January 24, 2018 Florida Rules of Judicial Administration Page 99 of 193
Subdivision (b) has been added by amendment and provides a definition of “judicial records” that is
consistent with the definition of “court records” contained in rule 2.075(a)(1) [renumbered as 2.430(a)(1) in 2006]
and the definition of “public records” contained in chapter 119, Florida Statutes. The word “exhibits” used in this
definition of judicial records is intended to refer only to documentary evidence and does not refer to tangible items
of evidence such as firearms, narcotics, etc. Judicial records within this definition include all judicial records and
data regardless of the form in which they are kept. Reformatting of information may be necessary to protect
copyrighted material. Seigle v. Barry, 422 So. 2d 63 (Fla. 4th DCA 1982), review denied, 431 So. 2d 988 (Fla.
1983).
The definition of “judicial records” also includes official business information transmitted via an electronic
mail (e-mail) system. The judicial branch is presently experimenting with this new technology. For example, e-mail
is currently being used by the judicial branch to transmit between judges and staff multiple matters in the courts
including direct communications between judges and staff and other judges, proposed drafts of opinions and orders,
memoranda concerning pending cases, proposed jury instructions, and even votes on proposed opinions. All of this
type of information is exempt from public disclosure under rules 2.051(c)(1) and (c)(2) [renumbered as 2.420(c)(1)
and (c)(2) in 2006]. With few exceptions, these examples of e-mail transmissions are sent and received between
judicial officials and employees within a particular court’s jurisdiction. This type of e-mail is by its very nature
almost always exempt from public record disclosure pursuant to rule 2.051(c). In addition, official business e-mail
transmissions sent to or received by judicial officials or employees using dial-in equipment, as well as the use of on-
line outside research facilities such as Westlaw, would also be exempt e-mail under rule 2.051(c). On the other hand,
we recognize that not all e-mail sent and received within a particular court’s jurisdiction will fall into an exception
under rule 2.051(c). The fact that a non-exempt e-mail message made or received in connection with official court
business is transmitted intra-court does not relieve judicial officials or employees from the obligation of properly
having a record made of such messages so they will be available to the public similar to any other written
communications. It appears that official business e-mail that is sent or received by persons outside a particular
court’s jurisdiction is largely non-exempt and is subject to recording in some form as a public record. Each court
should develop a means to properly make a record of non-exempt official business e-mail by either electronically
storing the mail or by making a hard copy. It is important to note that, although official business communicated by
e-mail transmissions is a matter of public record under the rule, the exemptions provided in rule 2.051(c) exempt
many of these judge/staff transmissions from the public record. E-mail may also include transmissions that are
clearly not official business and are, consequently, not required to be recorded as a public record. Each court should
also publish an e-mail address for public access. The individual e-mail addresses of judicial officials and staff are
exempt under rule 2.051(c)(2) to protect the compelling interests of maintaining the uninterrupted use of the
computer for research, word-processing, preparation of opinions, and communication during trials, and to ensure
computer security.
Subdivision (c)(3) was amended by creating subparts (a) and (b) to distinguish between the provisions
governing the confidentiality of complaints against judges and complaints against other individuals or entities
licensed or regulated by the Supreme Court.
Subdivision (c)(5) was amended to make public the qualifications of persons applying to serve or serving
the court as unpaid volunteers such as guardians ad litem, mediators, and arbitrators and to make public the
applications and evaluations of such persons upon a showing of materiality in a pending court proceeding or upon a
showing of good cause.
Subdivision (c)(9) has also been amended. Subdivision (c)(9) was adopted to incorporate the holdings of
judicial decisions establishing that confidentiality may be required to protect the rights of defendants, litigants, or
third parties; to further the administration of justice; or to otherwise promote a compelling governmental interest.
Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113 (Fla.1988); Miami Herald Publishing Co. v. Lewis,
426 So. 2d 1 (Fla.1982). Such confidentiality may be implemented by court rule, as well as by judicial decision,
where necessary for the effective administration of justice. See, e.g., Fla.R.Crim.P. 3.470, (Sealed Verdict);
Fla.R.Crim.P. 3.712, (Presentence Investigation Reports); Fla.R.Civ.P. 1.280(c), (Protective Orders).
Subdivision (c)(9)(D) requires that, except where otherwise provided by law or rule of court, reasonable
notice shall be given to the public of any order closing a court record. This subdivision is not applicable to court
proceedings. Unlike the closure of court proceedings, which has been held to require notice and hearing prior to