In Re: Amendments to Florida Rule of General Practice and Judicial Administration 2.423

Supreme Court of Florida
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No. SC20-1128
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IN RE: AMENDMENTS TO FLORIDA RULE OF GENERAL
PRACTICE AND JUDICIAL ADMINISTRATION 2.423.

November 18, 2021

PER CURIAM.

This matter is before the Court for consideration of proposed

amendments to the Florida Rules of General Practice and Judicial

Administration. See Fla. R. Gen. Prac. & Jud. Admin. 2.140(f)(1).

We have jurisdiction. 1

In response to a referral by the Court, The Florida Bar’s Rules

of General Practice and Judicial Administration Committee

coordinated an Ad Hoc Joint Rules Subcommittee (Ad Hoc

Subcommittee) and filed a joint report proposing new Florida Rule

of General Practice and Judicial Administration 2.423 (“Marsy’s

Law” Crime Victim Information Within Court Filing) in response to

1. See art. V, § 2(a), Fla. Const.
the recent victims’ rights constitutional amendment known as

Marsy’s Law. See art. I, § 16(b), Fla. Const. The Ad Hoc

Subcommittee and The Florida Bar Board of Governors

unanimously approved the rule proposal. After the report was filed

with the Court, the Court published the proposals for comment,

and two comments were received.

After reviewing the proposal, considering the comments and

response filed, and having had the benefit of oral argument, we

adopt new rule 2.423 with modifications.

First, new subdivision (a) (Scope and Purpose) outlines the

procedural authority for the confidentiality of crime victim

information in “the records of the judicial branch of government in

criminal and juvenile justice cases.”

Next, new subdivision (b) (Definitions) provides specific

definitions for the terms “confidential crime victim information,”

“crime,” “criminal,” and “victim.”

Additionally, new subdivision (c) (Confidential and Exempt

Records) references rule 2.420(c)(9) and states that “confidential

crime victim information is determined to be confidential on the

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grounds that confidentiality is required to comply with the Florida

Constitution.”

Also, new subdivision (d) (Procedure for Identifying

Confidential Crime Victim Information in Criminal and Juvenile

Court Records) provides a procedure for identifying the documents

and information subject to protection. However, we add the word

“prominently” between “shall” and “indicate” in subdivision (d)(1), as

suggested by the Florida Court Clerks and Comptrollers, to require

the filer of an initial charging document to prominently indicate the

existence of confidential crime victim information in court records.

Further, we decline to adopt proposed subdivision (e)

(Duration of Confidentiality).

Last, Appendix A (Notice of Confidential Crime Victim

Information within Court Filing) is a sample form that can be used

to identify confidential information within an attached document or

a document that has already been filed without such a form.

Accordingly, the Florida Rules of General Practice and Judicial

Administration are amended as reflected in the appendix to this

opinion. New language is indicated by underscoring. The

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amendments shall take effect immediately upon release of this

opinion.

It is so ordered.

POLSTON, LABARGA, LAWSON, MUÑIZ, COURIEL, and
GROSSHANS, JJ., concur.
CANADY, C.J., concurs in part and dissents in part with an
opinion.

THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER
THE EFFECTIVE DATE OF THESE AMENDMENTS.

CANADY, C.J., concurring in part and dissenting in part.

I concur with the proposed rule amendments with one

exception. I would revise the definition of “confidential crime victim

information” in subdivision (b)(1) to track the provision of article I,

section 16(b)(5) of the Florida Constitution, which establishes: “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.” (Emphasis added.) By establishing a “right to prevent”

disclosure, the constitutional provision indicates that action must

be taken by the victim to assert the right. At the end of the

definition of “confidential crime victim information,” I therefore

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would add the following phrase: “if the victim has asserted the right

to prevent disclosure of such information.”

Original Proceeding – Florida Rule of General Practice and Judicial
Administration

Stanford R. Solomon, Chair, Florida Rules of General Practice and
Judicial Administration Committee, Tampa, Florida, and Michael
Jeffrey Korn, Past Chair, Florida Rules of General Practice and
Judicial Administration Committee, Jacksonville, Florida; Michael
W. Schmid, Chair, Ad Hoc Joint Subcommittee, Tampa, Florida;
and Joshua E. Doyle, Executive Director, and Krys Godwin, Staff
Liaison, The Florida Bar, Tallahassee, Florida,

for Petitioner

Carol Jean LoCicero and Mark R. Caramanica of Thomas &
LoCicero PL, on behalf of News Media Coalition, Tampa, Florida;
and Tara S. Green, on behalf of Florida Court Clerks and
Comptrollers, Green Springs, Florida, and Laura E. Roth, on behalf
of Florida Court Clerks and Comptrollers, DeLand, Florida,

Responding with comments

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APPENDIX

RULE 2.423. “MARSY’S LAW” CRIME VICTIM INFORMATION
WITHIN COURT FILING

(a) Scope and Purpose. As provided by article I, section 16
of the Florida Constitution, known as “Marsy’s Law,” the following
rule shall govern public access to and the protection of the records
of the judicial branch of government in criminal and juvenile justice
cases as it pertains to confidential crime victim information. This
rule shall be interpreted to be consistent with the scope and
purpose of rule 2.420.

(b) Definitions.

(1) “Confidential crime victim information” means any
information contained within a court record 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.

(2) “Crime” and “criminal” include delinquent acts and
conduct.

(3) 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 victim, or the next of kin of a homicide
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.

(c) Confidential and Exempt Records. In accordance with
rule 2.420(c)(9), confidential crime victim information is determined
to be confidential on the grounds that confidentiality is required to
comply with the Florida Constitution.

(d) Procedure for Identifying Confidential Crime Victim
Information in Criminal and Juvenile Court Records.

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(1) The filer of an initial charging document shall
prominently indicate the existence of confidential crime victim
information pursuant to article I, section 16 of the Florida
Constitution. If the filer indicates the existence of confidential
crime victim information, the clerk of the court shall designate and
maintain the confidentiality of any such information contained
within the initial charging document.

(2) Except as provided under subdivision (d)(1), the filer
of any document with the court under subdivision (d) shall
ascertain whether it contains any confidential crime victim
information. If the filer believes in good faith that information is
confidential, the filer shall request that the information be
maintained as confidential by contemporaneously filing a “Notice of
Confidential Crime Victim Information within Court Filing.”

(3) A crime victim, the filer, a party, or any affected
nonparty may file a Notice of Confidential Crime Victim Information
within Court Filing at any time.

(4) Filers of subsequent court filings shall limit the
presence of crime victim identifying information in accordance with
rule 2.425(a)(3) or file a Notice of Crime Victim Information within
Court Filing with each subsequent court filing that contains
confidential crime victim information.

(5) A Notice of Confidential Crime Victim Information
within Court Filing:

(A) Shall identify the precise location of the
confidential information within the document being filed.

(B) Shall be confidential to the extent it contains
crime victim information pursuant to article I, section 16.

(C) Shall not be required when an entire case file
is maintained as confidential.

(D) A form shall accompany this rule.

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(6) If a Notice of Crime Victim Information within Court
Filing is filed, the clerk of court shall review the filing identified as
containing confidential crime victim information to determine
whether the purported confidential information is facially subject to
confidentiality under article I, section 16(b)(5) of the Florida
Constitution.

(A) The clerk of the court shall designate and
maintain the confidentiality of any such information contained
within a court record.

(B) If the clerk determines that the information is
not confidential, the clerk shall notify the filer in writing within 5
days of filing the notice and thereafter shall maintain the
information as confidential for 10 days from the date such
notification by the clerk is served. The information shall not be
held as confidential for more than that 10-day period, unless a
motion has been filed pursuant to rule 2.420(d)(3).

APPENDIX A
NOTICE OF CONFIDENTIAL CRIME VICTIM INFORMATION
WITHIN COURT FILING

Pursuant to Florida Rule of General Practice and Judicial
Administration 2.423, I hereby certify:

( ) (1) I am filing a document containing confidential crime
victim information as described in rule 2.423(b)(1) and that:

(a) The title/type of the document is _________________,

and;

(b) ( ) the entire document is confidential, or

( ) the confidential information within the
document is precisely located at: ________________________________.

or

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( ) (2) A document was previously filed in this case that
contains confidential crime victim information as described in rule
2.423(b)(1), but a Notice of Confidential Crime Victim Information
within Court Filing was not filed with the document and the
confidential information was not maintained as confidential by the
clerk of the court. I hereby notify the clerk that this information is
located as follows:

(a) Title/type of document: ___________________________;

(b) Date of filing (if known): __________________________;

(c) Date of document: ________________________________;

(d) Docket entry number: ____________________________;

and either:

( ) Entire document is confidential, or

( ) The precise location of the confidential crime victim
information is: ___________________________________________________.

______________________________
Filer’s Signature

CERTIFICATE OF SERVICE

I certify that the foregoing document has been furnished to
(here insert names or names, addresses used for service, and
mailing addresses) by (portal) (e-mail) (delivery) (mail) on ….(date)….
[See Note 1].

Name:
______________________________

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Address:
______________________________
Phone:
______________________________
Florida Bar No. (if applicable)
______________________________
E-mail address:
______________________________

Note 1: If the name or address of a Party or Affected Nonparty is
confidential DO NOT include such information in the Certificate of
Service. Instead, serve the State Attorney or request Court Service
as described under rule 2.420(k).

Note 2: The clerk of the court shall review filings identified as
containing confidential crime victim information to determine
whether the information is facially subject to confidentiality under
rule 2.423(d)(6). As provided under rule 2.423(d)(6)(B), the clerk
shall notify the filer in writing within 5 days if the clerk determines
that the information is not subject to confidentiality, and the
records shall not be held as confidential for more than 10 days,
unless a motion is filed pursuant to rule 2.420(d)(3).

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