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Electronic Court Records Permissible in Florida, but Restricting Disclosure is Not

Florida’s Supreme Court has implemented rules related to court reporting services and the use of electronic recordings of court proceedings. The rules were promulgated as amendments to the Florida Rules of Judicial Administration and the Florida Rules of Appellate Procedure.

The amendments to judicial administration are in Rule 2.535, and add several definitions. The amended rule defines “approved court reporter” and “civil court reporter” as persons “who meet the court’s certification, training, and other qualifications for court reporting.” An “approved transcriptionist” is someone “who meets the court’s certification, training, and other qualifications for transcribing proceedings.” These persons are considered officers of the court.

The amended rule defines an “electronic record” as the “audio, analog, digital, or video record of a court proceeding.” While an electronic record is allowed, the “official record” is the transcript, “which is the written record of court proceedings and depositions prepared in accordance with” previously established requirements.

The rule also defines the ownership of “all records and electronic records” required to be reported at public expense or for the court’s own use, which belong to the “chief judge of the circuit in which a proceeding is pending, in his or her official capacity.”

The Supreme Court declined to adopt several proposed amendments that “would restrict disclosure of electronic re-cords except as permitted under certain circumstances in the discretion of the court or the chief judge.” The Court said that “such a provision is overly restrictive and contrary to Florida’s well established public policy of government in the sun-shine and this Court’s longstanding presumption in favor of openness for all court proceedings and allowing access to records of those proceedings.” Thus, “these recordings should not be denied or left to the unfettered discretion of the trial court or the chief judge.”

To safeguard confidential communications when electronic recording equipment is used in the courtroom, the Supreme Court adopted a rule that places a duty on all participants to “protect confidential information.” For attorneys, “precautions may include muting microphones or going to a designated location that is inaccessible to the recording equipment.” The court’s personnel is supposed to provide notice to all participants that electronic recording is in use, who should safeguard information they do not want recorded.

The new rules became effective upon the filing of the Court’s order on July 16, 2009. See: In Re: Amendments to the Florida Rules of Judicial Administration and the Florida Rules of Appellate Procedure – Implementation of Commission on Trial Court Performance and Accountability Recommendations, 13 So.3d 1044 (Fla. 2009).

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