In Re: Amendments to the Florida Rules of General Practice and Judicial Administration and the Code of Judicial Conduct

Supreme Court of Florida
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No. SC22-1387
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IN RE: AMENDMENTS TO THE FLORIDA RULES OF GENERAL
PRACTICE AND JUDICIAL ADMINISTRATION AND THE CODE
OF JUDICIAL CONDUCT.

November 17, 2022

PER CURIAM.

We have determined that it is necessary to address judicial

papers—that is, records made or received by a justice or judge in

connection with the transaction of official business—and their

treatment. Our existing rules already address judicial papers

generally by defining them as administrative records of the judicial

branch and by outlining their custody, when they are considered

confidential, and how long they must be retained. However, the

Court has not adopted rules to explicitly address the treatment of

judicial papers upon a judge’s or justice’s departure from the

bench. We do so now.
The Court, on its own motion, amends Florida Rule of General

Practice and Judicial Administration 2.420 (Public Access to and

Protection of Judicial Branch Records) and the Code of Judicial

Conduct to clarify the treatment of judicial branch records at the

conclusion of judicial service and the continued expectation of

judicial confidentiality. 1 The amendments are intended to resolve

any uncertainty and inconsistency as to those two subjects.

BACKGROUND

Rule 2.420 “govern[s] public access to and the protection of

the records of the judicial branch of government.” Fla. R. Gen.

Prac. & Jud. Admin. 2.420(a). Rule 2.420(b)(1) defines “[r]ecords of

the judicial branch” as “all records, regardless of physical form,

characteristics, or means of transmission, made or received in

connection with the transaction of official business by any judicial

branch entity.” These records include both “court records” and

“administrative records.” Fla. R. Gen. Prac. & Jud. Admin.

2.420(b)(1)(A)-(B). “Court records” are “the contents of the court

1. We have jurisdiction. See art. V, § 2(a), Fla. Const.; Fla. R.
Gen. Prac. & Jud. Admin. 2.140(d).

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file” as maintained by the clerk, whereas “administrative records”

are “all other records made or received pursuant to court rule, law,

or ordinance, or in connection with the transaction of official

business by any judicial branch entity.” Id.

“The custodian of all administrative records of any court is the

chief justice or chief judge of that court, except that each judge is

the custodian of all records that are solely within the possession

and control of that judge.” Fla. R. Gen. Prac. & Jud. Admin.

2.420(b)(3). The custodian may have a designee. Id.

Rule 2.420(b)(4) explains that confidential information within

judicial branch records “is exempt from the public right of access

under article I, section 24(a) of the Florida Constitution and may be

released only to the persons or organizations designated by law,

statute, or court order.” Then, rule 2.420(c)(1) provides that the

records of a court’s decision-making process “shall be confidential,”

describing these records as follows:

Trial and appellate court memoranda, drafts of opinions
and orders, court conference records, notes, and other
written materials of a similar nature prepared by judges
or court staff acting on behalf of or at the direction of the
court as part of the court’s judicial decision-making
process utilized in disposing of cases and controversies

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before Florida courts unless filed as a part of the court
record[.]

Further, canon 3(B)(12) of the Code of Judicial Conduct states that

“[a] judge shall not disclose or use, for any purpose unrelated to

judicial duties, nonpublic information acquired in a judicial

capacity.”

The Florida Rules of General Practice and Judicial

Administration also include a records retention schedule, which

specifies the amount of time each type of administrative record

must be retained before it may be destroyed, although the records

may be retained beyond the time listed. The retention schedule

provides the following regarding confidential, court decision-making

records:

MEMORANDA—LEGAL: Court’s decision-making
This record series consists of memoranda, drafts or other
documents involved in a court’s judicial decision-making
process.
RETENTION: Retain until obsolete, superseded or
administrative value is lost.

Further, the retention schedule includes these details for

“Administrative Records: Public Officials/Court Administrators:”

This record consists of office files documenting the
substantive actions of elected or appointed officials and
the court administrator. These records constitute the

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official record of a judicial branch entity’s performance of
its functions and formulation of policy and program
initiative. This series will include various types of
records such as correspondence; memoranda; statements
prepared for delivery at meetings, conventions or other
public functions that are designed to advertise and
promote programs, activities and policies of the judicial
branch entity; interviews; and reports concerning
development and implementation of activities of the
judicial branch entity. “These records may have
archival value.”
Retention: 10 years.

As to requests for access to judicial records, rule 2.420(m)(1)-

(2) says that “[r]equests for access to judicial branch records shall

be in writing and shall be directed to the custodian” and that “[t]he

custodian shall be solely responsible for providing access to the

records of the custodian’s entity.”

AMENDMENTS

As we have explained, rule 2.420 and canon 3 already govern

the treatment of judicial records (including confidential records) and

judges’ use of nonpublic information obtained in a judicial capacity.

However, we have determined that it is prudent to amend rule

2.420 and canon 3 to resolve any remaining uncertainty and

inconsistency in the treatment of judicial branch records at the

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conclusion of judicial service and in the continued confidentiality of

nonpublic information.

Specifically, we amend rule 2.420(b)(3) (Custodian) to provide

that “[a]t the conclusion of service on a court, each justice or judge

shall deliver to the court’s chief justice or chief judge any records of

the judicial branch in the possession of the departing justice or

judge.” This amendment accounts for justices’ and judges’

departure from the bench and formally relieves them of their role

under rule 2.420 as records custodians.

We also amend canon 3(B)(12) to provide that “[a] former judge

is expected to maintain the confidentiality of nonpublic information

acquired in a judicial capacity.” This language is intended to

emphasize the expectation of judicial confidentiality beyond

retirement and to communicate as much to the public.

Accordingly, we amend the Florida Rules of General Practice

and Judicial Administration and the Code of Judicial Conduct as

reflected in the appendix to this opinion. New language is indicated

by underscoring; deletions are indicated by struck-through type.

The amendments shall become effective immediately. Because the

amendments were not published for comment previously, interested

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persons shall have seventy-five days from the date of this opinion in

which to file comments with the Court. 2

It is so ordered.

MUÑIZ, C.J., and CANADY, POLSTON, LABARGA, COURIEL,
GROSSHANS, and FRANCIS, JJ., concur.

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

Original Proceeding – Florida Rules of General Practice and Judicial
Administration and Code of Judicial Conduct

2. All comments must be filed with the Court on or before
January 31, 2023, as well as 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).
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. 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.

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APPENDIX

FLORIDA RULES OF GENERAL PRACTICE AND JUDICIAL
ADMINISTRATION

Rule 2.420. Public Access to and Protection of Judicial Branch
Records

(a) [No Change]

(b) Definitions.

(1) – (2) [No Change]

(3) “Custodian.” The custodian of all administrative
records of any court is the chief justice or chief judge of that court,
except that each justice or judge is the custodian of all records that
are solely within the possession and control of that justice or judge.
At the conclusion of service on a court, each justice or judge shall
deliver to the court’s chief justice or chief judge any records of the
judicial branch in the possession of the departing justice or judge.
As to all other records, the custodian is the official charged with the
responsibility for the care, safekeeping, and supervision of such
records. All references to “custodian” mean the custodian or the
custodian’s designee.

(4) – (6) [No Change]

(c) – (m) [No Change]

Committee Notes

[No Change]

Court Commentary

[No Change]

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APPENDIX TO RULE 2.420

[No Change]

CODE OF JUDICIAL CONDUCT

Canon 3. A Judge Shall Perform the Duties of Judicial Office
Impartially and Diligently

A. [No Change]

B. Adjudicative Responsibilities

(1) – (11) [No Change]

(12) A judge shall not disclose or use, for any purpose
unrelated to judicial duties, nonpublic information acquired in a
judicial capacity. A former judge is expected to maintain the
confidentiality of nonpublic information acquired in a judicial
capacity.

C. – F. [No Change]

Commentary

[No Change]

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