine and address both concerns.

Judge Nielsen said he and Kevin Cook have been discussing. Considering whether all circuits should be required to have ADA coordinator. Request form ad-hoc subcommittee and Chair approved. Kevin Cook and Judge Neilson with others as needed.

B. Subcommittee B—Hon. Richard A. Nielsen, Chair

RJAC June 2019 Agenda Page 6 of 175 1. 18-RJA-06: Therapy Animals. This matter is still being researched and reviewed by the subcommittee.

Judge Nielsen discussed and referred to memo.

2. 17-RJA-02: Rule 2.535 (Court Reporting). This matter is still being researched and reviewed by the subcommittee.

Judge Nielsen said the subcommittee considered the technology available and determined there was no need to address condensed transcripts. The Subcommittee voted no action be taken on this referral.

C. Subcommittee C—Michael Korn, Chair

1. 15-RJA-19; Rule 2.450 (Technological Coverage of Judicial Proceedings). The subcommittee is continuing to discuss this matter.

Michael Korn said this referral is still pending before the Subcommittee and evaluating how best to proceed. Previously it was suggested that the Subcommittee reach out to FSC. The Subcommittee is waiting until a new FSC settled.

2. 18-RJA-08; Rule 2.545 (Case Management). This is a concern raised by the Family Law Rules Committee. The subcommittee is continuing to discuss this matter.

Subcommittee is asking Family Law Rules to get back to Subcommittee and will evaluate after Family Law Rules provides feedback.

D. Subcommittee D—Marynelle Hardee, Chair

18-RJA-01; This request originated from The Florida Bar Budget Committee seeking review of the pro hac vice fee as defined in Rule 2.510. This matter is being forwarded to the budget committee for inquiry. No report is due at this time.

Marynelle Hardee discussed reviewed pro hac vice fee rule and the fact that a request was made to FL Bar Budget Committee.

E. Ad Hoc Rule 2.515 Subcommittee—Paul Regensdorf, Chair

Paul Regensdorf discussed the signature rule. Goal today is to get this approved on 1st reading today. Accomplishes 3 things 1. New concept – act of filing document is the signature. This links person to document. 2.515(b) describes the way someone is linked to document, by filing it or serving it. Rule must allow both electronic and paper documents to be filed as there are still pro-se filers. Signature on paper binds the same way as electronic signature. 2. 2.515(c) – need

RJAC June 2019 Agenda Page 7 of 175 visual representation of signature and know who filed it. So allows for formats approved. /s approved already by FSC. But there will be new ones formats approved in the future, but not approved yet so all could do is say other signatures as approved by FSC. Also, desired to allow that, if someone files a document or allows their credentials to be used to file someone else’s document, then you are the filer, even if not your case. Essentially, if you help someone out by filing a document for them, you have become signer. 3. 2.515(d) – representations to court – not a lot of change. Sean Lebowitz and probate raised an issue that a number of documents are placed in file that are unrelated to the filer in probate. Pointed out there are times when the document is not the filer’s, but the filer must submit the document. Paul says that this is also true with filing depositions, etc. So, if filing something and not yours, then the attorney must file a notice that he or she is filing something that is not his or hers.

Judge Kuntz – 2.515(c)(1)(a) – implies everyone needs to put /s but on paper filer says “that” person. Need to be consistent. So suggestion to change “each” to “that”. Paul agrees and takes as friendly amendment. Suggestion to remove “for each person” and cleans this up. Remove under (2)(a) language. Discussion. Judge Nielsen, said that people file briefs who want to be recognized and that “each” was appropriate to allow multiple individuals get credit for filing. Paul did not feel that changing “each” to “that” removes multiple people getting credit. However, only the person indicated by a /s is the filer and is the one professionally linked to case for viewing documents.

Paul says if rule approved, no document will be signed in ink anymore. Paul accepts both changes as friendly amendments.

Judge Shepherd – is it true that only person who files and puts /s is subject to sanctions? Paul says he is not opining on this issue. Technically though, a person is not a signer unless that person files or uses the /s, so it would make sense that someone who is not a signer is not subject to sanctions. Clerk says each Clerk has a list of who has access to electronic file. No present ability to give access just because the name is in the signature block. So this committee decided not to bind non-signer to document.

Tom Hall supports this because 5th DCA rule that if the name is on the filed document, the court will not continue OA unless all whose names are upon the document are unavailable; i.e., if your name is on it, OA won’t get continued even if you are not the attorney who is expected to participate in OA. Tom feels this rule will fix this.

Chair also points out that the name on document may be young associate who know little about entirety of it.

Jennifer Mansfield – Can you have more than one signature line? Paul says yes. Have as many as are desired.. Documents that are served in portal are served

RJAC June 2019 Agenda Page 8 of 175 only on persons that have appeared in case. Not entered an appearance if just sign, must still put in NOA in case to get served and access. So signature might subject you to sanctions, but not be attorney of record. So issue is what role clerk have, portal have, and firms access.

Chair, appearances are addressed in different rule and will discuss it later today. This rule is a signer rule.

Jennifer feels that all on signature block should be responsible. Paul agrees in concept.

Kristina Samuels points out that service in portal is determined by filer who selects who is served.

Perry Adair - (b)(1) “as provided in this rule”? Does this mean must put /s by it? Paul says yes. Perry says not clear. Suggest - “as a signer in a signature block”. Or just reference (c)(2).

Perry questions language “act of filing identifies as signer”. Why do this to someone who files for another? Paul, says discussed before. System tells court who filed it and is certain. So alleviates someone that told to file it but not responsible. Pointed out that in federal system you must be both filer and signer. Paul explained you are allowed to have someone file for you using your credentials.

Ben Robinson (c)(1)(b) gave amended language “placing” replaced with “including.

Ben - (c)(1)(c) - 2.511 proposed defines filer and meant to copy this verbatim. Suggestion to amend “log-in credentials”. Chair says FCTC gave us this language and so do not want to change.

Ben - (c)(1)(d) – identified that not as clear as could. Paul suggested moving to (c)(1)(d) to (c)(4). Then pointed out need subheading. “Non-signers”. Accepted as friendly amendment.

Krys Godwin, mentioned parental leave. Also, in reality there are courts that kick out filing if not signer and filer.

A motion to call the question was made by Craig Leen and seconded by Perry Adair. The vote was explained with friendly amendment changes. The motion to approve by Paul Regensdorf, and seconded by Craig Leen, passed by unanimous vote. Motion to waive second reading was made by Craig Leen and seconded. It passed by the necessary 2/3 vote. Any typos can be cleaned up and the rule will be shared with the full committee for their information/confirmation at a later date.

RJAC June 2019 Agenda Page 9 of 175 Break 2:20 Resumed at 3:38.

F. Ad Hoc Rule 2.420 Subcommittee—Tom Hall & Amy Borman, Co-Chairs

Chair explained will do an electronic vote on this in future.

Amy Borman and Tom Hall presented.

Amy explained rule on confidentiality and worked to reorganize and passed 1st vote, then comments caused amendments and sent out for comments to other committees. Comments were overall pleased with rule. Discussion about whether there should be a warning to filer that confidential info needs to be protected by the filer. Language was removed so that this debate would be separate substantive debate. Want to move this along and keep substantive arguments out. So last sentence removed.

Tom explained that the proposed rule was sent to the clerk attorneys who sent good technical suggestions and made the changes. However, later it was realized that by removing language, then removed any burden on Clerk of Court for list of 22. This seemed to be a substantive change then. So, motion to revise again submitted this change also. Then got comment from Paul Regensdorf that this was not accomplishing goal to keep obligation on clerk for list of 22.

Tom suggested we approve rule with clarification that do not intend to change process for clerk to have responsibility of list of 22.

Kristina Samuels – Appellate Rules Comm Rep – (g)(3) of Rule - feels should be 15 days instead of 10. Then saw we changed another part from 10 to 15 and thinks error. Cross reference to (i)(1) page 62 cross references to (g)(2), but (g)(2) treats info as confidential…

Tom, no one raised this.

Kristina suggest we should remove cross-ref b/c not work with appellate ct.

She also stated (i)(1), makes it seem ruling is on response, but should be on motion. Tom said if not worded correctly, we can fix.

She also stated (i)(2) has conflicting directions about posting documents. (i)(2) cross references (g)(8), that in lobby of courthouse and web, but for appellate court need just be in (see pg. 62) (i)(1), cross ref (g)(8), should cross ref (a)-(h).

Tom, says on page 64 it is correct.

RJAC June 2019 Agenda Page 10 of 175 Sandy, why not just say within 30 days of the motion? Kristina says that would be ok.

Jennifer Manson on subcommittee pointed out that it says 30 days or court order. Feels this emphasis least amount of delay and subcommittee decided to leave it the way it was. So stays confidential 30 days unless parties move keep confidential longer.

Mike Debski, with small claims rules committee, focused on pg. 55 and asked why there was a change from confidential to sensitive.

Amy – 2.425 deals with minimization of sensitive info and way it should have been when drafted it and error that needed to fix.

Kristina Samuels – only holding 30 days makes sense but shouldn’t we get ruling also within 30 days? Tom said this was discussed and could not come up with solution.

Craig Leen agrees that should need priority on ruling on a motion.

Paul Regensdorf – comment not want vote on final product and hope we just make fixes and then send out final draft. Process designed for this rule right now only reshuffle this for now. Amended Agenda striking the sentence was just submitted, so let’s discuss and finish this soon. Hard to reshuffle without making changes. Suggest we should read privacy committee report and the AO that implemented it. He will send it if ask. He was on privacy committee that drafted this. Rule has long history and background. FSC wanted electronic court system and give public access to court records. Off we went and realized how hard this was. Concept was how to protect these records? Want public access but not until there is a system to protect confidential information. 2010 finally got this off the ground because of protections. How? Not give it judges. So either filers or clerks. Clerks had been doing it for years. Subcommittee somehow felt that clerks not meant to have responsibility, but they are dead wrong. Clerks redacted paper records in past and had list which are essentially the rule of 22. The lawyers then are responsible for the other 1,000 confidential records and need to file motion to protect. So list of 22 is not discretionary, but a ministerial role that is essential. FSC wanted statutes that create confidential applicable in court context and those things clearly identifiable as confidential. Example is that Marcy’s law victim info would not be identifiable. But other things are easily identifiable. It is filer who identifies confidential info in a notice if list of 22, or motion if not in list. Clerk did not have power to respond to notices, and has issue with this. Need to all go through changes. Feels there are substantive changes – pg. 53 - changed the clerk of the court shall designate and maintain the confidentiality – this was removed! Redaction software allows clerk to stop auto redacting when remove this language. FSC said reasonable access not immediate access.

RJAC June 2019 Agenda Page 11 of 175 Chair – gone through 1st read and on second read. Changes were not intended to make substantive change. Today we may vote but it is not a final vote. No intent to change way rule works. So try to adopt changes we can but do not make any substantive changes. We will work these out and send e-mail vote. Will continue to not change substantive rule and get this voted on. Will send back to subcommittee to work this out. Do not want another 3 years to go by.

Matt Wilson asked Paul if he is of position that there are substantive changes at this point as far as clerk’s responsibility? Yes said Paul. Paul says it takes time for Clerk to make redactions. So not give immediate access.

Sandy Solomon asked whether there was any possibility we can approve a rule without infringing on substantive changes? If not, we should identify issues and have conference call to discuss it.

Chair states it should go back to keeping in stricken language so clerk keeps responsibility.

Sandy ask if any other substantive changes? Chair said clerk issue is main one.

Jennifer says that line strike clarifies, not causes, issue. Chair says that is the disagreement. Tom said Jennifer’s reading may be correct that strike keeps it as currently set. But he sees Paul concern too.

Chair wants this to go back and see if subcommittee can make this clear. Rest of rule to be approved today with minor tweaks so that future conference call will only deal with one issue. Not changing philosophy of rule is clearly the intent of these changes.

Jennifer, believes this was where we were last meeting and want from Paul exactly what he suggests.

Tom, again this is to make procedural changes and not substantive.

[Introduction of Bar President. She discussed criminal justice summit. She thanked Committee and liaisons. Over summer she spoke with FSC Chief Justice and liked meeting with committee chairs in the summer and today. Chief interested in speeding up process for rule changes and the inability to fix ex-parte issues with communicating with the FSC. So the Bar President is forming task committees to come up with thoughts on how to improve process. RJA has been asked to gather all info and submit to FSC by April 1st. Also, our liaison is in charge of getting CLE’s for all rules committees. Michael Tanner discussed that looking at qualification of CLE credit for rules committees. Must be consistent with goals of giving CLE and is workable. Will make a recommendation by end of the year and accelerated for rules committees.

RJAC June 2019 Agenda Page 12 of 175 Bar President also trying to make federal and local rules committees get CLE’s. She discussed JNC applications still open in certain circuits.]

Paul Regensdorf said he believes we all missed that this strike thru is a substantive change. It is wrong when it removes the first sentence as it now allows clerks to say not need to do redactions. 2 other points to consider to changes made. In original rule, individual can waive confidential item from list of 22, but this was written out. Needs be put back in. Also, why is minimization in filers obligation. Wrong word “minimization”. Minimization concept is different feel good rule and not be in this rule. Encouraging redaction is new also.

Chair, explained that he wanted to call a not-final vote, but straw vote if ok with moving forward with this with subcommittee addressing these issues and move forward on this 3 year cycle.

Tom, says subcommittee will get this back and wants to do it this cycle.

Straw vote taken and approved to move forward on this. Matter back to subcommittee and eventual vote by e-mail. Contact Krys and Tom if want to be involved.

G. Ad Hoc Rule 2.505 Subcommittee—Michael Sasso

Krys – pointed out there are two typos. Pg. 71, Exhibit 3 not Exhibit 4. Pg. 81 – carry over and not correct vote count. Should be 32-2 as vote total.

Michael Sasso – Appearance of Attorney - Rule went to FSC but rejected due to complexity. Reviewed FSC comments and re-worked rule. First version passed and circulated to other committees. Made substantive changes and so another first read and passed. Memo discusses this.

Sasso discussed changes. Wants approved 2nd reading. (Sasso/Leen) Motion approval. Discussion by Matt Wilson – in juvenile cases, after time period appeal runs, does not mean case ends. Not clear if covered under (f)(3) or (4). Juvenile cases are unique in that appeal may run and still proceedings going on. So does juvenile fall under (3) or (4) and if (4) - need an order. Sandy says (4) is only limited appearance. Maybe “unless as otherwise provide by rule” could be added under (f)(3).

Matt Wilson also recommends it state (4)(B) be changed to the proceedings covered by juvenile procedure. “In criminal or proceeds covered by rules of juvenile procedure” . Michael Korn questioned need.

Matt Wilson, clarify that stand-in not abridged SAO or PD stand-ins. Hon. Jewett – as elected official is appointed this is not an issue.

RJAC June 2019 Agenda Page 13 of 175 Switch (4)(A) and (4)(B) – Language taken and recorded by Sasso.

Tom Hall brought up language questions. As to (g), what is “recorded”? Sandy discussed that this language was a compromise to allow that if Clerk can record it, then that is enough but must be something. Discussion on word “recorded”. Judge Jewett explained that the rule needs something on who appeared by court minutes in some way. Paul R mentioned that is why an attorney must leave a name on some record. If Notice of Appearance filed when stand-in, need file Notice of Withdrawal. Without Notice, not get access to court file. Sasso said better to allow stand in as long as there can be record of it.

Paul R – (g) – last sentence “attorney of record” is plural concept so should be “an” attorney of record and not “the”. Also, “announced on the record”, what does that mean? (j) “is the party’s attorney of record”. Shuffle to allow plural term and accepted as friendly amendments.

Sasso, “announced on the record” is intended to be broad. “Record” is a general term.

Subdivision (j) reads “…is an attorney of record for the party.” Accepted.

Judge Shepherd – (4)(A) and (B) – may not have “divisions”. Sasso, it should be understood. Chair, let’s let drafting fix and address if issue.

Paul suggested moving (h) back to (g) and (g) to (h) so do not have to renumber (h).

Vote on 2nd read – passed unanimous. 34-0.

I. IOP Subcommittee—Hon. Samantha Ward, Chair

No business at this time.

J. Drafting Subcommittee—John Crabtree, Chair

No business at this time.

K. Liaison Subcommittee—Sandy Solomon, Chair

Sandy Solomon reported that the subcommittee reviewed the other committees’ rule and there was nothing further to report as the liaison subcommittee determined there are no conflict.

RJAC June 2019 Agenda Page 14 of 175 L. Fast-Track Subcommittee—Ed Sánchez, Chair

Chair reported no action at this time. However, when gets comments for parental leave, please let him know if want to participate.

IV. FCTC Workgroup—Tom Hall/Justin Horan

Tom Hall – Right now not a lot is happening, but more expected at next meeting. Discussion that RJA rules says that technical rules are to go through FCTC, but FCTC rules do not address this and so will look into this.

Paul suggested that doc-u-sign rule is needed.

V. NEW BUSINESS

Chair said concern submitted by Clarence S. Allen will be looked at. This may be seen on page 84.

Chair also suggested that criminal rules referred on ex parte motion to seal. There was a question as to why RJA has this matter since RJA are not criminal. Very new and still being worked on. Tom Hall believes criminal rules is right and should be allowed to be ex parte and falls solely on criminal and not 2.420 as those are 22 specific things. This is a whole motion confidential and automatic. The court has no authority to make documents confidential, just proceedings.

Jennifer Mansfield feels that, as drafted, it conflicts with 2.420. Chair said this will require a lot of work. Feels it does fall under 2.420 – this rule was constructed to protect 1st amendment principles. Anyone interested to let Chair and Krys know. Hon. Jon Morgan – explained why criminal sent it over. Sandy says need defined confidential, exempt, and sealing. Chair says must not conflict with 2.420.

Chair – discussed what President mentioned earlier of rulemaking concept review. Shorten cycle on amendments so not so much on cycle, staggering rules committee cycles, keeping committee knowledge so may consider eliminating term limits. Also get rid of ex parte rule for committees and FSC, but this likely will need to come from FSC. If want to work on this ad hoc committee, let Chair and Krys know.

Chair said will need meeting to discuss on pending rule.

VI. ANNOUNCEMENTS AND ADJOURNMENT

Motion to adjourn at 4:59 pm.

RJAC June 2019 Agenda Page 15 of 175 RJAC telephone call on 2.420 Minutes May 23, 2019

The meeting was called to order at 12:17 p.m.

Chair Ed Sanchez explained that the call is for discussion only and vote will be by e-mail following the call.

Tom Hall opened the discussion and explained to the attendants what the subcommittee addressed after the January 2019 meeting in which questions and suggestions were made..

Michael Sasso asked why one of the time frames was changed to 15 days verses 10 days.

Chair Sanchez explained that the Appellate Court Rules Committee requested 15 days to be consistent with the appellate rules.

In the January 2019 meeting, Paul Regensdorf had said the waiver of confidentiality should not be deleted as shown in the January draft. Believes not get picked up when back to sub- committee. Also in the January meeting, Kristina Samuels, Clerk, pointed out an error as well.

The Chair felt thee concerns were not noticed for this meeting, so it was difficult for them to be discussed. It was draft error.

When asked, Krys Godwin explained that, to be included in the 2020 Regular-Cycle Report, this rule needs to be approved and submitted by June 15th to The Florida Bar News for publication and to the Board for inclusion in the July agenda.

Subcommittee chair observed that on page 4, subdivision (d) has been left the same but removed redundancy. Other clean-up was also done by the subcommittee.

Judge Morgan commented that , on page 7, subdivision (f), it should say “one” and not “1”.

Subcommittee chair responded that he will reconvene the subcommittee and fix the concerns raised above and send out the rule for final vote.

A comment was made about page 7, subdivision (4), asking which court holds hearing?

Subdivision chair explained that paragraph (g) identifies the trial court. He also shared that he will be meeting with the joint subcommittee next week who is also reviewing this rule for other concerns and will address both these concerns. The subcommittee chair will also talk with Paul and clarify the concern for final draft and vote.

The meeting was adjourned at 12:30 pm.

RJAC June 2019 Agenda Page 16 of 175 2019 SESSION NEW EXEMPTIONS TO OPEN GOVERNMENT LAWS

SB 186 Exemption/Photographs and Videos Depicting Victims of Mass Violence: Creates a public 1 record exemption for photographs, videos or audio recordings that depict the killing of a victim of mass violence. Defines “killing of a victim of mass violence” as “events that depict either a victim being killed or the body of a victim killed in an incident in which three or more people, not including the perpetrator, are killed by the perpetrator of an intentional act of violence.” Stipulates that a spouse, parent, or adult child can share or publicly release the exempt information and allows access by court order on a showing of good cause. Amends s. 119.071(2)(p), F.S. Applies retroactively and takes effect when signed by the Governor. Passed the Senate unanimously; passed the House by a vote of 108/6.

2 CS/SB 248 Exemption/Home Addresses: Creates a definition of “home address” which applies to all home address exemptions under s. 119.071(4)(d), F.S. !s defined, “home address” includes not only the physical address, mailing address, and street address, but also all parcel identification numbers, plot identification numbers, legal property descriptions, neighborhood and lot numbers, GPS coordinates, and other property descriptive information that may reveal a home address. Allows an employee or officer to submit a written request to the custodial agency authorizing release of exempt information, stipulating that the request must specify the information to be released and the party authorized to receive the information. Amends s. 119.071(4)(d), F.S. Applies retroactively and takes effect on July 1, 2019. Passed the Senate by a vote of 39/1, passed the House unanimously; Approved by the Governor.

3 CS/HB 281 Exemption/Voters and Voter Registration: Creates a public record exemption for information related to a voter registration applicant’s or voter’s prior felony conviction and whether such person had his or her rights restored collected for the purpose of voter registration. Also exempts all information about preregistered voter registration applicants who are 16 or 17 years old. Amends s. 97.0585, F.S. Applies retroactively and takes effect July 1, 2019. Passed the House unanimously. In the Senate, CS/HB 281 failed to receive the 2/3 vote required for passage; on reconsideration and after an amendment narrowing the exemption, passed the Senate unanimously, passed the House by a vote of 106/2. 4 CS/SB 318 Exemption/Reports of Child Abuse: Expands current law to exempt names and identifying information of persons reporting child abuse, abandonment, or neglect. Amends s. 39.202, F.S. Takes effect July 1, 2019. Passed both chambers unanimously.

5 CS/HB 327 Exemption/Public Utilities: CS/HB 327 Exemption/Public Utilities: Section 119.0713(5), F.S., provides a public record exemption for information related to the security of a public utility’s information technology systems; creates an exemption for portions of meetings at which such information is discussed, stipulating that closed meetings be recorded. Creates a public record exemption for the recordings of closed meetings and allowing access if a court determines the meeting was not restricted to the discussion of exempt information. Creates s. 286.0113(3), F.S. Takes effect on July 1, 2019. Passed both chambers unanimously.

7 CS/SB 838 Exemption/Mental Health Treatment and Services: Creates a public record exemption for all petitions for voluntary and involuntary admission for mental health treatment, court orders, and related records filed with or by a court pursuant to the Baker Act. Allows disclosure under

RJAC June 2019 Agenda Page 17 of 175

certain, specified conditions, including by court order upon a showing of good cause. Prohibits publication by the clerk of court of personal identifying information on a court docket or in a publicly accessible file. Creates s. 394.464, F.S. Applies retroactively; takes effect on July 1, 2019. Passed both chambers unanimously.

8 CS/HB 845 Exemption/Petitions for Protective Injunctions: Creates an exemption for any information that can be used to identify a petitioner or respondent in petitions for injunctions against domestic violence, repeat violence, dating violence, sexual violence, stalking, or cyberstalking, including all affidavits, notices of hearings, and temporary injunctions, until the respondent has been served. Amends S. 119.0714, F.S. Takes effect on July 1, 2019. Passed both chambers unanimously.

9 CS/HB 7023 Exemption/Commission on Ethics – Financial Disclosure: Creates a public record exemption for all secure login credentials held by the Commission on Ethics for the purpose of allowing access to the electronic filing system. Also exempts information entered into the electronic filing system until the disclosure of financial interests or statement of financial interests is submitted to the Commission. Amends s. 112.31446, F.S. Takes effect on the same day HB 7021 takes effect, which is upon becoming law. H. Public Integrity and Ethics Committee Passed both chambers unanimously.

10 HB 7121 Exemption/Department of Lottery: Creates a public record exemption for information that could harm the security of the Department of Lottery, including: information relating to: the security of DOL’s technologies, processes and practices designed to protect networks, computers, software, and data systems; physical and virtual security measures; lottery games; terminals, machines, and devices that issue tickets. Also creates exemptions for confidential information used by the DOL to participate in multistate lottery games; personal information obtained by DOL when conducting background checks of current or potential vendors; and financial information related to reviews by DOL. Amends s. 24.1051, F.S. Takes effect when signed by the Governor. Passed the House by a vote of 96/12; passed the Senate unanimously.

11 CS/HB 7125 Exemption/Administrative Sealing of Criminal History Records: In pertinent part, requires the Florida Department of Law enforcement to adopt rules to automatically seal a criminal history record when a charging document isn’t filed- charges weren’t filed or were dropped or dismissed; or the defendant was acquitted or found not guilty. Stipulates there is no limit on the number of times a person can obtain an automatic seal of a criminal history record. Note that the automatic sealing of criminal history records by FDLE does not require sealing by the court or other criminal justice agencies. Creates s. 943.0595, F.S. Takes effect on October 1, 2019. Passed the House by a vote of 112/1, with Rep. Hill voting no. Amended and passed the Senate by a vote of 39/1 and then the House passed the bill unanimously.

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RJAC June 2019 Agenda Page 18 of 175

June 17,2019

The Honorable Charles T. Canady Florida Supreme Court 500 South Duval Street Tallahassee, Florida 32399-1925

Dear Chief Justice Canady:

On behalf ofthe Florida Court Clerks & Comptrollers (FCCC), I am writing to request your immediate assistance in clarifying how Clerks should respond to two recent events that impact access to Florida's court files. Florida's Constitutional provisions mandate open records, but these recent changes raise issues that are time-sensitive and of critical importance to the Florida Supreme Court (this Court), Florida's 67 Clerks of Court, and the citizens ofthis state.

Last November, the Constitutional Amendment known as "Marsy's Law," incorporated as Article I, Section 16 (b)-(e) in the Florida Constitution, was approved by Florida's voters and went into effect on January 8, 2019. Since then, Clerks have received many types of notices from victims and law enforcement agencies expecting information about crime victims to be kept confidential. In some cases, law enforcement agencies are noting on criminal case initiation documents that information for all victims must be automatically protected under Marsy' s Law.

Then, during the most recent legislative session, the Florida Legislature passed eleven nev,: exemptions (see enclosed chart) to Florida's public records laws, which the Florida Constitution specifically authorizes the legislature to do by two-thirds vote ofeach chamber. See Art. I, Sec. 24 (c). At least two ofthese new exemptions directly involve court files:

• Chapter 2019-39, Laws ofFlorida, effective July 1, 2019, provides that identifying information contained in petitions for certain protective injunctions is confidential and exempt, pursuant to s. 119.071(1), and s. 24(a), Art. I of the State Constitution, until the respondent has been personally served. • Chapter 2019-51, Laws of Florida, effective July 1, 2019, provides that petitions for voluntary and involuntary admission for mental health treatment, court orders, and related records that are filed with or by a court are confidential and exempt pursuant to s. 119.071(1), ands. 24(a), Art. I ofthe State Constitution. This exemption is retroactive and prospective from the effective date.

This Court has clarified in the past that the control of court files resides with this Court. See Florida Rule ofJudicial Administration 2.420, 124 So. 3d 819 (Fla. 2013). Constitutional provisions protecting

Sharon R. Bock, Esq. Stacy M. Butterfield, CPA Tara S. Green Angelina "Angel" Colonneso, Esq. Carolyn Timmann Chris Hart, IV Palm Beach County Polk County Clay County Manatee County M;;irt1n County Chief Executive President Pres1dent~Elect Vice President Treasurer Secretary Officer RJAC June 2019 Agenda FLCLERKS.COM Page 19 of 175 The Honorable Charles T. Canady June 17, 2019 Page Two

records are included with the now I, 133 statutory exemptions, ofwhich this Court has determined only 22 to be automatically protected. Specifically, Florida Rule of Judicial Administration 2.420(c)(7) lumps legislative protections together with constitutional protections: "[a]ll records made confidential under the Florida and United States Constitutions and Florida and federal law." Therefore, Florida's Constitutional provisions making records confidential are subject to the same limitation as statutory protections.

Since Florida Rule of Judicial Administration 2.420(d)(l)(B) specifically limits the Clerk's automatic redaction of (c)(7) information to the list of 22 in subsection (d)(l)(B)(i)-(xxii), and since neither Article I, Sec. 16(b)(5) nor the recently passed statutory exemptions have been specifically included (absorbed) in the list of 22, information and records allegedly made confidential by these statutory exemptions and Marsy's Law are subject to being released by Clerks.

The Marsy's Law change is ofparticular concern. Clerks have no authority to automatically keep that information confidential. Yet currently the public, law enforcement, and even state attorneys expect Clerks to do so when a "notice" is filed. Some agencies believe it applies to all cases involving a victim, no matter the crime nor whether it is a civil or criminal case. Given the breadth of the amendment, it is understandable for them to have reached that conclusion. However, in the long run, the most difficult aspect for Clerks in trying to protect victim information on an ongoing basis is that without some notice when such information is filed in a case-if this Court were to determine that a notice pursuant to Florida Rule of Judicial Administration 2.420(d)(2) alone is sufficient to keep the information confidential-it would be virtually impossible to identify such information.

Some users of the system have already assumed that this information will automatically be redacted, without providing notice ofthe existence and location ofthe information in the case file. In some cases, this information is expected to be discovered automatically after a notice is filed, so that the information is protected in all future filings without notice. In other cases, some Clerks have advised filers that under the current rules, a motion, pursuant to rule 2.420, is required to be filed before such information can be protected.

Florida's Clerks of Court manage court files for the court system. See Times Publishing Co. v. Ake, 660 So.2d 255 (Fla. 1995). Given this Court's previous pronouncement that the Court controls court files, Clerks may not automatically protect these new statutory and constitutional exemptions because they have received no such direction from this Court to do so. FCCC would request this Court, under Ake, provide direction to Clerks on how to proceed.

As FCCC noted in a letter to Chief Justice Labarga in 2017 regarding new statutory exemptions, Clerks are presented with a terrible choice when new exemptions are passed by the legislature or the populace. Since many Clerks now place court files online, if Clerks do not protect the information that the legislature or voters have determined should be kept confidential, the information will be forever exposed, even if this Court later determines it should be automatically confidential. IfClerks protect the information under the legislature's directive, then Clerks violate this Court's case Jaw.

RJAC June 2019 Agenda Page 20 of 175 The Honorable Charles T. Canady June 17, 2019 Page Three

Unlike in 2017, these new statutory and constitutional exemptions have not yet, to FCCC's knowledge, been formally referred to any ofThe Florida Bar's rules committee for consideration. FCCC, therefore, requests that this Court, on its own motion under Florida Rule ofJudicial Administration 2.140, review the newly passed exemptions and determine which ones should be automatically exempt from public disclosure, and request that this Court do so by July I, 2019.

Ifthis Court adopts changes, it can publish the changes and allow for comments from the public after the fact. It may also direct the appropriate committees of The Florida Bar to file comments and specifically address which of these exemptions, if any, should be kept and made permanently automatically exempt. Clerks would suggest that this may be the best solution for Florida's citizens: to protect the information until the matter can be fully considered, rather than not protect the information and later determine it should have been protected.

FCCC appreciates this Court's consideration of this request, as Florida's Clerks seek to perform their role under Ake. As in 2017, FCCC remains willing to discuss with you or this Court possible long-term solutions to this issue, which arises almost every year. One solution might be for this Court to appoint a standing committee of this Court to deal with this issue each year after the legislature adjourns or when constitutional amendments are adopted. That committee, which could consist of Judges, attorneys, Clerks, and others, all with expertise in public records, could promptly respond to any such changes and provide recommendations to this Court on how such changes should be dealt with almost immediately. Clerks would be more than willing to take part in such a process.

Should you need any additional information, please do not hesitate to contact me. R~rr~

Chris Hart IV, Chief Executive Officer Florida Court Clerks & Comptrollers

Enclosure cc: The Honorable Sharon R. Bock, Esq., Palm Beach County Clerk and Comptroller, FCCC President The Honorable Stacy M. Butterfield, CPA, Polk County Clerk and Comptroller, FCCC President-Elect Scott Michael Dimond, Chair, Civil Procedure Rules Committee The Honorable Josephine Gagiiardi, Lee County Judge, Incoming Chair, Civil Procedure Rules Committee Lisa Kiel, Interim State Courts Administrator Eduardo I. Sanchez, Chair, Rules of Judicial Administration Committee The Honorable John A. Tomasino,, Clerk, Florida Supreme Court Joshua E. Doyle, Executive Director, The Florida Bar

RJAC June 2019 Agenda Page 21 of 175 2019 SESSION NEW EXEMPTIONS TO OPEN GOVERNMENT LAWS

~~------·---·------~ SB 186 Exemption/Photographs and Videos Depicting Victims of Mass Violence: Creates a public 1 record exemption for phorographs, videos or audio recordings that depict the killing of a victim of mass violence. Defines "killing of a victim of mass violence" as "events that depict either a victim being killed or the body of a victim killed in an incident in which three or more people, not including the perpetrator, are killed by the perpetrator of an intentional act of violence." Stipulates that a spouse, parent, or adult child can share or publicly release the exempt information and allows access by court order on a showing of good cause. Amends s. 119.071(2)(p), F.S. Applies retroactively and takes effect when signed by the Governor. Passed the Senate unanimously; passed the House by a vote of 108/6.

2 CS/SB 248 Exemption/Home Addresses: Creates a definition of "home address" which applies to all home address exemptions under s. 119.071(4)(d), F.S. As defined, "home address" includes not only the physical address, mailing address, and street address, but also all parcel identification numbers, plot identification numbers, legal property descriptions, neighborhood and lot numbers, GPS coordinates, and other property descriptive information that may reveal a home address. Allows an employee or officer to submit a written request to the custodial agency authorizing release of exempt information, stipulating that the request must specify the information to be released and the party authorized to receive the information. Amends s. 119.071(4)(d), F.S. Applies retroactively and takes effect on July 1, 2019. Passed the Senate by a vote of 39/1, passed the House unanimously; Approved by the Governor.

3 CS/HB 281 Exemption/Voters and Voter Registration: Creates a public record exemption for information related to a voter registration applicant's or voter's prior felony conviction and whether such person had his or her rights restored collected for the purpose of voter registration. Also exempts all information about preregistered voter registration applicants who are 16 or 17 years old. Amends s. 97.0585, F.S. Applies retroactively and takes effect July 1, 2019. Passed the House unanimously. In the Senate, CS/HB 281 failed to receive the 2/3 vote required for passage; on reconsideration and after an amendment narrowing the exemption, passed the Senate unanimously, passed the House by a vote of 106/2. 4 CS/SB 318 Exemption/Reports of Child Abuse: Expands current law to exempt names and identifying information of persons reporting child abuse, abandonment, or neglect. Amends s. 39.202, F.S. Takes effect July 1, 2019. Passed both chambers unanimously.

S CS/HB 327 Exemption/Public Utilities: Section 119.0713(5), F.S., provides a public record exemption for information related to the security of a public utility's information technology systems; creates an exemption for portions of meetings at which such information is discussed, stipulating that closed meetings be recorded. Creates a public record exemption for the recordings of closed meetings and allowing access if a court determines the meeting was not restricted to the discussion of exempt information. Creates s. 286.0113(3), F.S. Takes effect on July 1, 2019. Passed both chambers unanimously.

7 CS/SB 838 Exemption/Mental Health Treatment and Services: Creates a public record exemption for all petitions for voluntary and involuntary admission for mental health treatment, court orders, and related records filed with or by a court pursuant to the Baker Act. Allows disclosure under

RJAC June 2019 Agenda Page 22 of 175 certain, specified conditions, including by court order upon a showing of good cause. Prohibits publication by the clerk of court of personal identifying information on a court docket or in a publicly accessible file. Creates s. 394.464, F.S. Applies retroactively; takes effect on July 1, 2019. Passed both chambers unanimously.

8 C5/HB 845 Exemption/Petitions for Protective Injunctions: Creates an exemption for any information that can be used to identify a petitioner or respondent in petitions for injunctions against domestic violence, repeat violence, dating violence, sexual violence, stalking, or cyberstalking, including all affidavits, notices of hearings, and temporary injunctions, until the respondent has been served. Amends S. 119.0714, F.S. Takes effect on July 1, 2019. Passed both chambers unanimously.

g C5/HB 7023 Exemption/Commission on Ethics ­ Financial Disclosure: Creates a public record exemption for all secure login credentials held by the Commission on Ethics for the purpose of allowing access to the electronic filing system. Also exempts information entered into the electronic filing system until the disclosure of financial interests or statement of financial interests is submitted to the Commission. Amends s. 112.31446, F.S. Takes effect on the same day HB 7021 takes effect, which is upon becoming law. H. Public Integrity and Ethics Committee Passed both chambers unanimously.

10 HB 7121 Exemption/Department of Lottery: Creates a public record exemption for information that could harm the security of the Department of Lottery, including: information relating to: the security of DOL's technologies, processes and practices designed to protect networks, computers, software, and data systems; physical and virtual security measures; lottery games; terminals, machines, and devices that issue tickets. Also creates exemptions for confidential information used by the DOL to participate in multistate lottery games; personal information obtained by DOL when conducting background checks of current or potential vendors; and financial information related to reviews by DOL. Amends s. 24.1051, F.S. Takes effect when signed by the Governor. Passed the House by a vote of 96/12; passed the Senate unanimously.

11 C5/HB 7125 Exemption/Administrative Sealing of Criminal History Records: In pertinent part, requires the Florida Department of Law enforcement to adopt rules to automatically seal a criminal history record when a charging document isn't filed; charges weren't filed or were dropped or dismissed; or the defendant was acquitted or found not guilty. Stipulates there is no limit on the number of times a person can obtain an automatic seal of a criminal history record. Note that the automatic sealing of criminal history records by FDLE does not require sealing by the court or other criminal justice agencies. Creates s. 943.0595, F.S. Takes effect on October 1, 2019. Passed the House by a vote of 112/1, with Rep. Hill voting no. Amended and passed the Senate by a vote of 39/1 and then the House passed the bill unanimously.

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RJAC June 2019 Agenda Page 23 of 175 CHAPTER 2019-12

Committee Substitute for Committee Substitute for Committee Substitute for Senate Bill No. 248

An act relating to public records; amending s. 119.071, F.S.; expanding exemptions from public records requirements for agency personnel information by defining the term “home addresses” for purposes of public records exemptions for personal identifying and location information of certain agency personnel and their family members; exempting personal identifying and location information of active or former civilian personnel employed by a law enforcement agency, and of spouses and children of such personnel, from public records requirements; authorizing certain persons to request the release of exempt information in a specified manner; requiring a custodial agency to release such information upon receipt of such a request; providing for retroactive application; providing for legislative review and repeal of the exemptions; providing statements of public necessity; providing an effective date.

Be It Enacted by the Legislature of the State of Florida:

Section 1. Paragraph (d) of subsection (4) of section 119.071, Florida Statutes, is amended to read:

119.071 General exemptions from inspection or copying of public records.—

(4) AGENCY PERSONNEL INFORMATION.— (d)1. For purposes of this paragraph, the term:

a. “Home addresses” means the dwelling location at which an individual resides and includes the physical address, mailing address, street address, parcel identification number, plot identification number, legal property description, neighborhood name and lot number, GPS coordinates, and any other descriptive property information that may reveal the home address.

b. “Telephone numbers” includes home telephone numbers, personal cellular telephone numbers, personal pager telephone numbers, and telephone numbers associated with personal communications devices.

2.a. The home addresses, telephone numbers, dates of birth, and photographs of active or former sworn or civilian law enforcement personnel or of active or former civilian personnel employed by a law enforcement agency, including correctional and correctional probation officers, personnel of the Department of Children and Families whose duties include the investigation of abuse, neglect, exploitation, fraud, theft, or other criminal activities, personnel of the Department of Health whose duties are to support the investigation of child abuse or neglect, and personnel of the 1 CODING:RJAC June Words 2019 stricken Agenda are deletions; words underlinedPage 24are of additions. 175 Ch. 2019-12 LAWS OF FLORIDA Ch. 2019-12

Department of Revenue or local governments whose responsibilities include revenue collection and enforcement or child support enforcement; the names, home addresses, telephone numbers, photographs, dates of birth, and places of employment of the spouses and children of such personnel; and the names and locations of schools and day care facilities attended by the children of such personnel are exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. This sub-subparagraph is subject to the Open Government Sunset Review Act in accordance with s. 119.15 and shall stand repealed on October 2, 2022, unless reviewed and saved from repeal through reenactment by the Legislature.

b. The home addresses, telephone numbers, dates of birth, and photo- graphs of current or former nonsworn investigative personnel of the Department of Financial Services whose duties include the investigation of fraud, theft, workers’ compensation coverage requirements and compli- ance, other related criminal activities, or state regulatory requirement violations; the names, home addresses, telephone numbers, dates of birth, and places of employment of the spouses and children of such personnel; and the names and locations of schools and day care facilities attended by the children of such personnel are exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. This sub-subparagraph is subject to the Open Government Sunset Review Act in accordance with s. 119.15 and shall stand repealed on October 2, 2021, unless reviewed and saved from repeal through reenactment by the Legislature.

c. The home addresses, telephone numbers, dates of birth, and photo- graphs of current or former nonsworn investigative personnel of the Office of Financial Regulation’s Bureau of Financial Investigations whose duties include the investigation of fraud, theft, other related criminal activities, or state regulatory requirement violations; the names, home addresses, telephone numbers, dates of birth, and places of employment of the spouses and children of such personnel; and the names and locations of schools and day care facilities attended by the children of such personnel are exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. This sub- subparagraph is subject to the Open Government Sunset Review Act in accordance with s. 119.15 and shall stand repealed on October 2, 2022, unless reviewed and saved from repeal through reenactment by the Legislature.

d. The home addresses, telephone numbers, dates of birth, and photo- graphs of current or former firefighters certified in compliance with s. 633.408; the names, home addresses, telephone numbers, photographs, dates of birth, and places of employment of the spouses and children of such firefighters; and the names and locations of schools and day care facilities attended by the children of such firefighters are exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. This sub-subparagraph is subject to the Open Government Sunset Review Act in accordance with s. 119.15, and shall stand repealed on October 2, 2022, unless reviewed and saved from repeal through reenactment by the Legislature. 2 CODING:RJAC WordsJune 2019stricken Agenda are deletions; words underlinedPage are 25 additions. of 175 Ch. 2019-12 LAWS OF FLORIDA Ch. 2019-12

e. The home addresses, dates of birth, and telephone numbers of current or former justices of the Supreme Court, district court of appeal judges, circuit court judges, and county court judges; the names, home addresses, telephone numbers, dates of birth, and places of employment of the spouses and children of current or former justices and judges; and the names and locations of schools and day care facilities attended by the children of current or former justices and judges are exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. This sub-subparagraph is subject to the Open Government Sunset Review Act in accordance with s. 119.15 and shall stand repealed on October 2, 2022, unless reviewed and saved from repeal through reenactment by the Legislature.

f. The home addresses, telephone numbers, dates of birth, and photo- graphs of current or former state attorneys, assistant state attorneys, statewide prosecutors, or assistant statewide prosecutors; the names, home addresses, telephone numbers, photographs, dates of birth, and places of employment of the spouses and children of current or former state attorneys, assistant state attorneys, statewide prosecutors, or assistant statewide prosecutors; and the names and locations of schools and day care facilities attended by the children of current or former state attorneys, assistant state attorneys, statewide prosecutors, or assistant statewide prosecutors are exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. g. The home addresses, dates of birth, and telephone numbers of general magistrates, special magistrates, judges of compensation claims, adminis- trative law judges of the Division of Administrative Hearings, and child support enforcement hearing officers; the names, home addresses, telephone numbers, dates of birth, and places of employment of the spouses and children of general magistrates, special magistrates, judges of compensation claims, administrative law judges of the Division of Administrative Hear- ings, and child support enforcement hearing officers; and the names and locations of schools and day care facilities attended by the children of general magistrates, special magistrates, judges of compensation claims, adminis- trative law judges of the Division of Administrative Hearings, and child support enforcement hearing officers are exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. This sub-subparagraph is subject to the Open Government Sunset Review Act in accordance with s. 119.15 and shall stand repealed on October 2, 2022, unless reviewed and saved from repeal through reenactment by the Legislature.

h. The home addresses, telephone numbers, dates of birth, and photo- graphs of current or former human resource, labor relations, or employee relations directors, assistant directors, managers, or assistant managers of any local government agency or water management district whose duties include hiring and firing employees, labor contract negotiation, adminis- tration, or other personnel-related duties; the names, home addresses, telephone numbers, dates of birth, and places of employment of the spouses and children of such personnel; and the names and locations of schools and day care facilities attended by the children of such personnel are exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. 3 CODING:RJAC June Words 2019 stricken Agenda are deletions; words underlinedPage 26are of additions. 175 Ch. 2019-12 LAWS OF FLORIDA Ch. 2019-12

i. The home addresses, telephone numbers, dates of birth, and photo- graphs of current or former code enforcement officers; the names, home addresses, telephone numbers, dates of birth, and places of employment of the spouses and children of such personnel; and the names and locations of schools and day care facilities attended by the children of such personnel are exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution.

j. The home addresses, telephone numbers, places of employment, dates of birth, and photographs of current or former guardians ad litem, as defined in s. 39.820; the names, home addresses, telephone numbers, dates of birth, and places of employment of the spouses and children of such persons; and the names and locations of schools and day care facilities attended by the children of such persons are exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. This sub-subparagraph is subject to the Open Government Sunset Review Act in accordance with s. 119.15 and shall stand repealed on October 2, 2022, unless reviewed and saved from repeal through reenactment by the Legislature.

k. The home addresses, telephone numbers, dates of birth, and photo- graphs of current or former juvenile probation officers, juvenile probation supervisors, detention superintendents, assistant detention superinten- dents, juvenile justice detention officers I and II, juvenile justice detention officer supervisors, juvenile justice residential officers, juvenile justice residential officer supervisors I and II, juvenile justice counselors, juvenile justice counselor supervisors, human services counselor administrators, senior human services counselor administrators, rehabilitation therapists, and social services counselors of the Department of Juvenile Justice; the names, home addresses, telephone numbers, dates of birth, and places of employment of spouses and children of such personnel; and the names and locations of schools and day care facilities attended by the children of such personnel are exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution.

l. The home addresses, telephone numbers, dates of birth, and photo- graphs of current or former public defenders, assistant public defenders, criminal conflict and civil regional counsel, and assistant criminal conflict and civil regional counsel; the names, home addresses, telephone numbers, dates of birth, and places of employment of the spouses and children of current or former public defenders, assistant public defenders, criminal conflict and civil regional counsel, and assistant criminal conflict and civil regional counsel; and the names and locations of schools and day care facilities attended by the children of current or former public defenders, assistant public defenders, criminal conflict and civil regional counsel, and assistant criminal conflict and civil regional counsel are exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution.

m. The home addresses, telephone numbers, dates of birth, and photo- graphs of current or former investigators or inspectors of the Department of Business and Professional Regulation; the names, home addresses, tele- phone numbers, dates of birth, and places of employment of the spouses and 4 CODING:RJAC WordsJune 2019stricken Agenda are deletions; words underlinedPage are 27 additions. of 175 Ch. 2019-12 LAWS OF FLORIDA Ch. 2019-12 children of such current or former investigators and inspectors; and the names and locations of schools and day care facilities attended by the children of such current or former investigators and inspectors are exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. This sub- subparagraph is subject to the Open Government Sunset Review Act in accordance with s. 119.15 and shall stand repealed on October 2, 2022, unless reviewed and saved from repeal through reenactment by the Legislature.

n. The home addresses, telephone numbers, and dates of birth of county tax collectors; the names, home addresses, telephone numbers, dates of birth, and places of employment of the spouses and children of such tax collectors; and the names and locations of schools and day care facilities attended by the children of such tax collectors are exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. This sub-subparagraph is subject to the Open Government Sunset Review Act in accordance with s. 119.15 and shall stand repealed on October 2, 2022, unless reviewed and saved from repeal through reenactment by the Legislature.

o. The home addresses, telephone numbers, dates of birth, and photo- graphs of current or former personnel of the Department of Health whose duties include, or result in, the determination or adjudication of eligibility for social security disability benefits, the investigation or prosecution of complaints filed against health care practitioners, or the inspection of health care practitioners or health care facilities licensed by the Department of Health; the names, home addresses, telephone numbers, dates of birth, and places of employment of the spouses and children of such personnel; and the names and locations of schools and day care facilities attended by the children of such personnel are exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. This sub-subparagraph is subject to the Open Government Sunset Review Act in accordance with s. 119.15 and shall stand repealed on October 2, 2019, unless reviewed and saved from repeal through reenactment by the Legislature.

p. The home addresses, telephone numbers, dates of birth, and photo- graphs of current or former impaired practitioner consultants who are retained by an agency or current or former employees of an impaired practitioner consultant whose duties result in a determination of a person’s skill and safety to practice a licensed profession; the names, home addresses, telephone numbers, dates of birth, and places of employment of the spouses and children of such consultants or their employees; and the names and locations of schools and day care facilities attended by the children of such consultants or employees are exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. This sub-subparagraph is subject to the Open Government Sunset Review Act in accordance with s. 119.15 and shall stand repealed on October 2, 2020, unless reviewed and saved from repeal through reenactment by the Legislature.

q. The home addresses, telephone numbers, dates of birth, and photo- graphs of current or former emergency medical technicians or paramedics 5 CODING:RJAC June Words 2019 stricken Agenda are deletions; words underlinedPage 28are of additions. 175 Ch. 2019-12 LAWS OF FLORIDA Ch. 2019-12 certified under chapter 401; the names, home addresses, telephone numbers, dates of birth, and places of employment of the spouses and children of such emergency medical technicians or paramedics; and the names and locations of schools and day care facilities attended by the children of such emergency medical technicians or paramedics are exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. This sub-subparagraph is subject to the Open Government Sunset Review Act in accordance with s. 119.15 and shall stand repealed on October 2, 2021, unless reviewed and saved from repeal through reenactment by the Legislature.

r. The home addresses, telephone numbers, dates of birth, and photo- graphs of current or former personnel employed in an agency’s office of inspector general or internal audit department whose duties include auditing or investigating waste, fraud, abuse, theft, exploitation, or other activities that could lead to criminal prosecution or administrative dis- cipline; the names, home addresses, telephone numbers, dates of birth, and places of employment of spouses and children of such personnel; and the names and locations of schools and day care facilities attended by the children of such personnel are exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. This sub-subparagraph is subject to the Open Government Sunset Review Act in accordance with s. 119.15 and shall stand repealed on October 2, 2021, unless reviewed and saved from repeal through reenactment by the Legislature.

s. The home addresses, telephone numbers, dates of birth, and photo- graphs of current or former directors, managers, supervisors, nurses, and clinical employees of an addiction treatment facility; the home addresses, telephone numbers, photographs, dates of birth, and places of employment of the spouses and children of such personnel; and the names and locations of schools and day care facilities attended by the children of such personnel are exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. For purposes of this sub-subparagraph, the term “addiction treatment facility” means a county government, or agency thereof, that is licensed pursuant to s. 397.401 and provides substance abuse prevention, intervention, or clinical treatment, including any licensed service component described in s. 397.311(26). This sub-subparagraph is subject to the Open Government Sunset Review Act in accordance with s. 119.15 and shall stand repealed on October 2, 2023, unless reviewed and saved from repeal through reenact- ment by the Legislature.

t. The home addresses, telephone numbers, dates of birth, and photo- graphs of current or former directors, managers, supervisors, and clinical employees of a child advocacy center that meets the standards of s. 39.3035(1) and fulfills the screening requirement of s. 39.3035(2), and the members of a child protection team as described in s. 39.303 whose duties include supporting the investigation of child abuse or sexual abuse, child abandonment, child neglect, and child exploitation or to provide services as part of a multidisciplinary case review team; the names, home addresses, telephone numbers, photographs, dates of birth, and places of employment of the spouses and children of such personnel and members; and the names and 6 CODING:RJAC WordsJune 2019stricken Agenda are deletions; words underlinedPage are 29 additions. of 175 Ch. 2019-12 LAWS OF FLORIDA Ch. 2019-12

locations of schools and day care facilities attended by the children of such personnel and members are exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. This sub-subparagraph is subject to the Open Government Sunset Review Act in accordance with s. 119.15 and shall stand repealed on October 2, 2023, unless reviewed and saved from repeal through reenactment by the Legislature.

3. An agency that is the custodian of the information specified in subparagraph 2. and that is not the employer of the officer, employee, justice, judge, or other person specified in subparagraph 2. shall maintain the exempt status of that information only if the officer, employee, justice, judge, other person, or employing agency of the designated employee submits a written request for maintenance of the exemption to the custodial agency.

4. An officer, an employee, a justice, a judge, or other person specified in subparagraph 2. may submit a written request for the release of his or her exempt information to the custodial agency. The written request must be notarized and must specify the information to be released and the party that is authorized to receive the information. Upon receipt of the written request, the custodial agency shall release the specified information to the party authorized to receive such information.

5. The exemptions in this paragraph apply to information held by an agency before, on, or after the effective date of the exemption.

6. This paragraph is subject to the Open Government Sunset Review Act in accordance with s. 119.15 and shall stand repealed on October 2, 2024, unless reviewed and saved from repeal through reenactment by the Legislature.

Section 2. (1) The Legislature finds that it is a public necessity to define the term “home addresses” for purposes of the public records exemptions for agency personnel information under s. 119.071(4)(d), Florida Statutes. The public records exemptions for agency personnel information protect identi- fying and location information of numerous types of personnel, including, but not limited to, current or former law enforcement officers, investigative personnel, state attorneys and prosecutors, public defenders, guardians ad litem, Supreme Court justices, various judges, and the spouses and children of such personnel. The Legislature has previously recognized that such personnel and their family members are at a heightened risk of physical and emotional harm from disgruntled individuals who have contentious reac- tions to actions taken by such personnel, or whose business or professional practices have come under scrutiny of such personnel, and, as a result, has enacted various public records exemptions. While home addresses of such personnel and their family members are already exempt from s. 119.07(1), Florida Statutes, and s. 24(a), Article I of the State Constitution, the current exemptions do not provide protection for various forms of descriptive property information that may be used on its own, or in conjunction with other information, to reveal the home addresses that otherwise should be 7 CODING:RJAC June Words 2019 stricken Agenda are deletions; words underlinedPage 30are of additions. 175 Ch. 2019-12 LAWS OF FLORIDA Ch. 2019-12 protected from public disclosure. Therefore, the Legislature finds that it is a public necessity to specifically define the term “home addresses” so that the safety and privacy of various personnel and their family members are not compromised.

(2) The Legislature further finds that it is a public necessity that the home addresses, telephone numbers, dates of birth, and photographs of active or former civilian personnel employed by a law enforcement agency; the names, home addresses, telephone numbers, photographs, dates of birth, and places of employment of the spouses and children of such personnel; and the names and locations of schools and day care facilities attended by the children of such personnel be exempt from public records requirements. Existing law already provides that the identifying and location information of active or former civilian law enforcement personnel and their spouses and children are exempt from public records requirements. The amendment made by this act further specifies that any active or former civilian personnel employed by a law enforcement agency and their spouses and children are entitled to the protections of the public records exemption. The civilian personnel of law enforcement agencies perform a variety of important duties that ensure public safety and welfare and encourage safe and secure communities. As a result of such duties, these civilian personnel often come into close contact with individuals who not only may be a threat to those personnel, but who might also seek to take revenge against them by harming their spouses and children. The Legislature finds that modifying the public records exemption to apply to all active or former civilian personnel employed by a law enforcement agency and their spouses and children will serve the public interest by further ensuring the safety of such personnel.

Section 3. This act shall take effect July 1, 2019. Approved by the Governor April 26, 2019. Filed in Office Secretary of State April 26, 2019.

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Committee Substitute for Committee Substitute for House Bill No. 327

An act relating to public records and public meetings; amending s. 286.0113, F.S.; exempting from public meetings requirements certain exempt information concerning information technology systems held by specified utilities; requiring the exempt portions to be recorded and transcribed; exempting from public records requirements recordings and transcripts of such meetings; authorizing the release of portions of such meetings under specified circumstances; providing for future legislative review and repeal of the exemptions; providing a statement of public necessity; providing an effective date.

Be It Enacted by the Legislature of the State of Florida:

Section 1. Subsection (3) is added to section 286.0113, Florida Statutes, to read:

286.0113 General exemptions from public meetings.— (3)(a) That portion of a meeting held by a utility owned or operated by a unit of local government which would reveal information that is exempt under s. 119.0713(5) is exempt from s. 286.011 and s. 24(b), Art. I of the State Constitution. All exempt portions of such a meeting must be recorded and transcribed. The recording and transcript of the meeting are exempt from disclosure under s. 119.07(1) and s. 24(a), Art. I of the State Constitution unless a court of competent jurisdiction, following an in-camera review, determines that the meeting was not restricted to the discussion of data and information made exempt by this section. In the event of such a judicial determination, only the portion of the recording or transcript which reveals nonexempt data and information may be disclosed to a third party.

(b) This subsection is subject to the Open Government Sunset Review Act in accordance with s. 119.15 and shall stand repealed on October 2, 2024, unless reviewed and saved from repeal through reenactment by the Legislature.

Section 2. (1) The Legislature finds that it is a public necessity that the portion of a meeting relating directly to or that would reveal the following information, which is exempt under s. 119.0713(5), Florida Statutes, be made exempt from s. 286.011, Florida Statutes, and s. 24(b), Art. I of the State Constitution and that the recording and transcript of such a meeting be made exempt from disclosure under s. 119.07(1) and s. 24(a), Art. I of the State Constitution: (a) Information related to the security of the technology, processes, or practices of the utility which are designed to protect the utility’s networks, 1 CODING:RJAC June Words 2019 stricken Agenda are deletions; words underlinedPage 32are of additions. 175 Ch. 2019-37 LAWS OF FLORIDA Ch. 2019-37 computers, programs, and data from attack, damage, or unauthorized access, and which information, if disclosed, would facilitate the alteration, disclosure, or destruction of such data or information technology resources.

(b) Information related to the security of existing or proposed informa- tion technology systems or industrial control technology systems of the utility, and which information, if disclosed, would facilitate unauthorized access to and alteration or destruction of such systems in a manner that would adversely impact the safe and reliable operation of the systems and utility. (2) The Legislature finds that, as utility system infrastructure becomes more connected and integrated through information and communications technology, the exposure to damage from attacks through such technology grows. These attacks may result in the disruption of utility services and damage to utility systems. Maintaining safe and reliable utility systems is vital to protecting the public health and safety and to ensuring the economic well-being of this state. (3) The Legislature finds that the public and private harm in disclosing the information made exempt by this act outweighs any public benefit derived from the disclosure of such information. The protection of informa- tion and communications made exempt by this act will ensure that utilities have greater safeguards to protect against security threats and will bolster efforts to develop more resilient information technology systems and industrial control technology systems.

(4) Therefore, the Legislature finds that it is a public necessity to make such information exempt from public meetings requirements and to make the recording and transcript thereof exempt from public records require- ments.

Section 3. This act shall take effect July 1, 2019. Approved by the Governor May 14, 2019. Filed in Office Secretary of State May 14, 2019.

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Committee Substitute for House Bill No. 845

An act relating to public records; amending s. 119.0714, F.S.; providing an exemption from public records requirements for any information that can be used to identify a petitioner or respondent in a petition for certain protective injunctions, and any related affidavit, notice of hearing, and temporary injunction, until the respondent has been personally served; providing a statement of public necessity; providing an effective date.

Be It Enacted by the Legislature of the State of Florida:

Section 1. Paragraph (k) of subsection (1) of section 119.0714, Florida Statutes, is amended to read:

119.0714 Court files; court records; official records.—

(1) COURT FILES.—Nothing in this chapter shall be construed to exempt from s. 119.07(1) a public record that was made a part of a court file and that is not specifically closed by order of court, except:

(k)1. A petition, and the contents thereof, for an injunction for protection against domestic violence, repeat violence, dating violence, sexual violence, stalking, or cyberstalking that is dismissed without a hearing, dismissed at an ex parte hearing due to failure to state a claim or lack of jurisdiction, or dismissed for any reason having to do with the sufficiency of the petition itself without an injunction being issued on or after July 1, 2017, is exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution.

2. A petition, and the contents thereof, for an injunction for protection against domestic violence, repeat violence, dating violence, sexual violence, stalking, or cyberstalking that is dismissed without a hearing, dismissed at an ex parte hearing due to failure to state a claim or lack of jurisdiction, or dismissed for any reason having to do with the sufficiency of the petition itself without an injunction being issued before July 1, 2017, is exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution only upon request by an individual named in the petition as a respondent. The request must be in the form of a signed, legibly written request specifying the case name, case number, document heading, and page number. The request must be delivered by mail, facsimile, or electronic transmission or in person to the clerk of the court. A fee may not be charged for such request.

3. Any information that can be used to identify a petitioner or respondent in a petition for an injunction against domestic violence, repeat violence, dating violence, sexual violence, stalking, or cyberstalking, and any affidavits, notice of hearing, and temporary injunction, is confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution until 1 CODING:RJAC June Words 2019 stricken Agenda are deletions; words underlinedPage 34are of additions. 175 Ch. 2019-39 LAWS OF FLORIDA Ch. 2019-39 the respondent has been personally served with a copy of the petition for injunction, affidavits, notice of hearing, and temporary injunction.

Section 2. The Legislature finds that it is a public necessity that any information that can be used to identify a petitioner or respondent in a petition for an injunction against domestic violence, repeat violence, dating violence, sexual violence, stalking, or cyberstalking, and affidavits, notice of hearing, and temporary injunction, be made confidential and exempt from s. 119.07(1), Florida Statutes, and s. 24(a), Article I of the State Constitution. Release of such information before the respondent has been personally served with a copy of the petition, affidavits, notice of hearing, and temporary injunction could significantly threaten the physical safety and security of persons seeking protection through injunctive proceedings and their families, and of law enforcement tasked with serving the petition for injunction, affidavits, notice of hearing, and temporary injunction on the respondent. The harm that may result from the release of the information outweighs any public benefit that might result from public disclosure of the information. Section 3. This act shall take effect July 1, 2019.

Approved by the Governor May 14, 2019. Filed in Office Secretary of State May 14, 2019.

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Committee Substitute for House Bill No. 7023

An act relating to public records; amending s. 112.31446, F.S.; providing exemptions from public records requirements for secure login credentials held by the Commission on Ethics and certain information entered into the electronic filing system for financial disclosure forms; specifying conditions under which such information is no longer exempt; providing for future legislative review and repeal of the exemption; providing a statement of public necessity; providing a contingent effective date.

Be It Enacted by the Legislature of the State of Florida:

Section 1. Subsection (6) is added to section 112.31446, Florida Statutes, as created by HB 7021, 2019 Regular Session, to read:

112.31446 Electronic filing system for financial disclosure.— (6)(a) All secure login credentials held by the commission for the purpose of allowing access to the electronic filing system are exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution.

(b) Information entered in the electronic filing system for purposes of financial disclosure is exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. Information entered in the electronic filing system is no longer exempt once the disclosure of financial interests or statement of financial interests is submitted to the commission or, in the case of a candidate, filed with a qualifying officer, whichever occurs first.

(c) This subsection is subject to the Open Government Sunset Review Act in accordance with s. 119.15 and shall stand repealed on October 2, 2024, unless reviewed and saved from repeal through reenactment by the Legislature.

Section 2. The Legislature finds that it is a public necessity that all secure login credentials held by the Commission on Ethics for the purpose of allowing access to the electronic filing system for financial disclosures and information entered into the system be exempt from public records requirements. The Legislature finds that the public’s need for access to information included in the full and public disclosures of financial interests or statements of financial interests filed by reporting individuals be balanced with the filer’s interest in safeguarding personally sensitive information. The Legislature further finds that the unintentional publica- tion of such information may subject the filer to identity theft, financial harm, or other adverse impacts. Without the public records exemption, the effective and efficient administration of the electronic filing system, which otherwise is designed to increase the ease of filing for reporting individuals and to improve the public’s access to financial disclosure information, would 1 CODING:RJAC June Words 2019 stricken Agenda are deletions; words underlinedPage 36are of additions. 175 Ch. 2019-40 LAWS OF FLORIDA Ch. 2019-40 be hindered. For these reasons, the Legislature finds that it is a public necessity to exempt such information from public records requirements.

Section 3. This act shall take effect on the same date that HB 7021 or similar legislation takes effect, if such legislation is adopted in the same legislative session or an extension thereof and becomes a law. Approved by the Governor May 14, 2019.

Filed in Office Secretary of State May 14, 2019.

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House Bill No. 7121

An act relating to public records; transferring, renumbering, and amending ss. 24.105(12) and 24.118(4), F.S.; exempting from public records requirements certain security information held by the Department of the Lottery, information about lottery games, personal identifying information of retailers and vendors for purposes of background checks, and certain financial information held by the department; providing for retroactive application; providing for future legislative review and repeal of the exemption; providing a statement of public necessity; providing a directive to the Division of Law Revision; providing an effective date.

Be It Enacted by the Legislature of the State of Florida:

Section 1. Paragraphs (a), (b), and (c) of subsection (12) of section 24.105, Florida Statutes, are transferred, renumbered as subsections (1), (2), and (3), respectively, of section 24.1051, Florida Statutes, and amended, and subsection (4) of section 24.118, Florida Statutes, is transferred, renumbered as subsection (4) of section 24.1051, Florida Statutes, and amended, to read:

24.1051 Exemptions from inspection or copying of public records.— (1)(a)(12)(a) The following information held by the department Deter- mine by rule information relating to the operation of the lottery which is confidential and exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution:. 1. Such Information that, if released, could harm the security or integrity of the department, including: a. Information relating to the includes trade secrets; security of the department’s technologies, processes, and practices designed to protect networks, computers, data processing software, data, and data measures, systems from attack, damage, or unauthorized access. procedures; b. Security reports; information or information that would reveal security measures of the department, whether physical or virtual. c. Information about lottery games, promotions, tickets, and ticket stock, including information concerning the description, design, production, printing, packaging, shipping, delivery, storage, and validation of such games, promotions, tickets, and stock. d. Information concerning terminals, machines, and devices that issue tickets. 2. Information that must be maintained as confidential in order for the department to participate in a multistate lottery association or game. 1 CODING:RJAC June Words 2019 stricken Agenda are deletions; words underlinedPage 38are of additions. 175 Ch. 2019-41 LAWS OF FLORIDA Ch. 2019-41

3. Personal identifying information obtained by the department when processing background investigations of current or potential retailers or vendors.

4. Financial bids or other contractual data, the disclosure of which would impair the efforts of the department to contract for goods or services on favorable terms; employee personnel information unrelated to compensa- tion, duties, qualifications, or responsibilities; and information about an entity which is not publicly available and is provided to the department in connection with its review of the financial responsibility of the entity obtained by the Division of Security pursuant to s. 24.111 or s. 24.112, provided that the entity marks such information as confidential. However, financial information related to any contract or agreement, or an addendum thereto, with the department, including the amount of money paid, any payment structure or plan, expenditures, incentives, bonuses, fees, and penalties, shall be public record.

(b) This exemption is remedial in nature, and it is the intent of the Legislature that this exemption apply to information held by the department before, on, or after the effective date of this act.

(c) Information made confidential and exempt under this subsection its investigations which is otherwise confidential. To be deemed confidential, the information must be necessary to the security and integrity of the lottery. Confidential information may be released to other governmental entities as needed in connection with the performance of their duties. The receiving governmental entity shall maintain the confidential and exempt status retain the confidentiality of such information as provided for in this subsection.

(d) This subsection is subject to the Open Government Sunset Review Act in accordance with s. 119.15 and shall stand repealed on October 2, 2024, unless reviewed and saved from repeal through reenactment by the Legislature.

(2)(b) Maintain the confidentiality of The street address and the telephone number of a winner are, in that such information is confidential and exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution, unless the winner consents to the release of such information or as provided for in s. 24.115(4) or s. 409.2577.

(3)(c) Any information made confidential and exempt from the provisions of s. 119.07(1) under this section subsection shall be disclosed to the Auditor General, to the Office of Program Policy Analysis and Government Accountability, or to the independent auditor selected under s. 24.123 upon such person’s request therefor. If the President of the Senate or the Speaker of the House of Representatives certifies that information made confidential and exempt under this section subsection is necessary for effecting legislative changes, the requested information shall be disclosed to 2 CODING:RJAC WordsJune 2019stricken Agenda are deletions; words underlinedPage are 39 additions. of 175 Ch. 2019-41 LAWS OF FLORIDA Ch. 2019-41

him or her, and he or she may disclose such information to members of the Legislature and legislative staff as necessary to effect such purpose.

(4) BREACH OF CONFIDENTIALITY.—Any person who, with intent to defraud or with intent to provide a financial or other advantage to himself, herself, or another, knowingly and willfully discloses any information relating to the lottery designated as confidential and exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution pursuant to this act is guilty of a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Section 2. (1) The Legislature finds that it is a public necessity that the following information be made confidential and exempt from s. 119.07(1), Florida Statutes, and s. 24(a), Art. I of the State Constitution:

(a) Information relating to the security of the Department of the Lottery. Ensuring the security and integrity of lottery operations safeguards against players gaining an unfair advantage over other players and enables the department to operate in a manner consistent with the dignity of the state lottery. If such security information were made available to the public, the integrity and efficiency of the lottery would be jeopardized and the effective and efficient administration of the lottery would be significantly impaired. For these reasons, the Legislature finds that it is a public necessity to maintain the confidential and exempt status of such information. Main- taining the effective and efficient administration of the lottery is a sufficiently compelling purpose to override the strong public policy of open government and cannot be accomplished without this exemption.

(b) Information required to be held confidential in order for the department to participate in multistate games and associations. The department is authorized to enter into agreements with other states for the operation and promotion of a multistate lottery and without the exemption, the department would be unable to join certain associations and games, thus causing the state to miss opportunities to generate revenue for education. As a result, the effective and efficient administration of the lottery would be significantly impaired if the confidentiality of these records is not maintained. For these reasons, the Legislature finds that it is a public necessity to maintain the confidential and exempt status of such informa- tion. Maintaining the effective and efficient administration of the lottery is a sufficiently compelling purpose to override the strong public policy of open government and cannot be accomplished without this exemption.

(c) Personal identifying information of current or potential retailers and vendors for purposes of processing background investigations. The release of such sensitive personal information could cause great financial harm to an individual and his or her family, cause unwarranted damage to the good name and reputation of such individuals, and increase the risk of identity theft. Without the exemption, current and potential retailers and vendors may be reluctant to participate as a department retailer or vendor, and the effective and efficient administration of the lottery would be significantly 3 CODING:RJAC June Words 2019 stricken Agenda are deletions; words underlinedPage 40are of additions. 175 Ch. 2019-41 LAWS OF FLORIDA Ch. 2019-41 impaired. For these reasons, the Legislature finds that it is a public necessity to maintain the confidential and exempt status of such informa- tion. Maintaining the effective and efficient administration of the lottery and protecting sensitive personal information concerning individuals are suffi- ciently compelling purposes to override the strong public policy of open government and cannot be accomplished without this exemption. (d) Financial information about an entity that is not publicly available and is provided to the department in connection with its review of the financial responsibility of the entity. The release of such information could harm the business operations of entities with which the department wishes to contract, injure those entities in the marketplace, and decrease the likelihood that such entities would work with the department. As a result, the effective and efficient administration of the lottery would be significantly impaired without maintaining the confidentiality of such financial informa- tion. For these reasons, the Legislature finds that it is a public necessity to maintain the confidential and exempt status of such information. Main- taining the effective and efficient administration of the lottery and protecting such confidential information concerning entities are sufficiently compelling purposes to override the strong public policy of open government and cannot be accomplished without this exemption. (2) The Legislature further finds that these public record exemptions must be given retroactive application because they are remedial in nature.

Section 3. The Division of Law Revision is directed to replace the phrase “the effective date of this act” wherever it occurs in this act with the date the act becomes a law.

Section 4. This act shall take effect upon becoming a law. Approved by the Governor May 14, 2019. Filed in Office Secretary of State May 14, 2019.

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Senate Bill No. 186

An act relating to public records; transferring, renumbering, and amending s. 406.136, F.S.; defining the term “killing of a victim of mass violence”; expanding an existing exemption from public records requirements for a photograph or a video or audio recording held by an agency which depicts or records the killing of a law enforcement officer to include a photograph or a video or audio recording held by an agency which depicts or records the killing of a victim of mass violence; clarifying that a surviving spouse, parent, or adult child of the victim is not precluded from publicly releasing such photograph or video or audio recording; providing criminal penalties; providing retroactive applicability; providing for future legislative review and repeal of the exemption; conforming provisions to changes made by the act; providing a statement of public necessity; providing a directive to the Division of Law Revision; providing an effective date.

Be It Enacted by the Legislature of the State of Florida: Section 1. Section 406.136, Florida Statutes, is transferred, renumbered as paragraph (p) of subsection (2) of section 119.071, Florida Statutes, and amended, to read:

119.071 General exemptions from inspection or copying of public records.— (2) AGENCY INVESTIGATIONS.— (p)1.(1) As used in this paragraph section, the term:

a. “Killing of a law enforcement officer who was acting in accordance with his or her official duties” means all acts or events that cause or otherwise relate to the death of a law enforcement officer who was acting in accordance with his or her official duties, including any related acts or events immediately preceding or subsequent to the acts or events that were the proximate cause of death.

b. “Killing of a victim of mass violence” means events that depict either a victim being killed or the body of a victim killed in an incident in which three or more persons, not including the perpetrator, are killed by the perpetrator of an intentional act of violence. 2.(2) A photograph or video or audio recording that depicts or records the killing of a law enforcement officer who was acting in accordance with his or her official duties or the killing of a victim of mass violence is confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution, except that a surviving spouse of the decedent may view and copy any such photograph or video recording or listen to or copy any such audio recording. If there is no surviving spouse, then the surviving parents shall have access 1 CODING:RJAC June Words 2019 stricken Agenda are deletions; words underlinedPage 42are of additions. 175 Ch. 2019-46 LAWS OF FLORIDA Ch. 2019-46 to such records. If there is no surviving spouse or parent, the then an adult children child shall have access to such records. Nothing in this paragraph precludes a surviving spouse, parent, or adult child of the victim from sharing or publicly releasing such photograph or video or audio recording.

3.a.(3)(a) The deceased’s surviving relative, with whom authority rests to obtain such records, may designate in writing an agent to obtain such records.

b.(b) A local governmental entity, or a state or federal agency, in furtherance of its official duties, pursuant to a written request, may view or copy a photograph or video recording or may listen to or copy an audio recording of the killing of a law enforcement officer who was acting in accordance with his or her official duties or the killing of a victim of mass violence, and, unless otherwise required in the performance of its their duties, the identity of the deceased shall remain confidential and exempt.

c.(c) The custodian of the record, or his or her designee, may not permit any other person to view or copy such photograph or video recording or listen to or copy such audio recording without a court order.

4.a.(4)(a) The court, upon a showing of good cause, may issue an order authorizing any person to view or copy a photograph or video recording that depicts or records the killing of a law enforcement officer who was acting in accordance with his or her official duties or the killing of a victim of mass violence, or to listen to or copy an audio recording that depicts or records the killing of a law enforcement officer who was acting in accordance with his or her official duties or the killing of a victim of mass violence, and may prescribe any restrictions or stipulations that the court deems appropriate.

b.(b) In determining good cause, the court shall consider:

(I)1. Whether such disclosure is necessary for the public evaluation of governmental performance;

(II)2. The seriousness of the intrusion into the family’s right to privacy and whether such disclosure is the least intrusive means available; and

(III)3. The availability of similar information in other public records, regardless of form.

c.(c) In all cases, the viewing, copying, listening to, or other handling of a photograph or video or audio recording that depicts or records the killing of a law enforcement officer who was acting in accordance with his or her official duties or the killing of a victim of mass violence must be under the direct supervision of the custodian of the record or his or her designee.

5.(5) A surviving spouse shall be given reasonable notice of a petition filed with the court to view or copy a photograph or video recording that depicts or records the killing of a law enforcement officer who was acting in accordance with his or her official duties or the killing of a victim of mass 2 CODING:RJAC WordsJune 2019stricken Agenda are deletions; words underlinedPage are 43 additions. of 175 Ch. 2019-46 LAWS OF FLORIDA Ch. 2019-46

violence, or to listen to or copy any such audio recording, a copy of such petition, and reasonable notice of the opportunity to be present and heard at any hearing on the matter. If there is no surviving spouse, then such notice must be given to the parents of the deceased and, if the deceased has no surviving living parent, then to the adult children of the deceased.

6.a.(6)(a) Any custodian of a photograph or video or audio recording that depicts or records the killing of a law enforcement officer who was acting in accordance with his or her official duties or the killing of a victim of mass violence who willfully and knowingly violates this paragraph section commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

b.(b) Any person who willfully and knowingly violates a court order issued pursuant to this paragraph section commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

c.(c) A criminal or administrative proceeding is exempt from this paragraph section but, unless otherwise exempted, is subject to all other provisions of chapter 119;, provided however, that this paragraph section does not prohibit a court in a criminal or administrative proceeding upon good cause shown from restricting or otherwise controlling the disclosure of a killing, crime scene, or similar photograph or video or audio recording recordings in the manner prescribed in this paragraph herein.

7.(7) The This exemption in this paragraph shall be given retroactive application and shall apply to all photographs or video or audio recordings that depict or record the killing of a law enforcement officer who was acting in accordance with his or her official duties or the killing of a victim of mass violence, regardless of whether the killing of the person occurred before, on, or after the effective date of this act July 1, 2011. However, nothing in this paragraph herein is intended to, nor may be construed to, overturn or abrogate or alter any existing orders duly entered into by any court of this state, as of the effective date of this act, which restrict or limit access to any photographs or video or audio recordings that depict or record the killing of a law enforcement officer who was acting in accordance with his or her official duties or the killing of a victim of mass violence.

8.(8) This paragraph section only applies only to such photographs and video and audio recordings held by an agency as defined in s. 119.011.

9. This paragraph is subject to the Open Government Sunset Review Act in accordance with s. 119.15 and shall stand repealed on October 2, 2024, unless reviewed and saved from repeal through reenactment by the Legislature.

Section 2. (1) The Legislature finds that it is a public necessity that photographs and video and audio recordings that depict or record the killing of a victim of mass violence be made confidential and exempt from s. 119.07(1), Florida Statutes, and s. 24(a), Article I of the State Constitution. 3 CODING:RJAC June Words 2019 stricken Agenda are deletions; words underlinedPage 44are of additions. 175 Ch. 2019-46 LAWS OF FLORIDA Ch. 2019-46

The Legislature finds that photographs and video and audio recordings that depict or record the killing of a victim of mass violence render a graphic and often disturbing visual or aural representation of the deceased. Such photographs and video and audio recordings provide a view of the deceased in the final moments of life, in which they are often bruised, bloodied, broken, baring bullet wounds or other wounds, lacerated, dismembered, or decapitated. As such, photographs and video and audio recordings that depict or record the killing of a victim of mass violence are highly sensitive representations of the deceased which, if heard, viewed, copied, or publicized, could result in trauma, sorrow, humiliation, or emotional injury to the immediate family of the deceased and detract from the memory of the deceased. The Legislature recognizes that the existence of the Internet and the proliferation of personal computers and cellular telephones throughout the world encourages and promotes the wide dissemination of such photographs and video and audio recordings 24 hours a day and that widespread unauthorized dissemination of such photographs and video and audio recordings would subject the immediate family of the deceased to continuous injury. (2) In addition to the emotional and mental injury that these photo- graphs and video and audio recordings may cause family members, the Legislature is also concerned that dissemination of photographs and video and audio recordings that depict or record the killing of a victim of mass shooting is harmful to the public. The Legislature is gravely concerned and saddened by the horrific mass killings perpetrated at the Pulse nightclub in Orlando, at the Fort Lauderdale-Hollywood International Airport, and at Marjory Stoneman Douglas High School. The Legislature is concerned that, if these photographs and video and audio recordings are released, terrorists will use them to attract followers, bring attention to their causes, and inspire others to kill. The Legislature also finds that dissemination of these photographs and video and audio recordings may also educe violent acts by persons who have a mental illness or who are morally corrupt.

(3) The Legislature further recognizes that other types of information, such as crime scene reports, continue to be available which are less intrusive and injurious to the immediate family of the deceased and continue to provide for public oversight. The Legislature further finds that the exemption provided in this act should be given retroactive application because it is remedial in nature.

Section 3. The Division of Law Revision is directed to replace the phrase “the effective date of this act” wherever it occurs in this act with the date this act becomes a law. Section 4. This act shall take effect upon becoming a law.

Approved by the Governor May 23, 2019. Filed in Office Secretary of State May 23, 2019.

4 CODING:RJAC WordsJune 2019stricken Agenda are deletions; words underlinedPage are 45 additions. of 175 CHAPTER 2019-49

Committee Substitute for Committee Substitute for Committee Substitute for Senate Bill No. 318

An act relating to public records; amending s. 39.202, F.S.; prohibiting the release of any identifying information with respect to any person reporting child abuse, abandonment, or neglect, except under certain circumstances; updating terminology; making conforming changes; providing for future legislative review and repeal of the exemption; providing for reversion of statutory text of certain provisions if the exemption is not saved from repeal; providing a statement of public necessity; providing an effective date.

Be It Enacted by the Legislature of the State of Florida:

Section 1. Subsections (2) and (5) of section 39.202, Florida Statutes, are amended, and subsection (9) is added to that section, to read:

39.202 Confidentiality of reports and records in cases of child abuse or neglect.— (2) Except as provided in subsection (4), access to such records, excluding the name of, or other identifying information with respect to, the reporter which shall be released only as provided in subsection (5), shall be granted only to the following persons, officials, and agencies:

(a) Employees, authorized agents, or contract providers of the depart- ment, the Department of Health, the Agency for Persons with Disabilities, the Office of Early Learning, or county agencies responsible for carrying out:

1. Child or adult protective investigations;

2. Ongoing child or adult protective services;

3. Early intervention and prevention services;

4. Healthy Start services;

5. Licensure or approval of adoptive homes, foster homes, child care facilities, facilities licensed under chapter 393, family day care homes, providers who receive school readiness funding under part VI of chapter 1002, or other homes used to provide for the care and welfare of children;

6. Employment screening for caregivers in residential group homes; or

7. Services for victims of domestic violence when provided by certified domestic violence centers working at the department’s request as case consultants or with shared clients. 1 CODING:RJAC June Words 2019 stricken Agenda are deletions; words underlinedPage 46are of additions. 175 Ch. 2019-49 LAWS OF FLORIDA Ch. 2019-49

Also, employees or agents of the Department of Juvenile Justice responsible for the provision of services to children, pursuant to chapters 984 and 985.

(b) Criminal justice agencies of appropriate jurisdiction.

(c) The state attorney of the judicial circuit in which the child resides or in which the alleged abuse or neglect occurred.

(d) The parent or legal custodian of any child who is alleged to have been abused, abandoned, or neglected, and the child, and their attorneys, including any attorney representing a child in civil or criminal proceedings. This access shall be made available no later than 60 days after the department receives the initial report of abuse, neglect, or abandonment. However, any information otherwise made confidential or exempt by law shall not be released pursuant to this paragraph.

(e) Any person alleged in the report as having caused the abuse, abandonment, or neglect of a child. This access shall be made available no later than 60 days after the department receives the initial report of abuse, abandonment, or neglect and, when the alleged perpetrator is not a parent, shall be limited to information involving the protective investigation only and shall not include any information relating to subsequent depen- dency proceedings. However, any information otherwise made confidential or exempt by law shall not be released pursuant to this paragraph.

(f) A court upon its finding that access to such records may be necessary for the determination of an issue before the court; however, such access shall be limited to inspection in camera, unless the court determines that public disclosure of the information contained therein is necessary for the resolution of an issue then pending before it.

(g) A grand jury, by subpoena, upon its determination that access to such records is necessary in the conduct of its official business.

(h) Any appropriate official of the department or the Agency for Persons with Disabilities who is responsible for:

1. Administration or supervision of the department’s program for the prevention, investigation, or treatment of child abuse, abandonment, or neglect, or abuse, neglect, or exploitation of a vulnerable adult, when carrying out his or her official function;

2. Taking appropriate administrative action concerning an employee of the department or the agency who is alleged to have perpetrated child abuse, abandonment, or neglect, or abuse, neglect, or exploitation of a vulnerable adult; or

3. Employing and continuing employment of personnel of the depart- ment or the agency. 2 CODING:RJAC WordsJune 2019stricken Agenda are deletions; words underlinedPage are 47 additions. of 175 Ch. 2019-49 LAWS OF FLORIDA Ch. 2019-49

(i) Any person authorized by the department who is engaged in the use of such records or information for bona fide research, statistical, or audit purposes. Such individual or entity shall enter into a privacy and security agreement with the department and shall comply with all laws and rules governing the use of such records and information for research and statistical purposes. Information identifying the subjects of such records or information shall be treated as confidential by the researcher and shall not be released in any form.

(j) The Division of Administrative Hearings for purposes of any admin- istrative challenge.

(k) Any appropriate official of a Florida advocacy council investigating a report of known or suspected child abuse, abandonment, or neglect; the Auditor General or the Office of Program Policy Analysis and Government Accountability for the purpose of conducting audits or examinations pursuant to law; or the guardian ad litem for the child.

(l) Employees or agents of an agency of another state that has comparable jurisdiction to the jurisdiction described in paragraph (a).

(m) The Public Employees Relations Commission for the sole purpose of obtaining evidence for appeals filed pursuant to s. 447.207. Records may be released only after deletion of all information which specifically identifies persons other than the employee.

(n) Employees or agents of the Department of Revenue responsible for child support enforcement activities.

(o) Any person in the event of the death of a child determined to be a result of abuse, abandonment, or neglect. Information identifying the person reporting abuse, abandonment, or neglect shall not be released. Any information otherwise made confidential or exempt by law shall not be released pursuant to this paragraph.

(p) An employee of the local school district who is designated as a liaison between the school district and the department pursuant to an interagency agreement required under s. 39.0016 and the principal of a public school, private school, or charter school where the child is a student. Information contained in the records which the liaison or the principal determines are necessary for a school employee to effectively provide a student with educational services may be released to that employee.

(q) An employee or agent of the Department of Education who is responsible for the investigation or prosecution of misconduct by a certified educator.

(r) Staff of a children’s advocacy center that is established and operated under s. 39.3035. 3 CODING:RJAC June Words 2019 stricken Agenda are deletions; words underlinedPage 48are of additions. 175 Ch. 2019-49 LAWS OF FLORIDA Ch. 2019-49

(s) A physician licensed under chapter 458 or chapter 459, a psychologist licensed under chapter 490, or a mental health professional licensed under chapter 491 engaged in the care or treatment of the child.

(t) Persons with whom the department is seeking to place the child or to whom placement has been granted, including foster parents for whom an approved home study has been conducted, the designee of a licensed child- caring agency as defined in s. 39.01(41) residential group home described in s. 39.523, an approved relative or nonrelative with whom a child is placed pursuant to s. 39.402, preadoptive parents for whom a favorable preliminary adoptive home study has been conducted, adoptive parents, or an adoption entity acting on behalf of preadoptive or adoptive parents.

(5) The department may not release the name of, or other identifying information with respect to, any person reporting child abuse, abandon- ment, or neglect may not be released to any person other than employees of the department responsible for child protective services, the central abuse hotline, law enforcement, the child protection team, or the appropriate state attorney, without the written consent of the person reporting. This does not prohibit the subpoenaing of a person reporting child abuse, abandonment, or neglect when deemed necessary by the court, the state attorney, or the department, provided the fact that such person made the report is not disclosed. Any person who reports a case of child abuse or neglect may, at the time he or she makes the report, request that the department notify him or her that a child protective investigation occurred as a result of the report. Any person specifically listed in s. 39.201(1) who makes a report in his or her official capacity may also request a written summary of the outcome of the investigation. The department shall mail such a notice to the reporter within 10 days after completing the child protective investigation.

(9) The expansion of the public records exemption under this section to include other identifying information with respect to any person reporting child abuse, abandonment, or neglect is subject to the Open Government Sunset Review Act in accordance with s. 119.15 and shall stand repealed on October 2, 2024, unless reviewed and saved from repeal through reenact- ment by the Legislature. If the expansion of the exemption is not saved from repeal, this section shall revert to that in existence on June 30, 2019, except that any other amendments made to this section, other than by this act, are preserved and continue to operate to the extent that such amendments are not dependent upon the portions of text that expire under this subsection.

Section 2. The Legislature finds that it is a public necessity to strengthen reporter-status protection by making all reporter identifying information exempt from s. 119.07(1), Florida Statutes, and s. 24(a), Article I of the State Constitution. The current statutory scheme only protects the name of the reporter who calls into the abuse hotline. By protecting only the name of the reporter of child abuse, abandonment, or neglect, the identity of the individual may be discerned by other identifying information, thus render- ing the protection ineffective. Providing robust protections to reporters of child abuse, abandonment, or neglect improves the mandatory reporting 4 CODING:RJAC WordsJune 2019stricken Agenda are deletions; words underlinedPage are 49 additions. of 175 Ch. 2019-49 LAWS OF FLORIDA Ch. 2019-49 scheme by ensuring that all instances of suspected child abuse, abandon- ment, or neglect are reported to the Department of Children and Families. Therefore, it is necessary that individuals who are considered reporters under the current statutory scheme have their identifying information protected.

Section 3. This act shall take effect July 1, 2019. Approved by the Governor May 23, 2019.

Filed in Office Secretary of State May 23, 2019.

5 CODING:RJAC June Words 2019 stricken Agenda are deletions; words underlinedPage 50are of additions. 175 CHAPTER 2019-51

Committee Substitute for Committee Substitute for Senate Bill No. 838

An act relating to public records; creating s. 394.464, F.S.; providing an exemption from public records requirements for petitions for voluntary and involuntary admission for mental health treatment, court orders, related records, and personal identifying information regarding persons seeking mental health treatment and services; providing exceptions authorizing the release of such petitions, orders, records, and identifying information to certain persons and entities; providing applicability; prohibiting a clerk of court from publishing personal identifying informa- tion on a court docket or in a publicly accessible file; providing for retroactive application; providing for future legislative review and repeal of the exemption; providing a statement of public necessity; providing an effective date.

Be It Enacted by the Legislature of the State of Florida:

Section 1. Section 394.464, Florida Statutes, is created to read:

394.464 Court records; confidentiality.— (1) All petitions for voluntary and involuntary admission for mental health treatment, court orders, and related records that are filed with or by a court under this part are confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. Pleadings and other documents made confidential and exempt by this section may be disclosed by the clerk of the court, upon request, to any of the following:

(a) The petitioner.

(b) The petitioner’s attorney. (c) The respondent.

(d) The respondent’s attorney.

(e) The respondent’s guardian or guardian advocate, if applicable.

(f) In the case of a minor respondent, the respondent’s parent, guardian, legal custodian, or guardian advocate.

(g) The respondent’s treating health care practitioner.

(h) The respondent’s health care surrogate or proxy. (i) The Department of Children and Families, without charge. 1 CODING:RJAC June Words 2019 stricken Agenda are deletions; words underlinedPage 51are of additions. 175 Ch. 2019-51 LAWS OF FLORIDA Ch. 2019-51

(j) The Department of Corrections, without charge, if the respondent is committed or is to be returned to the custody of the Department of Corrections from the Department of Children and Families.

(k) A person or entity authorized to view records upon a court order for good cause. In determining if there is good cause for the disclosure of records, the court must weigh the person or entity’s need for the information against potential harm to the respondent from the disclosure.

(2) This section does not preclude the clerk of the court from submitting the information required by s. 790.065 to the Department of Law Enforce- ment.

(3) The clerk of the court may not publish personal identifying informa- tion on a court docket or in a publicly accessible file.

(4) A person or entity receiving information pursuant to this section shall maintain that information as confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution.

(5) The exemption under this section applies to all documents filed with a court before, on, or after July 1, 2019.

(6) This section is subject to the Open Government Sunset Review Act in accordance with s. 119.15 and shall stand repealed on October 2, 2024, unless reviewed and saved from repeal through reenactment by the Legislature.

Section 2. The Legislature finds that it is a public necessity that petitions for voluntary and involuntary admission for mental health treatment and related court orders and records that are filed with or by a court under part I of chapter 394, Florida Statutes, and the personal identifying information of a person seeking mental health treatment published on a court docket and maintained by the clerk of the court under part I of chapter 394, Florida Statutes, be made confidential and exempt from disclosure under s. 119.07(1), Florida Statutes, and s. 24(a), Article I of the State Constitution. The mental health of a person, including a minor, is a medical condition, which should be protected from dissemination to the public. A person’s mental health is also an intensely private matter. The public stigma associated with a mental health condition may cause persons in need of treatment to avoid seeking treatment and related services if the record of such condition is accessible to the public. Without treatment, a person’s condition may worsen, the person may harm himself or herself or others, and the person may become a financial burden on the state. The content of such records or personal identifying information should not be made public merely because they are filed with or by a court or placed on a docket. Making such petitions, orders, records, and identifying information confidential and exempt from disclosure will protect such persons from the release of sensitive, personal information which could damage their and their families’ reputations. The publication of personal identifying 2 CODING:RJAC WordsJune 2019stricken Agenda are deletions; words underlinedPage are 52 additions. of 175 Ch. 2019-51 LAWS OF FLORIDA Ch. 2019-51

information on a physical or virtual docket, regardless of whether any other record is published, defeats the purpose of protections otherwise provided. Further, the knowledge that such sensitive, personal information is subject to disclosure could have a chilling effect on a person’s willingness to seek out and comply with mental health treatment services.

Section 3. This act shall take effect July 1, 2019. Approved by the Governor May 23, 2019.

Filed in Office Secretary of State May 23, 2019.

3 CODING:RJAC June Words 2019 stricken Agenda are deletions; words underlinedPage 53are of additions. 175 CHAPTER 2019-55

Committee Substitute for House Bill No. 281

An act relating to public records; amending s. 97.0585, F.S.; providing an exemption from public records requirements for information related to a voter registration applicant’s or voter’s prior felony conviction and his or her restoration of voting rights; providing an exemption from public records requirements for information concerning preregistered voter registration applicants who are minors; providing for future legislative review and repeal; providing for retroactive application; providing statements of public necessity; providing an effective date.

Be It Enacted by the Legislature of the State of Florida:

Section 1. Subsection (1) of section 97.0585, Florida Statutes, is amended, and subsection (3) of that section is reenacted, to read: 97.0585 Public records exemption; information regarding voters and voter registration; confidentiality.— (1) The following information held by an agency, as defined in s. 119.011, and obtained for the purpose of voter registration is confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution and may be used only for purposes of voter registration:

(a) All declinations to register to vote made pursuant to ss. 97.057 and 97.058. (b) Information relating to the place where a person registered to vote or where a person updated a voter registration. (c) The social security number, driver license number, and Florida identification number of a voter registration applicant or voter.

(d) Information related to a voter registration applicant’s or voter’s prior felony conviction and whether such person has had his or her voting rights restored by the Board of Executive Clemency or pursuant to s. 4, Art. VI of the State Constitution. (e) All information concerning preregistered voter registration appli- cants who are 16 or 17 years of age.

(f) Paragraphs (d) and (e) are subject to the Open Government Sunset Review Act in accordance with s. 119.15 and shall stand repealed on October 2, 2024, unless reviewed and saved from repeal through reenactment by the Legislature. (3) This section applies to information held by an agency before, on, or after the effective date of this exemption. 1 CODING:RJAC June Words 2019 stricken Agenda are deletions; words underlinedPage 54are of additions. 175 Ch. 2019-55 LAWS OF FLORIDA Ch. 2019-55

Section 2. (1) The Legislature finds that it is a public necessity that information related to a voter registration applicant’s or voter’s prior felony conviction and whether such person has had his or her voting rights restored through executive clemency or pursuant to s. 4, Art. VI, of the State Constitution, which is held by an agency and obtained for the purpose of voter registration, be confidential and exempt from public records require- ments and be used only for purposes of voter registration. Information related to a voter registration applicant’s or voter’s prior felony conviction and whether such person has had his or her voting rights restored could be misused if released. The restoration of a person’s voting rights subsequent to a felony conviction aids a person in becoming a productive, contributing, and self-sustaining member of society. Without such protection, information related to a voter registration applicant’s or voter’s prior felony conviction may result in him or her being less likely to take advantage of registering to vote, thus hindering greater participation in the democratic process. For these reasons, the Legislature finds that it is a public necessity that the information related to a voter registration applicant’s or voter’s prior felony conviction and his or her restoration of voting rights, which is held by an agency and obtained for the purpose of voter registration, be confidential and exempt from public records requirements. (2) The Legislature finds that it is a public necessity that all information concerning preregistered voter registration applicants who are 16 or 17 years of age which is held by an agency, and obtained for the purpose of voter registration, be confidential and exempt from public records requirements and be used only for purposes of voter registration. Information concerning preregistered voter registration applicants who are 16 or 17 years of age could be misused if released. Minors are more vulnerable members of society, and the widespread release of information acquired through preregistration activities may be used to solicit, harass, stalk, or intimidate such individuals. Without such protection, a minor may be less likely to take advantage of preregistering to vote, thus hindering the effective and efficient administration of a program that otherwise encourages greater participa- tion in the democratic process.

Section 3. This act shall take effect July 1, 2019. Approved by the Governor May 23, 2019.

Filed in Office Secretary of State May 23, 2019.

2 CODING:RJAC WordsJune 2019stricken Agenda are deletions; words underlinedPage are 55 additions. of 175 CHAPTER 2019-97

Committee Substitute for House Bill No. 7021

An act relating to financial disclosure; creating s. 112.31446, F.S.; providing definitions; requiring the Commission on Ethics to procure and test an electronic filing system by a certain date; providing requirements for such system; providing duties of the units of government, the commission, and persons required to file a specified form; amending s. 112.312, F.S.; revising the definition of “disclosure period”; amending ss. 112.3144 and 112.3145, F.S.; requiring certain forms to be electronically filed; prohibit- ing certain information from being included in certain filings; providing that the commission is not liable for the release of certain information; requiring the commission to redact certain information under certain circumstances; requiring the commission to include certain information in the instructions for electronic filing; requiring certain information be delivered electronically; requiring the commission to provide certain verification to a filer upon request; requiring a declaration be submitted with a disclosure or statement; specifying that certain actions do not constitute an unusual circumstance; revising a schedule to the State Constitution; amending s. 112.31455, F.S.; conforming cross-references to changes made by the act; providing effective dates.

Be It Enacted by the Legislature of the State of Florida: Section 1. Section 112.31446, Florida Statutes, is created to read:

112.31446 Electronic filing system for financial disclosure.— (1) As used in this section, the term:

(a) “Disclosure of financial interests” or “disclosure” includes a full and public disclosure of financial interests and a final full and public disclosure of financial interests, and any amendments thereto.

(b) “Electronic filing system” means an Internet-based system for receiving, reporting, and publishing disclosures of financial interests, statements of financial interests, or any other form that is required under s. 112.3144 or s. 112.3145.

(c) “Statement of financial interests” or “statement” includes a state- ment of financial interests and a final statement of financial interests, and any amendments thereto.

(2) By January 1, 2022, the commission shall procure and test an electronic filing system. At a minimum, the electronic filing system must: (a) Provide access through the Internet for the completion and submis- sion of disclosures of financial interests, statements of financial interests, or any other form that is required under s. 112.3144 or s. 112.3145. 1 CODING:RJAC June Words 2019 stricken Agenda are deletions; words underlinedPage 56are of additions. 175 Ch. 2019-97 LAWS OF FLORIDA Ch. 2019-97

(b) Make filings available in a searchable format that is accessible by an individual using standard Internet-browsing software.

(c) Issue a verification or receipt that the commission has received the submitted disclosure or statement.

(d) Provide security that prevents unauthorized access to the electronic filing system’s functions or data. (e) Provide a method for an attorney or a certified public accountant licensed in this state to complete the disclosure or statement and certify that he or she prepared the disclosure or statement in accordance with s. 112.3144 or s. 112.3145 and the instructions for completing the disclosure or statement, and that, upon his or her reasonable knowledge and belief, the information on the disclosure or statement is true and correct.

(3) Each unit of government shall provide an e-mail address to any of its officers, members, or employees who must file a disclosure of financial interests or a statement of financial interests, and provide such e-mail addresses to the commission by February 1 of each year. A person required to file a disclosure of financial interests or statement of financial interests must inform the commission immediately of any change in his or her e-mail address.

(4) The commission shall provide each person required to file a disclosure of financial interests or statement of financial interests a secure log-in to the electronic filing system. Such person is responsible for protecting his or her secure log-in credentials from disclosure and is responsible for all filings submitted to the commission with such credentials, unless the person has notified the commission that his or her credentials have been compromised.

(5) If the electronic filing system is inoperable which prevents timely submission of disclosures of financial interests or statements of financial interests, as determined by the commission chair, or if the Governor has declared a state of emergency and a person required to submit a disclosure or statement resides in an area included in the state of emergency which prevents the submission of the disclosure or statement electronically, the commission chair must extend the filing deadline for submission of the disclosures or statements by the same period of time for which the system was inoperable or by 90 days for persons who reside in an area included in a state of emergency, whichever is applicable.

Section 2. Effective January 1, 2020, subsection (10) of section 112.312, Florida Statutes, is amended to read:

112.312 Definitions.—As used in this part and for purposes of the provisions of s. 8, Art. II of the State Constitution, unless the context otherwise requires:

(10) “Disclosure period” means the calendar taxable year, if disclosure is required for the entire year, or the portion of a calendar year ending with the 2 CODING:RJAC WordsJune 2019stricken Agenda are deletions; words underlinedPage are 57 additions. of 175 Ch. 2019-97 LAWS OF FLORIDA Ch. 2019-97

last day of the period for which disclosure is required for the person or business entity, whether based on a calendar or fiscal year, immediately preceding the date on which, or the last day of the period during which, the financial disclosure statement required by this part is required to be filed.

Section 3. Section 112.3144, Florida Statutes, is amended to read:

112.3144 Full and public disclosure of financial interests.—

(1) An officer who is required by s. 8, Art. II of the State Constitution to file a full and public disclosure of his or her financial interests for any calendar or fiscal year, or any other person required by law to file a disclosure under this section, shall file that disclosure with the Florida Commission on Ethics. Additionally, beginning January 1, 2015, an officer who is required to complete annual ethics training pursuant to s. 112.3142 must certify on his or her full and public disclosure of financial interests that he or she has completed the required training.

(2) Beginning January 1, 2022, all disclosures filed with the commission must be filed electronically through an electronic filing system that is created and maintained by the commission as provided in s. 112.31446.

(3) A person who is required, pursuant to s. 8, Art. II of the State Constitution, to file a full and public disclosure of financial interests and who has filed a full and public disclosure of financial interests for any calendar or fiscal year is not shall not be required to file a statement of financial interests pursuant to s. 112.3145(2) and (3) for the same year or for any part thereof notwithstanding any requirement of this part. Until the electronic filing system required by subsection (2) is implemented, if an incumbent in an elective office has filed the full and public disclosure of financial interests to qualify for election to the same office or if a candidate for office holds another office subject to the annual filing requirement, the qualifying officer shall forward an electronic copy of the full and public disclosure of financial interests to the commission no later than July 1. The electronic copy of the full and public disclosure of financial interests satisfies the annual disclosure requirement of this section. A candidate who does not qualify until after the annual full and public disclosure of financial interests has been filed pursuant to this section shall file a copy of his or her disclosure with the officer before whom he or she qualifies.

(4)(3) Beginning January 1, 2022, an incumbent in an elective office or a candidate holding another position subject to an annual filing requirement may submit a copy of the full and public disclosure of financial interests filed with the commission, or a verification or receipt of the filing, with the officer before whom he or she qualifies. A candidate not subject to an annual filing requirement does not file with the commission, but may complete and print a full and public disclosure of financial interests to file with the officer before whom he or she qualifies. 3 CODING:RJAC June Words 2019 stricken Agenda are deletions; words underlinedPage 58are of additions. 175 Ch. 2019-97 LAWS OF FLORIDA Ch. 2019-97

(5) For purposes of full and public disclosure under s. 8(a), Art. II of the State Constitution, the following items, if not held for investment purposes and if valued at over $1,000 in the aggregate, may be reported in a lump sum and identified as “household goods and personal effects”: (a) Jewelry;

(b) Collections of stamps, guns, and numismatic properties;

(c) Art objects;

(d) Household equipment and furnishings;

(e) Clothing;

(f) Other household items; and

(g) Vehicles for personal use.

(6)(4)(a) With respect to reporting, on forms prescribed under this section, assets valued in excess of $1,000 which the reporting individual holds jointly with another person, the amount reported shall be based on the reporting individual’s legal percentage of ownership in the property. However, assets that are held jointly, with right of survivorship, must be reported at 100 percent of the value of the asset. For purposes of this subsection, a reporting individual is deemed to own a percentage of a partnership which is equal to the reporting individual’s interest in the capital or equity of the partnership.

(b)1. With respect to reporting liabilities valued in excess of $1,000 on forms prescribed under this section for which the reporting individual is jointly and severally liable, the amount reported shall be based on the reporting individual’s percentage of liability rather than the total amount of the liability. However, liability for a debt that is secured by property owned by the reporting individual but that is held jointly, with right of survivor- ship, must be reported at 100 percent of the total amount owed.

2. A separate section of the form shall be created to provide for the reporting of the amounts of joint and several liability of the reporting individual not otherwise reported in subparagraph 1.

(c) Each separate source and amount of income which exceeds $1,000 must be identified. Beginning January 1, 2022, a federal income tax return may not be used for purposes of reporting income, and the commission may not accept a federal income tax return or a copy thereof.

(7)(a) Beginning January 1, 2022, a filer may not include in a filing to the commission a federal income tax return or a copy thereof; a social security number; a bank, mortgage, or brokerage account number; a debit, charge, or credit card number; a personal identification number; a taxpayer identifica- tion number. If a filer includes such information in his or her filing, the 4 CODING:RJAC WordsJune 2019stricken Agenda are deletions; words underlinedPage are 59 additions. of 175 Ch. 2019-97 LAWS OF FLORIDA Ch. 2019-97

information may be made available as part of the official records of the commission available for public inspection and copying unless redaction is requested by the filer. The commission is not liable for the release of social security numbers or bank account, debit, charge, or credit card numbers included in a filing to the commission if the filer has not requested redaction of such information.

(b) The commission shall redact a filer’s social security number; bank account number; debit, charge, or credit card number; or any other personal or account information that is legally protected from disclosure under state or federal law upon written notification from the filer of its inadvertent inclusion. Such notice must specify the information inadvertently included and the specific section or sections of the disclosure in which it was included.

(c) The commission must conspicuously post a notice, in substantially the following form, in the instructions for the electronic filing system specifying that:

1. Any filer submitting information through the electronic filing system may not include a federal income tax return or a copy thereof; a social security number; a bank, mortgage, or brokerage account number; a debit, charge, or credit card number; a personal identification number; or a taxpayer identification number in any filing unless required by law.

2. Information submitted through the electronic filing system may be open to public inspection and copying.

3. Any filer has a right to request that the commission redact from his or her filing any social security number, bank account number, or debit, charge, or credit card number contained in the filing. Such request must be made in writing and delivered to the commission. The request must specify the information to be redacted and the specific section or sections of the disclosure in which it was included.

(8)(5) Forms or fields of information for compliance with the full and public disclosure requirements of s. 8, Art. II of the State Constitution shall be prescribed created by the commission on Ethics. The commission shall give notice of disclosure deadlines and delinquencies and distribute forms in the following manner:

(a) Not later than May 1 of each year, the commission shall prepare a current list of the names, e-mail addresses, and physical addresses of and the offices held by every person required to file full and public disclosure annually by s. 8, Art. II of the State Constitution, or other state law. In compiling the list, the commission shall be assisted by Each unit of government shall assist the commission in compiling the list by in providing to the commission not later than February 1 of each year at the request of the commission the name, e-mail address, physical address, and name of the office held by such person each public official within the respective unit of government as of December 31 of the preceding year. 5 CODING:RJAC June Words 2019 stricken Agenda are deletions; words underlinedPage 60are of additions. 175 Ch. 2019-97 LAWS OF FLORIDA Ch. 2019-97

(b) Not later than June 1 30 days before July 1 of each year, the commission shall distribute mail a copy of the form prescribed for compliance with full and public disclosure and a notice of the filing deadline to each person on the mailing list. Beginning January 1, 2022, no paper forms will be provided. The notice required under this paragraph and instructions for electronic submission must be delivered by e-mail.

(c) Not later than August 1 30 days after July 1 of each year, the commission shall determine which persons on the mailing list have failed to file full and public disclosure and shall send delinquency notices by certified mail to such persons. Each notice must shall state that a grace period is in effect until September 1 of the current year. Beginning January 1, 2022, the notice required under this paragraph must be delivered by e-mail and must be redelivered on a weekly basis by e-mail as long as a person remains delinquent.

(d) Disclosures Statements must be received by the commission filed not later than 5 p.m. of the due date. However, any disclosure statement that is postmarked by the United States Postal Service by midnight of the due date is deemed to have been filed in a timely manner, and a certificate of mailing obtained from and dated by the United States Postal Service at the time of the mailing, or a receipt from an established courier company which bears a date on or before the due date, constitutes proof of mailing in a timely manner. Beginning January 1, 2022, upon request of the filer, the commission must provide verification to the filer that the commission has received the filed disclosure.

(e) Beginning January 1, 2022, a written declaration, as provided for under s. 92.525(2), accompanied by an electronic signature satisfies the requirement that the disclosure be sworn.

(f) Any person who is required to file full and public disclosure of financial interests and whose name is on the commission’s mailing list, and to whom notice has been sent, but who fails to timely file is assessed a fine of $25 per day for each day late up to a maximum of $1,500; however this $1,500 limitation on automatic fines does not limit the civil penalty that may be imposed if the statement is filed more than 60 days after the deadline and a complaint is filed, as provided in s. 112.324. The commission must provide by rule the grounds for waiving the fine and the procedures by which each person whose name is on the mailing list and who is determined to have not filed in a timely manner will be notified of assessed fines and may appeal. The rule must provide for and make specific the following:

1. The amount of the fine due is based upon the earliest of the following:

a. When a statement is actually received by the office.

b. When the statement is postmarked.

c. When the certificate of mailing is dated. 6 CODING:RJAC WordsJune 2019stricken Agenda are deletions; words underlinedPage are 61 additions. of 175 Ch. 2019-97 LAWS OF FLORIDA Ch. 2019-97

d. When the receipt from an established courier company is dated.

2. Upon receipt of the disclosure statement or upon accrual of the maximum penalty, whichever occurs first, the commission shall determine the amount of the fine which is due and shall notify the delinquent person. The notice must include an explanation of the appeal procedure under subparagraph 3. Such fine must be paid within 30 days after the notice of payment due is transmitted, unless appeal is made to the commission pursuant to subparagraph 3. The moneys shall be deposited into the General Revenue Fund.

3. Any reporting person may appeal or dispute a fine, based upon unusual circumstances surrounding the failure to file on the designated due date, and may request and is entitled to a hearing before the commission, which may waive the fine in whole or in part for good cause shown. Any such request must be in writing and received by the commission made within 30 days after the notice of payment due is transmitted. In such a case, the reporting person must, within the 30-day period, notify the person designated to review the timeliness of reports in writing of his or her intention to bring the matter before the commission. For purposes of this subparagraph, “unusual circumstances” does not include the failure to monitor an e-mail account or failure to receive notice if the person has not notified the commission of a change in his or her e-mail address.

(g)(f) Any person subject to the annual filing of full and public disclosure under s. 8, Art. II of the State Constitution, or other state law, whose name is not on the commission’s mailing list of persons required to file full and public disclosure is not subject to the fines or penalties provided in this part for failure to file full and public disclosure in any year in which the omission occurred, but nevertheless is required to file the disclosure statement.

(h)(g) The notification requirements and fines of this subsection do not apply to candidates or to the first filing required of any person appointed to elective constitutional office or other position required to file full and public disclosure, unless the person’s name is on the commission’s notification list and the person received notification from the commission. The appointing official shall notify such newly appointed person of the obligation to file full and public disclosure by July 1. The notification requirements and fines of this subsection do not apply to the final filing provided for in subsection (10)(7).

(i)(h) Notwithstanding any provision of chapter 120, any fine imposed under this subsection which is not waived by final order of the commission and which remains unpaid more than 60 days after the notice of payment due or more than 60 days after the commission renders a final order on the appeal must be submitted to the Department of Financial Services as a claim, debt, or other obligation owed to the state, and the department shall assign the collection of such fine to a collection agent as provided in s. 17.20. 7 CODING:RJAC June Words 2019 stricken Agenda are deletions; words underlinedPage 62are of additions. 175 Ch. 2019-97 LAWS OF FLORIDA Ch. 2019-97

(9)(6) If a person holding public office or public employment fails or refuses to file a full and public disclosure of financial interests for any year in which the person received notice from the commission regarding the failure to file and has accrued the maximum automatic fine authorized under this section, regardless of whether the fine imposed was paid or collected, the commission shall initiate an investigation and conduct a public hearing without receipt of a complaint to determine whether the person’s failure to file is willful. Such investigation and hearing must be conducted in accordance with s. 112.324. Except as provided in s. 112.324(4), if the commission determines that the person willfully failed to file a full and public disclosure of financial interests, the commission shall enter an order recommending that the officer or employee be removed from his or her public office or public employment. The commission shall forward its recommenda- tions as provided in s. 112.324.

(10)(7) Each person required to file full and public disclosure of financial interests shall file a final disclosure statement within 60 days after leaving his or her public position for the period between January 1 of the year in which the person leaves and the last day of office or employment, unless within the 60-day period the person takes another public position requiring financial disclosure under s. 8, Art. II of the State Constitution, or is otherwise required to file full and public disclosure for the final disclosure period. The head of the agency of each person required to file full and public disclosure for the final disclosure period shall notify such persons of their obligation to file the final disclosure and may designate a person to be responsible for the notification requirements of this subsection. (11)(8)(a) The commission shall treat an amendment to a amended full and public disclosure of financial interests which is filed before September 1 of the year in which the disclosure is due as part of the original filing, regardless of whether a complaint has been filed. If a complaint alleges only an immaterial, inconsequential, or de minimis error or omission, the commission may not take any action on the complaint other than notifying the filer of the complaint. The filer must be given 30 days to file an amendment to the amended full and public disclosure of financial interests correcting any errors. If the filer does not file an amendment to the amended full and public disclosure of financial interests within 30 days after the commission sends notice of the complaint, the commission may continue with proceedings pursuant to s. 112.324.

(b) For purposes of the final full and public disclosure of financial interests, the commission shall treat an amendment to a new final full and public disclosure of financial interests as part of the original filing if filed within 60 days after the original filing, regardless of whether a complaint has been filed. If, more than 60 days after a final full and public disclosure of financial interests is filed, a complaint is filed alleging a complete omission of any information required to be disclosed by this section, the commission may immediately follow the complaint procedures in s. 112.324. However, if the complaint alleges an immaterial, inconsequential, or de minimis error or omission, the commission may not take any action on the complaint, other 8 CODING:RJAC WordsJune 2019stricken Agenda are deletions; words underlinedPage are 63 additions. of 175 Ch. 2019-97 LAWS OF FLORIDA Ch. 2019-97

than notifying the filer of the complaint. The filer must be given 30 days to file an amendment to the a new final full and public disclosure of financial interests correcting any errors. If the filer does not file an amendment to the a new final full and public disclosure of financial interests within 30 days after the commission sends notice of the complaint, the commission may continue with proceedings pursuant to s. 112.324.

(c) For purposes of this section, an error or omission is immaterial, inconsequential, or de minimis if the original filing provided sufficient information for the public to identify potential conflicts of interest. However, failure to certify completion of annual ethics training required under s. 112.3142 does not constitute an immaterial, inconsequential, or de minimis error or omission.

(12)(9)(a) An individual required to file a disclosure pursuant to this section may have the disclosure prepared by an attorney in good standing with The Florida Bar or by a certified public accountant licensed under chapter 473. After preparing a disclosure form, the attorney or certified public accountant must sign the form indicating that he or she prepared the form in accordance with this section and the instructions for completing and filing the disclosure forms and that, upon his or her reasonable knowledge and belief, the disclosure is true and correct. If a complaint is filed alleging a failure to disclose information required by this section, the commission shall determine whether the information was disclosed to the attorney or certified public accountant. The failure of the attorney or certified public accountant to accurately transcribe information provided by the individual required to file is not a violation of this section.

(b) An elected officer or candidate who chooses to use an attorney or a certified public accountant to prepare his or her disclosure may pay for the services of the attorney or certified public accountant from funds in an office account created pursuant to s. 106.141 or, during a year that the individual qualifies for election to public office, the candidate’s campaign depository pursuant to s. 106.021.

(13)(10) The commission shall adopt rules and forms specifying how a person who is required to file full and public disclosure of financial interests may amend his or her disclosure statement to report information that was not included on the form as originally filed. If the amendment is the subject of a complaint filed under this part, the commission and the proper disciplinary official or body shall consider as a mitigating factor when considering appropriate disciplinary action the fact that the amendment was filed before any complaint or other inquiry or proceeding, while recognizing that the public was deprived of access to information to which it was entitled.

(14) The provisions of this section constitute a revision to the schedule included in s. 8(i), Art. II of the State Constitution.

Section 4. Section 112.3145, Florida Statutes, is amended to read: 9 CODING:RJAC June Words 2019 stricken Agenda are deletions; words underlinedPage 64are of additions. 175 Ch. 2019-97 LAWS OF FLORIDA Ch. 2019-97

112.3145 Disclosure of financial interests and clients represented before agencies.— (1) For purposes of this section, unless the context otherwise requires, the term:

(a) “Local officer” means: 1. Every person who is elected to office in any political subdivision of the state, and every person who is appointed to fill a vacancy for an unexpired term in such an elective office.

2. Any appointed member of any of the following boards, councils, commissions, authorities, or other bodies of any county, municipality, school district, independent special district, or other political subdivision of the state:

a. The governing body of the political subdivision, if appointed;

b. A community college or junior college district board of trustees;

c. A board having the power to enforce local code provisions;

d. A planning or zoning board, board of adjustment, board of appeals, community redevelopment agency board, or other board having the power to recommend, create, or modify land planning or zoning within the political subdivision, except for citizen advisory committees, technical coordinating committees, and such other groups who only have the power to make recommendations to planning or zoning boards;

e. A pension board or retirement board having the power to invest pension or retirement funds or the power to make a binding determination of one’s entitlement to or amount of a pension or other retirement benefit; or f. Any other appointed member of a local government board who is required to file a statement of financial interests by the appointing authority or the enabling legislation, ordinance, or resolution creating the board.

3. Any person holding one or more of the following positions: mayor; county or city manager; chief administrative employee of a county, municipality, or other political subdivision; county or municipal attorney; finance director of a county, municipality, or other political subdivision; chief county or municipal building code inspector; county or municipal water resources coordinator; county or municipal pollution control director; county or municipal environmental control director; county or municipal adminis- trator, with power to grant or deny a land development permit; chief of police; fire chief; municipal clerk; district school superintendent; community college president; district medical examiner; or purchasing agent having the authority to make any purchase exceeding the threshold amount provided for in s. 287.017 for CATEGORY TWO ONE, on behalf of any political subdivision of the state or any entity thereof. 10 CODING:RJAC WordsJune 2019stricken Agenda are deletions; words underlinedPage are 65 additions. of 175 Ch. 2019-97 LAWS OF FLORIDA Ch. 2019-97

(b) “Specified state employee” means: 1. Public counsel created by chapter 350, an assistant state attorney, an assistant public defender, a criminal conflict and civil regional counsel, an assistant criminal conflict and civil regional counsel, a full-time state employee who serves as counsel or assistant counsel to any state agency, the Deputy Chief Judge of Compensation Claims, a judge of compensation claims, an administrative law judge, or a hearing officer.

2. Any person employed in the office of the Governor or in the office of any member of the Cabinet if that person is exempt from the Career Service System, except persons employed in clerical, secretarial, or similar positions.

3. The State Surgeon General or each appointed secretary, assistant secretary, deputy secretary, executive director, assistant executive director, or deputy executive director of each state department, commission, board, or council; unless otherwise provided, the division director, assistant division director, deputy director, and bureau chief, and assistant bureau chief of any state department or division; or any person having the power normally conferred upon such persons, by whatever title.

4. The superintendent or institute director of a state mental health institute established for training and research in the mental health field or the warden or director of any major state institution or facility established for corrections, training, treatment, or rehabilitation.

5. Business managers, purchasing agents having the power to make any purchase exceeding the threshold amount provided for in s. 287.017 for CATEGORY TWO ONE, finance and accounting directors, personnel officers, or grants coordinators for any state agency.

6. Any person, other than a legislative assistant exempted by the presiding officer of the house by which the legislative assistant is employed, who is employed in the legislative branch of government, except persons employed in maintenance, clerical, secretarial, or similar positions.

7. Each employee of the Commission on Ethics.

(c) “State officer” means: 1. Any elected public officer, excluding those elected to the United States Senate and House of Representatives, not covered elsewhere in this part and any person who is appointed to fill a vacancy for an unexpired term in such an elective office.

2. An appointed member of each board, commission, authority, or council having statewide jurisdiction, excluding a member of an advisory body.

3. A member of the Board of Governors of the State University System or a state university board of trustees, the Chancellor and Vice Chancellors of the State University System, and the president of a state university. 11 CODING:RJAC June Words 2019 stricken Agenda are deletions; words underlinedPage 66are of additions. 175 Ch. 2019-97 LAWS OF FLORIDA Ch. 2019-97

4. A member of the judicial nominating commission for any district court of appeal or any judicial circuit.

(2)(a) A person seeking nomination or election to a state or local elective office shall file a statement of financial interests together with, and at the same time he or she files, qualifying papers. When a candidate has qualified for office prior to the deadline to file an annual statement of financial interests, the statement of financial interests that is filed with the candidate’s qualifying papers shall be deemed to satisfy the annual disclosure requirement of this section. The qualifying officer must record that the statement of financial interests was timely filed. However, if a candidate does not qualify until after the annual statement of financial interests has been filed, the candidate may file a copy of his or her statement with the qualifying officer.

(b) Each state or local officer and each specified state employee shall file a statement of financial interests no later than July 1 of each year. Each state officer, local officer, and specified state employee shall file a final statement of financial interests within 60 days after leaving his or her public position for the period between January 1 of the year in which the person leaves and the last day of office or employment, unless within the 60-day period the person takes another public position requiring financial dis- closure under this section or s. 8, Art. II of the State Constitution or otherwise is required to file full and public disclosure or a statement of financial interests for the final disclosure period. Each state or local officer who is appointed and each specified state employee who is employed shall file a statement of financial interests within 30 days from the date of appointment or, in the case of a specified state employee, from the date on which the employment begins, except that any person whose appointment is subject to confirmation by the Senate shall file prior to confirmation hearings or within 30 days from the date of appointment, whichever comes first.

(c) Beginning January 1, 2023, an incumbent in an elective office or a candidate holding another position subject to an annual filing requirement may submit a copy of the statement of financial interests filed with the commission, or a verification or receipt of the filing, with the officer before whom he or she qualifies. A candidate not subject to an annual filing requirement does not file with the commission, but may complete and print a statement of financial interests to file with the officer before whom he or she qualifies.

(d) State officers and specified state employees shall file their state- ments of financial interests with the commission on Ethics. Local officers shall file their statements of financial interests with the supervisor of elections of the county in which they permanently reside. Local officers who do not permanently reside in any county in the state shall file their statements of financial interests with the supervisor of elections of the county in which their agency maintains its headquarters. Persons seeking to 12 CODING:RJAC WordsJune 2019stricken Agenda are deletions; words underlinedPage are 67 additions. of 175 Ch. 2019-97 LAWS OF FLORIDA Ch. 2019-97

qualify as candidates for local public office shall file their statements of financial interests with the officer before whom they qualify.

(e) Beginning January 1, 2023, all statements filed with the commission must be filed electronically through an electronic filing system that is created and maintained by the commission as provided in s. 112.31446.

(3) The statement of financial interests for state officers, specified state employees, local officers, and persons seeking to qualify as candidates for state or local office shall be filed even if the reporting person holds no financial interests requiring disclosure in a particular category, in which case that section of the statement shall be marked “not applicable.” Otherwise, the statement of financial interests must shall include the information under paragraph (a) or paragraph (b). The reporting person must indicate on the statement whether he or she is using the reporting method under paragraph (a) or paragraph (b). Beginning January 1, 2023, only the reporting method specified under paragraph (b) may be used., at the filer’s option, either:

(a)1. All sources of income in excess of 5 percent of the gross income received during the disclosure period by the person in his or her own name or by any other person for his or her use or benefit, excluding public salary. However, this shall not be construed to require disclosure of a business partner’s sources of income. The person reporting shall list such sources in descending order of value with the largest source first;

2. All sources of income to a business entity in excess of 10 percent of the gross income of a business entity in which the reporting person held a material interest and from which he or she received an amount which was in excess of 10 percent of his or her gross income during the disclosure period and which exceeds $1,500. The period for computing the gross income of the business entity is the fiscal year of the business entity which ended on, or immediately prior to, the end of the disclosure period of the person reporting;

3. The location or description of real property in this state, except for residences and vacation homes, owned directly or indirectly by the person reporting, when such person owns in excess of 5 percent of the value of such real property, and a general description of any intangible personal property worth in excess of 10 percent of such person’s total assets. For the purposes of this paragraph, indirect ownership does not include ownership by a spouse or minor child; and

4. Every individual liability that equals more than the reporting person’s net worth; or

(b)1. All sources of gross income in excess of $2,500 received during the disclosure period by the person in his or her own name or by any other person for his or her use or benefit, excluding public salary. However, this shall not be construed to require disclosure of a business partner’s sources of income. 13 CODING:RJAC June Words 2019 stricken Agenda are deletions; words underlinedPage 68are of additions. 175 Ch. 2019-97 LAWS OF FLORIDA Ch. 2019-97

The person reporting shall list such sources in descending order of value with the largest source first;

2. All sources of income to a business entity in excess of 10 percent of the gross income of a business entity in which the reporting person held a material interest and from which he or she received gross income exceeding $5,000 during the disclosure period. The period for computing the gross income of the business entity is the fiscal year of the business entity which ended on, or immediately prior to, the end of the disclosure period of the person reporting;

3. The location or description of real property in this state, except for residence and vacation homes, owned directly or indirectly by the person reporting, when such person owns in excess of 5 percent of the value of such real property, and a general description of any intangible personal property worth in excess of $10,000. For the purpose of this paragraph, indirect ownership does not include ownership by a spouse or minor child; and

4. Every liability in excess of $10,000.

A person filing a statement of financial interests shall indicate on the statement whether he or she is using the method specified in paragraph (a) or paragraph (b).

(4)(a) Beginning January 1, 2023, a filer may not include in a filing to the commission a federal income tax return or a copy of thereof; a social security number; a bank, mortgage, or brokerage account number; a debit, charge, or credit card number; a personal identification number; a taxpayer identifica- tion number. If a filer includes such information in his or her filing, the information may be made available as part of the official records of the commission available for public inspection and copying unless redaction is requested by the filer. The commission is not liable for the release of social security numbers, bank account numbers, or debit, charge, or credit card numbers included in a filing to the commission if the filer has not requested redaction of the information.

(b) The commission shall redact a filer’s social security number; bank account number; debit, charge, or credit card number; or any other personal or account information that is legally protected from disclosure under state or federal law upon written notification from the filer of its inadvertent inclusion. Such notice must specify the information inadvertently included and the specific section or sections of the statement in which it was included.

(c) The commission must conspicuously post a notice, in substantially the following form, in the instructions for the electronic filing system specifying that:

1. Any filer submitting information through the electronic filing system may not include a federal income tax return or a copy thereof; a social security number; a bank, mortgage, or brokerage account number; a debit, 14 CODING:RJAC WordsJune 2019stricken Agenda are deletions; words underlinedPage are 69 additions. of 175 Ch. 2019-97 LAWS OF FLORIDA Ch. 2019-97 charge, or credit card number; a personal identification number; or a taxpayer identification number in any filing unless required by law.

2. Information submitted through the electronic filing system may be open to public inspection and copying.

3. Any filer has a right to request that the commission redact from his or her filing any social security number, bank account number, or debit, charge, or credit card number contained in the filing. Such request must be made in writing and delivered to the commission. The request must specify the information to be redacted and the specific section or sections of the disclosure in which it was included.

(5) Beginning January 1, 2015, An officer who is required to complete annual ethics training pursuant to s. 112.3142 must certify on his or her statement of financial interests that he or she has completed the required training.

(6)(5) Each elected constitutional officer, state officer, local officer, and specified state employee shall file a quarterly report of the names of clients represented for a fee or commission, except for appearances in ministerial matters, before agencies at his or her level of government. For the purposes of this part, agencies of government shall be classified as state-level agencies or agencies below state level. Each local officer shall file such report with the supervisor of elections of the county in which the officer is principally employed or is a resident. Each state officer, elected constitutional officer, and specified state employee shall file such report with the commission. The report shall be filed only when a reportable representation is made during the calendar quarter and shall be filed no later than the last day of each calendar quarter, for the previous calendar quarter. Representation before any agency shall be deemed to include representation by such officer or specified state employee or by any partner or associate of the professional firm of which he or she is a member and of which he or she has actual knowledge. For the purposes of this subsection, the term “representation before any agency” does not include appearances before any court or the Deputy Chief Judge of Compensation Claims or judges of compensation claims or representations on behalf of one’s agency in one’s official capacity. Such term does not include the preparation and filing of forms and applications merely for the purpose of obtaining or transferring a license based on a quota or a franchise of such agency or a license or operation permit to engage in a profession, business, or occupation, so long as the issuance or granting of such license, permit, or transfer does not require substantial discretion, a variance, a special consideration, or a certificate of public convenience and necessity.

(7)(6) Each elected constitutional officer and each candidate for such office, any other public officer required pursuant to s. 8, Art. II of the State Constitution to file a full and public disclosure of his or her financial interests, and each state officer, local officer, specified state employee, and candidate for elective public office who is or was during the disclosure period 15 CODING:RJAC June Words 2019 stricken Agenda are deletions; words underlinedPage 70are of additions. 175 Ch. 2019-97 LAWS OF FLORIDA Ch. 2019-97 an officer, director, partner, proprietor, or agent, other than a resident agent solely for service of process, of, or owns or owned during the disclosure period a material interest in, any business entity which is granted a privilege to operate in this state shall disclose such facts as a part of the disclosure form filed pursuant to s. 8, Art. II of the State Constitution or this section, as applicable. The statement shall give the name, address, and principal business activity of the business entity and shall state the position held with such business entity or the fact that a material interest is owned and the nature of that interest.

(8)(7) Forms for compliance with the disclosure requirements of this section and a current list of persons subject to disclosure shall be created by the commission and provided to each supervisor of elections. The commis- sion and each supervisor of elections shall give notice of disclosure deadlines and delinquencies and distribute forms in the following manner:

(a)1. Not later than May 1 of each year, the commission shall prepare a current list of the names, e-mail addresses, and physical addresses of, and the offices or positions held by, every state officer, local officer, and specified employee. In compiling the list, the commission shall be assisted by Each unit of government shall assist the commission in compiling the list by in providing to the commission not later than February 1 of each year, at the request of the commission, the name, e-mail address, physical address, and name of agency of, and the office or position held by, each state officer, local officer, or specified state employee within the respective unit of government as of December 31 of the preceding year.

2. Not later than May 15 of each year, the commission shall provide each supervisor of elections with a current mailing list of all local officers required to file with such supervisor of elections.

(b) Not later than June 1 30 days before July 1 of each year, the commission and each supervisor of elections, as appropriate, shall distribute mail a copy of the form prescribed for compliance with subsection (3) and a notice of all applicable disclosure forms and filing deadlines to each person required to file a statement of financial interests. Beginning January 1, 2023, no paper forms will be provided. The notice required under this paragraph and instructions for electronic submission must be delivered by e- mail.

(c) Not later than August 1 30 days after July 1 of each year, the commission and each supervisor of elections shall determine which persons required to file a statement of financial interests in their respective offices have failed to do so and shall send delinquency notices by certified mail, return receipt requested, to these persons. Each notice must shall state that a grace period is in effect until September 1 of the current year; that no investigative or disciplinary action based upon the delinquency will be taken by the agency head or commission if the statement is filed by September 1 of the current year; that, if the statement is not filed by September 1 of the current year, a fine of $25 for each day late will be imposed, up to a maximum 16 CODING:RJAC WordsJune 2019stricken Agenda are deletions; words underlinedPage are 71 additions. of 175 Ch. 2019-97 LAWS OF FLORIDA Ch. 2019-97

penalty of $1,500; for notices distributed sent by a supervisor of elections, that he or she is required by law to notify the commission of the delinquency; and that, if upon the filing of a sworn complaint the commission finds that the person has failed to timely file the statement within 60 days after September 1 of the current year, such person will also be subject to the penalties provided in s. 112.317. Beginning January 1, 2023, notice required under this paragraph must be delivered by e-mail and must be redelivered on a weekly basis by e-mail as long as the person remains delinquent.

(d) No later than November 15 of each year, the supervisor of elections in each county shall certify to the commission a list of the names and addresses of, and the offices or positions held by, all persons who have failed to timely file the required statements of financial interests. The certification must include the earliest of the dates described in subparagraph (g)1. (f)1. The certification shall be on a form prescribed by the commission and shall indicate whether the supervisor of elections has provided the disclosure forms and notice as required by this subsection to all persons named on the delinquency list.

(e) Statements must be received by the commission filed not later than 5 p.m. of the due date. However, any statement that is postmarked by the United States Postal Service by midnight of the due date is deemed to have been filed in a timely manner, and a certificate of mailing obtained from and dated by the United States Postal Service at the time of the mailing, or a receipt from an established courier company which bears a date on or before the due date, constitutes proof of mailing in a timely manner. Beginning January 1, 2023, upon request of the filer, the commission must provide verification to the filer that the commission has received the filed statement.

(f) Beginning January 1, 2023, the statement must be accompanied by a declaration as provided in s. 92.525(2) and an electronic acknowledgement thereof.

(g) Any person who is required to file a statement of financial interests and whose name is on the commission’s mailing list, and to whom notice has been sent, but who fails to timely file is assessed a fine of $25 per day for each day late up to a maximum of $1,500; however, this $1,500 limitation on automatic fines does not limit the civil penalty that may be imposed if the statement is filed more than 60 days after the deadline and a complaint is filed, as provided in s. 112.324. The commission must provide by rule the grounds for waiving the fine and procedures by which each person whose name is on the mailing list and who is determined to have not filed in a timely manner will be notified of assessed fines and may appeal. The rule must provide for and make specific the following:

1. The amount of the fine due is based upon the earliest of the following:

a. When a statement is actually received by the office.

b. When the statement is postmarked. 17 CODING:RJAC June Words 2019 stricken Agenda are deletions; words underlinedPage 72are of additions. 175 Ch. 2019-97 LAWS OF FLORIDA Ch. 2019-97

c. When the certificate of mailing is dated.

d. When the receipt from an established courier company is dated.

2. For a specified state employee or a state officer, upon receipt of the disclosure statement by the commission or upon accrual of the maximum penalty, whichever occurs first, and for a local officer upon receipt by the commission of the certification from the local officer’s supervisor of elections pursuant to paragraph (d), the commission shall determine the amount of the fine which is due and shall notify the delinquent person. The notice must include an explanation of the appeal procedure under subparagraph 3. The fine must be paid within 30 days after the notice of payment due is transmitted, unless appeal is made to the commission pursuant to subparagraph 3. The moneys are to be deposited into the General Revenue Fund.

3. Any reporting person may appeal or dispute a fine, based upon unusual circumstances surrounding the failure to file on the designated due date, and may request and is entitled to a hearing before the commission, which may waive the fine in whole or in part for good cause shown. Any such request must be in writing and received by the commission made within 30 days after the notice of payment due is transmitted. In such a case, the reporting person must, within the 30-day period, notify the person designated to review the timeliness of reports in writing of his or her intention to bring the matter before the commission. For purposes of this subparagraph, the term “unusual circumstances” does not include the failure to monitor an e-mail account or failure to receive notice if the person has not notified the commission of a change in his or her e-mail address.

(h)(g) Any state officer, local officer, or specified employee whose name is not on the mailing list of persons required to file an annual statement of financial interests is not subject to the penalties provided in s. 112.317 or the fine provided in this section for failure to timely file a statement of financial interests in any year in which the omission occurred, but nevertheless is required to file the disclosure statement.

(i)(h) The notification requirements and fines of this subsection do not apply to candidates or to the first or final filing required of any state officer, specified employee, or local officer as provided in paragraph (2)(b).

(j)(i) Notwithstanding any provision of chapter 120, any fine imposed under this subsection which is not waived by final order of the commission and which remains unpaid more than 60 days after the notice of payment due or more than 60 days after the commission renders a final order on the appeal must be submitted to the Department of Financial Services as a claim, debt, or other obligation owed to the state, and the department shall assign the collection of such a fine to a collection agent as provided in s. 17.20. 18 CODING:RJAC WordsJune 2019stricken Agenda are deletions; words underlinedPage are 73 additions. of 175 Ch. 2019-97 LAWS OF FLORIDA Ch. 2019-97

(9)(a)(8)(a) The appointing official or body shall notify each newly appointed local officer, state officer, or specified state employee, not later than the date of appointment, of the officer’s or employee’s duty to comply with the disclosure requirements of this section. The agency head of each employing agency shall notify each newly employed local officer or specified state employee, not later than the day of employment, of the officer’s or employee’s duty to comply with the disclosure requirements of this section. The appointing official or body or employing agency head may designate a person to be responsible for the notification requirements of this paragraph.

(b) The agency head of the agency of each local officer, state officer, or specified state employee who is required to file a statement of financial interests for the final disclosure period shall notify such persons of their obligation to file the final disclosure and may designate a person to be responsible for the notification requirements of this paragraph.

(c) If a person holding public office or public employment fails or refuses to file an annual statement of financial interests for any year in which the person received notice from the commission regarding the failure to file and has accrued the maximum automatic fine authorized under this section, regardless of whether the fine imposed was paid or collected, the commission shall initiate an investigation and conduct a public hearing without receipt of a complaint to determine whether the person’s failure to file is willful. Such investigation and hearing must be conducted in accordance with s. 112.324. Except as provided in s. 112.324(4), if the commission determines that the person willfully failed to file a statement of financial interests, the commission shall enter an order recommending that the officer or employee be removed from his or her public office or public employment. The commission shall forward its recommendation as provided in s. 112.324.

(10)(9) A public officer who has filed a disclosure for any calendar or fiscal year shall not be required to file a second disclosure for the same year or any part thereof, notwithstanding any requirement of this act, except that any public officer who qualifies as a candidate for public office shall file a copy of the disclosure with the officer before whom he or she qualifies as a candidate at the time of qualification.

(11)(10)(a) The commission shall treat an amendment to an amended annual statement of financial interests which is filed before September 1 of the year in which the statement is due as part of the original filing, regardless of whether a complaint has been filed. If a complaint alleges only an immaterial, inconsequential, or de minimis error or omission, the commission may not take any action on the complaint other than notifying the filer of the complaint. The filer must be given 30 days to file an amendment to the amended statement of financial interests correcting any errors. If the filer does not file an amendment to the amended statement of financial interests within 30 days after the commission sends notice of the complaint, the commission may continue with proceedings pursuant to s. 112.324. 19 CODING:RJAC June Words 2019 stricken Agenda are deletions; words underlinedPage 74are of additions. 175 Ch. 2019-97 LAWS OF FLORIDA Ch. 2019-97

(b) For purposes of the final statement of financial interests, the commission shall treat an amendment to a new final statement of financial interests as part of the original filing, if filed within 60 days of the original filing regardless of whether a complaint has been filed. If, more than 60 days after a final statement of financial interests is filed, a complaint is filed alleging a complete omission of any information required to be disclosed by this section, the commission may immediately follow the complaint procedures in s. 112.324. However, if the complaint alleges an immaterial, inconsequential, or de minimis error or omission, the commission may not take any action on the complaint other than notifying the filer of the complaint. The filer must be given 30 days to file an amendment to the a new final statement of financial interests correcting any errors. If the filer does not file an amendment to the a new final statement of financial interests within 30 days after the commission sends notice of the complaint, the commission may continue with proceedings pursuant to s. 112.324.

(c) For purposes of this section, an error or omission is immaterial, inconsequential, or de minimis if the original filing provided sufficient information for the public to identify potential conflicts of interest. However, failure to certify completion of annual ethics training required under s. 112.3142 does not constitute an immaterial, inconsequential, or de minimis error or omission.

(12)(11)(a) An individual required to file a statement disclosure pur- suant to this section may have the statement disclosure prepared by an attorney in good standing with The Florida Bar or by a certified public accountant licensed under chapter 473. After preparing a statement disclosure form, the attorney or certified public accountant must sign the form indicating that he or she prepared the form in accordance with this section and the instructions for completing and filing the disclosure forms and that, upon his or her reasonable knowledge and belief, the disclosure is true and correct. If a complaint is filed alleging a failure to disclose information required by this section, the commission shall determine whether the information was disclosed to the attorney or certified public accountant. The failure of the attorney or certified public accountant to accurately transcribe information provided by the individual who is required to file the statement disclosure does not constitute a violation of this section.

(b) An elected officer or candidate who chooses to use an attorney or a certified public accountant to prepare his or her statement disclosure may pay for the services of the attorney or certified public accountant from funds in an office account created pursuant to s. 106.141 or, during a year that the individual qualifies for election to public office, the candidate’s campaign depository pursuant to s. 106.021.

(13)(12) The commission shall adopt rules and forms specifying how a state officer, local officer, or specified state employee may amend his or her statement of financial interests to report information that was not included on the form as originally filed. If the amendment is the subject of a complaint filed under this part, the commission and the proper disciplinary official or 20 CODING:RJAC WordsJune 2019stricken Agenda are deletions; words underlinedPage are 75 additions. of 175 Ch. 2019-97 LAWS OF FLORIDA Ch. 2019-97

body shall consider as a mitigating factor when considering appropriate disciplinary action the fact that the amendment was filed before any complaint or other inquiry or proceeding, while recognizing that the public was deprived of access to information to which it was entitled.

Section 5. Section 112.31455, Florida Statutes, is amended to read:

112.31455 Collection methods for unpaid automatic fines for failure to timely file disclosure of financial interests.—

(1) Before referring any unpaid fine accrued pursuant to s. 112.3144(8) or s. 112.3145(8) s. 112.3144(5) or s. 112.3145(7) to the Department of Financial Services, the commission shall attempt to determine whether the individual owing such a fine is a current public officer or current public employee. If so, the commission may notify the Chief Financial Officer or the governing body of the appropriate county, municipality, or special district of the total amount of any fine owed to the commission by such individual.

(a) After receipt and verification of the notice from the commission, the Chief Financial Officer or the governing body of the county, municipality, or special district shall begin withholding the lesser of 10 percent or the maximum amount allowed under federal law from any salary-related payment. The withheld payments shall be remitted to the commission until the fine is satisfied.

(b) The Chief Financial Officer or the governing body of the county, municipality, or special district may retain an amount of each withheld payment, as provided in s. 77.0305, to cover the administrative costs incurred under this section.

(2) If the commission determines that the individual who is the subject of an unpaid fine accrued pursuant to s. 112.3144(8) or s. 112.3145(8) s. 112.3144(5) or s. 112.3145(7) is no longer a public officer or public employee or if the commission is unable to determine whether the individual is a current public officer or public employee, the commission may, 6 months after the order becomes final, seek garnishment of any wages to satisfy the amount of the fine, or any unpaid portion thereof, pursuant to chapter 77. Upon recording the order imposing the fine with the clerk of the circuit court, the order shall be deemed a judgment for purposes of garnishment pursuant to chapter 77.

(3) The commission may refer unpaid fines to the appropriate collection agency, as directed by the Chief Financial Officer, to utilize any collection methods provided by law. Except as expressly limited by this section, any other collection methods authorized by law are allowed.

(4) Action may be taken to collect any unpaid fine imposed by ss. 112.3144 and 112.3145 within 20 years after the date the final order is rendered. 21 CODING:RJAC June Words 2019 stricken Agenda are deletions; words underlinedPage 76are of additions. 175 Ch. 2019-97 LAWS OF FLORIDA Ch. 2019-97

Section 6. Except as otherwise expressly provided in this act, this act shall take effect upon becoming a law.

Approved by the Governor June 7, 2019. Filed in Office Secretary of State June 7, 2019.

22 CODING:RJAC WordsJune 2019stricken Agenda are deletions; words underlinedPage are 77 additions. of 175 THE FLORIDA BAR RULES OF JUDICIAL ADMINISTRATION COMMITTEE

SUBCOMMITTEE C ACTION REPORT

TO: Ed Sanchez, Chair

FROM: Michael Korn, Subcommittee C Chair

Please be advised that Subcommittee C conducted a meeting on March 8, 2019,

by conference call to discuss two matters: 15-RJA-19 (Rule 2.450) and 18-RJA-08 (Rule 2.545).

Subcommittee attendance was as follows: Present/Not Present

Michael Korn, Chair x Justin Horan, Vice Chair x John Crabtree x Hon. Josephine Gagliardi x Antonio Jaimes x Hon. Jeff Kuntz x Sean Lebowitz x Etan Mark x David Rowland x Kristina Samuels x Sandy Solomon x Harriet Williams x Matthew Wilson x

Additional participants included:

Krys Godwin, Liaison

The Subcommittee took the following action:

1. Determined that the submission is within the scope of Subcommittee authority. YES/NO

If the answer to this question is NO, the matter is returned to the Chair with the following explanation:

2. Made the following work assignments: N/A

1 RJAC June 2019 Agenda Page 78 of 175

3. Made the following decisions: 15-RJA-19: This matter was discussed. Communication with the Supreme Court has begun regarding any proposed rule amendment given the comments by circuit courts that had been received from the publication of the initial draft amendments. Further work on this matter remains tabled until more guidance or direction is provided to RJAC.

18-RJA-08: This issue was brought to the attention of RJAC by the Family Law Rules Committee. That committee proposed amendments to the existing Rule 2.545, to include both parties in the consideration of related cases when in family courts. The proposed language by the FLRC was amended slightly by the subcommittee, and was approved by the FLRC representative/RJAC member who was present. The proposed amendments to Rule 2.545 were approved unanimously by the subcommittee attendees.

4. Prepared the attached written report (include summary of issues, factors considered, majority position, minority position, if applicable, and proposed change in legislative format).

The proposed rule amendments as to Rule 2.545 are attached to this subcommittee report as Appendix A.

The Subcommittee Chair is prepared to report to the full Committee at the meeting on

June 28, 2019.

/s/ Michael Korn Subcommittee Chair

cc: Committee Chair Committee Secretary The Florida Bar Liaison

2 RJAC June 2019 Agenda Page 79 of 175 Subcommittee C Action Report – Appendix A

RULE 2.545. CASE MANAGEMENT

(a) Purpose. [NO CHANGE]

(b) Case Control. [NO CHANGE]

(c) Priority Cases. [NO CHANGE]

(d) Related Cases.

(1) The petitioner and respondent in a family case as defined in this rule shall file with the court a notice of related cases in conformity with family law form 12.900(h), if related cases are known or reasonably ascertainable. A case is related whether it is open or closed and when:

(A) it involves any of the same parties, children, or issues and it is pending at the time the party files a family case; or

(B) it affects the court’s jurisdiction to proceed; or

(C) an order in the related case may conflict with an order on the same issues in the new case; or

(D) an order in the new case may conflict with an order in the earlier litigation.

(2) “Family cases” include dissolution of marriage, annulment, support unconnected with dissolution of marriage, paternity, child support, UIFSA, timesharing, custodial care of and access to children, proceedings for temporary or concurrent custody of minor children by extended family, adoption, name change, declaratory judgment actions related to premarital, martial [marital], or postmarital agreements, civil domestic, repeat violence, dating violence, stalking, and sexual violence injunctions, juvenile dependency, termination of parental rights, juvenile delinquency, emancipation of a minor, CINS/FINS, truancy, and modification and enforcement of orders entered in these cases.

(3) The notice of related cases shall identify the caption and case number of the related case, contain a brief statement of the relationship

3 RJAC June 2019 Agenda Page 80 of 175 of the actions, and contain a statement addressing whether assignment to one judge or another method of coordination will conserve judicial resources and promote an efficient determination of the actions.

(4) The notice of related cases shall be filed with the initial pleading by the filing attorney or self-represented petitioner or respondent. The notice shall be filed in each of the related cases that are currently open and pending with the court and served on all other parties in each of the related cases, and as may be directed by the chief judge or designee. Parties may file joint notices. A notice of related cases filed pursuant to this rule is not an appearance. If any related case is confidential and exempt from public access by law, then a Notice of Confidential Information Within Court Filing as required by Florida Rule of Judicial Administration 2.420 shall accompany the notice. Parties shall file supplemental notices as related cases become known or reasonably ascertainable.

(5) Each party hasPetitioner and respondent have a continuing duty to inform the court of any proceedings in this or any other state that could affect the current proceeding.

(6) Whenever it appears to a party that two or more pending cases present common issues of fact and that assignment to one judge or another method of coordination will significantly promote the efficient administration of justice, conserve judicial resources, avoid inconsistent results, or prevent multiple court appearances by the same parties on the same issues, the party may file a notice of related cases requesting coordination of the litigation.

(e) Continuances. [NO CHANGE]

Committee Notes

[NO CHANGE]

[Approved by Subcommittee C, unanimously by attendees, on March 8, 2019.]

4 RJAC June 2019 Agenda Page 81 of 175 $upreme (!Court of jfloriba 500 South Duval Street Tallahassee, Florida 32399-1925

CHARLES T. CANADY JOHN A. TOMASINO ' CHJEF JUSTICE CLERK OF COURT RICKY POLSTON JORGE LABARGA SILVESTER DAWSON C. ALAN LAWSON February 11, 2019 MARSHAL BARBARA LAGOA ROBERT J. LUCK CARLOS G. MUNIZ JUSTICES

Mr. Eduardo I. Sanchez, Chair Rules of Judicial Administration Committee United States Attorney's Office 99 N.E. 4th Street, Suite 800 Miami, Florida 33132-2131

Re: Service of Documents Not Filed in a Cami Proceeding

Dear Mr. Sanchez:

At the direction of the Court, I am writing you in your capacity as Chair of the Rules of Judicial Administration Committee to ask your committee to coordinate the submission of a joint out-of-cycle rules report, as provided for in Florida Rule of Judicial Administration 2.140( a)(7). The Cami would like the rules committees to review their respective bodies of iules and propose rule amendments that will require documents that are to be served but not filed with the comi to be served in accordance with Florida Rule of Judicial 2.516 (Service of Pleadings and Documents).

In Wheaton v. Wheaton, No. SC17-716 (Fla. 2019), amajorityofthe Court recently determined that a proposal for settlement is not subject to the service requirements of rule 2.516 because the proposal must be served on the party to whom it is made but not be filed with the comi. As you may know, rule 2.516 was proposed, along with conforming amendments to other rules, as "a comprehensive proposal to implement e-mail service in Florida." Wheaton v. Wheaton, No. SCI 7­ 716 (Canady, C.J., concun-ing in result with opinion) (citing In re Amends. to Fla.

RJAC June 2019 Agenda Page 82 of 175 Mr. Eduardo I. Sanchez Feb1uary 11, 2019 Page: 2

Rules ofJud. Adm in., Fla. Rules ofCiv. Pro., Fla. Rules ofCrim. Pro, Fla. Prob. Rules, Fla Rules ofTrqffic Court, Fla. Small Claims rules, Fla. Rules ofJuv. Pro., Fla Rules ofApp. Pro., Fla. Family Law Rules ofPro-E-Mail Serv. Rule, 102 So. 3d 505, 506 (Fla. 2012)). Therefore, the Court would like the iules committees to propose any rule amendments necessary to ensure that service of documents that are not filed with the court, like service of documents that are filed, is governed by rule 2.516.

Please file your report with my office by August 1, 2019, with copies to Justice Polston, the Court's liaison to your committee, and Deborah Meyer, the Court's director of central staff. Ifyou should determine that the committees need more time to consider the issue, please submit a request for extension oftime to my office indicating when the joint report can be filed. Thank you in advance for your attention to this matter, and please do not hesitate to contact me or Justice Polston, if you have any questions.

;JA---­ ohn A. Tomasino

JAT/dm/sb

Enclosure

cc: Hon. Ricky Polston, Liaison, Rules of Jud. Admin. Committee Hon. Judge James Hankinson, Chair Crim. Court Steering Committee Mr. Joshua E. Doyle, Executive Director, The Florida Bar Ms. Courtney Brewer, Chair, App. Court Rules Committee Mr. Scott Dimond, Chair, Civ. Pro. Rules Committee Ms. Sheila Loizos, Chair, Crim. Pro. Rules Committee Ms. Maria Obradovich, Chair, Fam. Law Rules Committee Mr. David Silverstein, Chair, Juv. Court Rules Committee Mr. Theodore Kypreos, Co-Chair, Probate Rules Committee Ms. Cristina Papanikos, Co-Chair, Probate Rules Committee Ms. Christina Magee, Chair, Small Claims Rules Committee ,1\1s. Anne Gennusa, Chair, Traffic Court Rules Committee ~Ms. Krys Godwin, Bar Staff Liaison, Rules of Jud. Admin. Committee Ms. Deborah J. Meyer, Supreme Court Director of Central Staff

RJAC June 2019 Agenda Page 83 of 175 ; 11,

~upremt (!Court of jflortba

No. SCI 7-716

SANDRA KENT WHEATON, Petitioner,

vs.

MARDELLA WHEATON, Respondent.

January 4, 2019

QUINCE,J.

Petitioner Sandra Wheaton seeks review ofthe decision of the Third District

Court ofAppeal in Wheaton v. Wheaton, 217 So. 3d 125 (Fla. 3d DCA 2017), on

the ground that it expressly and directly conflicts with Boatright v. Phillip Morris

USA, Inc., 218 So. 3d 962 (Fla. 2d DCA 2017), McCoy v. R.J. Reynolds Tobacco

Co., 229 So. 3d 827 (Fla. 4th DCA 2017), and Oldcastle Southern Group, Inc., v.

Railworks Track Systems, Inc., 235 So. 3d 993 (Fla. 1st DCA 2017), regarding

whether proposals for settlement made pursuant to section 768.79, Florida Statutes

(2018), and Florida Rule of Civil Procedure 1.442 must comply with the email

service provisions ofFlorida Rule of Judicial Administration 2.516. We have

RJAC June 2019 Agenda Page 84 of 175 jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons that follow, we

quash the decision of the Third District.

FACTS AND PROCEDURAL HISTORY

Respondent, Mardella Wheaton, sued her ex-daughter-in-law, Petitioner,

Sandra Wheaton, for unlawful detainer. Petitioner served a proposal for settlement

on Respondent via email. Respondent received the proposal but did not accept it.

The trial court granted Petitioner's motion for summary judgment. 1

Petitioner then moved to enforce her proposal for settlement and to collect

attorney's fees. Respondent opposed the motion on three grounds: (1) the proposal

was vague; (2) the proposal was not made in good faith; and (3) the proposal failed

to strictly comply with the e-mail service requirements of rule 2.516. The trial

court rejected the vagueness argument but agreed that the proposal failed to strictly

comply with the requirements of rule 2.516. 2 The basis for the trial court's ruling

was that Petitioner's email "did not include a certificate of service, a subject line

containing the words 'SERVICE OF COURT DOCUMENTS,' and [failed to

1. Respondent appealed the summary judgment loss to the Third District, which affirmed the trial court per curiam. Wheaton v. Wheaton, 194 So. 3d 1036 (Fla. 3d DCA 2016).

2. Because the trial court found that the proposal was unenforceable, it did not reach the issue ofwhether the offer was made in good faith.

- 2 ­

RJAC June 2019 Agenda Page 85 of 175 comply with] other requirements of1ules 1.442, 1.080 and 2.516 of the Florida

Rules of [Civil Procedure and Judicial Administration.]" In support ofits

conclusion, the trial court relied on the Fom1h District Court of Appeal's decision

in Matte v. Caplan, 140 So. 3d 686 (Fla. 4th DCA 2014), and precedent from this

Court stating that section 768.79 and rule 1.442 must be strictly construed.

Therefore, according to the trial court, Petitioner's failure to comply with all of the

formatting requirements set forth in rule 2.516(b)(l)(E) rendered the proposal

unenforceable.

Petitioner appealed the trial court's decision to the Third District Court of

Appeal, arguing that "because the proposal for settlement is neither a pleading nor

a 'document filed in any com1 proceeding,' it is not subject to the requirements of

rule 2.516." Wheaton, 217 So. 3d at 127. The Third District acknowledged that

subdivision (a) ofrule 2.516 applies only to documents that are filed in com1

proceedings, and that section 768.79and1ule 1.442 expressly forbid a party from

filing a proposal when it is initially served. Id. However, the court disagreed with

Petitioner's reliance on the language in subdivision (a) of rule 2.516. Id. Instead,

the court found that "[t]he relevant language is contained in subdivision (b) of rule

2.516, which provides in pertinent part: 'All documents required orpermitted to be

served on another party must be served by e-mail, unless the parties otherwise

- 3 ­

RJAC June 2019 Agenda Page 86 of 175 stipulate or this rule otherwise provides.'" Id. The district court went on to hold

that

the document in question (the proposal for settlement) is "permitted to be served on another party." And because the parties did not "otherwise stipulate," and because the rule does not "otherwise provide,"! : this proposal for settlement "must be served by e-mail" and therefore must be served in compliance with the e-mail requirements of rule 2.516, regardless ofwhether the document is contemporaneously filed with the court. We find this language plain and unambiguous, and hold that a proposal for settlement falls clearly 71 within the scope ofI {"pageset": "S lrule 2.5 l 6(b) and is subject to that rule's requirements.

Id. at 127-28 (footnote omitted). In so holding, the district court noted that it

"agree[d] with the decision and analysis" set forth in the First District Court of

Appeal's decision in Floyd v. Smith, 160 So. 3d 567 (Fla. 1st DCA 2015), and the

Fourth District's decision in Matte v. Caplan, 140 So. 3d 686 (Fla. 4th DCA 2014).

Wheaton, 217 So. 3d at 128.

Petitioner filed a motion for rehearing, arguing that the district comi's

decision was inconsistent with this Court's decision in Kuhajda v. Borden Dairy

Co. ofAlabama, LLC, 202 So. 3d 391 (Fla. 2016), which was published after

briefing was completed in Wheaton. The district court summarily denied

Petitioner's motion. Now before this Comi, Petitioner contends that the Third

District's decision expressly and directly conflicts with Boatright v. Phillip Morris

USA, Inc., 218 So. 3d 962 (Fla. 2d DCA 2017), McCoy v. R.J. Reynolds Tobacco

- 4 ­

RJAC June 2019 Agenda Page 87 of 175 Co., 229 So. 3d 827 (Fla. 4th DCA 2017), and Oldcastle Southern Group, Inc. v.

Railworks Track Systems, Inc., 235 So. 3d 993 (Fla. 1st DCA 2017).

ANALYSIS

The conflict issue presented is whether proposals for settlement made

pursuant to section 768.79, Florida Statutes, and Florida Rule ofCivil Procedure

1.442 must comply with the email service provisions ofFlorida Rule of Judicial

Administration 2.516. The standard of review in determining whether an offer of

settlement comports with section 768.79, Florida Statutes, and Florida Rule of

Civil Procedure 1.442 and is de novo. Pratt v. Weiss, 161 So. 3d 1268, 1271 (Fla.

2015). Because the conflict issue involves the interpretation of the Court's rules,

in this case Florida Rule of Judicial Administration 2.516, the standard of review is

also de novo. Saia Motor Freight Line, Inc. v. Reid, 930 So. 2d 598, 599 (Fla.

2006).

Relevant Provisions

Section 768.79, Florida Statutes ("Offer ofjudgment and demand for

judgment"), "provides a sanction against a party who unreasonably rejects a

settlement offer." Willis Shaw Exp., Inc. v. Hilyer Sod, Inc., 849 So. 2d 276, 278

(Fla. 2003). Section 768.79 provides in relevant part:

In any civil action for damages filed in the courts of this state, if a defendant files an offer ofjudgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney's fees incurred by her or him on the

- 5 ­

RJAC June 2019 Agenda Page 88 of 175 defendant's behalf ... if ... the judgment obtained by the plaintiff is at least 25 percent less than such offer, and the court shall set off such costs and attorney's fees against the award.

The statute further provides that an offer shall:

(a) Be in writing and state that it is being made pursuant to this section. (b) Name the party making it and the party to whom it is being made. (c) State with particularity the amount offered to settle a claim for punitive damages, if any. (d) State the total amount.

§ 768.79(2), Fla. Stat. (2018). The section also states that a proposal "shall be

served upon the party to whom it is made, but it shall not be filed unless it is

accepted or unless filing is necessary to enforce the provisions ofthis section."

§ 768.79(3), Fla. Stat. (2018).

Section 768.79 is implemented by Florida Rule of Civil Procedure 1.442

("Proposals for Settlement"). The rule provides that a proposal shall:

(A) name the party or parties making the proposal and the party or parties to whom the proposal is being made; (B) state that the proposal resolves all damages that would otherwise be awarded in a final judgment in the action in which the proposal is served, subject to subdivision (F); (C) state with particularity any relevant provisions; (D) state the total amount of the proposal and state with particularity all nonmonetary terms of the proposal; (E) state with particularity the amount proposed to settle a claim for punitive damages, if any; (F) state whether the proposal includes attorneys' fees and whether attorneys' fees are part ofthe legal claim; and

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RJAC June 2019 Agenda Page 89 of 175 (G) include a certificate of service in the form required by rule 1.080.

Fla. R. App. P. 1.442(c)(2). The rule also states that a proposal "shall be served on

the party or parties to whom it is made but shall not be filed unless necessary to

enforce the provisions ofthis rule." Fla. R. App. P. 1.442(d).

While rule 1.442 requires proposals for settlement to include a certificate of

service, rule 1.080 no longer contains a certificate of service provision. Instead,

the rule states that "[e ]very pleading subsequent to the initial pleading, all orders,

and eve1y other document filed in the action must be served in confonnity with the

requirements of Florida Rule of Judicial Administration 2.516." Fla. R. Civ P.

1.080(a). 3

The relevant portions ofrule 2.516 provide:

(a) Service; When Required. Unless the court otherwise orders, or a statute or supreme court administrative order specifies a different means of service, every pleading subsequent to the initial pleading and every other document filed in any court proceeding, except applications for witness subpoenas and documents served by formal notice or required to be served in the manner provided for service offormal notice, must be served in accordance with this rule on each party. No service need be made on parties against whom a default has been entered, except that pleadings asserting new or additional claims against them must be served in the manner provided for service of summons.

3. Rule 1.080(±) used to contain a certificate of service provision, but it was deleted in 2012 when rule 2.516 was adopted. See In re Amend. to Fla. Rules of Jud. Admin., 102 So. 3d 505, 510 (Fla. 2012).

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RJAC June 2019 Agenda Page 90 of 175 (b) Service; How Made. When service is required or permitted to be made upon a party represented by an attorney, service must be made upon the attorney unless service upon the patiy is ordered by the court. (1) Service by Electronic Mail ("e-mail"). All documents required or permitted to be served on another party must be served by e-mail, unless the parties otherwise stipulate or this rule otherwise provides. A filer of an electronic document has complied with this subdivision if the Florida Courts e-filing Portal ("Potial") or other authorized electronic filing system with a supreme court approved electronic service system ("e-Service system") served the document by e-mail or provided a link by e-mail to the document on a website maintained by a clerk ("e-Service"). The filer of an electronic document must verify that the Portal or other e-Service system uses the names and e-mail addresses provided by the parties pursuant to subdivision (b)(1 )(A).

(Emphasis added.) The rule goes on to provide the following fotmatting requirements:

(i) All documents served by e-mail must be sent by an e-mail message containing a subject line beginning with the words "SERVICE OF COURT DOCUMENT" in all capital letters, followed by the case number and case style of the proceeding in which the documents are being served. (ii) The body of the e-mail must identify the court in which the proceeding is pending, the case number, the name of the initial party on each side, the title of each document served with that e-mail, and the name and telephone number ofthe person required to serve the document. (iii) Any document served by e-mail may be signed by any of the "Isl," "Is," or "sl" formats. (iv) Any e-mail which, together with its attached documents, exceeds the appropriate size limitations specified in the Florida Supreme Court Standards for Electronic Access to the Court, must be divided and sent as separate e-mails, no one of which may exceed the appropriate size limitations specified in the Florida Supreme Court Standards for Electronic Access to tlte Court and each of which must be sequentially numbered in the subject line.

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RJAC June 2019 Agenda Page 91 of 175 Fla. R. Jud. Admin. 2.516(b)(l)(E)(i)-(iv).

Conflict Cases

In Boatright, the plaintiffs served four proposals for settlement on the

defendants-one from each plaintiff to each defendant. Boatright, 218 So. 3d at

964. The proposals were sent to the defendants via U.S. certified mail. Id.

Following a jury verdict in their favor, the plaintiffs filed a motion for attorney's

fees and costs based in part on the defendants' failure to accept the proposals for

settlement. Id. The trial court denied the motion, finding that the plaintiffs were

not entitled to attorney's fees and costs because they did not serve their proposals

for settlement on the defendants by email, and therefore failed to strictly comply

with section 768.79 and rule 1.442. Id.

In reversing the trial court, the Second District held that "proposals for

settlement are not subject to the service requirements of rule 2.516 because the

proposals do not meet rule 1.080(a)'s threshold requirement that they be 'filed in

the action.' " Id. at 965. Additionally, the district court rejected the Wheaton

court's reliance on subdivision (b) of1ule 2.516, reasoning that "rule 2.516(b)(l)'s

mandatory service requirement is confined to every pleading subsequent to the

initial pleading and documents that are filed in court-it does not extend to literally

every document which is due to be served." Id. at 970. In doing so, the district

court certified conflict with the Third District's decision. Id. at 971.

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RJAC June 2019 Agenda Page 92 of 175 In McCoy, the plaintiff served a proposal for settlement on each ofthree

defendants by U.S. certified mail. McCoy, 229 So. 3d at 828. The defendants

received the proposals for settlement but did not accept them. Id. After trial, the

plaintiff obtained a verdict that entitled him to attorney's fees under section 768.79

and moved for attorney's fees. Id. The defendants opposed the motion, arguing

that the plaintiff failed to email the proposals pursuant to rule 2.516. Id. The trial

court denied the motion. Id.

The Fourth District reversed the trial court, finding that "[w ]here a party has

actual notice of an offer ofsettlement, and the offering party has satisfied the

requirements of section 768.79 on entitlement, to deny recovery because the initial

offer was not emailed is to allow the procedural tail of the law to wag the

substantive dog." Id. (citing Kuhajda, 202 So. 3d 391). The court noted that both

section 768.79 and rule 1.442 require service ofproposals for settlement but

prohibit filing, and found that as applied to rule 2.56l(a), a proposal for settlement

is neither a pleading nor a document "filed in any court proceeding." McCoy, 229

So. 3d at 829 (quoting Fla. R. Jud. Admin. 2.516(a)). Thus, "under the plain

language of Rule 2.516(a), then, the initial offer ofjudgment is outside of the email

requirements ofthat rule." Id. at 829.

The district court also disagreed with Wheaton, stating that in reaching its

conclusion, the Third District

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RJAC June 2019 Agenda Page 93 of 175 imports language from 1ule 2.5 l 6(b) to add words to the plain language of2.516(a). Instead of focusing on subsection 2.516(a), which specifies when email service is "required," the Wheaton court looked to subsection 2.516(b) to hold that email service was required for the initial delivery of an offer ofjudgment. We disagree with Wheaton; subsection (a) is not ambiguous, so a comi should not add words to manipulate its meaning.

Id. (citation omitted).

In Oldcastle, the plaintiff sent a proposal for settlement by email to the

defendant. Oldcastle, 235 So. 3d at 993-94. The defendant received the

proposal-but did not accept it-and then the plaintiff received a judgment more

than 25 percent greater than the amount demanded in the proposal. Id. at 994

(citing§ 768.79(1), Fla. Stat. (2014)). The defendant argued that the proposal had

to be served in accordance with rule 2.516, which the First District rejected. Id. at

995.

The district court acknowledged that the plaintiff's proposal did not comply

with the formatting requirements set forth by rule 2.516(b)(l)(E). However, the

court found that these requirements did not apply because "compliance with rule

2.516 is not required when serving a proposal for settlement." Id. at 994. To reach

its conclusion, the court examined rule 2.516(a) and found that "since the proposal

for settlement is not to be filed when it is served, the proposal is not included in the

clause 'every other document filed in any court proceeding.'" Id. at 994-95. In

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RJAC June 2019 Agenda Page 94 of 175 doing so, the court adopted the view of Boatright and McCoy and certified conflict

with Wheaton. Oldcastle, 235 So. 3d at 994.

Interpretation

We have previously stated that both rule 1.442 and section 768.79 should be

strictly construed. See Campbell v. Goldman, 959 So. 2d 223, 226 (Fla. 2007)

(citing Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So. 2d 276 (Fla. 2003)).

"[W]hen the language ofthe statute is clear and unambiguous and conveys a clear

and definite meaning, there is no occasion for resorting to the rules ofstatutory

interpretation." Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984) (quotingA.R.

Douglass, Inc. v. McRainey, 137 So. 157, 159 (Fla. 1931)); accord Forsythe v.

Longboat Key Beach Erosion Control Dist., 604 So. 2d 452, 454 (Fla. 1992). If,

however, the language of the rule is ambiguous and capable of different meanings,

this Court will apply established principles of statuto1y construction to resolve the

ambiguity. See, e.g., Gulfstream Park Racing Ass 'n, Inc., v. Tampa Bay Downs,

Inc., 948 So. 2d 599, 606 (Fla. 2006).

From the plain language of section 768.79 and rule 1.442, neither require

service by email. The procedure for communicating an offer ofsettlement is set

out in section 768.79(3), Florida Statutes (2018), which states:

The offer shall be served upon the party to whom it is made, but it shall not be filed unless it is accepted or unless filing is necessary to enforce the provisions ofthis section.

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RJAC June 2019 Agenda Page 95 of 175 (Emphasis added.) The statute only requires that the offer be served on the party to

whom it is directed and not be filed with the court but does not require service by

email.

Similarly, subdivision ( d) of rule 1.442 outlines the procedure for

communicating a proposal for settlement to the opposing pa1iy. The subdivision

states:

(d) Service and Filing. A proposal shall be served on the party or parties to whom it is made but shall not be filed unless necessary to enforce the provisions ofthis 1ule.

Fla. R. Civ. P. l .442(d). Again, the rule provides that the offer must be served on

the party to whom it is directed and not filed with the comi but does not require

service by email. However, unlike section 768.79, rule 1.442 provides that a

proposal for settlement must "include a certificate of service in the form required

by rule 1.080." Fla. R. Civ. P. l.442(c)(2)(G).

As previously mentioned, rule 1.080 does not specify the form of the

certificate of service. Instead, the rule provides:

Every pleading subsequent to the initial pleading, all orders, and every other document filed in the action must be served in conformity with the requirements ofFlorida Rule ofJudicial Administration 2.516.

Fla. R. Civ. P. l.080(a) (emphasis added). This does not apply to proposals for

settlement because a settlement offer is neither a pleading subsequent to the initial

pleading, an order, or a document filed with the court. Accordingly, based on rule

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RJAC June 2019 Agenda Page 96 of 175 l.080's plain language, 1ule 2.516 would not apply to proposals for settlement

made pursuant to section 768.79 and rule 1.442.

It appears that in reaching its conclusion to the contrary, the Third District

focused on construing rule 2.516 more than section 768.79 and rule 1.442.

However, even the plain language ofrule 2.516 does not supp01i the Third

District's conclusion. The provisions of rule 2.516 that are at issue in this case are

subdivision (a), "Service; When Required," and subdivision (b ), "Service; How

Made." According to the first subdivision, "every pleading subsequent to the

initial pleading and every other document filed in any comi proceeding ... must be

served in accordance with this rule." Fla. R. Jud. Admin. 2.516(a). The 1ule goes

on to state in the second subdivision that "[a]ll documents required or permitted to

be served on another party must be served by e-mail, unless the paiiies otherwise

stipulate or this rule provides otherwise." Fla. R. Jud. Admin. 2.5 l 6(b )(1 ).

Therefore, the plain language ofthe rule provides that if a document is (1) a

pleading subsequent to the initial pleading, or (2) a document filed in any court

proceeding, it must be served according to the rule. Then, the rule goes on to

provide that service must be made by email if the document ( 1) requires service or

(2) permits service.

The Third District appeared to agree that the rule only requires service if the

document is a pleading subsequent to the initial pleading or a document filed in

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RJAC June 2019 Agenda Page 97 of 175 any comt proceeding because it determined that a proposal for settlement is a

document that is "permitted to be served on another patty." Wheaton, 217 So. 3d

at 127 (quoting Fla. R. Jud. Admin. 2.516(b)). However, if rule 2.516 creates two

groups ofdocuments that must be filed--

and documents that are permitted to be served-proposals for settlement would not

fall in the latter group. The proposal for settlement statute provides that a proposal

"shall be served" on the party to whom it is made, but "shall not be filed" unless it

is accepted or filing is necessary to enforce the provisions of the statute. §

768.79(3), Fla. Stat. (2018). Similarly, the 1ule that implements section 768.79

states "[a] proposal shall be served on the party or patties to whom it is made but

shall not be filed unless necessary to enforce the provisions of this rule." Fla. R.

Civ. P. 1.442(d). We have previously held that "[t]he word 'shall' is mandatory in

nature." Sanders v. City ofOrlando, 997 So. 2d 1089, 1095 (Fla. 2008); see also

Fla. Bar v. Trazenfeld, 833 So. 2d 734, 738 (Fla. 2002) ("The word 'may' when

given its ordinary meaning denotes a permissive term rather than the mandatory

connotation ofthe word 'shall.' "). Therefore, a proposal for settlement is a

document that must be served on the party to whom it is made but must not be filed

with the court. By its plain language, a proposal for settlement is not a required

document as contemplated by rule 2.516. Accordingly, the Third District erred in

finding that a proposal for settlement is subject to the requirements of1ule 2.516.

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RJAC June 2019 Agenda Page 98 of 175 In support of its conclusion, the Third District relied on two cases: the First

District's decision in Floyd, 160 So. 3d 567, and the Fourth District's decision in

Matte, 140 So. 3d 686. However, neither case addresses the issue of rule 2.516 as

it relates to proposals for settlement. In Floyd, the First District considered

whether a proposal for settlement had to contain "a certificate ofservice in the

form required by rule 1.080." Floyd, 160 So. 3d at 569 (quoting Fla. R. Civ. P.

1.442( c )(2)(G)). Having addressed that specific issue, Floyd is inapplicable to the

instant case because it did not consider the issue ofwhether rule 2.516 applied to

service of a proposal for settlement. Likewise, in Matte, the court addressed a

motion for sanctions sought pursuant to section 57.105, Florida Statutes (2013).

Matte, 140 So. 3d at 687-88. In that case, the court overlooked the limitation

contained in rule 2.516(a) and began its analysis by construing subdivision (b). In

doing so, the court found that preliminary service of a motion for sanctions under

section 57 .105 must be accomplished by email. However, motions for sanctions

are similar to proposals for settlement in that they are forbidden from being

initially filed. See§ 57.105(4), Fla. Stat. (2018). This, as noted by the Second

District Court ofAppeal, "constitutes a fatal flaw in that court's reasoning."

Boatright, 218 So. 3d at 969; see also Douglas v. Zachry Indus., Inc., No.

6:13cvl9430r140Gil(, 2015 WL 6750803, at *3 (M.D. Fla. Nov. 5, 2015) ("It is

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RJAC June 2019 Agenda Page 99 of 175 this Court's view that the Matte decision overlooked the limiting language-'filed

in any court proceeding'-and reached an incorrect conclusion as a result.").

Moreover, even ifthis Court were to accept the Third District's

interpretation, Petitioner's failure to comply with the email formatting

requirements set forth in 1ule 2.516 would not render the proposal unenforceable.

Respondent contends that when parties seek to obtain attorney's fees, "all t's must

be crossed and i's dotted." Campbell, 959 So. 2d at 227 (Pariente, J., specially

concurring). However, we recently held that a proposal for settlement that did not

strictly comply with rule 1.442( c )(2)(F) was not invalid where the proposal

"complied with the relevant requirements ofthe rule that implemented the

substantive requirements of section 768.79." Kuhajda, 202 So. 3d at 396. In that

case, we recognized fuat section 768.79 and rule 1.442 must be strictly construed

but found that strict construction was required "in contexts in which the provisions

of the 1ule implemented the substantive requirements of section 768.79." Id. at

395. Because we found that "the offers ofjudgment at issue in this case are not

ambiguous," we "decline[d] to invalidate Kuhajda's offers ofjudgment solely for

violating a requirement in rule 1.442 that section 768.79 does not require." Id. In

doing so, we reasoned that "[t]he procedural rule should no more be allowed to

trump the statute here than the tail should be allowed to wag the dog." Id. at 395­

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RJAC June 2019 Agenda Page 100 of 175 96. Ultimately, we held "a procedural rule should not be strictly construed to

defeat a statute it is designed to implement." Id. at 396

As applied to the instant case, even if we were to find that rule 2.516 applied

to proposals for settlement, Petitioner's failure to comply with the rule would not

render the proposal unenforceable because the proposal complied with the

substantive requirements set fotih by section 768.79. Petitioner's proposal was in

writing, stated that it was made pm·suant to the section, named the party making

the offer and the party to whom it was made, stated the amount offered to settle,

and the total amount as required by the statute. See§ 768.79(2)(a)-(d). Moreover,

the proposal stated that it would resolve all damages that would otherwise be

awarded in a final judgment, stated the relevant conditions, and whether the

proposal included attorney's fees as required by the additional provisions found in

the rule implementing the section. Fla. R. Civ. P. 1.442(c)(2). The only

deficiencies the trial court found in the proposal were related to requirements set

forth by rule 2.516. However, pursuant to Kuhajda, tltat should not be enough to

find that the proposal is unenforceable. Because the proposal complied with the

substantive requirements set forth by the statute, the proposal is valid.

CONCLUSION

The plain language of section 768.79 and rule 1.442 do not require service

by email. Moreover, because a proposal for settlement is a document that is

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RJAC June 2019 Agenda Page 101 of 175 required to be served on the party to whom it is made, rule 2.516 does not apply.

Accordingly, the Third District elTed in affirming the trial court. Accordingly, we

quash Wheaton, approve Boatright, McCoy, and Oldcastle, and remand for

proceedings consistent with this decision.

It is so ordered.

PARIENTE, LEWIS, POLSTON, and LABARGA, JJ., concur. CANADY, C.J., concurs in result with an opinion, in which LAWSON, J., concurs.

NO MOTION FOR REHEARING WILL BE ALLOWED.

CANADY, C.J., concmring in result.

I agree with the majority's conclusion that the "Petitioner's failure to comply

with the email formatting requirements" ofFlorida Rule of Judicial Administration

2.516 is not a basis for determining the settlement proposal to be invalid. Majority

op. at 17. But I disagree with the majority's holding that proposals for settlement

are not subject to the email service requirement ofrule 2.516. Majority op. at 15.

So I would adopt the Third District's view of the interpretation of rule 2.516 but

reject its conclusion that the settlement offer was invalid.

The adoption of rule 2.516 was the culmination of an effort to develop "a

comprehensive proposal to implement e-mail service in Florida." In re

Amendments to Fla. Rules ofJudicial Admin., Fla. Rules ofCivil Procedure, Fla.

Rules ofCriminal Procedure, Fla. Prob. Rules, Fla. Rules ofTraffic Court, Fla.

- 19 ­

RJAC June 2019 Agenda Page 102 of 175 Small Claims Rules, Fla. Rules ofJuvenile Procedure, Fla. Rules ofAppellate

Procedure, Fla. Family Law Rules ofProcedure-E-Mail Serv. Rule, 102 So. 3d

505, 506 (Fla. 2012) (emphasis added). In adopting rule 2.516, we acknowledged

that it "was modeled after" the then-existing Florida Rule of Civil Procedure 1.080.

Id. at 507. And we stated unequivocally that "new rule 2.516 provides that all

documents required or permitted to be served on another party must be served by

e-mail." Id. (emphasis added). Nothing in the history, context, or structure ofthe

rule suggests that the unqualified reference in the text ofsubdivision (b) to "[a]ll

documents required or permitted to be served" is intended to include only

documents that are filed. Fla. R. Jud. Admin. 2.516(b)(l) (emphasis added).

Subdivision (a) of rule 2.516 contains general provisions concerning the

requirements for service ofpleadings and other documents that are "filed in any

court proceeding." Fla. R. Jud. Admin. 2.516(a). The scope of subdivision (a) is

thus limited to court filings. But that does not mean that the scope of subdivision

(b) is similarly limited. Subdivision (a) simply does not address documents that

are not filed. Subdivision (b ), by its express terms, specifies how service must be

made whenever "service is required or permitted to be made." Fla. R. Jud. Admin.

2.5 l 6(b ). By its plain language, the scope of subdivision (b) necessarily extends

beyond documents that are filed in court proceedings to include documents that are

served but not filed.

- 20 ­

RJAC June 2019 Agenda Page 103 of 175 The majority errs in relying on the reference in Florida Rule ofCivil

Procedure 1.442(c)(2)(G) to "a certificate of service in the form required by rule

1.080." Majority op. at 13. Since the adoption of rule 2.516 in 2012, rule 1.080

has not contained a form certificate of service. With the adoption of rule 2.516 the

form certificate of service was moved to the new rule, where it is set forth in

subdivision (f). So the reference on which the majority relies is an obsolete,

erroneous reference to a superseded version of rule 1.080-a nonsensical reference

that can only be treated as meaningless. It can certainly provide no guidance for

interpreting the scope of rule 2.516(b ), much less a basis for disregarding the plain

language of that rule.

LAWSON, J., concurs.

Application for Review of the Decision ofthe District Court of Appeal - Direct Conflict ofDecisions

Third District- Case No. 3D16-490

(Monroe County)

Maegan P. Luka, Philip J. Padovano, and Joseph T. Eagleton ofBrannock & Humphries, Tampa, Florida; and Robert Stober ofHersoff, Lupino & Yagel, LLP, Tave1nier, Florida,

for Petitioner

Dale R. Coburn, Gaelan P. Jones, and Matthew S. Francis ofVe1nis & Bowling of the Florida Keys, P.A., Islamorada, Florida,

for Respondent

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RJAC June 2019 Agenda Page 104 of 175 RJA Ad Hoc Subcommittee on Rule 2.540 Report June 11, 2019

Richard A. Nielsen Circuit Court Judge Thirteenth Judicial Circuit 800 E. Twiggs St. Room 526 Tampa, Florida 33602

Ad Hoc Subcommittee on Rule 2.540, Requests for Accommodations by Persons With Disabilities

Background: In January 2019 Subcommittee A and Subcommittee B agreed to form the Ad Hoc Subcommittee to continue review of Rule 2.540. Both Subcommittees had been reviewing separate parts of the rule. The Ad Hoc Subcommittee is Chaired by the Chair of Subcommittee B. The Ad Hoc Subcommittee is to review whether RJAC should amend or otherwise revise Rule 2.540.

Work Undertaken: The Ad Hoc Subcommittee gathered substantial resources on Florida State Courts accommodating persons in need. These included ADA materials and websites, information and history of the actions of the Florida Office of State Courts Administrator (OSCA), and other publications and websites devoted to the ADA and accommodating persons with special needs. Representatives of OSCA were consulted and we were advised that OSCA was not aware of any issues concerning compliance with rule 2.540 at this time. OSCA had no suggestions or recommendations for changes to rule 2.540. OSCA helps to coordinate efforts of the Florida state courts to comply with rule 2.540. The OSCA web page has a link to rule 2.540, the model ADA accommodation request form referenced in the rule, a directory of the ADA coordinators in each courthouse, the ADA grievance procedure and complaint form, and other relevant information. Also included is the State Courts System’s Title II Guidelines, which were revised following the effective date of the ADA Amendments Act. The link to this site is: https://www.flcourts.org/Administration-Funding/Court-Administration-About-Us/ADA- Information

The Ad Hoc Subcommittee has been discussing and acting on the following issues. 1. Whether the rule should be updated to comply with amendments to federal statutes – primarily, the ADA and ADAAA. The consensus of the Subcommittee is that subdivision 2.540(b) should be amended to reflect changes in the U.S.C.

2. Whether courts should be required to designate an ADA Coordinator. Whether the rule should require/suggest that the assigned judge consult with the ADA Coordinator before ruling on a motion. OSCA already has implemented and facilitated the naming of an ADA Coordinator in each state court in Florida. OSCA has been involved, behind the scenes, for many years in assisting with ADA compliance within the courts.

RJAC June 2019 Agenda Page 105 of 175 The Subcommittee voted that the rule should be amended to require that when a request for accommodation is received, the ADA coordinator is to advise the judge of the request and the judge and the ADA Coordinator should confer to decide the appropriate response to the request.

3. Whether the rule should be expanded to apply to proceedings held outside a “public facility” (e.g., locations of depositions, mediations, etc. where attendance is compelled). There was much discussion on whether Rule 2.540 should be amended to be extend its application beyond the courthouse walls (e.g., mediation, depositions, etc.). Thereafter, a straw vote was taken. The Subcommittee concluded that expansion of the rule in this area should not be pursued further (No vote – 3; Yes vote – 2; Undecided – 1).

4. Whether the rule should address therapy/service animals. This area of the rule was discussed extensively at each meeting of the Subcommittee. There are substantial differences between service animals, therapy animals and emotional support animals. Service animals are permitted at any time and do not have to be invited into court. Therapy animals may be allowed in court, but are required to be invited to the courthouse. He would like the discussion and the rules be focused on the service animals, as therapy animals have published guidelines because they have to be invited. Service animals are part of the accommodations required by federal law. However, courts are not required to accommodate emotional support animals, as they are not recognized by any federal or state law. When a person comes to court with an animal seeking to bring the animal into court, you are able to ask only two questions: (1) Is the animal required because of a disability? And, if so, (2) What task is the animal trained to assist? It was noted that this is an area of the law that is still not well developed. The Subcommittee is considering including some guidance to Judges concerning the types of animals that are required to be accommodated and the ability for limiting other non-service animals. Subcommittee members have reached a common understanding that “service animals” are dogs and miniature horses providing services as specified in federal law. “Therapy animal” and “facility dog” are defined in section 92.55 (5), Florida Statutes (2018) (relating to use of therapy animals or facility dogs by victims or witness who are under the age of 18, a person who has an intellectual disability, or a sexual offense victim or witness) That section also establishes when and where they may be used. A facility animal serves people who use the facility. Facility animals are not tied to an individual. Therapy animals are linked to a specific individual. The Subcommittee is working on a possible amendment to rule 2.540 in which the various classes of animals are defined to assist courts in accommodating persons with service animals, permitting therapy and facility animals in the proper situations and excluding emotional support animals in the discretion of the court.

RJAC June 2019 Agenda Page 106 of 175 THE FLORIDA BAR RULES OF JUDICIAL ADMINISTRATION COMMITTEE

AD HOC SUBCOMMITTEE ON RULE 2.421 ACTION REPORT

TO: Eduardo Sánchez, Chair

FROM: Sandy Solomon, Subcommittee Chair

Please be advised that Ad Hoc Subcommittee on Rule 2.421 conducted meetings on April 2, April 16, May 1, and May 15, 2019, by conference call to discuss proposed Rule 2.421 (Ex Party Motion to Seal Documents).

Subcommittee attendance was as follows: Present/Not Present

Antonio Jaimes______x______

Hon. Jon Morgan______x______

Hon. Stephen Jewett ______x______

John roman______x______

______

Also attended at least one meeting:

Amy Borman______

The Subcommittee took the following action:

1. Determined that the submission is within the scope of Subcommittee authority. YES

2. Made the following work assignments: The subcommittee discussed the root concern that raised the referral from the Criminal Procedure Rules Committee attorney liaison, Heather Telfer. It was first discussed whether this concern should be part of an existing rule—perhaps Rule 2.420—but the subcommittee members worked further on this concern as a rule on its own. Meetings were had and subcommittee members worked on suggested amendments to the proposed rule, which were shared.

3. Made the following decisions: that a rule is necessary, several drafts with amendments are being discussed by the members (see attached).

1 RJAC June 2019 Agenda Page 107 of 175

4. Prepared the attached minutes and drafts of rules for the Committee’s review and discussion (see attached).

The Subcommittee Chair is prepared to report to the full Committee at the meeting on June 28, 2019.

Sandy Solomon Subcommittee Chair

cc: Committee Chair Committee Secretary The Florida Bar Liaison

2 RJAC June 2019 Agenda Page 108 of 175 From: Telfer, Heather To: Godwin, Krys; Sanchez, Eduardo Subject: Ex Parte Motion to Seal Document Date: Tuesday, January 15, 2019 9:41:38 AM Attachments: 2.421 Ex Parte Motion to Seal Documents 01 15 19.docx Andrews v State 2017-1034_miscdoc_347007_e05.pdf

It would be have this discussed during the RJA meeting. We’re stumbling across more instances in which filings do not fit in to the confidentiality rule.

Thanks,

Heather

Heather Savage Telfer Attorney Liaison – Rules The Florida Bar 850-561-5702 [email protected]

Please note: Florida has very broad public records laws. Many written communications to or from The Florida Bar regarding Bar business may be considered public records, which must be made available to anyone upon request. Your e-mail communications may therefore be subject to public disclosure.

RJAC June 2019 Agenda Page 109 of 175

Supreme Court of Florida

______

No. SC17-1034 ______

U’DREKA ANDREWS, Petitioner,

vs.

STATE OF FLORIDA, Respondent.

[May 17, 2018]

POLSTON, J.

In this review of the First District Court of Appeal’s decision in Andrews v.

State, 218 So. 3d 466 (Fla. 1st DCA 2017), we consider whether indigent defendants represented by pro bono counsel should be treated the same as defendants represented by private counsel or public defenders, both of whom do not have to reveal details about their hiring of experts to the prosecution.

Specifically, the First District certified the following question:

WHETHER AN INDIGENT DEFENDANT WHO IS REPRESENTED BY PRIVATE COUNSEL PRO BONO IS ENTITLED TO FILE MOTIONS PERTAINING TO THE APPOINTMENT AND COSTS OF EXPERTS, MITIGATION SPECIALISTS, AND INVESTIGATORS EX PARTE AND UNDER SEAL, WITH SERVICE TO THE JUSTICE ADMINISTRATIVE

RJAC June 2019 Agenda Page 110 of 175

COMMISSION AND NOTICE TO THE STATE ATTORNEY’S OFFICE, AND TO HAVE ANY HEARING ON SUCH MOTIONS EX PARTE, WITH ONLY THE DEFENDANT AND THE COMMISSION PRESENT.

218 So. 3d at 470.1 We answer the certified question in the affirmative and, therefore, quash the First District’s decision and remand Andrews’ case for resentencing.

BACKGROUND

U’dreka Kynshere Andrews was convicted of first-degree murder, burglary, and robbery and was sentenced to life without the possibility of parole for the first- degree murder conviction. Andrews was 17 years old at the time she committed the offenses. Subsequently, the United States Supreme Court held in Miller v.

Alabama, 567 U.S. 460, 479 (2012), “that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders.” After Miller, this Court remanded Andrews’ case for resentencing. Andrews v. State, 177 So. 3d 1262 (Fla. 2015).

Prior to the resentencing hearing, Andrews’ pro bono counsel filed a motion for an ex parte hearing regarding the appointment of experts for the Miller juvenile resentencing hearing. Defense counsel argued that he was requesting public funds for experts and that he sought an ex parte determination because he did not “think

1. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

- 2 - RJAC June 2019 Agenda Page 111 of 175

the State should be involved in the process of the defense having experts.” The trial court denied the motion for an ex parte hearing without explanation.

Andrews’ counsel filed a petition for writ of certiorari in the First District, asserting that the hearing regarding experts should be ex parte because the discussion of experts might reveal the defense’s trial strategy to the State. The

First District denied the petition but also certified the above question. Andrews,

218 So. 3d at 470.

ANALYSIS

Andrews argues that “comparable defendants represented by private counsel would not be required to divulge details to the prosecution regarding the hiring of experts, nor would similarly-situated defendants who are represented by the Office of the Public Defender or the Office of Criminal Conflict and Civil Regional

Counsel.” We agree with Andrews.2

To be entitled to public funds for the appointment of an expert, the Eleventh

Circuit in Moore v. Kemp, 809 F.2d 702, 712 (11th Cir. 1987) (footnote omitted), ruled that an indigent “defendant must show the trial court that there exists a reasonable probability both that an expert would be of assistance to the defense and that denial of expert assistance would result in a fundamentally unfair trial.” And

2. Because the certified question is solely a legal issue, our review is de novo. See Haygood v. State, 109 So. 3d 735, 739 (Fla. 2013).

- 3 - RJAC June 2019 Agenda Page 112 of 175

in San Martin v. State, 705 So. 2d 1337, 1347 (Fla. 1997), this Court explained that, when evaluating whether a trial court abuses its discretion in refusing public funds, “courts have applied a two-part test: (1) whether the defendant made a particularized showing of need; and (2) whether the defendant was prejudiced by the court’s denial of the motion requesting the expert assistance.”

In making a showing of particularized need, a defendant may be required to expose privileged information or attorney work product, depending on the type of expert assistance requested. Requiring a defendant to reveal to the prosecutor the name of an expert witness whom the defendant may wish to consider calling, along with the reasons why this witness may be of value to the defense, is “contrary to the work-product doctrine because it would serve to highlight the thought processes and legal analysis of the attorneys involved.” State v. Williams, 678 So.

2d 1356, 1358 (Fla. 3d DCA 1996); see also State v. Rabin, 495 So. 2d 257, 262

(Fla. 3d DCA 1986) (explaining that opinion work product, which includes the attorney’s theories concerning the case, “is absolutely, or nearly absolutely, privileged”). Even if the defendant is only required to disclose the expert’s name and area of expertise, that is information that the State would otherwise not be entitled to know at that stage. In fact, the State’s presence at the hearing puts the defendant in the difficult situation of having to choose between fully supporting the motion for the appointment of an expert and not revealing information to the

- 4 - RJAC June 2019 Agenda Page 113 of 175

State that it would not otherwise be privy to. And as Judge Wolf explained,

“[n]on-indigent and, more importantly, other indigent defendants represented by public defenders can obtain expert witnesses and investigative support without revealing their thought processes in front of the prosecuting authority.” Andrews,

218 So. 3d at 472 (Wolf, J., concurring in part and dissenting in part).

Additionally, depending on the reason for the expert requested, it is possible that a defendant may be forced to disclose self-incriminating information, in violation of the defendant’s Fifth Amendment rights. See Ex parte Moody, 684 So.

2d 114, 120 (Ala. 1996) (“Requiring an indigent defendant to prematurely disclose evidence in a hearing where the state is present encroaches on the privilege against self-incrimination, which applies at all stages of a criminal proceeding.”). This privilege against self-incrimination is not limited to “evidence which may lead to criminal conviction, but includes information which would furnish a link in the chain of evidence that could lead to prosecution, as well as evidence which an individual reasonably believes could be used against him in a criminal prosecution.” Maness v. Meyers, 419 U.S. 449, 461 (1975).

Accordingly, ex parte hearings are necessary in this context to protect indigent defendants’ rights. Federal law and other states also require ex parte hearings in this context. See, e.g., 18 U.S.C. § 3006A(e)(1); United States v.

Abreu, 202 F.3d 386, 391 (1st Cir. 2000); Ex parte Moody, 684 So. 2d at 120;

- 5 - RJAC June 2019 Agenda Page 114 of 175

Brooks v. State, 385 S.E.2d 81, 84 (Ga. 1989); McGregor v. State, 733 P.2d 416,

416 (Okla. Crim. App. 1987); Williams v. State, 958 S.W.2d 186, 192-94 (Tex.

Crim. App. 1997).

CONCLUSION

For the foregoing reasons, we hold that indigent defendants represented by private counsel pro bono are entitled to file motions pertaining to the appointment and costs of experts, mitigation specialists, and investigators ex parte and under seal, with service to the Justice Administrative Commission and notice to the State

Attorney’s Office, and to have any hearing on such motion ex parte, with only the defendant and the Commission present. Accordingly, we answer the certified question in the affirmative, quash the First District’s decision below, and remand

Andrews’ case for resentencing in accordance with this decision.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, and LAWSON, JJ., concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.

Application for Review of the Decision of the District Court of Appeal – Certified Great Public Importance

First District - Case Nos. 1D16-733

(Leon County)

- 6 - RJAC June 2019 Agenda Page 115 of 175

Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, Florida; and Crystal McBee Frusciante of Frusciante Law Firm, P.A., Sunrise, Florida,

for Petitioner

Pamela Jo Bondi, Attorney General, and Charmaine M. Millsaps, Senior Assistant Attorney General, Tallahassee, Florida,

for Respondent

Sonya Rudenstine, Gainesville, Florida, and Whitney Untiedt of Akerman, LLP, Miami, Florida; and Roseanne Eckert of FIU College of Law, Miami, Florida,

Amici Curiae Florida Association of Criminal Defense Lawyers and the Florida Juvenile Resentencing and Review Project

- 7 - RJAC June 2019 Agenda Page 116 of 175 MEMORANDUM

TO: Rules of Judicial Administration Committee Ad Hoc Subcommittee RULE 2.421 – Ex Parte Motion to Seal Documents

FROM: Stanford R. Solomon

RE: Minutes of Conference Call Meeting

DATE: April 2, 2019

Today at 4:30 p.m., our ad hoc subcommittee convened to discuss the impact of the Florida Supreme Court’s decision in Andrews v. State, 243 So. 3d 889 (Fla. 5/17/18), on our rules and the possible need for a new rule that allows for the ex parte filing of documents under seal.

Participants in our initial conference call meeting were:

Antonio Jaimes Stephen Richard Jewett John Roman Krys Godwin Matt Whyte Stanford R. Solomon

Without reaching agreement, we discussed the need to consider a general rule that allows a party to present a motion or matter to the trial court under seal for ex parte consideration, if required by another court rule or court decision. We discussed the possibility of adopting the same procedure for determining the confidentiality of court records that is already embedded in rule 2.420. However, we recognized the inherent conflict between documents that are “confidential” (to which access would be granted to those authorized by the FCTC Matrix) and documents that are to be sealed (to which even opposing counsel would be denied access).

John Roman agreed to take a shot at drafting a proposed new subdivision of rule 2.420 [to be placed somewhere near subdivision (c) or subdivision (f)]. I will make an attempt to address the definition of “sealing” and the distinction between sealed documents and confidential documents.

Our next meeting will be Tuesday, April 16, 2019 at 4:30 p.m. The conference call information is: [Call-in number: 813.364.0075; access code 85726#].

Thank you.

RJAC June 2019 Agenda Page 117 of 175 Draft of amendments to Rule 2.420

2,420(b)(11) “Sealing” means the preservation of a record under such circumstances that it is secure and inaccessible to any person not having a legal right of access to the record or the information contained and preserved therein.

The above is borrowed from F.S. 934.045(19).

2.420(f)(5) (i) Private or court appointed conflict counsel for a criminal defendant who the Court has determined to be financially unable to obtain investigative, expert, or other services necessary for adequate representation may request them in an ex parte motion. The motion and any supporting documents shall be sealed and accessible only to employees of the Clerk of Court, members of the Judiciary and their staff, the attorney for the Justice Administrative Commission, and the filing party and their attorney. (ii) Service of the motion must be made to the Justice Administrative Commission. Notice of filing must be made to the State Attorney’s Office or the appropriate prosecuting authority. (ii) Upon finding after appropriate inquiry in an ex parte proceeding that the services are necessary, the court shall authorize counsel to obtain the services in a written order that shall be sealed and accessible only to employees of the Clerk of Court, members of the Judiciary and their staff, the attorney for the Justice Administrative Commission, and the filing party and their attorney.

The certified question in Andrews v. State is narrow, perhaps a little too narrow, as I will discuss below. Considering that I drafted a narrow rule to amend Fla. R. Jud. Admin. 2.420.

(i) This section is borrowed heavily from the Federal Rule 18 U.S.C.A. § 3006A. The primary issue to be addressed is the ex parte nature of the motion. The sealing is secondary to ensure the ex parte nature. The draft of 2.421 doesn’t mention ex parte.

(ii) This language is taken from the certified question in Andrews. However, the question is too narrow in that it does not address the prosecution of county or municipal ordinances that may be handled by a county or city attorney, not to

RJAC June 2019 Agenda Page 118 of 175 mention my agency is left out.

(iii) The protections of the rule are meaningless unless the order is also sealed. An order that repeats the language of the motion in effect discloses it.

This is only a rough draft to start many hours of discussion.

RJAC June 2019 Agenda Page 119 of 175

MEMORANDUM

TO: Rules of Judicial Administration Committee: Ad Hoc Subcommittee RULE 2.421 – Ex Parte Submissions

FROM: Stanford R. Solomon

RE: Minutes of Conference Call Meeting

DATE: April 22, 2019

On Tuesday, April 16, 2019 at 4:30 p.m., our ad hoc subcommittee convened by conference call for our second meeting. The participating members were:

Antonio Jaimes Jon Berkley Morgan John Daniel Roman Mattyhew Whyte Krys Godwin Amy Borman Tom Hall Stanford R. Solomon

Based upon the discussions at our initial meeting, John Roman was kind enough to take the lead in preparing a discussion draft of a proposed rule 2.421. John’s initial charge was to draft a rule that would address only the issue presented in Andrews v. State, SC 17-1034 (May 17, 2018).

John did so and circulated his initial draft. I took the liberty of word-smithing John’s initial draft and circulated my revision (copy attached). At our April 16th meeting, we discussed John’s draft with my edits.

The consensus was that we should refocus our efforts on a rule of common or general application to all areas of practice and leave room for each rules committee to develop specific applications that there are instances in several practice areas in which the circumstances may justify a submission to the court that is not also made known to, shared with, or viewable by other counsel of record and other parties to the case. The concept is to go beyond a more-common rule 2.420(c)(9) motion that seeks to limit access to those identified in the matrix approved by the FCTC, such that the mere existence of a submission as well as the submission itself might be maintained in confidence without disclosure even to other participants in the case, including opposing counsel.

Without pride of authorship, I have taken a stab of preparing a discussion draft of a possible rule of common or general application. Attached is my initial attempt to craft something that we can discuss. Hopefully, this draft will spur some discussion.

RJAC June 2019 Agenda Page 120 of 175 RJAC: Ad Hoc Subcommittee Rule 2.421 – Ex Parte Submission April 22, 2019 Page 2

Please review my attached draft and provide to me comments and edits by the end of this week, Friday, April 26, 2019.

Our next meeting will be Wednesday, May 1, 2019 at 4:30 p.m. The conference call information is:

call-in number: 813.364.0075; access code 85726#.

Thank you.

Sandy

RJAC4815-6952 June-3860, 2019 v. 1 Agenda Page 121 of 175 Draft of amendments to Rule 2.420

2. ,420(b)(11) “Sealing” means the preservation of a record in a manner under such circumstances that it is secure and inaccessible to any person not having a specified recognized legal right of access to the record or to the information contained and preserved therein.

The above is borrowed from F.S. 934.045(19).

2.420(f)(5) (i) Private counsel or court- appointed conflict counsel for a criminal defendant who the cCourt has determined to be financially unable to obtain investigative, expert, or other services necessary for adequate representation may request them financial assistance for such services in an ex parte motion. The motion and any supporting documents shall be sealed and accessible only to employees of the cClerk of cCourt, members of the jJudiciary and their staff, the attorney for the Justice Administrative Commission, and the filing party, and the filing their attorney. (ii) Service of the motion and supporting documents must be made to the Justice Administrative Commission. Notice of filing must be made to the State Attorney’s Office or other the appropriate prosecuting authority. (ii) Upon finding after appropriate inquiry in an ex parte in camera proceeding that the requested services are necessary, the court shall authorize counsel for the defendant to obtain the requested services in a written order setting forth the findings that shall be sealed and accessible only to employees of the cClerk of cCourt, members of the Judiciary and their staff, the attorney for the Justice Administrative Commission, and the filing party, and the filing their attorney.

The certified question in Andrews v. State is narrow, perhaps a little too narrow, as I will discuss below. Considering that I drafted a narrow rule to amend Fla. R. Jud. Admin. 2.420.

(i) This section is borrowed heavily from the Federal Rule 18 U.S.C.A. § 3006A. The primary issue to be addressed is the ex parte nature of the motion. The sealing is secondary to ensure the ex parte nature. The draft of 2.421 doesn’t mention ex parte.

RJAC June 2019 Agenda Page 122 of 175 (ii) This language is taken from the certified question in Andrews. However, the question is too narrow in that it does not address the prosecution of county or municipal ordinances that may be handled by a county or city attorney, not to mention my agency is left out.

(iii) The protections of the rule are meaningless unless the order is also sealed. An order that repeats the language of the motion in effect discloses it.

This is only a rough draft to start many hours of discussion.

RJAC June 2019 Agenda Page 123 of 175

RJAC: Ad Hoc Subcommittee Rule 2.421 – Ex Parte Submission April 22, 2019

Discussion Draft: Rule 2.421

(a) When a general law, a court rule or, a recognized doctrine of the common law requires or allows a motion or other application to the court to be presented and considered by the court ex parte and without notice or disclosure to any party or person other than the filer and the filing party, the filer shall file the motion or application and all supporting materials through the Portal, deselecting all e-service options. At the top of each page of the submission, the filer shall reflect in bold face capital letters the phrase, “EX PARTE CONSIDERATION REQUESTED”. The filer shall attach to the submission a separate motion requesting ex parte consideration without notice to any other person and specifying the factual grounds and legal support for the ex parte consideration relief requested.

(b) The motion or application for ex parte consideration, together with all supporting materials and the separate motion for ex parte consideration shall be confidential and shall not be noted on the case docket or made available for viewing electronically unless and until the court enters an order denying ex parte treatment of the motion or application and no appeal or original proceeding for extraordinary relief has been timely filed.

(c) If an appeal or an original proceeding under rule 9.100 is timely filed, the motion or application and supporting materials, together with the separate motion requesting ex parte consideration, shall continue to be treated as confidential unless and until the appellate court orders otherwise.

(d) If the court grants the motion for ex parte consideration, all orders entered by the court on the motion or application for ex parte consideration shall be confidential and shall not be provided or disclosed to any party or person other than the filer and the filing party.

RJAC4812-2679 June-6181. 2019-SRS Agenda-4/22/19 Page 124 of 175 RJAC: Ad Hoc Subcommittee Rule 2.421 -Ex Parle Submission May 1, 2019

Discussion Draft: Rule 2.42 1

(a) When a general law, a court rule or, a recognized doctrine of the common law requires or allows a motion or other application to the court to be presented and considered by the court ex parle and without notice or disclosure to any party or person other than the filer and the filing party, the filer shall file the motion or application and all supporting materials through the Portal, deselecting all e-service options. At the top of each page of the submission, the filer shall reflect in bold face capital letters the phrase, "EXPARTE CONSIDERATION REQUESTED". The filer shall attach to the submission a separate motion requesting ex parte consideration without notice to any other person and specifying the factual grounds and legal support for the ex parte consideration relief requested.

(b) The motion or application for ex parte consideration, together with all supporting materials and the separate motion for ex parte consideration~ shall be confidential and the content or substance of the motion and the submission shall not be disclosed or reflected flete&-on the case docket or otherwise made available for viewing electronically by anv person other than the filer and the fil ing partv. unless and until the court enters an order granting access or otherwise denying ex parte treatment of the motion or application and no appeal or original proceeding for extraordinary elief under ru le 9. 100 has been timely filed.

(c) If an appeal or an original proceeding under rule 9 .100 is timely filed, the motion or application and supporting materials, together with the separate motion requesting ex parte consideration, shall continue to be treated as confidential and not available for viewing bv any person other than the fi ler and the filing party. unless and until the appellate court orders otherwise.

(d) Ifthe court grants the motion for ex parte consideration, all orders entered by the court on the motion or application for ex parte consideration shall be confidential and shall not be provided or disclosed to any party or person other than the filer and the filing party.

48RJAC22-677 June5-33 6 20195-SRS Agenda-5- l - l 9 Page 125 of 175 RJAC: Ad Hoc Subcommittee Rule 2.421 – Ex Parte Submission May 1, 2019

Discussion Draft: Rule 2.421

(a) When a general law, a court rule or, a recognized doctrine of the common law requires or allows a motion or other application to the court to be presented and considered by the court ex parte and without notice or disclosure to any party or person other than the filer and the filing party, the filer shall file the motion or application and all supporting materials through the Portal, deselecting all e-service options. At the top of each page of the submission, the filer shall reflect in bold face capital letters the phrase, “EX PARTE CONSIDERATION REQUESTED”. The filer shall attach to the submission a separate motion requesting ex parte consideration without notice to any other person and specifying the factual grounds and legal support for the ex parte consideration relief requested.

(b) The motion or application for ex parte consideration, together with all supporting materials and the separate motion for ex parte consideration, shall be confidential and the content or substance of the motion and the submission shall not be disclosed or reflected on the case docket or otherwise made available for viewing electronically by any person other than the filer and the filing party, unless and until the court enters an order granting access or otherwise denying ex parte treatment of the motion or application and no appeal or original proceeding for extraordinary relief under rule 9.100 has been timely filed.

(c) If an appeal or an original proceeding under rule 9.100 is timely filed, the motion or application and supporting materials, together with the separate motion requesting ex parte consideration, shall continue to be treated as confidential and not available for viewing by any person other than the filer and the filing party, unless and until the appellate court orders otherwise.

(d) If the court grants the motion for ex parte consideration, all orders entered by the court on the motion or application for ex parte consideration shall be confidential and shall not be provided or disclosed to any party or person other than the filer and the filing party.

RJAC4822-6775 June-3365 2019-SRS Agenda-5-1-19 clean Page 126 of 175

MEMORANDUM

TO: Rules of Judicial Administration Committee Ad Hoc Subcommittee RULE 2.421 – Ex Parte Submissions

FROM: Stanford R. Solomon, Chair

RE: Minutes of Conference Call Meeting

DATE: May 1, 2019

Today at 4:30 p.m., our ad hoc subcommittee convened by conference call for our third meeting. The participating members were:

Antonio Jaimes John Daniel Roman Mathew Whyte Amy Borman Stanford R. Solomon

Based upon the discussions at today’s conference call meeting, I took the liberty of word-smithing my initial discussion draft of a new proposed rule 2.421. Attached are (1) a redline version reflecting the changes made to the initial draft and (2) a clean version incorporating the changes.

I have reviewed again Matt Whyte’s proposal and could not see where Matt’s concerns were not already addressed in the discussion draft. This is not meant to suggest that the current discussion draft is “right”, but only that (in my view) the proposed rule should address the entire soup-to-nuts procedure for seeking to protect filings from view by opposing parties and counsel as well as by the public.

Please review carefully the new discussion draft attached hereto, and please send to me your comments and suggestions by next Friday, May 10, 2019.

On next conference call meeting is scheduled for Wednesday, May 15, 2019 at 4:30 p.m. The conference call information is: call-in number: 813.364.0075; access code 85726#.

Thank you.

Sandy

RJAC June 2019 Agenda Page 127 of 175 RJAC: Ad Hoc Subcommittee Rule 2.421 - Ex Parle Submission May 1, 2019

Discussion Draft: Rule 2.421

(a) When a general law, a court rule or, a recognized doctrine of the common law requires or allows a motion or other application to the court to be presented and considered by the court ex parte and without notice or disclosure to any party or person other than the filer and the filing party, the filer shall file the motion or application and all supporting materials through the Portal, deselecting all e-service options. At the top of each page of the submission, the filer shall reflect in bold face capital letters the phrase, "EXPARTE CONSIDERATION REQUESTED". The filer shall attach to the submission a separate motion requesting ex parte consideration without notice to any other person and specifying the factual grounds and legal support for the ex parte consideration relief requested.

(b) The motion or application for ex parte consideration, together with all supporting materials and the separate motion for ex parte consideration, shall be confidential and the content or substance ofthe motion and the submission shall not be disclosed or reflected on the case docket or otherwise made available for viewing electronically by any person other than the filer and the filing party, unless and until the court enters an order granting access or otherwise denying ex parte treatment ofthe motion or application and no appeal or original proceeding for extraordinary relief under rule 9 .100 has been timely filed.

(c) If an appeal or an original proceeding under rule 9 .100 is timely filed, the motion or application and supporting materials, together with the separate motion requesting ex parte consideration, shall continue to be treated as confidential and not available for viewing by any person other than the filer and the filing party, unless and until the appellate court orders otherwise.

(d) Ifthe court grants the motion for ex parte consideration, all orders entered by the court on the motion or application for ex parte consideration shall be confidential and shall not be provided or disclosed to any party or person other than the filer and the filing party.

4822-6775-3365-SRS-5-l-19RJAC June 2019 Agenda clean Page 128 of 175 RJAC: Ad Hoc Subcommi1tee Rul e 2.421 - Ex Parle Submission May I, 2019

Discussion Draft: Ruic 2.421

(a) When a general law. a court rule or. a recogn ized doctri ne or the common law requires or all ows a motion or other application to the court to be presented and considered by the court ex /)(Irle and without notice or disclosure to any pany or person other than the Jiler and the filing party. the fil er shall Ii le the motion or applicntion and all supporting materials through the Portal. deselecting all e-scn·ice options. /\t the top of each page of the submi ssion. the fi ler shall reflect in bold lace capital !Gttcrs the phrase. ··EX fARTE CONSIDERATIO>J REQUESTl-:Ir·. The file r shall attach to the submission a separate motion requesting ex parte consideration without notice to any other person and specifying the factual grounds and legal support !"or the ex par te consideration relief requested.

(b) The motion or application for ex porle consideration. together with all supporting materials and the separate motion for ex parte considermion! shall be conlidenti al and the contc111 or

subst.1,1c.: lll the motion ..nJ the :-ubm1ssiun shall not bt: J1st:losi:J or rdkclt!u HEt:!,J-0n the case docket or nthern is.: made available for viewing electronical ly b\· :rnv person nther than the filer an

(c) If an appeal or an original proceeding under rule 9. 100 is timely filed. the mo tion or application and supporting materials. together with the separate motion requesting ex parte consideration, shall cominue 10 be treated as confidemial anJ nnt m ailahlc for 'icwim.! h' am m.:rson other than the tiler mid the tili1L..! n:.11·1, . unless and unt il the appellate court orders ot herwise.

(d) Ifthe court grants the motion for ex parte consideration. all orders entered by the court on the motion or appl ication for ex parl e consideration shall be confidential and shall not be provided or disclosed to any party or person other than the Ii lcr and the Jil ing party.

-rn22-6775-3365-SRS-S- I - I9 RJAC June 2019 Agenda Page 129 of 175 Thank you for sharing. If I may, I’d like to suggest some alternative language talking with our Director of Courts. . . .

2.421 (a) A court record may be filed with the Clerk and considered by the Court ex parte and under seal when such filing is authorized by statute or court rule. (b) The movant, petitioner, or filer of the court record shall conspicuously include the words “Ex Parte and Under Seal” in the title of the court record and shall designate the court record as such when it is filed with the Clerk. If the court record is a thing that is not titled, the filer shall contemporaneously file a “Notice of Filing (description of document being filed) Ex Parte and Under Seal” with the Clerk and shall designate the filing as such when it is filed with the Clerk. (c) The Clerk shall docket the court record so as not to disclose the substance of the document and shall treat the document as sealed unless otherwise ordered by the Court. (d) “Court record” means a pleading, motion, petition, or document that is filed with the Clerk as part of a case. A court record could also include things such as deposition transcripts and exhibits. (d) “Sealed” means the preservation of a record under such circumstances that it is secure and inaccessible to any person or entity unless otherwise ordered by the Court.

In the Comments, examples could be given for subsections (a) and (b) such as “Defendant’s Ex Parte and Under Seal Motion to Expend J!C Funds” or “Notice of Filing Dr. Robert Smith’s Deposition Transcript Ex Parte and Under Seal.”

RJAC June 2019 Agenda Page 130 of 175 •

2.421 (a) A court record may be filed with the Clerk and considered by the Court ex parte and under seal when such filing is authorized by statute or court rule. (b) The movant, petitioner, or filer of the court record shall conspicuously include the words "Ex Pa rte and Under Seal" in the title of the court record and shall designate the court record as such when it is filed with the Clerk. If t he court record is a thing that is flet-.untitled, the filer shall contemporaneously file a "Notice of Filing (description of document being filed) Ex Pa rte ~ Under Seal" with the Clerk and shall designate the filing as such when it is filed with the Clerk. (c) The Clerk shall treat docket ~tRe-court record designated as "ex pa rte" so as not to disclose the substance of the document and sha ll treat t he document as sealed unless otherwise ordered by the Court. (d) "Court record" means a pleading, motion, petition, or document and any referenced attachment or exhibit that is filed with the Clerk as part of a case. A court record could also include things such as deposition t ranscripts and exhibits. (e) "Sealed" means t he record can only be viewed by those with Leve l A access under t he Florida Supreme Co urt's Access Security Matrix as approved in AO 2019-20, and its progenyt-Re preser«ation of a record under such circumstances that it is secure and inaccessible to any person or entity ,_unless otherwise ordered by the Court.

RJAC June 2019 Agenda Page 131 of 175 2.421 (a) A court record may be filed with the Clerk and considered by the Court ex parte and under seal when such filing is authorized by statute or court rule. (b) The movant, petitioner, or filer of the court record shall conspicuously include the words “Ex Parte and Under Seal” in the title of the court record and shall designate the court record as such when it is filed with the Clerk. If the court record is a thing that is not untitled, the filer shall contemporaneously file a “Notice of Filing (description of document being filed) Ex Parte and Under Seal” with the Clerk and shall designate the filing as such when it is filed with the Clerk. (c) The Clerk shall treat docket any the court record designated as “ex parte” so as not to disclose the substance of the document and shall treat the document as sealed unless otherwise ordered by the Court. (d) “Court record” means a pleading, motion, petition, or document and any referenced attachment or exhibit that is filed with the Clerk as part of a case. A court record could also include things such as deposition transcripts and exhibits. (e) “Sealed” means the record can only be viewed by those with Level A access under the Florida Supreme Court’s Access Security Matrix as approved in AO 2019-20, and its progenythe preservation of a record under such circumstances that it is secure and inaccessible to any person or entity , unless otherwise ordered by the Court.

RJAC June 2019 Agenda Page 132 of 175 From: Laird A. Lile, Esq. To: Godwin, Krys Subject: FW: BOG Agenda item 30 at Palm Beach, May 24, 2019 Date: Wednesday, May 22, 2019 5:29:07 PM Attachments: Rules Proposal.docx

FYI Thanks for your time today, Krys.

Laird A. Lile, Esq. Laird A. Lile, PLLC

From: Laird A. Lile, Esq. [mailto:[email protected]] Sent: Wednesday, May 22, 2019 5:27 PM To: Current Board Of Governors Subject: FW: BOG Agenda item 30 at Palm Beach, May 24, 2019

This past weekend my favorite pastime (watching replays of the Florida Supreme Court oral arguments) was not available. (No new arguments have been posted since early May.) So instead, I snuggled up with the board package. When I arrived at the materials supporting agenda item 30, the sun was low and the time was late. But rather than close the link as I reached page 1229, I sat a little taller and delved into court rules!

The proposed rules deal with communication equipment. I focused on RJA, at 30(17) of the board packet. The proposal would change two parts of rule 2.530 in ways that I believe are suboptimal.

So, I took a shot at revising the proposed changes. The first change in the proposal reads like an afterthought. My suggestion incorporates the new concept into a single sentence. The second change in the proposal adds a concept in a non-parallel sentence structure. Rather than fix that drafting, because of a bill that was signed into law earlier this month, I suggest that provision be shorted dramatically and simply refer to the new law. Attached and below are my suggestions and comments.

I also have a more global concern. I do not believe definitions of universal terms such as “communication equipment” should be replicated in multiple rule sets. In my opinion, the rules should have one definition, in the RJA, and then that definition should be cross referenced when necessary in the other rules.

The presentation on these rules will be made on Friday by Charles Wilson. So that he was not surprised by my observations, I contacted him earlier this week and he and I spoke today. I provided to him the below message and the attachment to this email.

My understanding is that regardless of the board vote, the rules package will advance to the court. My hope is that you will consider joining me in expressing concerns about the content of the package and the approach taken by the committees on this universal issue.

RJAC June 2019 Agenda Page 133 of 175

Laird A. Lile, Esq. Laird A. Lile, PLLC

From: Laird A. Lile, Esq. Sent: Wednesday, May 22, 2019 3:46 PM To: '[email protected]' Subject: FW: BOG Agenda item 30 at Palm Beach, May 24, 2019

See below and attached.

Laird A. Lile, Esq. Laird A. Lile, PLLC

From: Laird A. Lile, Esq. Sent: Sunday, May 19, 2019 12:06 PM To: Laird A. Lile, Esq. Subject: BOG Agenda item 30 at Palm Beach, May 24, 2019

My comments are directed to page 30(17) of the board packet which sets forth proposed changes to Rule 2.530.

The first comment pertains to the proposed change to subsection (a), which is as follows:

(a) Definition. Communication equipment means a conference telephone or other electronic devicecomparable audio equipment that permits all those appearing or participating to hear and speak to each other, provided that all conversation of all parties is audible to all persons present. Communication equipment also means video conference or comparable audiovisual equipment.

The structure of this provision is rather awkward. The first sentence has historically provided meaning to the term “communication equipment.” Historically that definition has referred exclusively to audio equipment. The proposal would seem to now include video equipment. However, the structure of the proposal adds the video equipment as a separate sentence. In doing so, the requirement of “all of those appearing or participating” does not apply to video equipment. That seems inappropriate. In addition, the proposal carries forward use of inconsent terms such as “parties” and “persons” and outdated terms such as “conference telephone.” Accordingly, I suggest restructuring the proposal to something along the following lines:

(a) Definition. Communication equipment means a telephone or other device that permits each person participating to communicate (i) only by voice with all communications being audible to each other person participating or (ii) by voice and visually with all communications being audible to, and seen by, each other person participating.

RJAC June 2019 Agenda Page 134 of 175

The next comment pertains to the proposed change to subdivision (3), which is as follows:

(3) Oath. Testimony may be taken through audio communication equipment only if a notary public or other person authorized to administer oaths in the witness’s jurisdiction is physically present with the witness and administers the oath consistent with the laws of the jurisdiction. If testimony is provided via video conference or comparable audiovisual equipment, and the parties agree, the witness may also be sworn remotely using such video conference or comparable audiovisual equipment by a person who is qualified to administer oaths in the witness’s jurisdiction and who administers the oath consistent with the laws of that jurisdiction.

The structure of this proposal, by adding a separate sentence for video, fails to utilize the definition of communication equipment provided earlier in the rule. In addition, the Florida legislature changed the law regarding remote notarization. See CS/CS/HB 409, which has not yet been signed into law as of May 19, 2019. The proposal does not seem to correlate to the changes to Chapter 117, assuming the referenced bill becomes law. In any case, the provision is much longer than necessary if the only purpose is to be certain that an oath has been taken by the witness.

(3) Oath. Testimony may be taken through communication equipment only after an oath has been administered to the witness consistent with Florida law, including Chapter 117, Florida Statutes.

Laird A. Lile, Esq. Laird A. Lile, PLLC

3033 Riviera Drive, Suite 104 Naples, Florida 34103 239.649.7778 [email protected] www.lairdalile.com

Notice: If this email, or any attachment, was not intended for you, please notify the sender and delete this email, to maintain the confidential nature of this communication.

Please note: Florida has very broad public records laws. Many written communications to or from The Florida Bar regarding Bar business may be considered public records, which must be made available to anyone upon request. Your e-mail communications may therefore be subject to public disclosure.

RJAC June 2019 Agenda Page 135 of 175 RULE 1.310. DEPOSITIONS UPON ORAL EXAMINATION

(a) [NO CHANGE]

(b) Notice; Method of Taking; Production at Deposition.

(1)-(6) [NO CHANGE]

(7) If not otherwise agreed by the parties, Oon motion the court may order that the testimony at a deposition be taken by telephone or comparable audio communication equipment, or by video conference or comparable audiovisual communication equipment. The order may prescribe the manner in which the deposition will be taken. The cost for the use of such communication equipment is the responsibility of the requesting party unless otherwise agreed by the parties or ordered by the court. A party may also arrange for a stenographic transcript at that party’s own initial expense.

(8) [NO CHANGE]

(c) Examination and Cross-Examination; Record of Examination; Oath; Objections. Examination and cross-examination of witnesses may proceed as permitted at the trial. The officer before whom the deposition is to be taken must put the witness on oath and must personally, or by someone acting under the officer’s direction and in the officer’s presence, record the testimony of the witness, except that when a deposition is being taken by telephone or comparable audio communication equipment, the witness must be sworn by a person physically present with the witness who is qualified to administer an oath in that location. If deposition testimony is being taken via video conference or comparable audiovisual communication equipment, and the parties agree, the witness may also be sworn remotely using such video conference or comparable audiovisual communication equipment by a person who is qualified to administer oaths in the witness’s jurisdiction and who administers the oath consistent with the laws of the jurisdiction. The testimony must be taken stenographically transcribed or recorded by any other means ordered in accordance with subdivision (b)(4) of this rule. If requested by one of the parties, the testimony must be transcribed at the initial cost of the requesting party and prompt notice of the request must be given to all other parties. All objections made at time of the examination to the qualifications of the officer taking the deposition, the manner of taking it, the evidence presented, or the conduct of any party, and any other objection to the proceedings must be noted by the officer on the deposition. Any

RJAC June 2019 Agenda Page 136 of 175 objection during a deposition must be stated concisely and in a nonargumentative and nonsuggestive manner. A party may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation on evidence directed by the court, or to present a motion under subdivision (d). Otherwise, evidence objected to must be taken subject to the objections. Instead of participating in the oral examination, parties may serve written questions in a sealed envelope on the party taking the deposition and that party must transmit them to the officer, who must propound them to the witness and record the answers verbatim.

(d)- (h) [NO CHANGE]

Committee Notes [NO CHANGE]

Court Commentary [NO CHANGE]

RJAC June 2019 Agenda Page 137 of 175 RULE 1.451. TAKING TESTIMONY

(a) [NO CHANGE]

(b) Communication Equipment. The court may permit a witness to testify at a hearing or trial by contemporaneous audio, or by video conference or comparable audiovisual communication equipment:

(1) by agreement of the parties; or

(2) for good cause shown upon written request of a party upon reasonable notice to all other parties.

The request and notice must contain the substance of the proposed testimony and an estimate of the length of the proposed testimony. In considering sufficient good cause, the court shall weigh and address in its order the reasons stated for testimony by communication equipment against the potential for prejudice to the objecting party.

(c) Required Equipment. Communication equipment as used in this rule means a conference telephone or other electronic device that permits all those appearing or participating to hear and speak to each other simultaneously and permits all conversations of all parties to be audible to all persons present. Contemporaneous video conference or comparable audiovisual communication equipment must make the witness both audible and visible to all participants during the testimony. For testimony by any of the foregoing means, there must be appropriate safeguards for the court to maintain sufficient control over the equipment and the transmission of the testimony so the court may stop the communication to accommodate objection or prevent prejudice

(d) Oath. Testimony may be taken through audio communication equipment only if a notary public or other person authorized to administer oaths in the witness’s jurisdiction is physically present with the witness and administers the oath consistent with the laws of the jurisdiction. If testimony is provided at the hearing via video conference or comparable audiovisual communication equipment, and the parties agree, the witness may also be sworn remotely using such video conference or comparable audiovisual communication equipment by a person who is qualified to administer oaths in the witness’s jurisdiction and who administers the oath consistent with the laws of the jurisdiction.

RJAC June 2019 Agenda Page 138 of 175 (e) Burden of Expense. The cost for the use of the communication equipment is the responsibility of the requesting party unless otherwise agreed by the parties or ordered by the court.

Committee Note

[NO CHANGE]

RJAC June 2019 Agenda Page 139 of 175 RULE 2.530. COMMUNICATION EQUIPMENT

(a) Definition. Communication equipment means a conference telephone or other electronic devicecomparable audio equipment that permits all those appearing or participating to hear and speak to each other, provided that all conversation of all parties is audible to all persons present. Communication equipment also means video conference or comparable audiovisual equipment.

(b)–(c) [NO CHANGE]

(d) Testimony.

(1) Generally. [NO CHANGE]

(2) Procedure. [NO CHANGE]

(3) Oath. Testimony may be taken through audio communication equipment only if a notary public or other person authorized to administer oaths in the witness’s jurisdiction is physically present with the witness and administers the oath consistent with the laws of the jurisdiction. If testimony is provided via video conference or comparable audiovisual equipment, and the parties agree, the witness may also be sworn remotely using such video conference or comparable audiovisual equipment by a person who is qualified to administer oaths in the witness’s jurisdiction and who administers the oath consistent with the laws of that jurisdiction.

(4) Confrontation Rights. [NO CHANGE]

(5) Video Testimony. If the testimony to be presented utilizes video conferencing or comparable two-way audiovisual capabilities, the court in its discretion may modify the procedures set forth in this rule to accommodate the technology utilized.

(e)–(f) [NO CHANGE]

RJAC June 2019 Agenda Page 140 of 175 RULE 3.116. TAKING TESTIMONY

(a) Testimony at Hearing or Trial. Upon stipulation of the parties, or upon motion of a party for good cause shown, the court may permit a witness to testify at criminal proceedings by contemporaneous video communication equipment that makes the witness visible to all parties, the judge, and any jury during the testimony.

(b) Communication Equipment. Any equipment used must allow for the taking of contemporaneous video and there must be appropriate safeguards for the court to maintain sufficient control over the equipment and the transmission of the testimony so the court may stop the communication to accommodate objections or prevent prejudice.

(c) Oath. If testimony is taken through video communication equipment, there must be a notary public or other person authorized to administer an oath that subjects the witness to prosecution for perjury upon making a knowingly false statement. The notary or other authorized person must be in the same location as the witness appearing remotely.

(d) Burden of Expense. The cost for the use of video communication equipment is the responsibility of the requesting party.

RJAC June 2019 Agenda Page 141 of 175 RULE 7.140. TRIAL

(a) Time. The trial date shall be set by the court at the pretrial conference.

(b) Determination. Issues shall be settled and motions determined summarily.

(c) Pretrial. The pretrial conference should narrow contested factual issues. The case may proceed to trial with the consent of both parties.

(d) Settlement. At any time before judgment, the judge shall make an effort to assist the parties in settling the controversy by conciliation or compromise.

(e) UnrepresentedAny Parties Not Represented by an Attorney. In an effort to further the proceedings and in the interest of securing substantial justice, the court shall assist any party not represented by an attorney on:

(1) courtroom decorum;

(2) order of presentation of material evidence; and

(3) handling private information.

The court may not instruct any party not represented by an attorney on accepted rules of law. The court shall not act as an advocate for a party.

(f) How Conducted. The trial may be conducted informally but with decorum befitting a court of justice. The rules of evidence applicable to trial of civil actions apply but are to be liberally construed. At the discretion of the court, testimony of any party or witness may be presented over the telephoneby audio or video communication equipment as set forth in subdivision (g). Additionally, at the discretion of the court, an attorney may represent a party or witness over the telephonethrough the use of audio or video communication equipment as described in subdivision (g) without being physically present before the court. Any witness utilizing the privilege of testimony by telephonethrough the use of audio or video communication equipment as permitted in this rule shall be treated for all purposes as a live witness, and shall not receive any relaxation of evidentiary rules or other special allowancewhose testimony shall conform to the rules of evidence applicable to trial of civil action. A witness may not testify over the telephone in

Appendix A – 1 RJAC June 2019 Agenda Page 142 of 175 orderthrough the use of audio or video communication as provided in this rule to avoid either the application of Florida’s perjury laws or the rules of evidence.

(g) Audio or Video Communication Equipment. Audio communication equipment as used in this rule means a conference telephone or other electronic device that permits all those appearing or participating to hear and speak to each other simultaneously and permits all conversations of all parties to be audible to all persons present. Contemporaneous video communication equipment must make the witness visible to all participants during the testimony. For testimony by any of the foregoing means, there must be appropriate safeguards to allow the court to maintain sufficient control over the equipment and the transmission of the testimony to stop the communication to accommodate objection or prevent prejudice.

Committee Notes

1984 Amendment. (a) Changed to conform this rule with the requirement for pretrials. (c) Allows the cases to proceed to trial with consent of the parties. (f) This is similar to the proposed amendment to the Florida Rules of Civil Procedure to allow depositions by telephone. Since the court has discretion to allow this testimony, all procedural safeguards could be maintained by the court. Since the court is also the trier of fact, the testimony could be rejected if unreliable.

1988 Amendment. Extends the taking of testimony over the telephone to include parties, deletes the agreement of the parties provision, and adds authorization for an attorney to represent a party or witness over the telephone without being physically present before the court.

1996 Amendment. The revised version of subdivision (e) addresses the need to expressly provide that the judge, while able to assist an unrepresented party, should not act as an advocate for that party.

2011 Amendment. Subdivision (e)(3) was added so that a judge can assist an unrepresented party in the handling of private information that might otherwise inadvertently become public by placement in the court file.

Appendix A – 2 RJAC June 2019 Agenda Page 143 of 175 RULE 8.100. GENERAL PROVISIONS FOR HEARINGS

Unless otherwise provided, the following provisions apply to all hearings:

(a) Presence of the Child. The child shall be present unless the court finds that the child’s mental or physical condition is such that a court appearance is not in the child’s best interests.

(b) Use of Restraints on the Child. Instruments of restraint, such as handcuffs, chains, irons, straitjackets, cloth and leather restraints, or other similar items, shall not be used on a child during a court proceeding except when ordered by the court prior to the child’s appearance in the courtroom in accordance with this rule. Instruments of restraint must be removed prior to the child’s appearance unless after an individualized assessment of the child the court finds that:

(1) The use of restraints is necessary due to one of the following factors:

(A) to prevent physical harm to the child or another person;

(B) the child’s history of disruptive courtroom behavior that has placed others in potentially harmful situations or that presents a substantial risk of inflicting physical harm or himself or herself or others as evidenced by recent behavior; or

(C) a founded belief that the child presents a substantial risk of flight from the courtroom; and

(2) There are no less restrictive alternatives to restraints that will prevent flight or physical harm to the child or another person, including, but not limited to, the presence of court personnel, law enforcement officers, or bailiffs.

(3) In making a determination that the use of instruments of restraint is necessary, pursuant to subdivision (b)(1), the court shall consider:

(A) any past escapes or attempted escapes by the child;

(B) evidence of a present plan of escape by the child;

(C) a credible threat by the child to harm himself or herself or another person during court;

RJAC June 2019 Agenda Page 144 of 175 (D) evidence of self-injurious behavior on part of the child; and

(E) any other factor that is relevant in determining whether the use of instruments of restraint are necessary pursuant to subdivision (b)(1).

(4) The court shall provide the child’s attorney an opportunity to be heard before the court orders the use of restraints. Counsel shall be appointed for this hearing if the child qualifies for such appointment and does not waive counsel in writing as required by rule 8.165.

(5) If restraints are ordered, the court shall make specific and individualized findings of fact in support of the order and the least restrictive restraints shall be used. Any restraints shall allow the child limited movement of his or her hands to read and handle documents and writings necessary to the hearing.

(6) Under no circumstances should a child be restrained using fixed restraints to a wall, floor, or furniture.

(c) Absence of the Child. If the child is present at the beginning of a hearing and during the progress of the hearing voluntarily absents himself or herself from the presence of the court without leave of the court, or is removed from the presence of the court because of disruptive conduct during the hearing, the hearing shall not be postponed or delayed, but shall proceed in all respects as if the child were present in court at all times.

(d) Invoking the Rule. Prior to the examination of any witness the court may, and on the request of any party in an adjudicatory hearing shall, exclude all other witnesses. The court may cause witnesses to be kept separate and to be prevented from communicating with each other until all are examined.

(e) Taking Testimony.

(1) Testimony at a Hearing or Trial. When testifying at a hearing or trial, a witness must be physically present unless provided by law or these rules.

(2) Remote Testimony. Upon stipulation of the parties, or upon motion of a party for good cause shown, the court may permit a witness to testify at delinquency proceedings by contemporaneous video communication equipment

RJAC June 2019 Agenda Page 145 of 175 that makes the witness visible during the testimony to all parties, the judge, and any other necessary persons.

(3) Communication Equipment. Any equipment used must allow for the taking of contemporaneous video and there must be appropriate safeguards for the court to maintain sufficient control over the equipment and the transmission of the testimony so the court may stop the communication to accommodate objections or prevent prejudice.

(4) Oath. If testimony is taken through video communication equipment, there must be a notary public or other person authorized to administer an oath that subjects the witness to prosecution for perjury upon making a knowingly false statement. The notary or other authorized person must be in the same location as the witness appearing remotely.

(5) Burden of Expense. The cost for the use of video communication equipment is the responsibility of the requesting party.

(ef) Continuances. The court may grant a continuance before or during a hearing for good cause shown by any party.

(fg) Record of Testimony. A record of the testimony in all hearings shall be made by an official court reporter, a court approved stenographer, or a recording device. The records shall be preserved for 5 years from the date of the hearing. Official records of testimony shall be provided only on request of a party or a party’s attorney or on a court order.

(gh) Notice. When these rules do not require a specific notice, all parties will be given reasonable notice of any hearing.

Committee Note 20__ Amendment. This rule allows the parties to agree, or one or more parties to request, that the court authorizes presentation of witness testimony by contemporaneous video communications equipment. A party seeking to present such testimony over the objection of another party must still satisfy the good-cause standard. Determination of good cause is governed by the confrontation clause principles as established in Harrell v. State, 709 So.2d 1364 (Fla. 1998), and its progeny.

RJAC June 2019 Agenda Page 146 of 175 RULE 8.255. GENERAL PROVISIONS FOR HEARINGS

(a) Presence of Counsel. The department must be represented by an attorney at every stage of these proceedings.

(b) Presence of Child.

(1) The child has a right to be present at all hearings.

(2) If the child is present at the hearing, the court may excuse the child from any portion of the hearing when the court determines that it would not be in the child’s best interest to remain.

(3) If a child is not present at a hearing, the court shall inquire and determine the reason for the absence of the child. The court shall determine whether it is in the best interest of the child to conduct the hearing without the presence of the child or to continue the hearing to provide the child an opportunity to be present at the hearing.

(4) Any party may file a motion to require or excuse the presence of the child.

(c) Separate Examinations. The child and the parents, caregivers, or legal custodians of the child may be examined separately and apart from each other.

(d) Examination of Child; Special Protections.

(1) Testimony by Child. A child may be called to testify in open court by any party to the proceeding or the court, and may be examined or cross- examined.

(2) In-Camera Examination.

(A) On motion and hearing, the child may be examined by the court outside the presence of other parties as provided by law. The court shall assure that proceedings are recorded, unless otherwise stipulated by the parties.

(B) The motion may be filed by any party or the trial court on its own motion.

RJAC June 2019 Agenda Page 147 of 175

(C) The court shall make specific written findings of fact, on the record, as to the basis for its ruling. These findings may include but are not limited to:

(i) the age of the child;

(ii) the nature of the allegation;

(iii) the relationship between the child and the alleged abuser;

(iv) the likelihood that the child would suffer emotional or mental harm if required to testify in open court;

(v) whether the child’s testimony is more likely to be truthful if given outside the presence of other parties;

(vi) whether cross-examination would adversely affect the child; and

(vii) the manifest best interest of the child.

(D) The child may be called to testify by means of closed- circuit television or by videotaping as provided by law.

(e) Taking Testimony.

(1) Testimony at Hearing or Trial. When testifying at a hearing or trial, a witness must be physically present unless otherwise provided by law or these rules. This rule shall not apply to statutory requirements for parents to personally appear at arraignment hearings, advisory hearings, and adjudicatory hearings.

(2) Communication Equipment. The court may permit a witness to testify at a hearing or trial by contemporaneous audio, or by video conference or comparable audiovisual communication equipment:

(A) by agreement of the parties; or

RJAC June 2019 Agenda Page 148 of 175 (B) for good cause shown upon written or ore tenus request of a party upon reasonable oral, written, or actual notice to all other parties. The request and notice must contain an estimate of the length of the proposed testimony. In considering sufficient good cause, the court must weigh and address in its order or its ruling on the record the reasons stated for testimony by communication equipment against the potential for prejudice to the objecting party.

(3) Required Equipment. Communication equipment as used in this rule means a conference telephone or other electronic device that permits all those appearing or participating to hear and speak to each other simultaneously and permits all conversations of all parties to be audible to all persons present. Contemporaneous video conference or comparable audiovisual communication equipment must make the witness both audible and visible to all parties and participants present. For testimony by any of the foregoing means, there must be appropriate safeguards for the court to maintain sufficient control over the equipment and the transmission of the testimony so the court may stop the communication to accommodate objections or prevent prejudice. A parent who participates by contemporaneous audio or video communication equipment must be given the opportunity to privately and confidentially communicate with counsel during the proceedings.

(4) Oath. Testimony may be taken through audio communication equipment only if a notary public or other person authorized to administer oaths in the witness’s jurisdiction is physically present with the witness and administers the oath consistent with the laws of the jurisdiction. If testimony is provided at the hearing via video conference or comparable audiovisual communication equipment, and the parties agree, the witness may also be sworn remotely using such video conference or comparable audiovisual communication equipment by a person who is qualified to administer oaths in the witness’s jurisdiction and who administers the oath consistent with the laws of the jurisdiction. The oath procedures of this subdivision are not required for hearings where, by law, the court may consider any evidence to the extent of its probative value even though not competent in an adjudicatory hearing and where the parties and the court agree to waive these oath procedures.

(5) Burden of Expense. The cost for the use of the communication equipment is the responsibility of the requesting party unless otherwise ordered by the court.

RJAC June 2019 Agenda Page 149 of 175 (f) Invoking the Rule. Before the examination of any witness the court may, and on the request of any party must, exclude all other witnesses. The court may cause witnesses to be kept separate and to be prevented from communicating with each other until all are examined.

(fg) Continuances. As permitted by law, the court may grant a continuance before or during a hearing for good cause shown by any party.

(gh) Record. A record of the testimony in all hearings must be made by an official court reporter, a court-approved stenographer, or a recording device. The records of testimony must be preserved as required by law. Official records of testimony must be transcribed only on order of the court.

(hi) Notice. When these rules do not require a specific notice, all parties will be given reasonable notice of any hearing.

(j) Written Notice. The court must provide written notice of the right to participate in a private adoption plan, pursuant to chapter 63, Florida Statutes, when required by law.

Committee Notes

1991 Amendment. (b) This change allows a child to be present instead of mandating the child’s presence when the child’s presence would not be in his or her best interest. The court is given the discretion to determine the need for the child to be present.

1992 Amendment. This change was made to reflect a moderated standard for in-camera examination of a child less rigid than the criminal law standard adopted by the committee in the 1991 rule revisions.

2005 Amendment. Subdivision (i) was deleted because provisions for general masters were transferred to rule 8.257.

20__ Amendment. This rule allows the parties to agree, or one or more parties to request, that the court authorizes presentation of witness testimony by contemporaneous video or audio communications equipment. A party seeking to present such testimony over the objection of another party must still satisfy the good-cause standard. In determining whether good cause exists, the trial court may consider such factors as the type and stage of proceeding, the presence or absence

RJAC June 2019 Agenda Page 150 of 175 of constitutionally protected rights, the general substance of the testimony, the importance of the testimony to the resolution of the case, the relative cost or inconvenience of requiring the presence of the witness in court, the ability of counsel to use necessary exhibits or demonstrative aids, the limitations (if any) placed on the opportunity for opposing counsel and the finder of fact to observe the witness’s demeanor, the potential for unfair surprise, the witness’s affiliation with one or more parties, and any other factors the court reasonably deems material to weighing the justification the requesting party has offered in support of the request to allow a witness to testify by communications equipment against the potential for prejudice to the objecting party. With the advance of technology, the cost and availability of contemporaneous video testimony may be considered by the court in determining whether good cause is established for audio testimony.

Florida law favors the timely resolution of dependency proceedings for the benefit of children and their families. It relaxes evidentiary standards at certain hearings to promote efficient resolution of issues and prevent lengthy litigation and delays from having to arrange for witnesses to appear and provide testimony to the court. Florida law allows the court at different types of dependency hearings including shelter hearings, disposition hearings, and judicial review hearings to consider any evidence to the extent of its probative value including unsworn statements, hearsay, and unauthenticated documents. See, e.g., Fla. R. Juv. P. 8.305(b)(5); §§ 39.0139(4)(b), .504(3), .521(2), and .701(2)(c), Fla. Stat. (2018). The oath procedures, which may require the presence of a notary with a witness who was appearing remotely, would thus not be necessary prior to the court considering statements from the witness at these types of hearings. Further, since the parties may stipulate to any matter in the litigation, the rule creates an exception to the oath procedures if the court and parties stipulate to waive the procedures.

RJAC June 2019 Agenda Page 151 of 175 RULE 12.310. DEPOSITIONS UPON ORAL EXAMINATION

(a) When Depositions May Be Taken. After commencement of the action any party may take the testimony of any person, including a party, by deposition upon oral examination. Leave of court, granted with or without notice, must be obtained only if the petitioner seeks to take a deposition within 30 days after service of the process and initial pleading on any respondent, except that leave is not required (1) if a respondent has served a notice of taking deposition or otherwise sought discovery, or (2) if special notice is given as provided in subdivision (b)(2). The attendance of witnesses may be compelled by subpoena as provided in rule 12.410. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes.

(b) Notice; Method of Taking; Production at Deposition.

(1) A party desiring to take the deposition of any person upon oral examination must give reasonable notice in writing to every other party to the action. The notice must state the time and place for taking the deposition and the name and address of each person to be examined, if known, and, if the name is not known, a general description sufficient to identify the person or the particular class or group to which the person belongs. If a subpoena duces tecum is to be served on the person to be examined, the designation of the materials to be produced under the subpoena must be attached to or included in the notice.

(2) Leave of court is not required for the taking of a deposition by petitioner if the notice states that the person to be examined is about to go out of the state and will be unavailable for examination unless a deposition is taken before expiration of the 30-day period under subdivision (a). If a party shows that when served with notice under this subdivision that party was unable through the exercise of diligence to obtain counsel to represent the party at the taking of the deposition, the deposition may not be used against that party.

(3) For cause shown the court may enlarge or shorten the time for taking the deposition.

(4) Any deposition may be audiovisually recorded by videotape without leave of the court or stipulation of the parties, provided the deposition is taken in accordance with this subdivision.

(A) Notice. A party intending to videotapeaudiovisually record a deposition must state in the notice that the deposition is to be

RJAC June 2019 Agenda Page 152 of 175 videotapedaudiovisually recorded and must give the name and address of the operator. Any subpoena served on the person to be examined must state the method or methods for recording the testimony.

(B) Court ReporterRecording. VideotapedAudiovisual depositions must also be stenographically recorded by a certified court reporter, unless all parties agree otherwisein case transcription is necessary.

(C) Procedure. At the beginning of the deposition, the officer before whom it is taken must, on camera: (i) identify the style of the action, (ii) state the date, and (iii) swear in the witness.

(D) Custody of TapeRecording and Copies. The attorney for the party requesting the videotapingaudiovisual recording of the deposition must take custody of and be responsible for the safeguarding of the videotapeaudiovisual recording, must permit the viewing of it by the opposing party, and, if requested, must provide a copy of the videotapeaudiovisual recording at the expense of the party requesting the copy.

(E) Cost of VideotapedAudiovisually Recorded Depositions. The party requesting the videotapingaudiovisual recording bears the initial cost of videotapingrecording.

(5) The notice to a party deponent may be accompanied by a request made in compliance with rule 12.350 for the production of documents and tangible things at the taking of the deposition. The procedure of rule 12.350 applies to the request. Rule 12.351 provides the exclusive procedure for obtaining documents or things by subpoena from nonparties without deposing the custodian or other person in possession of the documents.

(6) In the notice a party may name as the deponent a public or private corporation, a partnership or association, or a governmental agency, and designate with reasonable particularity the matters on which examination is requested. The organization so named must designate one or more officers, directors, or managing agents, or other persons who consent to do so, to testify on its behalf and may state the matters on which each person designated will testify. The persons so designated must testify about matters known or reasonably available to the organization. This subdivision does not preclude taking a deposition by any other procedure authorized in these rules.

RJAC June 2019 Agenda Page 153 of 175 (7) If not otherwise agreed by the parties, Oon motion the court may order that the testimony at a deposition be taken by telephone or comparable audio communication equipment, or by video conference or comparable audiovisual communication equipment. The order may prescribe the manner in which the deposition will be taken. The cost for the use of such communication equipment is the responsibility of the requesting party unless otherwise agreed by the parties or ordered by the court. A party may also arrange for a stenographic transcription at that party’s own initial expense.

(8) Any minor subpoenaed for testimony has the right to be accompanied by a parent, guardian, guardian ad litem, or attorney ad litem at all times during the taking of testimony notwithstanding the invocation of the rule of sequestration of section 90.616, Florida Statutes, except on a showing that the presence of a parent or guardian is likely to have a material, negative impact on the credibility or accuracy of the minor’s testimony, or that the interests of the parent or guardian are in actual or potential conflict with the interests of the minor. The provisions of this subdivision do not alter the requirements of rule 12.407 that a court order must be obtained before a minor child may be deposed or brought to a deposition.

(c) Examination and Cross-Examination; Record of Examination; Oath; Objections. Examination and cross-examination of witnesses may proceed as permitted at the trial. The officer before whom the deposition is to be taken must put the witness on oath and must personally, or by someone acting under the officer’s direction and in the officer’s presence, record the testimony of the witness, except that when a deposition is being taken by telephone or comparable audio communication equipment, the witness must be sworn by a person physically present with the witness who is qualified to administer an oath in that location. If deposition testimony is being taken via video conference or comparable audiovisual communication equipment, and the parties agree, the witness may also be sworn remotely using such video conference or comparable audiovisual communication equipment by a person who is qualified to administer oaths in the witness’s jurisdiction and who administers the oath consistent with the laws of the jurisdiction where the witness is located. The testimony must be taken stenographically or recorded by any other means ordered in accordance with subdivision (b)(4). If requested by one of the parties, the testimony must be transcribed at the initial cost of the requesting party and prompt notice of the request must be given to all other parties. All objections made at the time of the examination to the qualifications of the officer taking the deposition, the manner of taking it, the evidence presented, or the conduct of any party, and any other

RJAC June 2019 Agenda Page 154 of 175 objection to the proceedings must be noted by the officer during the deposition. Any objection during a deposition must be stated concisely and in a nonargumentative and nonsuggestive manner. A party may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation on evidence directed by the court, or to present a motion under subdivision (d). Otherwise, evidence objected to must be taken subject to the objections. Instead of participating in the oral examination, parties may serve written questions in a sealed envelope on the party taking the deposition and that party must transmit them to the officer, who must propound them to the witness and record the answers verbatim.

(d) Motion to Terminate or Limit Examination. At any time during the taking of the deposition, on motion of a party or of the deponent and on a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, or that objection and instruction to a deponent not to answer are being made in violation of subdivision (c), the court in which the action is pending or the circuit court where the deposition is being taken may order the officer conducting the examination to cease immediately from taking the deposition or may limit the scope and manner of the taking of the deposition under rule 12.280(d). If the order terminates the examination, it shall be resumed thereafter only on the order of the court in which the action is pending. On demand of any party or the deponent, the taking of the deposition must be suspended for the time necessary to make a motion for an order. The provisions of rule 12.380(a)(4) apply to the award of expenses incurred in relation to the motion.

(e) Witness Review. If the testimony is transcribed, the transcript must be furnished to the witness for examination and must be read to or by the witness unless the examination and reading are waived by the witness and by the parties. Any changes in form or substance that the witness wants to make must be listed in writing by the officer with a statement of the reasons given by the witness for making the changes. The changes must be attached to the transcript. It must then be signed by the witness unless the parties waived the signing or the witness is ill, cannot be found, or refuses to sign. If the transcript is not signed by the witness within a reasonable time after it is furnished to the witness, the officer signs the transcript and states on the transcript the waiver, illness, absence of the witness, or refusal to sign with any reasons given. The deposition may then be used as fully as though signed unless the court holds that the reasons given for the refusal to sign require rejection of the deposition wholly or partly, on motion under rule 12.330(d)(4).

RJAC June 2019 Agenda Page 155 of 175 (f) Filing; Exhibits.

(1) If the deposition is transcribed, the officer must certify on each copy of the deposition that the witness was duly sworn by the officer and that the deposition is a true record of the testimony given by the witness. Documents and things produced for inspection during the examination of the witness must be marked for identification and annexed to and returned with the deposition on the request of a party, and may be inspected and copied by any party, except that the person producing the materials may substitute copies to be marked for identification if that person affords to all parties fair opportunity to verify the copies by comparison with the originals. If the person producing the materials requests their return, the officer must mark them, give each party an opportunity to inspect and copy them, and return them to the person producing them and the materials may then be used in the same manner as if annexed to and returned with the deposition.

(2) On payment of reasonable charges therefor the officer must furnish a copy of the deposition to any party or to the deponent.

(3) A copy of a deposition may be filed only under the following circumstances:

(A) It may be filed in compliance with Florida Rule of Judicial Administration 2.425 and rule 12.280(j) by a party or the witness when the contents of the deposition must be considered by the court on any matter pending before the court. Prompt notice of the filing of the deposition must be given to all parties unless notice is waived. A party filing the deposition must furnish a copy of the deposition or the part being filed to other parties unless the party already has a copy.

(B) If the court determines that a deposition previously taken is necessary for the decision of a matter pending before the court, the court may order that a copy be filed by any party at the initial cost of the party, and the filing party must comply with rules 2.425 and 12.280(j).

(g) Obtaining Copies. A party or witness who does not have a copy of the deposition may obtain it from the officer taking the deposition unless the court orders otherwise. If the deposition is obtained from a person other than the officer, the reasonable cost of reproducing the copies must be paid to the person by the requesting party or witness.

RJAC June 2019 Agenda Page 156 of 175 (h) Failure to Attend or to Serve Subpoena; Expenses.

(1) If the party giving the notice of the taking of a deposition fails to attend and proceed with the deposition and another party attends in person or by attorney pursuant to the notice, the court may order the party giving the notice to pay to the other party the reasonable expenses incurred by the other party and the other party’s attorney in attending, including reasonable attorneys’ fees.

(2) If the party giving the notice of the taking of a deposition of a witness fails to serve a subpoena on the witness and the witness because of the failure does not attend and if another party attends in person or by attorney because that other party expects the deposition of that witness to be taken, the court may order the party giving the notice to pay to the other party the reasonable expenses incurred by that other party and that other party’s attorney in attending, including reasonable attorneys’ fees.

Committee Notes 2008 Amendment. The provisions of Fla. R. Civ. P. 1.310(b)(8) do not alter the requirements of Rule 12.407 that a court order must be obtained before deposing a minor child.

20__ Amendment. When obtaining testimony by video conference or comparable audiovisual equipment, oaths must be administered in conformity with §§ 92.50, et seq., Florida Statutes.

RJAC June 2019 Agenda Page 157 of 175 RULE 12.451. TAKING TESTIMONY

(a) Testimony at Hearing or Trial. When testifying at a hearing or trial, a witness must be physically present unless otherwise provided by law or rule of procedure.

(b) Communication Equipment. The court may permit a witness to testify at a hearing or trial by contemporaneous audio or by video conference or comparable audiovisual communication equipment:

(1) by agreement of the parties or;

(2) for good cause shown upon written request of a party upon reasonable notice to all other parties.

The request and notice must contain the substance of the proposed testimony and an estimate of the length of the proposed testimony. In considering sufficient good cause, the court shall weigh and address in its order the reasons stated for testimony by communication equipment against the potential for prejudice to the objecting party.

(c) Required Equipment. Communication equipment as used in this rule means a conference telephone or other electronic device that permits all those appearing or participating to hear and speak to each other simultaneously and permits all conversations of all parties to be audible to all persons present. Contemporaneous video conference or comparable audiovisual communication equipment must make the witness both audible and visible to all participants during the testimony. For testimony by any of the foregoing means, there must be appropriate safeguards for the court to maintain sufficient control over the equipment and the transmission of the testimony, so that the court may stop the communication to accommodate objection or prevent prejudice.

(d) Oath. Testimony may be taken through audio communication equipment only if a notary public or other person authorized to administer oaths in the witness’s jurisdiction is physically present with the witness and administers the oath consistent with the laws of that jurisdiction. If testimony is provided at the hearing via video conference or comparable audiovisual communication equipment, and the parties agree, the witness may also be sworn remotely using such video conference or comparable audiovisual communication equipment by a person who is qualified to administer oaths in the witness’s jurisdiction and who

RJAC June 2019 Agenda Page 158 of 175 administers the oath consistent with the laws of the jurisdiction where the witness is located.

(e) Burden of Expense. The cost for the use of the communication equipment is the responsibility of the requesting party unless otherwise agreed by the parties or ordered by the court.

Committee Note 20__ Amendment. When obtaining testimony by video conference or comparable audiovisual equipment, oaths must be administered in conformity with §§ 92.50, et seq., Florida Statutes.

RJAC June 2019 Agenda Page 159 of 175 From: Davis, Mikalla To: Telfer, Heather; Godwin, Krys; Wilson, Matthew C; Sanchez, Eduardo; Silverstein, David; Chamorro, Miguel J; Scott M. Dimond; Obradovich, Maria L; Berman, Linda M; Loizos, Sheila A; Magee, Christina Cc: Gagliardi, Josephine Subject: RE: BOG Agenda item 30 at Palm Beach, May 24, 2019 Date: Friday, May 31, 2019 10:50:28 AM Attachments: All Rules for BOG Modified after Legislation.docx

Just to update you all of what happened at the Board of Governors meeting last week, I did listen to a recording of the meeting and here are my notes below:

Matt did a great presentation of the issue stressing how much work has been done. Some of the few important things he said were: there is an urgency to get this out to practitioners as practitioners need the guidance. Also, he said that at this time the committees could make tweaks to the rule with any substantive changes after the BOG vote. Also, he was hoping the BOG approve this so there’s no delay and sending this to the court.

Governor Lile spoke and said RJA needs a definition of communication equipment. However, the rules need to move forward. He made a friendly amendment saying that the rules be approved and the his comments are forwarded to the court as comments from the Board of Governors.

Matt Wilson said he doesn’t have the authority to accept the friendly amendment.

Another Governor (I could not catch his name) spoke asking what the deadline for the report is. “Elizabeth” (I assume bar staff) said the report is out of cycle. That governor moved to send the matter back to the Committees with Governor Lile’s comments to be considered and that the take the matter up again in July since there’s no court deadline.

Madam President took a vote on that motion; it was unanimously approved. After, the vote was done madam president said okay the matter is tabled. The motion from the governor did not use the word tabled.

Next steps: 1. We need to address Lile’s comments- each Committee must make a decision of whether a response is need to Lile’s comment. He focused on RJA’s definition but he made general comments about the oath requirement as well in the below email. 2. I’ve attached a word document with my proposed reaction to HB409 (electronic e will notarization). The new law uses technology instead of equipment and do not use audiovisual, they use audio video. Since we have time, between now and the July BOG meeting where the matter will be presented again, we should have the full Committees vote (so there’s no confusion) on the reaction to HB409 and any changes, if necessary, in reaction to the Lile comments. 3. I will leave it to the Chairs’ (you all’s) discretion on how you want to review this two matters, my proposal in reaction to HB409 and Lile’s comments. You may appoint a fast track subcommittee if you feel like the matters are substantive but the full Committee should be informed at the June meeting and vote on any changes. 4. Keep in mind the materials for the BOG meeting are due on June 17 prior to our meeting. So

RJAC June 2019 Agenda Page 160 of 175 we would need to finalize at our June meeting (even then our materials will be late).

Thank you,

Mikalla Davis Attorney Liaison—Rules The Florida Bar 850-561-5663 [email protected]

From: Telfer, Heather Sent: Thursday, May 23, 2019 9:31 AM To: Godwin, Krys ; Wilson, Matthew C ; Sanchez, Eduardo ; Silverstein, David ; Chamorro, Miguel J ; Scott M. Dimond ; Davis, Mikalla ; Obradovich, Maria L ; Berman, Linda M ; Loizos, Sheila A ; Magee, Christina Cc: Gagliardi, Josephine Subject: RE: BOG Agenda item 30 at Palm Beach, May 24, 2019

I’m including the chairs for Criminal Procedure Rules and Small Claims Rules as this has grown past the point of just using the same phraseology throughout the sets of rules.

Thanks,

Heather

Heather Savage Telfer Attorney Liaison – Rules The Florida Bar 850-561-5702 [email protected]

From: Godwin, Krys Sent: Thursday, May 23, 2019 9:23 AM To: Wilson, Matthew C ; Sanchez, Eduardo ; Silverstein, David ; Chamorro, Miguel J ; Scott M. Dimond ; Davis, Mikalla ; Obradovich, Maria L ; Berman, Linda M ; Telfer, Heather Cc: Gagliardi, Josephine Subject: FW: BOG Agenda item 30 at Palm Beach, May 24, 2019

RJAC June 2019 Agenda Page 161 of 175

Matt et al,

As a second note from this morning’s e-mail, please see the e-mail below that was forwarded to me from Laird, but which he sent to fellow Board members in preparation for the meeting.

Sincerely,

Krys Godwin Krys Godwin, Attorney at Law Director, Legal Publications The Florida Bar 651 E. Jefferson Street Tallahassee, FL 32399 850-561-5706 [email protected]

From: Laird A. Lile, Esq. Sent: Wednesday, May 22, 2019 5:29 PM To: Godwin, Krys Subject: FW: BOG Agenda item 30 at Palm Beach, May 24, 2019

FYI Thanks for your time today, Krys.

Laird A. Lile, Esq. Laird A. Lile, PLLC

From: Laird A. Lile, Esq. [mailto:[email protected]] Sent: Wednesday, May 22, 2019 5:27 PM To: Current Board Of Governors Subject: FW: BOG Agenda item 30 at Palm Beach, May 24, 2019

This past weekend my favorite pastime (watching replays of the Florida Supreme Court oral arguments) was not available. (No new arguments have been posted since early May.) So instead, I snuggled up with the board package. When I arrived at the materials supporting agenda item 30, the sun was low and the time was late. But rather than close the link as I reached page 1229, I sat a little taller and delved into court rules!

The proposed rules deal with communication equipment. I focused on RJA, at 30(17) of the board packet. The proposal would change two parts of rule 2.530 in ways that I believe are suboptimal.

RJAC June 2019 Agenda Page 162 of 175

So, I took a shot at revising the proposed changes. The first change in the proposal reads like an afterthought. My suggestion incorporates the new concept into a single sentence. The second change in the proposal adds a concept in a non-parallel sentence structure. Rather than fix that drafting, because of a bill that was signed into law earlier this month, I suggest that provision be shorted dramatically and simply refer to the new law. Attached and below are my suggestions and comments.

I also have a more global concern. I do not believe definitions of universal terms such as “communication equipment” should be replicated in multiple rule sets. In my opinion, the rules should have one definition, in the RJA, and then that definition should be cross referenced when necessary in the other rules.

The presentation on these rules will be made on Friday by Charles Wilson. So that he was not surprised by my observations, I contacted him earlier this week and he and I spoke today. I provided to him the below message and the attachment to this email.

My understanding is that regardless of the board vote, the rules package will advance to the court. My hope is that you will consider joining me in expressing concerns about the content of the package and the approach taken by the committees on this universal issue.

Laird A. Lile, Esq. Laird A. Lile, PLLC

From: Laird A. Lile, Esq. Sent: Wednesday, May 22, 2019 3:46 PM To: '[email protected]' Subject: FW: BOG Agenda item 30 at Palm Beach, May 24, 2019

See below and attached.

Laird A. Lile, Esq. Laird A. Lile, PLLC

From: Laird A. Lile, Esq. Sent: Sunday, May 19, 2019 12:06 PM To: Laird A. Lile, Esq. Subject: BOG Agenda item 30 at Palm Beach, May 24, 2019

My comments are directed to page 30(17) of the board packet which sets forth proposed changes to Rule 2.530.

RJAC June 2019 Agenda Page 163 of 175 The first comment pertains to the proposed change to subsection (a), which is as follows:

a. Definition. Communication equipment means a conference telephone or other electronic devicecomparable audio equipment that permits all those appearing or participating to hear and speak to each other, provided that all conversation of all parties is audible to all persons present. Communication equipment also means video conference or comparable audiovisual equipment.

The structure of this provision is rather awkward. The first sentence has historically provided meaning to the term “communication equipment.” Historically that definition has referred exclusively to audio equipment. The proposal would seem to now include video equipment. However, the structure of the proposal adds the video equipment as a separate sentence. In doing so, the requirement of “all of those appearing or participating” does not apply to video equipment. That seems inappropriate. In addition, the proposal carries forward use of inconsent terms such as “parties” and “persons” and outdated terms such as “conference telephone.” Accordingly, I suggest restructuring the proposal to something along the following lines:

a. Definition. Communication equipment means a telephone or other device that permits each person participating to communicate (i) only by voice with all communications being audible to each other person participating or (ii) by voice and visually with all communications being audible to, and seen by, each other person participating.

The next comment pertains to the proposed change to subdivision (3), which is as follows:

(3) Oath. Testimony may be taken through audio communication equipment only if a notary public or other person authorized to administer oaths in the witness’s jurisdiction is physically present with the witness and administers the oath consistent with the laws of the jurisdiction. If testimony is provided via video conference or comparable audiovisual equipment, and the parties agree, the witness may also be sworn remotely using such video conference or comparable audiovisual equipment by a person who is qualified to administer oaths in the witness’s jurisdiction and who administers the oath consistent with the laws of that jurisdiction.

The structure of this proposal, by adding a separate sentence for video, fails to utilize the definition of communication equipment provided earlier in the rule. In addition, the Florida legislature changed the law regarding remote notarization. See CS/CS/HB 409, which has not yet been signed into law as of May 19, 2019. The proposal does not seem to correlate to the changes to Chapter 117, assuming the referenced bill becomes law. In any case, the provision is much longer than necessary if the only purpose is to be certain that an oath has been taken by the witness.

(3) Oath. Testimony may be taken through communication equipment only after an oath has been administered to the witness consistent with Florida law, including Chapter 117, Florida Statutes.

RJAC June 2019 Agenda Page 164 of 175

Laird A. Lile, Esq. Laird A. Lile, PLLC

3033 Riviera Drive, Suite 104 Naples, Florida 34103 239.649.7778 [email protected] www.lairdalile.com

Notice: If this email, or any attachment, was not intended for you, please notify the sender and delete this email, to maintain the confidential nature of this communication.

Please note: Florida has very broad public records laws. Many written communications to or from The Florida Bar regarding Bar business may be considered public records, which must be made available to anyone upon request. Your e-mail communications may therefore be subject to public disclosure.

RJAC June 2019 Agenda Page 165 of 175 NO. 6 CONSTITUTIONAL REVISION ARTICLE I, SECTION 16 ARTICLE V, SECTIONS 8 AND 21 ARTICLE XII, NEW SECTION

BALLOT TITLE: Rights of Crime Victims; Judges BALLOT SUMMARY: Creates constitutional rights for victims of crime; requires courts to facilitate victims’ rights; authorizes victims to enforce their rights throughout criminal and juvenile justice processes. Requires judges and hearing officers to independently interpret statutes and rules rather than deferring to government agency’s interpretation. Raises mandatory retirement age of state justices and judges from seventy to seventy-five years; deletes authorization to complete judicial term if one-half of term has been served by retirement age. FULL TEXT: ARTICLE I DECLARATION OF RIGHTS SECTION 16. Rights of accused and of victims.— (a) In all criminal prosecutions the accused shall, upon demand, be informed of the nature and cause of the accusation, and shall be furnished a copy of the charges, and shall have the right to have compulsory process for witnesses, to confront at trial adverse witnesses, to be heard in person, by counsel or both, and to have a speedy and public trial by impartial jury in the county where the crime was committed. If the county is not known, the indictment or information may charge venue in two or more counties conjunctively and proof that the crime was committed in that area shall be sufficient; but before pleading the accused may elect in which of those counties the trial will take place. Venue for prosecution of crimes committed beyond the boundaries of the state shall be fixed by law. (b) To preserve and protect the right of crime victims to achieve justice, ensure a meaningful role throughout the criminal and juvenile justice systems for crime victims, and ensure that crime victims’ rights and interests are respected and protected by law in a manner no less vigorous than protections afforded to criminal

RJAC June 2019 Agenda Page 166 of 175 defendants and juvenile delinquents, every victim is entitled to the following rights, beginning at the time of his or her victimization: (1) The right to due process and to be treated with fairness and respect for the victim’s dignity. (2) The right to be free from intimidation, harassment, and abuse. (3) The right, within the judicial process, to be reasonably protected from the accused and any person acting on behalf of the accused. However, nothing contained herein is intended to create a special relationship between the crime victim and any law enforcement agency or office absent a special relationship or duty as defined by Florida law. (4) The right to have the safety and welfare of the victim and the victim’s family considered when setting bail, including setting pretrial release conditions that protect the safety and welfare of the victim and the victim’s family. (5) The right to prevent the disclosure of information or records that could be used to locate or harass the victim or the victim’s family, or which could disclose confidential or privileged information of the victim. (6) A victim shall have the following specific rights upon request: a. The right to reasonable, accurate, and timely notice of, and to be present at, all public proceedings involving the criminal conduct, including, but not limited to, trial, plea, sentencing, or adjudication, even if the victim will be a witness at the proceeding, notwithstanding any rule to the contrary. A victim shall also be provided reasonable, accurate, and timely notice of any release or escape of the defendant or delinquent, and any proceeding during which a right of the victim is implicated. b. The right to be heard in any public proceeding involving pretrial or other release from any form of legal constraint, plea, sentencing, adjudication, or parole, and any proceeding during which a right of the victim is implicated. c. The right to confer with the prosecuting attorney concerning any plea agreements, participation in pretrial diversion programs, release, restitution, sentencing, or any other disposition of the case. d. The right to provide information regarding the impact of the offender’s conduct on the victim and the victim’s family to the individual responsible for conducting any presentence investigation or compiling any presentence investigation report,

RJAC June 2019 Agenda Page 167 of 175 and to have any such information considered in any sentencing recommendations submitted to the court. e. The right to receive a copy of any presentence report, and any other report or record relevant to the exercise of a victim’s right, except for such portions made confidential or exempt by law. f. The right to be informed of the conviction, sentence, adjudication, place and time of incarceration, or other disposition of the convicted offender, any scheduled release date of the offender, and the release of or the escape of the offender from custody. g. The right to be informed of all postconviction processes and procedures, to participate in such processes and procedures, to provide information to the release authority to be considered before any release decision is made, and to be notified of any release decision regarding the offender. The parole or early release authority shall extend the right to be heard to any person harmed by the offender. h. The right to be informed of clemency and expungement procedures, to provide information to the governor, the court, any clemency board, and other authority in these procedures, and to have that information considered before a clemency or expungement decision is made; and to be notified of such decision in advance of any release of the offender. (7) The rights of the victim, as provided in subparagraph (6)a., subparagraph (6)b., or subparagraph (6)c., that apply to any first appearance proceeding are satisfied by a reasonable attempt by the appropriate agency to notify the victim and convey the victim’s views to the court. (8) The right to the prompt return of the victim’s property when no longer needed as evidence in the case. (9) The right to full and timely restitution in every case and from each convicted offender for all losses suffered, both directly and indirectly, by the victim as a result of the criminal conduct. (10) The right to proceedings free from unreasonable delay, and to a prompt and final conclusion of the case and any related postjudgment proceedings. a. The state attorney may file a good faith demand for a speedy trial and the trial court shall hold a calendar call, with notice, within fifteen days of the filing demand, to schedule a trial to commence on a date at least five days but no more than sixty days after the date of the calendar call unless the trial judge enters an

RJAC June 2019 Agenda Page 168 of 175 order with specific findings of fact justifying a trial date more than sixty days after the calendar call. b. All state-level appeals and collateral attacks on any judgment must be complete within two years from the date of appeal in non-capital cases and within five years from the date of appeal in capital cases, unless a court enters an order with specific findings as to why the court was unable to comply with this subparagraph and the circumstances causing the delay. Each year, the chief judge of any district court of appeal or the chief justice of the supreme court shall report on a case-by-case basis to the speaker of the house of representatives and the president of the senate all cases where the court entered an order regarding inability to comply with this subparagraph. The legislature may enact legislation to implement this subparagraph. (11) The right to be informed of these rights, and to be informed that victims can seek the advice of an attorney with respect to their rights. This information shall be made available to the general public and provided to all crime victims in the form of a card or by other means intended to effectively advise the victim of their rights under this section. (c) The victim, the retained attorney of the victim, a lawful representative of the victim, or the office of the state attorney upon request of the victim, may assert and seek enforcement of the rights enumerated in this section and any other right afforded to a victim by law in any trial or appellate court, or before any other authority with jurisdiction over the case, as a matter of right. The court or other authority with jurisdiction shall act promptly on such a request, affording a remedy by due course of law for the violation of any right. The reasons for any decision regarding the disposition of a victim’s right shall be clearly stated on the record. (d) The granting of the rights enumerated in this section to victims may not be construed to deny or impair any other rights possessed by victims. The provisions of this section apply throughout criminal and juvenile justice processes, are selfexecuting, and do not require implementing legislation. This section may not be construed to create any cause of action for damages against the state or a political subdivision of the state, or any officer, employee, or agent of the state or its political subdivisions. (e) As used in this section, a “victim” is a person who suffers direct or threatened physical, psychological, or financial harm as a result of the commission or attempted commission of a crime or delinquent act or against whom the crime or delinquent act is committed. The term “victim” includes the victim’s lawful representative, the parent or guardian of a minor, or the next of kin of a homicide

RJAC June 2019 Agenda Page 169 of 175 victim, except upon a showing that the interest of such individual would be in actual or potential conflict with the interests of the victim. The term “victim” does not include the accused. The terms “crime” and “criminal” include delinquent acts and conduct Victims of crime or their lawful representatives, including the next of kin of homicide victims, are entitled to the right to be informed, to be present, and to be heard when relevant, at all crucial stages of criminal proceedings, to the extent that these rights do not interfere with the constitutional rights of the accused. ARTICLE V JUDICIARY SECTION 8. Eligibility.—No person shall be eligible for office of justice or judge of any court unless the person is an elector of the state and resides in the territorial jurisdiction of the court. No justice or judge shall serve after attaining the age of seventy-five seventy years except upon temporary assignment or to complete a term, one-half of which has been served. No person is eligible for the office of justice of the supreme court or judge of a district court of appeal unless the person is, and has been for the preceding ten years, a member of the bar of Florida. No person is eligible for the office of circuit judge unless the person is, and has been for the preceding five years, a member of the bar of Florida. Unless otherwise provided by general law, no person is eligible for the office of county court judge unless the person is, and has been for the preceding five years, a member of the bar of Florida. Unless otherwise provided by general law, a person shall be eligible for election or appointment to the office of county court judge in a county having a population of 40,000 or less if the person is a member in good standing of the bar of Florida. SECTION 21. Judicial interpretation of statutes and rules.—In interpreting a state statute or rule, a state court or an officer hearing an administrative action pursuant to general law may not defer to an administrative agency’s interpretation of such statute or rule, and must instead interpret such statute or rule de novo. ARTICLE XII SCHEDULE Eligibility of justices and judges.—The amendment to Section 8 of Article V, which increases the age at which a justice or judge is no longer eligible to serve in judicial office except upon temporary assignment, shall take effect July 1, 2019.

RJAC June 2019 Agenda Page 170 of 175 From: Sanchez, Eduardo (USAFLS) To: Godwin, Krys Cc: Hardee, Marynelle; [email protected]; Leen, Craig E; Telfer, Heather; Gagliardi, Josephine Subject: RE: Issue Two Date: Thursday, June 20, 2019 4:11:10 PM Attachments: DOC062019-06202019143511.pdf

Krys,

I don’t know if you’ve already gotten a copy of this from Heather, but let’s open it as a new referral and coordinate with Criminal Rules. It seems to fall more within Criminal Rules’ purview that RJAC’s, but let’s make sure there is not something that needs to addressed or remedied in the RJA.

Thanks,

Ed

From: Dr. André LaVon Grant Sent: Thursday, June 20, 2019 3:05 PM To: Telfer, Heather Cc: [email protected]; Sanchez, Eduardo (USAFLS) ; [email protected]; [email protected] Subject: Re: Issue Two

Good Afternoon Ms. Telfer,

I have attached a copy of the RETURNED LETTER from the Pasco County Clerk of Court. On or around August 20, 2015I was arrested at my place of employment, Mulberry High School, a public school, for not attending a court hearing for a misdemeanor. The attached document is the letter that was mailed to me notifying me of the hearing. However, as you can see, I never received the notification because it was returned to the Clerk of Court. I would like for this to be forwarded to Rules Judicial Administration Committee.

I would like the Committee to adopt the rule that a judge in the State of Florida is require to check with the clerk of court to determine if the Defendant legally notified before a warrant is issued. For me, if the procedure was in place I would not have been arrested in front of high school students for something that I was unaware of. If you need any other information, please don't hesitate to contact me. I can also be reached at 352 807-1474. Thank you for your assistance. https://www.floridabar.org/about/cmtes/cmte-cm235/

Standing Committee – Rules of Judicial Administration

RJAC June 2019 Agenda Page 171 of 175 The scope and function of the Rules of Judicial Administration Committee is to carry out the mandate of Rule 2.140, Florida Rules of Judicial Administration, concerning the proposal of new rules of procedure and changes to existing rules. See the Rules of Procedure page for full text of the rules ...

www.floridabar.org

Sincerely,

ALG

From: Telfer, Heather Sent: Wednesday, June 19, 2019 2:53 PM To: Dr. André LaVon Grant Subject: RE: Question

Good Afternoon,

The Committee is meeting next week. They are still in the information- gathering stage. I don’t have any new information to give you at this point.

Thanks,

Heather

Heather Savage Telfer Attorney Liaison – Rules The Florida Bar 850-561-5702 [email protected]

From: Dr. André LaVon Grant Sent: Wednesday, June 19, 2019 1:27 PM To: Telfer, Heather Subject: Question

Good Afternoon:

Can you give me a call at your earliest convenience? I have a question. Thank you,

Dr. ALG

RJAC June 2019 Agenda Page 172 of 175

Please note: Florida has very broad public records laws. Many written communications to or from The Florida Bar regarding Bar business may be considered public records, which must be made available to anyone upon request. Your e-mail communications may therefore be subject to public disclosure.

RJAC June 2019 Agenda Page 173 of 175 ·Office ofPaufa S. O'Nei{

.It - .. ,..=-~- -:...::~--: -...:. - -. -:.;.- ... ·: .;:; :~f-: :-:;t:= Cferi & ComytroCCer ~~ ~-:::.~~;,.~ i: iLED FOP RECORD -.t::t. ..~~~ ~ Pasco County ~ £~"':.. ~~~ ~. PASC ~) COUNTY. FLORID/ •. ~vv.~;..: Robert D. Sumner Judicial Center 38053 Live Oak Avenue 08/04/2015 Dade City, Florida 33523-3894 · Cl: Cl: • .Mailed From 33523 2015 .AUG 12 AM 10: 23 lg-~a.;;: ­ US POSTAGE "J \.LU!~ : S. ()':Ne i( RCFDC Cforf~ & Comvtrol(er -' Tasco Coun t y, .Tfor ic!o

,,..... 11 ((/ ~ cAr?/•. . I I N '..! -~X' ! 'E: . :.a·3 e'": ,(ei·E · ::~:z .'1;{iJ 'a3 e•a.'. f ; ~;s- f '~ s I! a iU:OTURN TO SEND.E .R' .a,, .NO .r'!A!L · RECEPT·.A.CLE f UNAB •LE TO FO.RW·ARD r \_ B-c·: :3.3 .s .Z3 :3 -~£·~ e -s s ~-s * Z :3 .7 - 4 ---~e ..i.:.e ·s-s- ~es - ··4·? 1! -­ 3 3.S 23"@3~ d 1i ru\V'l\ll\nilnl\'·'i\"i1H11n\.lhl PH H \ l.i.j1UH k1p.t~ 11 i~\1..-· -· I ·­

RJAC June 2019 Agenda Page 174 of 175 MAIL COPY 0 F F I C E 0 F P A U L A S. 0' N E I L CL ERK & COMPTROLLER PASCO COUNTY, FLORIDA 38053 LIVE OAK AVENUE DADE CITY, Fl 33523-3894 COUNTY COURT , PASCO COUNTY , FLORIDA - CRIMINAL DIVISION STATE OF FLORIDA VS ANDRE LAVON GRANT SPNC00609613) 08/04/2015 CASES : DIV . - 15-04488MMAES 14 DOMESTIC VIOLENCE VIOL OF DVI

I : • •• • .• ,,_ . t1.• . ': i· ~ ! · : ; I • . '• ._ ' •· '. •; ·: \. . ·' .: ·.. ··.... .·.

NOTICE OF ARRAIGNMENT . ~ THE ABOVE NUMBERED CASECS J IS HEREBY SET AT 09:00 A.M . BEFORE THE HONORABLE WILLIAM G. SESTAK AT : CIRCUIT COURTROOM D ON : THURSDAY : ROBERT D SUMNER JUD CTR AUG . 13 , 2015 38053 LIVE OAK AVENUE DADE CITY, FL

YOU ARE FURTHER NOTIFIED THAT CO~RT COSTS AND OTHER ASSESSABLE COSTS, INCLUDING PUBLIC DEFENDER FEES UP TO THE MAXIMUM AUTHORIZED BY F. S. 925 . 036, MAY BE ASSESSED AGAINST YOU AND YOU MAY BE HEARD REGARDING THEM . ALL INTERESTED PARTIES LISTED BELOW ARE HEREBY NOTIFIED OF SAID ARRAIQNMENT ' DATE. , i · ·

PROPER DRESS IS REQUIRED , OR YOU MAY BE HELD IN CONTEMPT OR REFUSED ADMITTANCE. NO SHORTS, UNDERSHIRTS, TANK TOPS, ETC. Paula S. O'Neil Clerk & Comptroller, Pasco County

cc: TO: ANDRE LAVON GRANT DEFENDANT 37125 TRILBY RD CBOND > DADE CITY , FL 33593

TO: ANDRE LAVON GRANT DEFENDANT 37125 TRILBY RD CBOND> DADE CITY , FL 33593

RJAC June 2019See Agenda reverse for disability accommodation information. Page 175 of 175 . ~ ',

~upreme C!Court of jflortba 500 South Duval Street Tallahassee, Florida 32399-1925

CHARLES T. CANADY JOHN A. TOMASINO CHIEF JUSTICE CLERK OF COURT RICKY POLSTON JORGE LABARGA SILVESTER DA\VSON C. ALAN LAWSON January 31, 2019 MARSHAL BARBARA LAGOA JUSTICES

The Honorable Lisa T. Munyon, Chair Florida Courts Technology Commission Ninth Judicial Circuit Court 425 N. Orange Avenue, Suite 1130 Orlando, Florida 32801-1515

Mr. Eduardo I. Sanchez, Chair Rules of Judicial Administration Committee United States Attorney's Office 99 N.E. 4th Street Suite 800 Miami, Florida 33132-2131

Re: Access to Court Records

Dear Judge Munyon and Mr. Eduardo:

At the direction of Chief Justice Canady, I am writing you, as the chairs of the Florida Courts Technology Commission and the Rules ofJudicial Administration Committee, to request that the Commission, or appropriate subcommittee, and the RJA Committee conduct an expedited review and evaluation of the issues concerning apparent delays in access to court records addressed in the enclosed letter from Carol LoCicero and identified in the enclosed rep01i on access to court records in clerks' offices across the state.

In considering these important issues, you should seek input from the Florida Court Clerks and Comptrollers Association. The Commission and the RJA Committee should work together to determine whether amendments to Florida The Honorable Lisa T. Munyon Mr. Eduardo I. Sanchez January 31, 2019 Page:2

Rule of Judicial Administration 2.420 are warranted. Ifyou will be proposing rule amendments, they should be presented to the Court in a joint out-of-cycle report, filed under Florida Rule of Judicial Administration 2.140(f), and should be published for comment prior to being filed with the Court, as required by rule 2.140(e)(2). The Commission should provide any recommendations that do not involve rule amendments in a separate report that the Court will consider and act on administratively.

You should report back to the Court on these issues by June 3, 2019. Ifyou will be filing a joint rules report, the joint report should be filed with my office by that date, with copies to Justice Polston, the Court's liaison to the Commission and the RJA Committee, and Deborah Meyer, the Court's director of central staff. If the Commission will be submitting non-rules related recommendations, that report should be submitted to the Chief Justice by the stated due date, with a copy to Justice Polston. Ifyou should determine that more time is required to adequately address these issues, please submit a request for extension of time to my office, indicating when your report or reports can be submitted.

Thank you in advance for your immediate attention to this matter, and please do not hesitate to contact me or Justice Polston, if you have any questions.

Sinc7)/ L/g.--­ ohn A. Tomasino

JAT/dm/sb

Enclosures

cc: The Honorable Charles T. Canady, Chief Justice The Honorable Ricky Polston, Liaison, FCTC & RJA Committee Ms. Carol Jean LoCicero, Thomas & LoCicero PL JMs. Krys Godwin, Bar Staff Liaison, RJA Committee Mr. Roosevelt Sawyer, State Courts Technology Officer Ms. Deborah J. Meyer, Supreme Court Director of Central Staff 601 South Boulevard, Tampa, FL 33606 _IH OM A _&_~~---­ ph 813-984-3060 fax 613-984-3070 toll free 866-395-7100 South Florida

915 Mlddfe River Drive, Ste. 309, Fort Lauderdale, FL 33304 Lo CICERO ph 954-703-3416 fax 954-400-5415

www.tlolawfinn.com

Carol Jean Locicero (813) 984-3061 [email protected]

Reply to: Tampa

December 13, 2018

Justice Ricky Polston John A. Tomasino, Clerk Florida Supreme Court Florida Supreme Court 500 South Duval Street 500 South Duval Street Tallahassee, FL 32399-1925 Tallahassee, FL 32399-1927

P. K. Jameson, State Comi Administrator >;Florida Supreme Court r~- : ~500 South Duval Street ~j l \ Taliahassee, FL 32399-1900 .. ' :!.' I :~ I Re: Follow-up Letter Concerning Florida Court Records & Delays

i'.)J@r Justice Polston, Mr. Tomasino and Ms. Jameson: u Thank you for your time this week. I appreciate your meeting with me to discuss the access delay issues identified by the media coalition our firm represents, and your openness to hearing the media coalition's concerns. As promised, I am following up by letter to summarize for you possible solutions and some of the factual information mentioned at our meeting. You already have the Tour of Florida Courthouses to Access Court Records Report on the journalists' experiences at various clerk counters in Florida, so that information is not discussed in detail here.

To summmize, the problems related to delays in access remain a costly, system-wide issue that the coalition has been unable to resolve. The primary reason we have been given by Clerks for delays is their perceived responsibility for reviewing and redacting every filing prior to permitting access. However, I am hopeful that there are solutions for the delay problems.

Potential Rule-Based Solutions

First, clarification of the intent of Rule 2.420 (d)(l) could potentially rectify the systemic delays often attributed by Clerks to what they perceive as their duty to review and redact millions of pages ofrecords for confidential infonnation. After our discussion, I understand that the intent behind Rule 2.420, however, was that filers would bear the sole responsibility for Justi~ Ricky Polston iohn A. Tomasino P. tc. Jameson Decem)ler 13, 2018 Page2

identifying records .th11t are confidential in whole or part, while.Clerks would be responsible for mai11taining ihe security or°properly identified confidentil\l records. The.iµtent ofthe '\l~ignate and mafo.tain;' language in Rule ·2.42Q(d)(l) is that Clerks are responsible - not f'or teview).ng and redacting records -- )Jut only.for properly labeling which teconjs are ·subject tp a filer's Notice of Confidenti"'1 lnf'ormation within Cimrl Filing (cir a closure qrderj. ~Clerks are then responsibie for maintaining the confidentiality 9fthose records. Clarifying Rule 2.420(d)(1} should rectify this problem. A corresponding change to paragraph 2.420(a) to make it clear that the !llatrix does not independently impose a -clerk review/redaction obligatio11 might be necessary as well. I will be in fiirthet contact with .the Rule 2.4:20 subcommittee on these issues...... After the meeting; it .occµrred to me that the. rule coul.d also be modified to iilclilde a­ . reference w~'tiJnely·iu:;c¢s~" or to the f11ct that the ai.:cess fight "attaches upon reeeipL". Indjidjng eitlJ,er Ph.rase would reflect (he l~w an.d 'he)p facilitate timely access to c6lirt reca~ds: 1 .I wiil · · · ·discuss this proposal with the subcommittee too. ·

Again, thank you for ..your openness t

Relevant Factual Information

We. also diseussed certain faetual information that I promised to sumrtJ.arize in written form for easy reference:

The Tour ofFlorida Courthouses to Access Court Records Report efthe 19 ·courthouse· yjsits revelll.ed tl).at experience4 JO~rnalists seeking new filhi.gs ·at thqse c0iirthpuse c;\iunt~rs ·were ..unable. to. o.bt11in access to auy filings in 14 courthouses. Jn other words; access to new :ti.lings . was honored in only about 24% ofthe visits. The widespread .and extensive del~ys «i;lncountered . !fl the greilt majority ofFlorida eourts foreclose reporting oh the new business ofthe c0Urts; . . . · · ... whfoh often ip.clude.niatter~ ofpublic controversy. When a journalist goes to the ·cciui:thouse . -~~··-~- ..-s~ekirig to:feVi~:W new filii!gs; many clerks send the journalist to the clerk;s website;-Where'tl\.e·. . rep~rter is reijufre4 tci make ~ndividual reql!ests ·10 uillock specific .records vi~·ein1.1il; a·request . ~afwill : that is sol!letimes ailswered·quickly. . and sometimes slowly: . We. founcj .a few courts - . ·· :

1 Florida's privaey aniendment·is soinetimes cited as a pot1mtial barrier to access to reco.rds. That· provision, however, is expressly subordin11te·to the public's right to access public records. The privacy aniendment reads, in full: "SECTION 23. light ofprivacy.-.Every natin'al perso~ has the right to be let alone and free from governmental intrusion into the person's private life except as otherwise provided herein.. This section shall not be construed to· limit the public's right. of access to public records (lnd meetings as provided by law (emphasis added)." Nor should fears related to self-represented litigants drive how access is provided. The E-portal reports routinely show that self-represented litigants make up less than I% ofthe filers statewide. About ·95% of filers .ire lawyers or Judges. (The remaining filers inciude categories like proc.ess se.rVers.) Justic!) Ricky Polston John A. TOniasino P. )(.Jameson December 13, 291 S Page3

provide access at the courthouse, but typically only if the journalist pays $1 per page for a print• out~ iii essence paying for the right to inspect. a public record. . .

To recap how access is actually working now, We discussed the flow Of filings typically occurring. Though the press and public should be able to inspC9t the acfual filings as th~y flow into the system, the first irtdicatioh of a new filing in, Florida now .comes in the fomi oflimjted docket information, posted a day or more after the filing t)ipically. DockeHnfoqnation, however, is ho substitlite for access to the.filing itself. It is'tlie underlying filing that contains the factuill &llegi!tions and causes of.action, and that reveals whether a new civil action is likeiy to J>e a ma~er ofp\lbllc interest. Nor is docket ii:ifortrnition inst1111tM.eous!y avajiabl~. ·J?ays tq dod~et .are·trac,ked ·statewi.de,.b.ut days to public availability ofthe actual filings are not. Statewide, using the.E·portal sfat(stjcs for the peripd 'June 2017 to ,J'uhe 2018, t\le average.time to docket was·about 1:3 days. That equates to !!business day'ap.dioughlythemomingoftlieP.ti~tday • . before, on average, the public even kp.ows a case .has been fili:d. ))ock~ting tiikes !Onget than L3 days hi some counties. The September 2018 E-portal statistics show the qocket delay increased·: to LS days. ·

AQCess to ihe filip.g is d!ll11yed well beyond the posting ofdqc,ket infomiatio!J. Jn· niany courts, the fiiings remain "locked" as their default status urtti1 a tequestis made.to red.act and· release the doci!ment. In big c;Ourts that make new filings public without waitii:tg for an individual request; it generally. takes days - oftert. seven or eight i:Ourt days iµ IYliami-Dade cc to. first run the documerit~ through high•priced redaction software and then to manually review· and possibly hand-redact the same documents. The exceptioil'tO that rille is thl;lt,- in SOme courthouses, a journalist cap. bump a document to the head cif redaction line bypaying a dollar a page for a paper priritoufofth!l e-filing. ·

Delays m11tter. The public demands timely informatiqn.. Traditiona)ly and now, news . outlets repqrt.today's ev\)nts today, in the current news cycle. They report.on events ofth;;i day· for.'i:he evening's tv news and next morning's newspaper. Readers are se'eking- and·focl!s on,...:' ..,-' · · 'ille: latesrrie~s !llld fresh iilfoj.maticin. Delays of a day or n:iore ill access to ·tlie news. pijsh that . · . • new.s outside the cun:exit iiews 'cyde, and will in many .castis ni!lari the hews i~ p.ot r~orted ~t all: It is too old. The publ1c is theri denied newsworthy ihfoniiaqon.

Judicial sy~tem transparep.cy is being sacrificed. The expetjences recounted were those ofsophistic11ted journalists who understand their rights to inspei:t and copy court records, Md.are skilled in the art ofpatient and polite persistence when interacting with court employee~. Still, Mr. Abbott and his reporter were sent away from the courthoµse in most cas¢s without seeing any recent ~lings. Imagine what the experience ofthe uninitiated might be - ap.d individuals, of corirse, possess the same constitutional rights to inspect and copy records as journalisis.

To quantify the cost for clerk review and redaction, we obtained informatioQ. from about a dozen counties over the course oflast year. Estim11tes were provided by Clerks in Brevard, .~ . ' ;..

· .Justice Ricky Polston J.ohn A. Tomasino P. K. Jam.eson De¢eniber 13, 2018 ·i>.age 4

Clay, Duval, Hillsb.orough, Lee, Le.on, Manatee, Martin, MiamjcDade, Orange, Palm ~each, Pinellas, Sarasota, arid Walton counties. The total personilel~telated cost for redacting and . viewing records· on request was niore than $4.1 !Ilillion doiiafs for.ihos.e' counties. The hiitial redaction software investment for those counties totaled.about $3.4.million. We were able to ~btain the amiual ~aintern,nce fees .for eighJ ofthose CQuntjes, which totaled ·w.ell over.$500,QOO per year. (In ivliamj-Dade alone, the clerk pays $240,000 per year to.m11inta!n software that, as the access report recounts; reguiady generate8 errors arid breaks.down:) Extiilpolatiilg froni these figures, the estimated total personnel co~ts fot 67 Florida counties exeeeds $20 million a year, in addition· to the millions ofdoilars paid to buy redaction software·and the yearly fees for its maintenance. Clarification ofthe Clerks' responsibilitie8 eoftld resulf ill huge savings . · .statewide.

Clarification ofthe rule Would, hopefully; also return.this state to its historic place in the· forefront ofthe nation in providip.gjournalistswith timeiy access to new.filings on·re~ipt.· New·' filings were general!y included in~ stack thatJourp.alisi~ eoUld peruse daily. Tlmiti8h thepre$s, : .. the pµblfo was quickly inforined ofnew matiers brought to.· the coilrfiiou.s~ foi: resolµtio,n. Clarification ofthe rule would also billig Florida fo iine with 111aiiy St!lte and federaI courts providing excellent press· and public access in the electronic age.that do n9t place thii . responsibility for redaction on the court cier~. As mentioJi:ed; Fforida an

Adjacent to Florida, state courts in the metro Atlanta area, and. throughout Alabaml\; alo11g with agrowing number of courts throughout the nation;'irtcludiiig *ose in New \'prkand California and nearly alf~ederal ftil!l eotµis, provide access 'to nllW court tilings upoii receipt, .prior to clerk processing. As niention!ld in ouqn¢eting, ab

2 States that by statute or rul1i make the filer only affinnatively resp.onsible for rajactions include Alabama, Arizona, Arkansas; California, Connecticut, Deliiware, G«lorgia, Hawaii, Id~o, Illinois, Indiana, Iowa; Kansas, Kentiicky, Louisiana, M!!fYland, Massachusetts, Michj.gan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Ii.runpshire, New Jersey; New Mexjc

Justice Ricky Polston John A. Tomasino P. K. Jameson December 13, 2018 Page 5

right away, and it fulfills the promise of an open and public institution of government made in Florida's State Constitution.

The coalition has a unique vantage point on the system from the perspective of the Fourth Estate, whose job it is to monitor the government, including the cowis. We understand that you were likely unaware ofthe extent ofthe delay issues statewide, and wanted to inforn1 you ofthe issues we are encountering, with the hope offinding a resolution that honors Florida's judicial system. We see the statewide delays as a critical problem that denigrates Florida's rich access history, public confidence in the integrity ofthe judicial system, the voter open government mandate in Article I, Section 24, and the First Amendment.

We remain willing to provide additional infonnation or meet again with you ifthat would be helpful, and know that the Cowi values transparency.

Enjoy the holidays.

Very truly yours,

cc: Media Coalition REPORT: Tour ofFlorida Courthouses to Access Court Records

. ' .. "·

•. .., ··I •• ::, •.•I •J . 1 _,I

Introduction .• .J' -, For several years, the Thomas & LoCicero law firm has represented a large coalition of i media organizations1 focused on ensuring that principles underlying the constitutional rights of ' access to the records ofthe judicial branch remain a priority in our state, particularly as the courts transition to e-filing and court clerks push the public to look for court records online rather than at the courthouse. Recently, in order to demonstrate how access is working on the ground in Florida's courts, an experienced jownalist, Ryan Abbott, the regional bureau chief for Courthouse News, '-~! took a tour through courthouses at the southern and northern ends ofthe state, while also gathering information from the middle swath. Access, both online and at the counter, is routinely delayed. Here's his description ofwhat happened: Key West ' I ; ' ·-~ Mr. Abbott started at the southernmost point ofthe state, in early October. At the Key West courthouse for Monroe County Circuit Court, he walked into the clerk's office and politely asked to inspect a complaint in a case that had been filed the day before, based on a docket record seen on a public terminal at the courthouse. A counter clerk told him the complaint was in the Odyssey case management system but not publicly available. She told him the only way to see the complaint was to print it out for the price ofone dollar per page. So Mr. Abbott paid I I six dollars for a printout. From there he drove to the Marathon branch ofthe court where the counter clerk told him that new cases must first be docketed, redacted and then assigned a case number, a process that takes a day or two. She said a new case can only be inspected if a case number is provided first. Since there were no public terminals through which to find case numbers for recent filings, Mr. Abbott left without reviewing a filing.

At the Plantation branch ofthe court, Mr. Abbott asked to see the new complaints filed that day. The counter clerk told him that her office had three days to docket and open a new file. The clerk said the journalist must wait for the docket to appear on the court's website, then call the branch with a case number, pay over the phone by credit card, and then wait for a copy ofthe

- J complaint to be delivered via email. She said that in order to inspect the case for free at the

1 The coalition includes The Associated Press; The Bradenton Herald, Inc.; Courthouse News Service; the First Amendment Foundation, The Florida Press Association; TEGNA Inc. (d/b/a WTLV-TV /WJXX-TV, and WTSP-TV); Gannett Co., Inc. (d/b/aF/orida Today, Indian River Press Journal (Treasure Coast Newspapers-Vero Beach), Naples Daily News The News-Press, PNJ.com/Pensacola, The Stuart News (Treasure Coast Newspapers, Fort Pierce), Tallahassee Democrat; Gatehouse Media, LLC (d/b/a The Apalachicola Times, Crestview News Bulletin, Daily Commercial, Herald-Tribune, Holmes County Times Advertiser, News Chief, Northwest Florida Daily News, Ocala StarBanner, Palm Beach Post, Panama City News Herald, Santa Rosa's Press Gazette, The Daytona Beach News-Journal, The Destin Log, The Florida Times-Union, The Gainesville Sun, The Ledger, The Mirror, The Star, The St. Augustine Record, The Walton Sun, and Washington County News); Miami Herald Media Company; The New York Times Company; Nexstar Media Group, Inc. (d/b/a WFLA-TV, WKRG-TV and WMBB-TV); Orlando Sentinel Communications Company, LLC; Scripps Media, Inc. (d/b/a FOX4, WFTS-TV and WPTV-TV); and Sun-Sentinel Company, LLC.

' ,_J' counter, a reporter must wait for the filing to be docketed and opened online, record the case number, then return to the clerk's office and ask for the cases to be printed out. No images were r -, available online, and there were no public terminals at the courthouse. Mr. Abbott left without i ; l_J reviewing a filing.

' ' Miami I ; He then drove north to the courthouse for Miami/Dade County Circuit Court and asked a counter clerk for a copy ofa complaint filed two court days earlier. The complaint had been docketed but an icon representing the image ofthe complaint was grayed out, meaning it could not be opened.

The counter clerk said he could not allow Mr. Abbott to review the case for free. Mr. Abbott then asked ifhe could pay for a printout at a dollar per page. The counter clerk said normally that would be the case, but this complaint could not be printed. A supervisor then invited the journalist into his office to explain that the document had not yet been sent over to his office from "tech services," which handles redaction by automated software. The supervisor further explained that the redaction software regularly breaks down, but tech services does not inform the rest ofthe clerk's office ofthe breakdown. When the software is not broken, and a complaint image is successfully sent over to the clerk's office, it must be hand-redacted by court personnel before it becomes public. The supervisor expressed frustration with what he termed "a broken system" and rhetorically asked what could be expected from a county that could not even I ! pay for his business cards. -, In reviewing the court's records, Mr. Abbott observed that the current delay for free inspection ofnew complaints filed in Miami is rough! y eight court days. In other words, the court is withholding new filings for eight court days after the day offiling. In the paper era, in the same court, new civil actions could be inspected as soon as they crossed the counter. As a matter ofroutine on the courthouse beat, journalists in Miami/Dade checked the stack ofnew civil complaints at the end ofthe day and looked through the filings from that same day.

Mr. Abbott stopped for the evening in Davie, Florida to attend a fund-raising dinner for the First Amendment Foundation. Columnists Dave Barry and Carl Hiaasen spoke on the theme ofpublic access to government records, training their wit on the electoral process in Florida and the Division ofElections.

Fort Lauderdale

In the morning, Mr. Abbott set out for Broward County Circuit Court. In the clerk's office, he asked to look at the most recent civil complaints. He was sent to the "copy window" where two window clerks told him new filings could not be seen until they were "validated." Validation, they explained, is the process ofreviewing the documents and redacting any ·-· confidential information. They said validation is not done on request. Once validation occurs, the filings are available on the court's website and the clerk's office public terminals at the same time.

Based on observation, the amount ofdelay ebbs and flows in Broward, at times falling _J behind by three or four days and then being caught up to one day. In order to review the flow of filings - the electronic equivalent ofthe paper stack ofnew filings - a reporter needs to pay $1 ' i - 0 2 I ' for a search ofa series ofcase numbers. During his visit, the most recent filing Mr. Abbott could inspect was from the previous day.

Palm Beach

At the counter in the clerk's office in Palm Beach County Circuit Court, Mr. Abbott asked to inspect a series ofrecent cases based on docket information from public tenninals at the courthouse. He was told by a counter clerk that images ofnew records were "locked" until they are reviewed by a court employee, uploaded, and then available for review remotely and at courthouse tenninals, at the same time. The counter clerk said the whole process takes ''up to three days," an estimate that was confirmed through observation. The docket is generally posted one day after the filing and redaction takes one to two days more.

Okeechobee From Palm Beach, Mr. Abbott drove to Okeechobee Circuit Court, entered the clerk's office on the first floor and asked to review recent civil complaints. He was directed to a nearby room with public tenninals and found that the most recent docketed complaint was three days old. The docket entry included an image that could be opened up. A counter clerk told him that any new case must be accepted and reviewed before it can be seen. Mr. Abbott asked ifthere was any way to see more recent complaints, through an intake log, for example. The counter clerk said, "Before acceptance, we do not know a file exists." Mr. Abbott was unable to see any new complaints less than three days old.

Osceola ~J Mr. Abbott then drove north on a beautiful sunny afternoon to Osceola Circuit Court, where he entered the clerk's office and found a more chilly environment. On the third floor, he was met outside the elevator door by a desk clerk handing out number tickets. The clerk sent him to a windowless room with a TV monitor displaying ticket numbers. His number came up and he went to the designated window to meet a combative clerk. When Mr. Abbott asked how he could inspect new complaints, she answered, ''You can't do that."

He said he was a reporter and was confident that he was asking for public records. The clerk told him to go online, where, she said, access was "instantaneous." In fact, online access to the complaints themselves is running between three and four court days behind the day offiling. The reporter asked the window clerk ifthere were public terminals in the courthouse, and she sent him to the "information room." I ' He found docket information for a case filed that morning, without an image attached. He proceeded to the reception desk in the information room and asked ifhe could see the document. The desk clerk said it would need to be ''unlocked." Because the end ofthe work day approached, he didn't have the time. He suggested that Mr. Abbott register online for access, but then added that registrants needed to be attorneys. Online, a would-be registrant must indeed include a Florida bar number. Mr. Abbott left without seeing any records.

3 Orlando

In order to report on a court in the middle swath ofFlorida, Mr. Abbott asked reporter ii I ' Marilyn Alvarez to visit Orange County Circuit Court and attempt to see any recent civil actions. :_ I In the clerk's office on the third floor, a counter clerk told the reporter that the court must "accept and approve" a new civil filing before the docket can be seen both at the courthouse and online.

The related documents must then go through a redaction program, the clerk explained. ] ; i The goal is to redact new filings within 24 to 48 hours, she said, conceding that the office has fallen behind. On the public terminal at the courthouse, a search for the most recent civil case available for inspection showed that the office was in fact withholding cases for six court days after the day offiling. Noted the counter clerk, "Lots ofdocuments, not enough hands."

. ; Tavares Ms. Alvarez went to the information desk in Lake County Circuit Court, and was sent to the check-in window on the first floor, and from there to the reading room next door, a room with computer terminals. A search for the most recent cases showed that a small drawing ofa I : l lock was superimposed on the document icons. In order to see a new complaint, she was required to enter her email address and click request.

! I She then went back to the check-in window and asked ifit was possible to see the complaints that were locked or any that were filed that day. The counter clerk said that unless the reporter was a party to the case, she must request the new complaint and wait for it to be redacted. The request goes to the IT department for redaction, and it usually takes two to three business days. The documents are not redacted unless someone makes a request for the document. DeLand

i At the courthouse for Volusia County, Ms. Alvarez was directed to three public computer _J terminals on the second floor. On a tab titled "daily cases filed circuit civil," no cases from the same day were visible. She went to the counter and talked with a counter clerk and her supervisor who explained that if a new complaint is not available on the computer terminal, it cannot be reviewed.

They further explained that an efiled case first goes into a queue where its reviewed and accepted by a clerk in the courthouse call center and then goes into a second queue where it is reviewed by the civil department which also checks that the fees are paid and hand redacts the document. The document is then machine redacted when it is opened by a member ofthe public. They said the clerk's goal is to have documents publicly available within three business days .. Actual delays vary from day to day but that estimate was about right overall.

Yulee

In late October, Mr. Abbott returned to visit courts along Florida's northern border. He took a car for hire to the clerk's office in Nassau County Circuit Court. At the clerk's counter,

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I _J he spoke to a clerk behind a glass window who turned her own tenninal around, explaining that it was the court's public tenninal. She passed a mouse under the glass to Mr. Abbott and r· directed him to the court's website. I While she watched, he attempted to open the court's search page but was met by a display saying the page was unresponsive. The clerk said she would call the ''tech people" and left a message with them. While the reporter and the clerk waited, she explained that the clerk must first "accept" a new case, at which point docket infonnation becomes available on the ,--. court's website. The images, however, are held for ''review." Once a clerk manually reviews the filing, the clerk explained, the document becomes public.

She said a particular case can be requested "on demand," which will move that filing to : ! the head ofthe redaction line. "We have three days," she said, to complete the redaction. After waiting for roughly 20 minutes, Mr. Abbott left the courthouse without having inspected any new filings, recent or otherwise. On the way to pick up a rental car, his rideshare driver explained to a fellow fishennan that he successfully fishes for smallmouth bass in culverts by the side ofthe road while he waits to be pinged for his next fare.

Jacksonville A rental car secured, Mr. Abbott drove due south to the massive courthouse for Duval County Circuit Court where he proceeded to the clerk's office on the ground floor. He pressed a button to speak by microphone to an apparently disgruntled counter clerk on the other side of thick glass. The clerk refused to answer any questions about the process, sending him instead to r , : ! the law library on the second floor where he was able to get on a public terminal. 1_' __:' A kindly librarian there instructed him to open an internet browser and go to the court's website. The most recent docket records were for cases filed two days earlier. Each docket was ! \.I accompanied by a document icon upon which was superimposed the word "LOCKED." Mr. Abbott went back downstairs to the clerk's office and explained that the images were locked. The clerk told him that the public cannot look at the documents "unless you are a party."

Mr. Abbott countered that the records are public and asked for a supervisor. The clerk returned without a supervisor and explained that Mr. Abbott should sign up online for an account. After two days, ifthe request for an account is granted, he could then ask online for a case to be ''unlocked," a process which generally requires a full court day. Mr. Abbott left without being able to inspect any case.

Macclenny

Mr. Abbott then headed west to Baker County Circuit Court. He walked into a traditional clerk's office where he was able to talk directly to a clerk at a long counter. He was directed to a public computer terminal where he opened a program called "Clericus" and was able to search for new cases.

In a low volume court, the most recent case was from the previous day. The icon was not I ; locked and the associated document opened for review. He then went to the counter to inquire about procedure for making new filings public. The clerk's IT employee overheard the --, conversation, approached and shook hands with Mr. Abbott. He explained that when a case is ' 5

.• J I _I filed in paper or electronic form, the documents can be seen on Clericus right away, while access on the court's website is delayed by one day. He also described a security matrix that allows court officials to see documents without clerk redaction but excludes the public and the press. Ifthe document clears an initial automated review, he said, it is available right away on Clericus. Ifit does not, anyone can come to the

;1 ' counter and ask to see a document which will be promptly reviewed and posted. ··' He then asked ifthe reporter was involved with the First Amendment Foundation to which Mr. Abbott replied that he had attended a function for the foundation a couple weeks earlier. The court employee expressed strong approval ofthe foundation's work. Mr. Abbott r • explained that the court was providing the best access he had yet encountered in Florida. The I : Court Clerk herself then came forward and introduced herself. In the course ofa conversation, she expressed frustration with the redaction rule, saying that one court employee's entire work day was dedicated to redacting every document that came into the courthouse.

Lake City

' Mr. Abbott then drove southwest to Columbia County Circuit Court. He found a public --.! terminal in the clerk's office and clicked on the Clericus icon, but it required a user name and password. He went up to a counter clerk who summoned an official who told Mr. Abbott, "You can't use Clericus."

She said the program was restricted to clerks processing complaints. She told Mr. Abbott to use the public terminal to open an internet browser and go to the court's website, in order to search for new filings. On the court's website, the most recent docket was for a case filed the previous day. But the image icon was grayed out, meaning it would not open. Affixed to the public terminal was a printed message that said, "In order to protect confidential information that I I may be contained in otherwise public records, certain cases are available only after specific request and additional clerk inspection."

L ! Mr. Abbott returned to the counter. A few steps back from the counter, three clerks sat at desks. In the manner of a chorus, they explained that all the complaints are ''locked" and remain

' I locked until a specific unlocking request is made. Then it takes 24 to 48 hours to unlock a I l '. -' complaint, they said, because there is only one clerk to redact documents for the entire building. Mr. Abbott then picked up an order of sushi and spent the night at Holiday Express in Lake City.

Jasper ' I In the morning, he drove through a terrain ofwoodlands and open fields to Hamilton I : County Circuit Court. He entered a small courthouse and found his way to the clerk's counter. In response to a request to see recent civil complaints, the counter clerk looked puzzled and j referred him to the processing clerk. . I L. She explained that she processes new filings once a day and the docket can then be .- , reviewed online. She said images ofdocuments are "mostly on demand." She explained that a I' security matrix allows judges and clerks to see the documents right away but members ofthe -' public and reporters must request that the documents be ''unlocked."

I I ' 6 ., I I ~J -- ' She said the unlocking request is made online and that she is notified "on the computer," pointing to her terminal. She then reviews the documents and unlocks them generally on the following work day. Because the clerk's office had no public terminals, Mr. Abbott was not able to search for the most recently filed case and left without being able to inspect any recent filings. Madison Driving due west, Mr. Abbott proceeded to the big, traditional courthouse for Madison County Circuit Court. When he started asking questions, a counter clerk called the Court Clerk on a phone, explaining that a reporter wanted to see some new complaints. The Clerk arrived a short time later, shook hands with Mr. Abbott, and brought him over to talk with the lone processing clerk in the court's records room, which was filled with large bound volumes of docket ledgers. ' ' The processing clerk explained that she keeps a handwritten intake log on a yellow pad, listing the date, case number and parties for each new complaint as it comes in. Mr. Abbott asked :_ to see the most recent case on the intake Jog. The processing clerk walked to a shelf, pulled a paper file, looked over the document inside, and handed it to Mr. Abbott. The records room in Madison was like a fossil reminder ofthe excellent paper access once provided in Florida's courts, and it was the only remaining example oftraditional access found by Mr. Abbott on his voyage through the courts ofFlorida. I _' Monticello

Proceeding west, with news radio reporting that a Florida man had been arrested over a recent spate ofmail bombs, Mr. Abbott drove towards Monticello. In a small town with 14,000 people, the traditional courthouse for Jefferson County Circuit Court sits in the very middle of town at the center ofa traffic circle.

At the clerk's counter, an employee showed Abbott to the ''vault records room," ~' Mr. I j about the size ofa large closet and filled with the aroma ofdusty books. While an antiquated ~--) computer terminal was fired up, the counter clerk explained that dockets and document images could be seen online. She said the new filings must be redacted before they can be inspected. She said the clerk's office has Clericus, but it doesn't work.

From the public terminal, Mr. Abbott conducted a search for the most recent case which had been filed ten days earlier in the very low-volume court. He was able to review the I .I document itsel£ Tallahassee Driving west towards his final stop on the Florida tour, Mr. Abbott arrived at Leon I~ County Circuit Court, directly across from the state Capitol, on the first day ofearly voting. In the center ofthe foyer for the circuit court clerk's office was a room extending out from the clerk's counter titled "HELP ROOM" and containing a row ofpublic terminals. He was able to :--1 find dockets for new complaints filed earlier that same day, but no documents could be opened. i A box next to each docket item said "req," standing for "request."

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I J Mr. Ryan approached a counter clerk's window and explained that the documents tied to the docket records were locked, and he wanted to see them. She answered that, in order to look at them, he must make a request through the clerk's website. The clerk's office must then review I !' I.! the document and unlock it. However, he could also fill out an application, have it notarized and ·send it back to the clerk, she told him.

After the application was accepted, Mr. Ryan was able to review a small number ofcases from the same day while most were delayed until the following day. That registered access is the same at the courthouse and online. Without registering, Mr. Abbott could either fill out a written form at the courthouse, or make an email request on a courthouse terminal. An automated reply to any such email states, "It may take up to seven business days to fulfill this request."

Mr. Abbott then left for the airport, stopping first by a tavern next to Florida State University on the eve of a football game.

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RESPONSE OF FLORIDA COURT CLERKS & COMPTROLLERS TO THE NEWS MEDIA COALITION’S REPORT - “TOUR OF FLORIDA COURTHOUSES TO ACCESS COURT RECORDS”

March 2019 1

RESPONSE OF FLORIDA COURT CLERKS & COMPTROLLERS TO THE NEWS MEDIA COALITION’S REPORT - “TOUR OF FLORIDA COURTHOUSES TO ACCESS COURT RECORDS”

I. Introduction Florida Court Clerks & Comptrollers (FCCC) submits this response to the report provided by Thomas & LoCicero on behalf of the News Media Coalition (NMC). The “Tour of Florida Courthouses to Access Court Records” describes reporter Ryan Abbott’s visits to various courthouses throughout the State of Florida to test how “access is working on the ground in Florida’s courts.” The report apparently concludes, although it doesn’t explicitly say so, that access is not adequate for NMC’s purposes. In fact, the “report” is not a report, as that term is traditionally used in the court system for the purpose of deciding such an important issue; a report would usually have pros and cons, and would not be a one-sided document. This report is nothing more than one person’s anecdotal recollections of his interaction with various Clerks’ offices to make a limited and specific request for one type of filing. When this issue was last reviewed by the Court, five separate reports were issued over a seven year period: https://www.floridasupremecourt.org/News-Media/Reports-on-Privacy-Access- Court-Records. Any across-the-board conclusion that Clerks are denying timely access to court records is not supported by the “report,” given the limited nature of the requests made and the complete lack of follow up by the reporter. Florida’s Clerks work to provide timely access to court documents, particularly to the media, and to protect the public trust, as required by law or Florida Supreme Court rule. The public at large might have a legitimate claim that the media has actually enjoyed preferential treatment from Clerks for many years. Clerks have nothing to gain by withholding public information from the news media. Clerks believe in the Sunshine Laws and the First Amendment. The Florida Supreme Court has previously concluded that the right of access must be balanced against the constitutional right to privacy. FCCC is a partner of the First Amendment Foundation and actively takes part in Sunshine Week concepts and promotions. As noted on FCCC’s website: “Court 2

Clerks have been upholding government transparency and defending citizens' right to access information for nearly two centuries, since the Florida Constitution was signed and established them as elected public trustees. Florida’s Clerks promote transparency and open government year-round, especially during Sunshine Week … in partnership with the First Amendment Foundation.” A major complaint throughout the report is that court records are not immediately available. That is true. Access to documents is not instantaneous. As the joint committee is well aware, court files contain enormous amounts of private information about Florida’s citizens, such as Social Security numbers, financial information, and even the identities of minors who have been victims of sexual assault. The volume of documents filed every day is staggering. More than 10,000,000 new pages are filed every month and filings come in 24 hours a day, seven days a week. There is an orderly, time-tested process in place as a result of the previous reports, that Clerks are required under Florida Rule of Judicial Administration 2.420 to follow to ensure proper handling of documents filed with the court. The first priority is to review for docketing and then docket the document. Before the document can be made public, the Clerk must screen the document to protect any private or confidential information they are responsible for protecting. Although the redaction process can be labor intensive and time consuming, Clerks work diligently to protect the public and to ensure that no confidential information is released in error. It is clear that not all information held by a government agency is available to the public. Common law has long commanded that document custodians protect confidential information. Likewise, the Florida Supreme Court through Florida Rule of Judicial Administration 2.420 delineates what case types, documents and information within documents are confidential. The Florida Supreme Court, however, is not authorized to make information confidential without statutory authority. Thus, the judicial branch reviewed each exception to the public records created by the Florida Legislature and reviews all new exceptions to the public records created by the Florida Legislature to determine what information should be protected within judicial branch records. Although Clerks do not determine what information is public, they do protect the information and documents that the Florida Supreme Court has determined must be kept confidential in judicial branch records. 3

Critically in this matter, no Clerk failed to provide a document as requested. The reporter left if he could not get instant access to documents. The reporter did not follow up with the Clerk’s office in instances where documents were not immediately available. The requests were not in writing, as required by Rule 2.420. Neither the report nor the information Clerks provided indicate that the reporter stated there was a time-sensitive need for access—or if there was, what it was. FCCC fully recognizes that the allegations and implications contained within the report are serious. FCCC asked each Clerk who was visited to provide a response so the joint committee would have the benefit of both sides of the story. It is apparent many Clerks had a different viewpoint of the interaction than did the reporter. It is imperative that any analysis of the adequacy of access to court records be reviewed by balancing the right of access against the duty to protect confidential information. In this light, it is unreasonable to expect instantaneous access to court records as Clerks have to protect confidential information in a vast amount of filed documents. It is clear from the responses below that each Clerk’s office visited attempted to fulfill the reporter’s request within a reasonable amount of time under the circumstances. As indicated above, the Clerks’ offices take their role as records custodians, as well as the public’s right to access the records within its court custody seriously. They do so by balancing the appropriate factors in determining whether a response to a court records request is completed in a reasonable amount of time.

II. Clerk Responses

Key West (Monroe County) Claim: “At the Key West courthouse … a counter clerk told him the complaint was in the Odyssey case management system but not publicly available. She told him the only way to see the complaint was to print it out for the price of one dollar per page.” In the Marathon branch, “the counter clerk told him that new cases must first be docketed, redacted, and then assigned a case number, a process that takes a day or two. … Since there were no public terminals through which to find case numbers for recent filings, Mr. Abbott left without reviewing a filing.” 4

In the Plantation branch, “Mr. Abbot asked to see the new complaints filed that day. The counter clerk told him her office had three days to docket and open a new file. The clerk said the journalist must wait for the docket to appear on the court’s website, then call the branch with a case number, pay over the phone by credit card, and then wait for a copy of the complaint to be delivered via email.” County’s response: The report accurately described the encounter in the Monroe County Clerk’s Office; however, there are times within the report where the reporter was misinformed about the proper process for obtaining court records. How long does it take for a document to be made available to the public? The Clerk has between two and four days, depending on case type, to accept the filings according to the Florida Clerks of Court Operations Corporation’s (CCOC) timeliness standards. The filing then runs through a redaction process, which takes up to two days. Filings are processed as quickly as possible, and are available within one to five days, depending on staffing levels.

Miami (Miami-Dade County) Claim: “In reviewing the court’s records, Mr. Abbott observed that the current delay for free inspection of new complaints filed in Miami is roughly eight court days. In other words, the court is withholding new filings for eight court days after the day of filing.” County’s Response: The report did not accurately describe the encounter in the Miami-Dade County Clerk’s Office. How long does it take for a document to be made available to the public? All filings are available for view upon retrieval of the case docket, except for documents that have not completed the redaction review process and/or have been determined to be confidential. Manual redaction of documents is occasionally performed upon request. Depending on the size of the documents requested, customers are advised as to whether the request can be completed immediately or will require up to 72 hours for the process to be finalized. The time required for documents to be filed, accepted, reviewed and redacted, and made available for 5 public view fluctuates. Factors that can impact the processing timeline include intake volume of complaints and pleadings, as well as technical complications.

Fort Lauderdale (Broward County) Claim: “During his visit, the most recent filing Mr. Abbott could inspect was from the previous day.” County’s Response: The report did not accurately describe the encounter in the Broward County Clerk’s Office. The report indicates that filings were made available within one to four days. This supports CCOC’s finding that Broward County meets its performance standards for timeliness in all but two divisions. How long does it take for a document to be made available to the public? Broward County’s goal is to stay within the CCOC performance standards for timeliness; i.e., two days for case filings and three days for supplemental filings 80 percent of the time.

Palm Beach (Palm Beach County) Claim: “[I]mages of new records were ‘locked’ until they are reviewed by a court employee…” County’s Response: The report did not accurately describe the encounter in the Palm Beach County Clerk’s Office. The report lacks details necessary to determine if or how the Clerk could have improved its response. Some statements made are inconsistent with the processes in place in Palm Beach County. For example, depending on the sensitivity of the case or the docket type, some documents are available immediately. How long does it take for a document to be made available to the public? When documents are not made immediately available, it is because they are being redacted. The redaction process is handled by the Clerk’s office, not by court 6 employees, as stated in the report. With the exception of the Viewable on Request (VOR) case types, all documents are viewable within the required docketing time standards. New cases are viewable within two days, and documents on existing cases are viewable within three days. Some electronic documents that are processed using AI technology are available almost immediately after being received from the e-Filing Portal (e-Portal).

Okeechobee (Okeechobee County) Claim: “Mr. Abbott was unable to see any new complaints less than three days old.” County’s Response: The report did not accurately describe the encounter in the Okeechobee County Clerk’s Office. How long does it take for a document to be made available to the public? When a filing is accepted from the e-Portal, depending on size, it is available almost immediately. Pro se filers’ documents are processed when the filer is still at the counter. The documents are available almost immediately, depending on size. Documents are placed online after the redaction process has occurred.

Osceola (Osceola County) Claim: “On the third floor, he was met outside the elevator door by a desk clerk handing out number tickets. … When Mr. Abbott asked how he could inspect new complaints, she answered, ‘You can’t do that.’ He said he was a reporter and was confident that he was asking for public records. The clerk told him to go online, where, she said, access was ‘instantaneous.’ In fact, online access to the complaints themselves is running between three and four court days behind the day of filing. …. He found docket information for a case filed that morning, without an image attached. He … asked if he could see the document. The desk clerk said it would need to be ‘unlocked.’ … He suggested that Mr. Abbott register online for access, but then added that registrants needed to be attorneys. Online, a would-be registrant must indeed include a Florida Bar number. Mr. Abbott left without seeing any records.” 7

County’s Response: The report did not accurately describe the encounter in the Osceola County Clerk’s Office. The report has either a factual error or typographical error. The Osceola County Clerk’s Office is located on the 2nd floor of the Courthouse. Court administration, which is not part of the Clerk’s office, is located on the 3rd. The report did not give enough information to verify the accuracy of its contents regarding encounters with office staff. How long does it take for a document to be made available to the public? Electronic documents that are not considered confidential are processed within three business days; however, Osceola Clerk of Court staff make every effort to process documents as quickly as possible. The Osceola Clerk of Court’s Office has a department dedicated to redacting court record information and VOR requests for required documents. Web access available to the public contains documents that are made available immediately after redaction and others are placed in VOR status.

Orlando (Orange County) Claim: “The related documents must then go through a redaction program, the clerk explained. The goal is to redact new filings within 24 to 48 hours, she said, conceding that the office has fallen behind.” County’s Response: The report accurately described the encounter in the Orange County Clerk’s Office. How long does it take for a document to be made available to the public? Documents are made available to the public after redaction. This process generally takes between two and four business days when the office is fully staffed and experiencing average volume.

8

Tavares (Lake County) Claim: “In order to see a new complaint, she was required to enter her email address and click request. … The counter clerk said that unless the reporter was party to the case, she must request the new complaint and wait for it to be redacted. The request goes to the IT department for redaction, and it usually takes two to three business days. The documents are not redacted unless someone makes a request for the document.” County’s Response: The report did not accurately describe the encounter in the Lake County Clerk’s Office. When a document is marked as VOR, it is redacted upon request for the document. The VOR page indicates that providing an email address is optional. It says, in part, “…if you would like to be notified by email when the image is viewable, please enter your email address in the box below. … If you prefer not to enter your email address, please leave the email box blank…” Redaction requests are directed to the Courts Management Division, not the IT department. How long does it take for a document to be made available to the public? More than three quarters of filings are docketed in the case maintenance system (CMS) within one business day, while more than 90 percent are completed within two business days. Docket entries are available immediately after the filing is accepted in the CMS. For the sake of efficiency, the Lake County Clerk of Court’s Office does not redact until requested; only 4 percent of all documents are ever requested. The average response time to a request for redaction is less than 24 hours, but varies according to the nature of the request.

DeLand (Volusia County) Claim: The counter clerk and her supervisor “said the clerk’s goal is to have documents publicly available within three business days. Actual delays vary from day to day, but that estimate was about right overall.” County’s Response: The report accurately describes the encounter in the Volusia County Clerk’s office. 9

How long does it take for a document to be made available to the public? Filings in existing cases are most often processed the same business day, and no longer than by the next business day. New suit filings can take up to three days.

Yulee (Nassau County) Claim: “…a clerk behind a glass window … turned her own terminal around, explaining that it was the court’s public terminal.” County’s Response: The report did not accurately describe the encounter in the Nassau County Clerk’s Office. The office has public access computer terminals at every customer service counter for access to court records. The clerk did not give the requestor access to their computer or login. The clerks are instructed to have requestors view redacted versions of records with a secure login. This login gives customers access to records as if they were a registered user, or access levels similar to those for a walk-in requestor. How long does it take for a document to be made available to the public? Filings are processed as quickly as possible, and are generally available within one to three business days.

Jacksonville (Duval County) Claim: “After two days, if the request for an account is granted, he could then ask online for a case to be ‘unlocked,’ a process which generally requires a full court day.” County’s Response: As the description in the LoCicero report did not identify the department visited by Mr. Abbott, the Duval County Clerk’s Office cannot verify whether the report accurately described his visit. The description given does not conform to the office’s standard policies concerning public records. Additionally, the time frame mentioned for being granted access to the Duval Clerk’s online records portal, 10 known as CORE, is not accurate. As soon as a user registers for a free CORE account, they can begin requesting documents immediately.

Macclenny (Baker County) Claim: “In a low volume court, the most recent case was from the previous day. … Mr. Abbott explained that the court (sic.) was providing the best access he had yet encountered in Florida. The Court Clerk herself then came forward and introduced herself. In the course of a conversation, she expressed frustration with the redaction rule, saying that one court employee’s entire work day was dedicated to redacting every document that came into the courthouse.” County’s Response: The report accurately described the encounter in the Baker County Clerk’s Office. How long does it take for a document to be made available to the public? Documents are normally available by the next working day by computer, or immediately when requested.

Lake City (Columbia County) Claim: “[T]hree clerks sat at desks. In the manner of a chorus, they explained that all the complaints are ‘locked’ and remain locked until a specific unlocking request is made. Then it takes 24 to 48 hours to unlock a complaint, they said, because there is only one clerk to redact documents for the entire building.” County’s Response: The report did not accurately describe the encounter in the Columbia County Clerk’s Office. How long does it take for a document to be made available to the public? Documents arriving through the e-Portal are generally processed the day they are received, though times may vary based on staffing and may take up to two days. Documents requested in person are processed promptly. As soon as a customer requests the new document, the Columbia County Clerk’s Office will produce the 11 document. However, if it is an old case and is stored off-site, it may take longer— normally a business day.

Jasper (Hamilton County) Claim: “She explained that a security matrix allows judges and clerks to see the documents right away but members of the public and reporters must request the documents be ‘unlocked.’” County’s Response: The report did not accurately describe the encounter in the Hamilton County Clerk’s Office. While the office does not have a public terminal available, the reporter was instructed that he could request a specific case and it would be pulled for him. He was also told that recent Civil Complaints were available online, and the security matrix was never mentioned during the interaction. How long does it take for a document to be made available to the public? Any non-confidential document, whether received via the e-Portal or in paper, that is not labeled “On Demand” would be made available within 24 hours. Any other document would be available upon request.

Madison (Madison County) Claim: “The records room in Madison … was the only remaining example of traditional access found by Mr. Abbott on his voyage through the courts of Florida.” County’s Response: The report accurately describes the encounter in the Madison County Clerk’s Office. How long does it take for a document to be made available to the public? From the time a filing is received from the e-Portal, or in paper from a pro se filer, the document is available for viewing within two to three days.

12

Monticello (Jefferson County) Claim: “… the ‘vault records room’ [was] about the size of a large closet and filled with the aroma of dusty books. While an antiquated computer terminal was fired up, the counter clerk explained that documents could be seen online. … She also said the Clerk’s Office has Clericus, but it doesn’t work.” County’s Response: The report did not accurately describe the encounter in the Jefferson County Clerk’s Office. The deputy clerk informed the reporter that Clericus was not set up for the public to view the file. However, all requested information was available online. The report further miscategorized the Jefferson County historic records vault and described the public terminals inaccurately. Both public terminals are in good working order, up to date, and frequently used by members of the public. How long does it take for a document to be made available to the public? Documents are redacted and made available within 24 hours.

Tallahassee (Leon County) Claim: “He was able to find dockets for new complaints filed earlier that same day, but no documents could be opened. A box next to each docket item said ‘req,’ standing for ‘request.’” County’s Response: The report accurately described the encounter in the Leon County Clerk’s Office. How long does it take for a document to be made available to the public? It takes two business days for docketing and up to five days for redacting specific documents, as required under Rule 2.420. However, staff may expedite the redaction process at the customer’s request.

13

III. Conclusion The Clerks’ responses show that they did exactly what they were required to do under Rule 2.420, including the Access Security Matrix, and the Supreme Court Administrative Orders that cover electronic access to court files. They informed the reporter that before they could provide the requested documents from the court file, the documents had to be docketed and then reviewed for redaction. The reporter was not denied any document. The average time across the state for Clerks to docket a document is a day and a half. That time has remained consistent over the past few years, despite drastic budget cuts and concomitant reductions in Clerk staff. The reporter did receive some documents, but did not follow up in any instance when he was told it would take some time to docket and redact the documents. We will never know how long it would have taken to produce the requested document in those instances. Florida’s Clerks are fully committed to make documents available as soon as is reasonably possible under the circumstances, which is the current standard for requests for documents pursuant to Chapter 119, Florida Statutes. Those circumstances have to include time to docket and time to redact. Making documents from a court file instantly available is potentially very dangerous to the public, as well as to litigants. Although FCCC and the individual Clerks will gladly participate in examination of these issues, we see no opportunity for a quick fix. FCCC shares the goal of continuing to improve efficiency and uniformity with this process, as evidenced by recent trainings offered to all Clerks and their staff. During the most recent training sessions, FCCC conducted a class in making court records more easily available and focused on timeliness. Another such session is planned for the next educational sessions. The Florida Supreme Court’s official motto, “Sat Cito Se Recte,” which translates roughly to, “soon enough if done rightly,” should not be forgotten. As the joint committee is well aware, the People of Florida recently amended Florida’s Constitution and adopted Amendment 6, which is commonly referred to as Marsy’s Law. The intent of that amendment was to protect the victims of crimes. Crimes involve court files. What the Supreme Court will ultimately decide about this mandate from the public is difficult to predict, but the constitutional change is a fundamental one. Access to court files may also fundamentally change. The Florida Bar 651 East Jefferson Street Tallahassee, FL 32399-2300 Joshua E. Doyle 850/561-5600 Executive Director www.FLORIDABAR.org

June 3, 2019

John A. Tomasino Clerk of Court Supreme Court of Florida 500 South Duval Street Tallahassee, Florida 3239901925

RE: Access to Court Records RJAC File: 19-RJA-01

Dear Mr. Tomasino,

As you will recall, the Rules of Judicial Administration Committee and the Florida Courts Technology Commission received a referral dated January 31, 2019, pertaining to a potential amendment to Rule 2.420 (Public Access to and Protection of Judicial Branch Records). The letter instructed the Committee and Commission to “conduct an expedited review and evaluation of the issues concerning apparent delays in access to court records addressed in the enclosed letter from Carol LoCicero and identified in the enclosed report on access to court records in clerks’ offices across the state.” A joint rules report or a report with non-rules recommendations is presently due on June 3, 2019, and publication for comments is required if a rule amendment is proposed. (Attachment, page 2.)

This referral was assigned immediately to a joint subcommittee that has been working hard to determine whether a rule amendment is prudent and, if so, exactly what that amendment should be. The joint subcommittee has been meeting consistently—almost weekly—and it feels that this concern and referral is too weighty to be resolved via e-mail communication and telephone conferences. Instead, the joint subcommittee has concluded—and we agree—that the issues involved in this referral need to be discussed and resolved in full membership meetings. The next Rules of Judicial Administration Committee meeting (and the first since the January 31 referral) will be June 28, with the Board of Governors meeting following on July 20; the next Florida Courts Technology Commission meeting will be August 9.

651 East Jefferson Street  Tallahassee, FL 32399-2300  (850) 561-5600  FAX: (850) 561-9405  www.floridabar.org THE FLORIDA BAR

Because of the need for these full in-person meetings, the pre-existing meeting schedules, and the procedure for report drafting and possible publication, the Committee and Commission request an extension until August 31, 2019, to submit their report(s). Please do not hesitate to contact us if you have any questions or concerns.

Sincerely,

/s/ Eduardo I. Sánchez /s/ Judge Lisa T. Munyon Eduardo I. Sanchez, Chair Judge Lisa T. Munyon, Chair Rules of Judicial Administration Committee Florida Courts Technology Commission

Attachment cc: The Honorable Ricky Polston, Liaison, FCTC & RJA Committee Deborah J. Meyer, Supreme Court Director of Central Staff Joshua E. Doyle, Executive Director, The Florida Bar Hon. Josephine Gagliardi, Incoming Chair, Rules of Judicial Administration Committee Krys Godwin, Bar Staff Liaison, Rules of Judicial Administration Committee

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~upreme C!Court of jflortba 500 South Duval Street Tallahassee, Florida 32399-1925

CHARLES T. CANADY JOHN A. TOMASINO CHIEF JUSTICE CLERK OF COURT RICKY POLSTON JORGE LABARGA SILVESTER DA\VSON C. ALAN LAWSON January 31, 2019 MARSHAL BARBARA LAGOA JUSTICES

The Honorable Lisa T. Munyon, Chair Florida Courts Technology Commission Ninth Judicial Circuit Court 425 N. Orange Avenue, Suite 1130 Orlando, Florida 32801-1515

Mr. Eduardo I. Sanchez, Chair Rules of Judicial Administration Committee United States Attorney's Office 99 N.E. 4th Street Suite 800 Miami, Florida 33132-2131

Re: Access to Court Records

Dear Judge Munyon and Mr. Eduardo:

At the direction of Chief Justice Canady, I am writing you, as the chairs of the Florida Courts Technology Commission and the Rules ofJudicial Administration Committee, to request that the Commission, or appropriate subcommittee, and the RJA Committee conduct an expedited review and evaluation of the issues concerning apparent delays in access to court records addressed in the enclosed letter from Carol LoCicero and identified in the enclosed rep01i on access to court records in clerks' offices across the state.

In considering these important issues, you should seek input from the Florida Court Clerks and Comptrollers Association. The Commission and the RJA Committee should work together to determine whether amendments to Florida The Honorable Lisa T. Munyon Mr. Eduardo I. Sanchez January 31, 2019 Page:2

Rule of Judicial Administration 2.420 are warranted. Ifyou will be proposing rule amendments, they should be presented to the Court in a joint out-of-cycle report, filed under Florida Rule of Judicial Administration 2.140(f), and should be published for comment prior to being filed with the Court, as required by rule 2.140(e)(2). The Commission should provide any recommendations that do not involve rule amendments in a separate report that the Court will consider and act on administratively.

You should report back to the Court on these issues by June 3, 2019. Ifyou will be filing a joint rules report, the joint report should be filed with my office by that date, with copies to Justice Polston, the Court's liaison to the Commission and the RJA Committee, and Deborah Meyer, the Court's director of central staff. If the Commission will be submitting non-rules related recommendations, that report should be submitted to the Chief Justice by the stated due date, with a copy to Justice Polston. Ifyou should determine that more time is required to adequately address these issues, please submit a request for extension of time to my office, indicating when your report or reports can be submitted.

Thank you in advance for your immediate attention to this matter, and please do not hesitate to contact me or Justice Polston, if you have any questions.

Sinc7)/ L/g.--­ ohn A. Tomasino

JAT/dm/sb

Enclosures

cc: The Honorable Charles T. Canady, Chief Justice The Honorable Ricky Polston, Liaison, FCTC & RJA Committee Ms. Carol Jean LoCicero, Thomas & LoCicero PL JMs. Krys Godwin, Bar Staff Liaison, RJA Committee Mr. Roosevelt Sawyer, State Courts Technology Officer Ms. Deborah J. Meyer, Supreme Court Director of Central Staff From: Shannon Hudson To: Sanchez, Eduardo; John Tomasino Cc: Godwin, Krys; Judge Lisa Munyon; Salisa Ocasio Subject: RE: Request for Extension of Time - Referral re Access to Court Records - RJAC File: 19-RJA-01 Date: Monday, June 03, 2019 2:25:59 PM

Good afternoon,

Your request for an extension has been granted. The report should be submitted directly to our office by August 31, 2019. If you have any questions, please do not hesitate to reach out.

Thank you,

Shannon Hudson Supervisor & Rules Clerk Direct: 850.922.5949

Supreme Court of Florida 500 South Duval Street Tallahassee, Florida 32399 Clerk’s Office: 850.488.0125 www.floridasupremecourt.org

From: Sanchez, Eduardo (USAFLS) Sent: Monday, June 3, 2019 11:47 AM To: John Tomasino Cc: Godwin, Krys ; Shannon Hudson ; Judge Lisa Munyon Subject: RE: Request for Extension of Time - Referral re Access to Court Records - RJAC File: 19-RJA- 01

Thank you. -Ed

From: John Tomasino Sent: Monday, June 03, 2019 11:43 AM To: Sanchez, Eduardo (USAFLS) Cc: Godwin, Krys ; Shannon Hudson ; Judge Lisa Munyon Subject: Re: Request for Extension of Time - Referral re Access to Court Records - RJAC File: 19-RJA- 01

Request received. I hope to be back in touch very soon.

Thanks, John

From: "Sanchez, Eduardo (USAFLS)" Date: Monday, June 3, 2019 at 11:26 To: John Tomasino Cc: Justice Ricky Polston , Deborah Meyer , "Joshua E. Doyle ([email protected])" , "Josephine M. Gagliardi" , "Krys Godwin ([email protected])" , Judge Lisa Munyon Subject: Request for Extension of Time - Referral re Access to Court Records - RJAC File: 19-RJA-01

Dear Mr. Tomasino,

As you will recall, the Rules of Judicial Administration Committee and the Florida Courts Technology Commission received a referral dated January 31, 2019, pertaining to a potential amendment to Rule 2.420 (Public Access to and Protection of Judicial Branch Records). The letter instructed the Committee and Commission to “conduct an expedited review and evaluation of the issues concerning apparent delays in access to court records addressed in the enclosed letter from Carol LoCicero and identified in the enclosed report on access to court records in clerks’ offices across the state.” A joint rules report or a report with non-rules recommendations is presently due on June 3, 2019, and publication for comments is required if a rule amendment is proposed. (Attachment, page 2.)

This referral was assigned immediately to a joint subcommittee that has been working hard to determine whether a rule amendment is prudent and, if so, exactly what that amendment should be. The joint subcommittee has been meeting consistently—almost weekly—and it feels that this concern and referral is too weighty to be resolved via e-mail communication and telephone conferences. Instead, the joint subcommittee has concluded—and we agree—that the issues involved in this referral need to be discussed and resolved in full membership meetings. The next Rules of Judicial Administration Committee meeting (and the first since the January 31 referral) will be June 28, with the Board of Governors meeting following on July 20; the next Florida Courts Technology Commission meeting will be August 9.

Because of the need for these full in-person meetings, the pre-existing meeting schedules, and the procedure for report drafting and possible publication, the Committee and Commission request an extension until August 31, 2019, to submit their report(s). Please do not hesitate to contact us if you have any questions or concerns.

Sincerely,

/s/ Eduardo I. Sánchez /s/ Judge Lisa T. Munyon Eduardo I. Sanchez, Chair Judge Lisa T. Munyon, Chair Rules of Judicial Administration Committee Florida Courts Technology Commission

Please note: Florida has very broad public records laws. Many written communications to or from The Florida Bar regarding Bar business may be considered public records, which must be made available to anyone upon request. Your e-mail communications may therefore be subject to public disclosure. 601 South Boulevard, Tampa, Fl 33606 ph 813-984-3060 fax 813-984-3070 toll free 866-395-7100

South Florida

915 Middle River Drive, Ste. 309, Fort Lauderdale, FL 33304 LOCICERO ph 954-703-3416 fax 954-400-5415

www.tlolawfirm.com

Carol Jean Locicero Direct Dial: (813) 984-3061 [email protected] Reply to: Tampa June 14, 2019

VIA ELECTRONIC MAIL ([email protected])

Eduardo L Sanchez United States Attorney's Office 99 NE 4th St Ste 400 Miami, FL 33132-2131

Dear Mr. Sanchez:

We write to provide the Rules ofJudicial Administration Committee with the media coalition's standpoint on the question of amending Rule ofJudicial Administration 2.420 to provide for filer-only responsibility to review and redact records in certain limited categories of civil cases. The question is ofcentral significance to the public's right of access to court records and issues that will be presented to the RJAC at its June 28, 2019, meeting. We appreciate the opportunity to share our point of view.

Background For years, a media coalition has attempted to work within the existing system to obtain statewide, timely access to court records, particularly newly-filed civil complaints. Counsel for the media has regularly attended FCTC and subcommittee meetings, met with trial court Clerks, and met with the Court to attempt to find collegial solutions to delays in access to these court records. In addition, the media coalition supported legislation, currently embodied in Section l l 9.07 l 4(2)(g), designed to address Clerks' fears about liability for inadvertent releases of information identified as confidential in Rule ofJudicial Administration 2.420. Despite these efforts, the coalition has been unable to resolve the delay problems. Eduardo I. Sanchez June 14, 2019 Page2

Often when concerns were expressed by the media coalition over delays in the availability of newly-filed complaints, the coalition was told that the right of access attached only at the Clerk's Office counter. Online Clerk access systems were merely provided as a convenience and were not mandated. To examine counter access to newly-filed complaints, an experienced journalist, Ryan Abbott, embarked on a tour ofFlorida courthouses. Mr. Abbott's report described his and his colleague's attempts to obtain access at the counter to inspect newly-filed civil complaints on the same day those complaints were filed. (Mr. Abbott's report is included as a separate attachment to the cover email sending this letter.) The tour began in Key West and ultimately ended in Tallahassee. Mr. Abbott created a report describing these experiences. He found that counter access had fused with online access in most courts, with counter clerks often directing him to the Clerk's website. These journalists were unable to obtain any complaints filed the day oftheir visit in 14 ofthe 19 courthouses visited. Imagine how difficult it would be for a member ofthe public to exercise Florida's right for "every person" to "inspect or copy any public record made or received in connection with official [government] business." The reasons Clerks' Offices gave for the failure to permit inspection ofthe requested records ranged from the filings are "locked" for review, to the filing has not been "accepted" yet, to we have three days to provide access. Several months after these visits, in March of2019, the Clerks' association formally responded to Mr. Abbott's report. Although many counties disagreed with the report's description of the encounters, the response nonetheless repeatedly asserted that automatic delays in access to newly-filed complaints of anywhere from about two to four days were lawful. The response made clear that Clerks throughout the state first process filings (by docketing them, assigning case numbers, confirming filing fees, etc.) and then review and, in limited cases, redact filings - prior to making court records available for public inspection. Several Clerks mentioned that the Florida Clerks of Court Operations Corporation's ("CCOC") timeliness standards justify automatic delays in access of up to three days - just for processing. Broward' s response, for example, referred to the CCOC standard: "Broward County's goal is to stay within the CCOC performance standards for timeliness; i.e., two days for case filings and three days for supplemental filings 80 percent ofthe time." (This CCOC standard has no basis in access law and is inconsistent with the Florida Supreme Court's analogous decision in Tribune Co. v. Cannella, 458 So. 2d 1075 (1984), rejecting a 48-hour Eduardo I. Sanchez June 14, 2019 Page3 automatic delay in the release of executive branch public records.) Other counties, like Monroe, mentioned that further delays for redaction were permissible. In essence, the response confirmed Mr. Abbott's and his colleague's experiences: civil complaints are rarely made available for inspection on the day offiling, and access is routinely and automatically delayed for several days. At the ChiefJustice's direction, on January 31, 2019, Florida Supreme Court Clerk John Tomasino wrote the chair ofthe Florida Courts Technology Commission ("FCTC") and you to ask Judge Munyon and you to appoint a joint subcommittee to conduct an "expedited review and evaluation ofthe issues concerning apparent delays in access to court records" raised by the media coalition and its counsel. Based on this referral letter, as you will recall, a subcommittee was formed. That subcommittee agreed early on that Clerks' independent redaction obligation under Rule 2.420 was in large part responsible for delays in access to newly-filed civil complaints. The Clerks' response to Mr. Abbott's report described redaction as "labor intensive and time consuming." Filer-only responsibility for redaction was raised on subcommittee calls as a possible solution for the delay issues. One proposal raised was Clerks should review and redact only prose filings. The subcommittee informally, through Clerk Tomasino, asked whether the Court would provide any guidance on the filer-only responsibility issue. The Court provided informal guidance that the subcommittee should consider filer-only responsibility for certain civil case categories. The media coalition counsel then met with a delegation from the Clerks' association to discuss filer-only responsibility and additional possible solutions. In fact, only a few months ago, many members ofthe referral subcommittee (who then served on a subcommittee ofthe RJAC charged with simplifying Rule 2.420) had approved filer-only responsibility in all case types as an appropriate amendment for the full RJAC to consider. {That recommendation, you might recall, was later withdrawn by that RJAC subcommittee, because the subcommittee had promised to focus on procedural changes to the rule first.) More recently, however, the referral subcommittee voted and the majority rejected the concept of filer-only responsibility in any civil case types, after the Florida Court Clerks & Comptrollers ("FCCC") announced it opposed the concept. See May 2019 Florida Clerks' Position on Rule 2.420 RJA. FCCC essentially asserted that Clerks must "hawkishly" protect privacy rights or "sensitive" Eduardo I. Sanchez June 14, 2019 Page 4 information will be released. The FCCC went on to say: "Alternatively, ifthe Florida Supreme Court decides to adopt this fundamental shift in Rule 2.420 and limit the redaction obligation strictly to the filer, the rule should include language expressly prohibiting Clerks from redacting, be limited to certain case-types (CA, CC, and SC) that are least likely to contain confidential or exempt information, and impose severe sanctions for a filer's failure to appropriately safeguard the most personal, private, and sensitive information in the court records they submit." Should the Court pursue any filer-only responsibility changes, the FCCC has made it clear to the subcommittee that it wants to participate in the rule revision drafting process. The original referral letter asked for a report by June 3, 2019. Subsequently, of course, an extension was granted to file a report by August 31, 2019. The extension request was predicated upon a need to obtain RJAC and FCTC input on the filer-only responsibility concept. The next RJAC meeting is quickly approaching, so we write now and request our letter be included in the committee's agenda packet for its June 28, 2019, meeting. The System Must Change The current system overturns the presumption of access to court records clearly enunciated in Barron v. Florida Freedom Newspapers, and violates at least Article I, Section 24 ofthe Florida Constitution. As the system currently operates, records are in fact presumed closed and not provided upon request. Florida's Constitution specifically guarantees the public a right of access to records ofthe judicial branch. Article I, Section 24 is clear that the right attaches when a record is "received," which in the court records context means upon e­ filing typically. What the media have found, however, is that in courthouses across Florida newly-filed complaints often are unavailable until a day or more after they are filed. In Florida's highest volume court, Miami-Dade, the media have regularly seen delays that exceed a week. In practice, Florida's constitutional privacy right has achieved supremacy over Florida's constitutional right of access to records - despite the fact that the privacy provision ofArticle I, Section 23 is expressly subordinated to the constitutional right ofaccess to public records ofthe three branches ofgovernment. The voters were clear: "This section [23] shall not be construed to limit the public's right of access to public records and meetings as provided by law." Eduardo I. Sanchez June 14, 2019 Page 5

Clerks' Offices spend an enormous amount of time reviewing and, occasionally, redacting filings. Redactions are costly. In 2017, the media obtained estimates of software and personnel costs devoted to redaction and the viewing on request process for the public. The estimates showed that more than $20 million was spent annually on the personnel costs devoted to review and redaction alone. Any reduction in the amount oftime devoted to review and redaction should result in significant savings to the judicial system. Florida used to be the vanguard for transparency and timely access to records. Florida historically made court records, including newly-filed actions, available on the day of filing. Clerks' Offices would make physical stacks of copies of new complaints and other filings of likely import in civil and criminal cases available for inspection. Access to those stacks of records was not delayed for docketing, and the responsibility for the content of filings lay with the filer. For years, the underlying assumption related to the expansion toe-filing and remote access to records was that the superior counter access Florida historically provided would remain unchanged. That simply is not so; the FCCC response makes this clear. Filer-only responsibility is the biggest impediment to the court system's leadership in transparency now. The media coalition is aware of only two states ­ Florida and Vermont - where Clerks are currently mandated to review and redact records. (Vermont's rules are actually in flux.) Forty-four states make it clear by rule or statute that redaction is a filer-only responsibility. The remaining few states have not spoken clearly on the responsibility issue. Florida filers are certainly as capable as filers in Alabama, Georgia, New York, and other states where filers bear the sole responsibility for the content of their filings. The federal system, of course, has long put redaction responsibility solely on the filer - and many Florida practitioners practice in both the state and federal systems. In New York, newly­ filed civil complaints are publicly available on the web to anyone wishing to inspect them (https://iapps.courts.state.ny.us/nyscef/HomePage). The public can search as a guest there and view newly-filed complaint images under the "new cases" tab on the day of filing. Complaints that have not been processed bear a legend cautioning viewers that the Clerk has not yet reviewed the document. The experience in other jurisdictions establishes that Florida can serve transparency much better. Eduardo I. Sanchez June 14, 2019 Page 6

Delays matter. The Florida Supreme Court has long recognized the importance oftimely access to judicial branch activities:

It is a cherished and almost sacred right of each citizen to be infonned about current events on a timely basis so each can exercise his discretion in determining the destiny and security of himself, other people, and the Nation. News delayed is news denied. To be useful to the public, news events must be repo11ed when they occur.

State ofFlorida ex rel. Miami Herald Publishing Co. v. Mcintosh, 340 So.2d 904, 910 (Fla. 1976).

The media coalition position is that the starting point for insuring the timely access contemplated by Article I, Section 24 is fi ler-only responsibility in most circuit civil, county civil and small claims case types. (Certain circuit civil case types, like Baker Act cases, would be excluded from this change.) We urge the fu ll RJAC to adopt a position that Rule 2.420(d) should be amended to achieve filer-only responsibili ty for review and redaction in traditional circuit civil, county civil, and small claims case types.

We appreciate this opportunity to address the RJAC. I am available should any committee member wish to communicate with me prior to the meeting, and I will also make myself avail able in person at the June 28, 2019, committee meeting.

Very truly yours,

CJL/tmg cc: The Honorable Josephine Gagliardi The Honorable Lisa T. Munyon Clerk John A. Tomasino Ms. Amy Borman Ms. Krys Godwin Mr. Tom Hall Supreme Court of Florida

______

No. SC19-1049 ______

IN RE: AMENDMENTS TO FLORIDA RULE OF JUDICIAL ADMINISTRATION 2.420.

June 27, 2019

PER CURIAM.

In response to recent legislation, the Court, on its own motion, amends

Florida Rule of Judicial Administration 2.420(d) (Procedures for Determining

Confidentiality of Court Records) to add two new categories of information in court records that the clerk of court must designate and maintain as confidential under rule 2.420(d)(1)(B). See Fla. R. Jud. Admin. 2.140(d). We have jurisdiction. See art. V, § 2(a), Fla. Const.

The Court amends rule 2.420(d)(1)(B)(viii) to add “all petitions, court orders, and related records under the Baker Act” as a category of court records that the clerk must designate and maintain as confidential under the rule. This amendment is in response to newly enacted section 394.464, Florida Statutes, which makes such Baker Act records confidential. See ch. 2019-51, §§ 1-2, Laws of Fla. (creating § 394.464 (Court records; confidentiality), Fla. Stat., effective July

1, 2019).

In response to the addition of subsection 3 to section 119.0714(1)(k), Florida

Statutes (2018), the Court adds new subdivision (xxiii) to rule 2.420(d)(1)(B). The new subdivision lists “[i]nformation that can be used to identify a petitioner or respondent in a petition for an injunction against domestic violence, repeat violence, dating violence, sexual violence, stalking, or cyberstalking, and any affidavits, notice of hearing, and temporary injunction until the respondent has been personally served with a copy of the petition for injunction, affidavits, notice of hearing, and temporary injunction.” See ch. 2019-39, §§ 1, 3, Laws of Fla.

(amending § 119.0714(1)(k), Fla. Stat., effective July 1, 2019).

Accordingly, the Florida Rules of Judicial Administration are amended, as reflected in the appendix to this opinion. New language is indicated by underscoring, and deleted language is indicated by struck-through type. The amendments shall become effective July 1, 2019, at 12:01 a.m. Because the amendments were not published for comment prior to their adoption, interested persons shall have seventy-five days from the date of this opinion in which to file comments with the Court.1

1. All comments must be filed with the Court on or before September 10, 2019, with a separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. If - 2 ­

It is so ordered.

CANADY, C.J., and POLSTON, LABARGA, LAWSON, LAGOA, LUCK, and MUÑIZ, JJ., concur.

THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE EFFECTIVE DATE OF THESE AMENDMENTS.

Original Proceeding – Florida Rules of Judicial Administration

filed by an attorney in good standing with The Florida Bar, the comment must be electronically filed via the Florida Courts E-Filing Portal (Portal) in accordance with In re Electronic Filing in the Supreme Court of Florida via the Florida Courts E-Filing Portal, Fla. Admin. Order No. AOSC13-7 (Feb. 18, 2013). If filed by a nonlawyer or a lawyer not licensed to practice in Florida, the comment may be, but is not required to be, filed via the Portal. Comments filed via the Portal must be submitted in Microsoft Word 97 or higher. See In re Electronic Filing in the Florida Supreme Court, Fla. Admin. Order No. AOSC17-27 (May 9, 2017). Any person unable to submit a comment electronically must mail or hand- deliver the originally signed comment to the Florida Supreme Court, Office of the Clerk, 500 South Duval Street, Tallahassee, Florida 32399-1927; no additional copies are required or will be accepted.

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APPENDIX

RULE 2.420. PUBLIC ACCESS TO AND PROTECTION OF JUDICIAL BRANCH RECORDS

(a) – (c) [No Change]

(d) Procedures for Determining Confidentiality of Court Records.

(1) The clerk of the court shall designate and maintain the confidentiality of any information contained within a court record that is described in subdivision (d)(1)(A) or (d)(1)(B) of this rule. The following information shall be maintained as confidential:

(A) [No Change]

(B) except as provided by court order, information subject to subdivision (c)(7) or (c)(8) of this rule that is currently confidential or exempt from section 119.07, Florida Statutes, and article I, section 24(a) of the Florida Constitution as specifically stated in any of the following statutes or as they may be amended or renumbered:

(i) – (vii) [No Change]

(viii) Clinical records under the Baker Act., § 394.4615(7), Fla. Stat., and all petitions, court orders, and related records under the Baker Act, § 394.464, Fla. Stat.

(ix) – (xxii) [No Change]

(xxiii) Information that can be used to identify a petitioner or respondent in a petition for an injunction against domestic violence, repeat violence, dating violence, sexual violence, stalking, or cyberstalking, and any affidavits, notice of hearing, and temporary injunction until the respondent has been personally served with a copy of the petition for injunction, affidavits, notice of hearing, and temporary injunction. § 119.0714(1)(k)3., Fla. Stat.

(2) – (5) [No Change]

(e) – (m) [No Change]

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Committee Note [No Change]

2002 – 2007 Court Commentary [No Change]

APPENDIX TO RULE 2.420

[No Change]

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Supreme Court of Florida Office of the Clerk 500 South Duval Street Tallahassee, Florida 32399-1927

JOHN A. TOMASINO PHONE NUMBER: (850) 488-0125 CLERK www.floridasupremecourt.org MARK CLAYTON CHIEF DEPUTY CLERK JULIA BREEDING June 27, 2019 STAFF ATTORNEY

The Florida Bar News Editor The Florida Bar 651 East Jefferson Street Tallahassee, Florida 32399-2300

In re: Amendments to Florida Rule of Judicial Administration 2.420, Case No. SC19-1049

Dear Editor:

I have provided you with a copy of the proposed Rules in the above case. Please publish said Rules in the August 1, 2019, Bar News. Please publish a statement that the Court has placed the proposed Rules on the Internet at location: http://onlinedocketssc.flcourts.org/.

Any comments should be filed with the Supreme Court on or before September 10, 2019. If filed by an attorney in good standing with The Florida Bar, the comment must be electronically filed via the Florida Courts E-Filing Portal (Portal) in accordance with In re Electronic Filing in the Supreme Court of Florida via the Florida Courts E-Filing Portal, Fla. Admin. Order No. AOSC13-7 (Feb. 18, 2013). If filed by a nonlawyer or a lawyer not licensed to practice in Florida, the comment may be, but is not required to be, filed via the Portal. Comments filed via the Portal must be submitted in Microsoft Word 97 or higher. See In re Electronic Filing in the Florida Supreme Court, Fla. Admin. Order No. AOSC17­ The Florida Bar News Editor June 27, 2019 Page 2 of 2

27 (May 9, 2017). Any person unable to submit a comment electronically must mail or hand-deliver the originally signed comment to the Florida Supreme Court, Office of the Clerk, 500 South Duval Street, Tallahassee, Florida 32399-1927; no additional copies are required or will be accepted.

Thank you for your cooperation in this matter.

Most cordially,

John A. Tomasino

JAT/sh Enclosure cc: Honorable Josephine Gagliardi, Incoming Chair, Rules of Judicial Administration Committee Honorable Ricky L. Polston, Supreme Court Justice Liaison Honorable Michelle R. Suskauer, President, The Florida Bar Honorable John Mitchell Stewart, President-elect, The Florida Bar Joshua E. Doyle, Executive Director, The Florida Bar Krys Godwin, Bar Staff Liaison Chief Judges of the District Courts of Appeal Clerks of the District Courts of Appeal Chief Judges of the Judicial Circuits Clerks of the Judicial Circuits Deborah J. Meyer, Central Staff Director The Florida Supreme Court recently adopted amendments to Florida Rule of Judicial Administration 2.420(d) (Procedures for Determining Confidentiality of Court Records), on its own motion. See In re Amends. to Fla. Rule of Jud. Admin. 2.420, No. SC19-1049 (Fla. June 27, 2019). The amendments add two new categories of information in court records that the clerk of court must designate and maintain as confidential under rule 2.420(d)(1)(B).

The Court invites all interested persons to comment on the amendments, which are summarized below and reproduced in full online at http://www.floridasupremecourt.org/decisions/proposed.shtml. All comments must be filed with the Court on or before September 10, 2019, with a separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. If filed by an attorney in good standing with The Florida Bar, the comment must be electronically filed via the Florida Courts E-Filing Portal (Portal) in accordance with In re Electronic Filing in the Supreme Court of Florida via the Florida Courts E-Filing Portal, Fla. Admin. Order No. AOSC13-7 (Feb. 18, 2013). If filed by a nonlawyer or a lawyer not licensed to practice in Florida, the comment may be, but is not required to be, filed via the Portal. Comments filed via the Portal must be submitted in Microsoft Word 97 or higher. See In re Electronic Filing in the Florida Supreme Court, Fla. Admin. Order No. AOSC17-27 (May 9, 2017). Any person unable to submit a comment electronically must mail or hand-deliver the originally signed comment to the Florida Supreme Court, Office of the Clerk, 500 South Duval Street, Tallahassee, Florida 32399-1927; no additional copies are required or will be accepted.

IN THE SUPREME COURT OF FLORIDA

IN RE: AMENDMENTS TO FLORIDA RULE OF JUDICIAL ADMINISTRATION 2.420, CASE NO. SC19-1049

Rule Explanation

Rule 2.420(d)(1)(B)(viii) Adds “all petitions, court orders, and related records under the Baker Act” as a category of court records that the clerk must designate and maintain as confidential under the rule. See ch. 2019-51, § 1, Laws of Fla. (creating § 394.464, Fla. Stat.). New Rule 2.420(d)(1)(B)(xxiii) New subdivision (xxiii) adds to the subdivision (d)(1)(B) list “[i]nformation that can be used to identify a petitioner or respondent in a petition for an injunction against domestic violence, repeat violence, dating violence, sexual violence, stalking, or cyberstalking, and any affidavits, notice of hearing, and temporary injunction until the respondent has been personally served with a copy of the petition for injunction, affidavits, notice of hearing, and temporary injunction.” See ch. 2019-39, § 1, Laws of Fla. (amending § 119.0714(1)(k), Fla. Stat.).

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