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
closure, see Miami Herald Publishing Co. v. Lewis, 426 So. 2d 1 (Fla.1982), the closure of court records has not
required prior notice. Requiring prior notice of closure of a court record may be impractical and burdensome in
emergency circumstances or when closure of a court record requiring confidentiality is requested during a judicial
proceeding. Providing reasonable notice to the public of the entry of a closure order and an opportunity to be heard
on the closure issue adequately protects the competing interests of confidentiality and public access to judicial
records. See Florida Freedom Newspapers, Inc. v. Sirmons, 508 So.2d 462 (Fla. 1st DCA 1987), approved, Barron v.
Florida Freedom Newspapers, Inc., 531 So.2d 113 (Fla.1988); State ex rel. Tallahassee Democrat v. Cooksey, 371
So.2d 207 (Fla. 1st DCA 1979). Subdivision (c)(9)(D), however, does not preclude the giving of prior notice of
closure of a court record, and the court may elect to give prior notice in appropriate cases.
2002 Court Commentary
The custodian is required to provide access to or copies of records but is not required either to provide
information from records or to create new records in response to a request. Op. Atty. Gen. Fla. 80-57 (1980);
Wootton v. Cook, 590 So.2d 1039 (Fla. 1st DCA 1991); Seigle v. Barry, 422 So.2d 63 (Fla. 4th DCA 1982).