How to Prevent Public Access to Confidential Business Information Through Motions to Seal Records

In Florida, the public and press have a fundamental right of access to judicial proceedings, which includes access to documents submitted to the court. This may be troublesome for businesses seeking to maintain the confidentiality of sensitive information, such as trade secrets or other proprietary information. However, under certain circumstances, a court can place limitations on this right of access and shield court records from public scrutiny. This blog post discusses how a Motion to Seal Court Records can be used to preserve the confidentiality and privacy of sensitive business information.

What is a Motion to Seal Court Records?

Under Florida Rule of Judicial Administration 2.420(e)(1), parties to a judicial proceeding can jointly, or individually, request the court restrict public access to certain court documents by filing a Motion to Seal Court Records, also known as, a Motion to Determine the Confidentiality of Court Records. If the court grants this motion, the documents specified in the court’s order will be deemed confidential and thus, be shielded from public scrutiny. However, courts rarely grant these motions. Therefore, it is crucial for businesses to understand the factors considered by the court when ruling on these motions.

Where Does the Court’s Power Come From?

There are two primary sources of power allowing Florida courts to restrict access to judicial proceedings and court documents. First, a court can restrict access under its inherent authority to control the conduct of its own proceeding. See Miami Herald Pub. Co. v. Collazo, 329 So.2d 333, 336 (Fla. 3d DCA 1976). This inherent authority includes the right to preserve the decorum of the courtroom, protect the rights of the parties and witnesses, and generally to further the administration of justice. See News-Press Pub. Co., Inc. v. State, 345 So.2d 865, 867 (Fla. 2d DCA 1977).  In addition, Florida Rule of Judicial Administration 2.420(c)(9)(A) provides courts with the statutory authority to enter an order of confidentiality when necessary to further certain objectives.

When Will the Court Grant a Confidentiality Order?

In Florida, there is a strong presumption that judicial proceedings and records submitted to the court remain open to the public. Florida case law allows courts to cautiously grant a Motion to Seal Court Records only when there are cogent reasons for doing so. To determine whether such reasons exist, the Florida Supreme Court has stated that courts must balance the rights and interests of the parties with those of the public and press. Barron v. Florida Freedom Newspapers, Inc., 531 So.2d 113, 115 (Fla. 1988); See also State ex rel. Miami Herald Publishing Co. v. McIntosh, 340 So.2d 904 (Fla. 1976). The type of civil proceeding, the nature of the subject matter, and the status of the participants are all factors to be considered when evaluating whether to establish confidentiality of court records. See Barron, 531 So. 2d at 118.

For instance, courts generally consider the notion that public trials are essential to the credibility of the judicial system and improve the quality of testimony by imposing public pressure to speak truthfully.  The court may balance against these public interests evidence that public access may threaten proprietary business information or trade secrets. In addition, the court must consider the type of civil proceeding, the nature of the subject matter, and the status of the parties.

The Florida Supreme Court, in Barron v. Florida Freedom Newspapers, Inc., further explained that courts should only close judicial proceedings, or restrict access to court documents, when necessary to accomplish one of the following objectives:

• Comply with established public policy set forth in the constitution, statutes, rules, or case law;
• Protect trade secrets;
• Protect a compelling government interest;
• Obtain evidence to properly determine legal issues in a case;
• Avoid substantial injury to innocent third parties; or
• Avoid substantial injury to a party by disclosure of matters protected by a common law or privacy right not generally inherent in the specific type of civil proceeding sought to be closed.

Protection of Trade Secrets

Businesses have a tendency to interpret the term “trade secret” narrowly. However, when drafting a Motion to Seal Court Records, it is important to interpret the term more broadly, as that allows the business to potentially protect more information. Under Florida law, sensitive commercial information is generally considered to be a trade secret. Therefore, a business may obtain a confidentiality order to protect its pricing, profit structure, customer lists, sales information and marketing information. See Thomas v. Alloy Fasteners, 664 So. 2d 59, 61 (Fla. 5th DCA 1995); Fadalla v. Life Auto. Products, Inc., 285 F.R.D. 501, 506 (M.D. Fla. 2007).

Narrow Tailoring of the Confidentiality Order

Under Florida case law, even if a court determines there is a cogent reason for restricting access to court records, the court must also determine there is no reasonable alternative for accomplishing the desired result. See Bundy v. State, 455 So.2d 330 (Fla. 1984). If there is no reasonable alternative, the court must order the least restrictive closure necessary to accomplish the result. See Palm Beach Newspapers, LLC v. State, 183 So.3d 480 (Fla. 4th DCA 2016). Therefore, when drafting a Motion to Seal Court Records, a business should not seek an overly broad order from the court. For instance, the court may restrict access to court records for only a designated period of time, or may restrict access to only certain court records. These additional requirements have also been codified in Florida Rules of Judicial Administration 2.420(c)(9)(B)-(C).

What if the Parties File a Joint Motion?

When all parties to the proceeding support closure of court records, the parties may file a Joint Motion to Seal Court Records. This is particularly common where the parties have entered into a settlement agreement resolving all claims contained in the lawsuit. However, the absence of any objection does not mean the court will grant the motion. A mutual preference that a proceeding remain private is not grounds for closure of court records. The requirements articulated above must still be satisfied. See Goldberg v. Johnson, 485 So.2d 1386 (Fla. 4th DCA 1986).

Conclusion

In sum, the public has a fundamental right of access to judicial proceedings and court documents. Before becoming involved in a lawsuit, businesses should consider the potential ramifications of making confidential or private business information available to the public. However, if involvement in the lawsuit cannot be avoided, a business can seek to protect the confidentiality of such information by filing a Motion to Seal Court Records. While the motion is difficult to obtain, if the above stated requirements are satisfied, the benefits to a business can be great.