IN RE: AMENDMENTS TO the FLORIDA JUDICIAL QUALIFICATIONS COMMISSION RULES (2018)

The Florida Judicial Qualifications Commission (Commission or JQC) has submitted for this Court's review recent amendments to the Florida Judicial Qualifications Commission Rules (JQC Rules). Article V, section 12(a)(4) of the Florida Constitution authorizes this Court, with five justices concurring, to repeal the Commission's rules of procedure or any part thereof. The Court now exercises that authority and repeals the recent amendments to JQC Rules 6 and 20 that purport to authorize the Commission's investigative and hearing panels to designate filings with this Court confidential (confidentiality amendments). These amendments are inconsistent with Florida Rule of Judicial Administration 2.420 (Public Access to and Protection of Judicial Branch Records) and beyond the Commission's authority under the Florida Constitution.

In its July 24, 2017, notice of adoption, the Commission submitted for this Court's review a number of recent amendments to the JQC Rules, including the confidentiality amendments to rules 6 and 20.¹ This Court reviewed all the amendments and ordered the Commission to explain why the confidentiality amendments should not be repealed for inconsistency with rule 2.420. After receiving the Commission's response, this Court issued an order requesting clarification of the amendments. The Commission responded to this order and simultaneously provided a notice of adoption of revised confidentiality amendments to rules 6 and 20. Having considered the originally submitted amendments, the Commission's responses to this Court's orders, and the notice of adoption of revised amendments to rules 6 and 20, the Court repeals only the rule 6 and 20 confidentiality amendments.

Similar to the confidentiality amendments originally submitted in this case,² the revised confidentiality amendments, which resulted in newly adopted JQC Rules 6(l ) and 20(b), authorize the Commission's investigative and hearing panels to designate filings with this Court, or portions of those filings, confidential.³ According to the Commission, authorizing its panels to designate filings with this Court confidential is the Commission's “attempt to avoid disclosure of medical and personal information that is necessary to provide to [this] Court in cases involving disability or illness.” ⁴ This Court does not question that the Commission's attempt to protect such sensitive medical and personal information from public view is made with good intentions. However, this Court must repeal the confidentiality amendments because neither the Commission nor its panels have authority to designate filings in this Court confidential under rule 2.420 or the Florida Constitution, and the Commission does not have authority to adopt a rule of procedure purporting to grant such authority.

Under article V, section 2(a) of the Florida Constitution, this Court has exclusive authority to “adopt rules for the practice and procedure in all courts,” including this Court. Article V, section 12(a)(4) of the Florida Constitution authorizes the Commission to “adopt rules regulating its proceedings.” However, neither that provision of the constitution ⁵ nor article I, section 24, which creates the public's right of access to judicial branch records and the limitations on that right,⁶ authorizes the Commission to adopt rules allowing its panels to designate filings in this Court confidential.

Article I, section 24 of the Florida Constitution recognizes the rules of this Court that were in effect at the time of the adoption of that section as one source of limitation on the public's right of access to judicial branch records.⁷ Therefore, in October 1992, in anticipation of the adoption of article I, section 24, this Court adopted Florida Rule of Judicial Administration 2.420 to govern access to judicial branch records.⁸

As relevant here, rule 2.420 provides the procedures for determining the confidentiality of court records, which includes all filings with this or any other state court.⁹ Thus, the only filings in a JQC proceeding in this Court that can be designated and maintained as confidential are those determined to be confidential in accordance with the rule 2.420 procedures adopted by this Court.¹⁰ A filing in this or any other state court is not confidential under rule 2.420 and cannot be otherwise “designated” confidential simply because it contains sensitive personal information.¹¹ And nothing in rule 2.420 excludes from its requirements filings in JQC proceedings in this Court or authorizes the Commission or its panels to designate such filings confidential and exempt from the public's constitutional right of access to those records.

Consistent with article V, section 12(a)(4) of the Florida Constitution, which makes proceedings against a judge before an investigative panel of the Commission confidential, rule 2.420(c)(3)(A) recognizes as confidential complaints alleging misconduct against judges until probable cause is found. However, after an investigative panel finds probable cause and files formal charges with the Clerk of this Court, any further proceedings before the Commission or this Court are public, and the records created in connection with or filed in those proceedings are public unless they are recognized as confidential under rule 2.420(c).

This Court cannot agree with the Commission that rule 2.420(c)(8) authorizes the Commission to adopt the confidentiality amendments at issue here. Rule 2.420(c)(8) recognizes as confidential “[a]ll records presently deemed to be confidential by ․ the rules of the Judicial Qualifications Commission.” This provision was adopted in 1992, shortly before article I, section 24 of the Florida Constitution.¹² Section 24(d) preserves the effectiveness of rules of court exempting certain judicial branch records from public access as of the date this section was adopted, but it does not authorize new rules of court providing additional exemptions. On the contrary, section 24(c) grants only the Legislature the power to create new exemptions. Consistent with these constitutional provisions, rule 2.420(c)(8) simply recognizes as confidential records that were confidential under any JQC rule that existed at the time rule 2.420 was adopted.¹³ That rule does not authorize the Commission to adopt new rules of procedure addressing the confidentiality of its filings in this Court.

Accordingly, this Court repeals the amendments to JQC Rules 6 and 20 ¹⁴ that purport to authorize the Commission's panels to designate filings with this Court confidential.

It is so ordered.

FOOTNOTES

1.   The amendments originally submitted are the amendments included in the October 27, 2017, second revised appendix A to the July 24, 2017, notice of adoption. The Court published those amendments for comment. No comments were filed.

2.   The original confidentiality amendments consisted of amendments to relettered rule 6(k) and a new rule 20(b) that authorized the investigative and hearings panels to designate portions of filings with this Court confidential. The Commission added the following sentence to relettered rule 6(k):The Investigative Panel may designate portions of the filing with the Supreme Court confidential. Portions of the filings designated as confidential shall be described without revealing the confidential information and will remain so, subject to further order from the Supreme Court.Appendix A Second Revised at 5, In re Amends. to Fla. Jud. Qualif. Comm'n Rules, No. SC17-1362 (Fla. appendix filed Oct. 27, 2017). The Commission added new rule 20(b) to provide as follows:The Hearing Panel may designate portions of the record, findings, and recommendation confidential. Portions of the record designated as confidential shall be described without revealing the confidential information and will remain so, subject to further order from the Supreme Court.Id. at 7.

3.   Newly adopted rules 6(l ) and 20(b), included in the Commission's March 13, 2018, response and notice of adoption, provide that the investigative and hearing panelsmay designate filings with the Supreme Court, or portions of documents therein, as confidential. The confidential information shall be described without revealing the confidential information, consistent with the procedure contained in Rule 2.420 of the Florida Rules of Judicial Administration. The materials that may be designated as confidential include those items listed in Rule 2.420, or other medical and psychological records, or filings referencing those materials. The materials designated as confidential by the Commission shall remain so, subject to review by, and further order of the Supreme Court.Response to Request for Clarification; and Notice of Adoption of Amends. to Rules 6 and 20(b) of the Fla. Jud. Qualif. Comm'n at 2-3, In re Amends. to Fla. Jud. Qualif. Comm'n Rules, No. SC17-1362 (Fla. document filed Mar. 13, 2018).

4.   Notice of Adoption of Amendments to the Rules of the Fla. Jud. Qualif. Comm'n at 6, 10, In re Amends. to Fla. Jud. Qualif. Com'n. Rules, No. SC17-1362 (Fla. notice filed July 24, 2017); Response to Request for Clarification; and Notice of Adoption of Amends. to Rules 6 and 20(b) of the Fla. Jud. Qualif. Comm'n at 2-3, In re Amends. to Fla. Jud. Qualif. Comm'n Rules, No. SC17-1362 (Fla. document filed Mar. 13, 2018).

5.   Cf. In re Rules of Fla. Jud. Qualif. Comm'n, 364 So.2d 471, 471 (Fla. 1978) (repealing JQC rule purporting to establish procedures governing JQC proceedings in this Court as exceeding Commission's constitutional authority to “adopt rules regulating its proceedings” and intruding on this Court's exclusive authority to “adopt rules for the practice and procedure in all courts”).

6.   Article I, section 24 of the Florida Constitution creates a right of access to all public records as defined by that section, which includes judicial branch records, except for those records made confidential by another section of the constitution, by a statute enacted by the Legislature, or by a court rule that was in effect when article I, section 24 was adopted.

7.   Art. I, § 24(d), Fla. Const.

8.   See In re Amends. to Fla. Rule of Jud. Admin.—Public Access to Jud. Records, 608 So.2d 472 (Fla. 1992) (adopting Florida Rule of Judicial Administration 2.051, which has been renumbered 2.420, to govern public access to judicial branch records).

9.   See Fla. R. Jud. Admin. 2.420(b)(1) (defining “[r]ecords of the judicial branch”); 2.420(b)(1)(A) (defining “court records”).

10.   See Fla. R. Jud. Admin. 2.420(d)(1)-(d)(3) (listing information in court records that the clerk of court must designate and maintain confidential; providing for the filing of a notice of confidential information in court filings; and providing for the filing of motions to determine confidentiality of information in court records that may be confidential under subdivision (c) of rule 2.420 but is not listed under subdivision (d)(1) ); Fla. R. Jud. Admin. 2.420(g)(1), (g)(8) (providing for the filing of motions to determine confidentiality of appellate court records and providing that records of a lower tribunal determined to be confidential by that tribunal must be treated as confidential during any review proceedings).

11.   Cf. In re Implementation of Comm. on Privacy & Court Records Recommendations, 78 So.3d 1045, 1049-50 (Fla. 2011) (explaining that Florida Rule of Judicial Administration 2.425 provides the procedures for minimizing the amount of sensitive personal information included in documents being filed with the court and that rule 2.420 provides the procedures for determining the confidentiality of information after it has been filed).

12.   In re Amends. to Fla. Rule of Jud. Admin.—Public Access to Jud. Records, 608 So.2d at 474.

13.   The term “presently” as used in rule 2.420(c)(8) means at the time of the 1992 adoption of the rule. See id. at 472-73 (recognizing that proposed amendment to the Florida Constitution, which became article I, section 24, provided that all judicial branch records are public except those exempted by rule in effect on the date of the adoption of the amendment or those exempted by the Legislature and therefore constitutional amendment would prohibit the later adoption of judicial branch rules that would close any other judicial branch records).

14.   To avoid any revival issues, the Court repeals new rules 6(l ) and 20(b) included in the appendix to this opinion and the amendment to relettered rule 6(k) and new rule 20(b) quoted in footnote 2 of this opinion.

PER CURIAM.

CANADY, C.J., and PARIENTE, QUINCE, POLSTON, LABARGA, and LAWSON, JJ., concur. LEWIS, J., concurs in result.