IN RE AMENDMENTS TO JUDICIAL ADMIN. 2.236, 41 So.3d 128 (Fla. 2010)

No. SC10-241.Supreme Court of Florida.
July 1, 2010.

Original Proceeding — The Florida Rules of Judicial Administration Committee.

Judge Lisa Davidson, Chair, Florida Judicial Administration Committee, Eighteenth Judicial Circuit, Viera, FL, Judith L. Kreeger, Chair, Florida Courts Technology Commission, Eleventh Judicial Circuit, Miami, FL and Laura Rush, Staff, Florida Courts Technology Commission, Office of the State Courts Administrator, Tallahassee, FL, for Petitioner.

Kenneth A. Kent, Executive Director, Florida Association of Court Clerks and Comptrollers, Tallahassee, FL, Responding with comments.

PER CURIAM.

The Florida Courts Technology Commission (FCTC or Commission) has filed a petition asking the Court to adopt a new Rule of Judicial Administration that establishes the FCTC as a standing Supreme Court commission.[1] We have jurisdiction[2] and adopt the new rule.

After the FCTC filed its petition, we published the proposed new rule for comment. The Florida Association of Court Clerks and Comptrollers (FACC) filed a comment, to which the FCTC filed a response. After considering the petition, the FACC’s comment, and the FCTC’s response, we adopt new Rule of Judicial Administration 2.236, Florida Courts Technology Commission, with modifications discussed below.

New Rule 2.236
New rule 2.236 formally establishes the FCTC as a standing Court commission with clearly defined responsibilities and authority. It places the FCTC on a status equal to that of other standing judicial branch commissions established by rule.[3] More importantly, unlike the current practice of establishing and charging the FCTC by successive administrative order issued every two years by the incoming

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chief justice, [4] establishing the FCTC by rule will stabilize the Commission’s responsibilities, authority, and stature in the judicial branch.

As the court system moves from a system that depends on paper records to a system that relies on digital information and the use of technology in oar courts expands, it is imperative that there is a permanent judicial branch commission to oversee and monitor the development, implementation, and use of technology in the trial and appellate courts, and to assist in the enforcement of the technology standards and requirements adopted by this Court. The judicial branch long-range strategic plan recognizes the value of information technology to improve court access and operations, [5] and this Court has recognized issues that accompany the transition to a system that relies on digital information.[6] The State’s recent revenue shortfalls highlight the need for carefully developed technology policies and priorities for the judicial branch and for a mechanism to implement and enforce those policies and priorities. Moreover, in the advent of electronic filing of court documents and implementation of a statewide electronic filing portal, the need for a standing Court commission equipped to provide consistent oversight and direction cannot be overstated. See In re Electronic Access to the Courts (Statewide Standards), Fla. Admin. Order No. AOSC09-30 (July 1, 2009); In re Electronic Filing Committee, Fla. Admin. Order No. AOSC09-50 (Nov. 25, 2009).

FCTC Responsibilities and Authority
New rule 2.236 charges the FCTC with broad responsibility for overseeing, managing, and directing the development and use of technology within the judicial branch under the direction of the Court.[7]
Subdivision (b) sets forth these responsibilities. The rule ensures that the FCTC will develop all technology policies and standards for the trial and appellate courts and will review all applications for new court technology systems and modifications to existing systems to ensure compliance with standards adopted by the Court. The rule also gives the Commission authority to enforce the technology policies, standards, and requirements adopted by the Court, by requiring the termination or modification of, or by imposing conditions on, a program or system application that is not in compliance.

Under subdivision (b)(4), the Commission will direct and establish priorities for

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the work of all judicial branch technology committees. We have modified the subdivision to make clear that the Commission must review and approve recommendations made by any court committee that concerns judicial branch technology matters or otherwise implicates court technology policy.

We also have added a new subdivision (g) to the rule to formally establish the Appellate Court Technology Committee (ACTC or Committee) as a standing committee of the FCTC[8] and to formally recognize the responsibilities of that vital committee. The new subdivision clarifies that ACTC recommendations that implicate court technology policy must be reviewed and approved by the Commission, and the Commission will report those recommendations and the action it takes on them to the Court. Significantly, the sub-division provides a vehicle for the Committee to support or oppose FCTC action on its recommendations.

Operational Procedures, Reports, and Court Action
Subdivision (c) of the rule requires the FCTC to establish operational procedures necessary to carry out its responsibilities, subject to final approval by the Court. For example, subdivision (c)(2) requires the Commission to establish a method for monitoring the development of new court technology projects. This would include such projects as the ongoing Manatee County pilot program for providing electronic access to court records.

We have modified subdivision (c)(7) and added subdivision (c)(8) to clarify that the Commission can establish both work-groups to assist with projects of limited duration and more formal subcommittees to work on long-term projects that will require substantial effort. The work of the existing Electronic Filing Committee, which also is currently created by administrative order, [9] is an example of a long-term technology project that would justify the appointment of a more formal subcommittee. Therefore, consistent with new subdivision (c)(8), we direct the FCTC to establish the Electronic Filing Committee as a formal subcommittee of the Commission. As directed by separate administrative order, [10] the Commission established the Sub-committee on Access to Court Records (Access Subcommittee) for the limited purpose of advancing rule amendments implementing recommendations of the Committee on Privacy and Court Records.[11] The Access Subcommittee’s charge is an example of the type of limited, short-term work that, under new subdivision (c)(7), would be conducted by a workgroup of the Commission. Accordingly, we direct the Commission to continue the Access Subcommittee as a workgroup of the Commission until its work is complete.

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Under subdivision (f), the FCTC is required to annually report its recommendations to the Court. We have added the requirement that the report include ACTC recommendations that implicate court technology policy. As noted above, the ACTC will have the ability to submit a companion report on those recommendations. Subdivision (d), as modified, makes clear that the Chief Justice and the Court have wide latitude to adopt or reject, in whole or in part, refer back, or take alternative action on the FCTC recommendations or decisions.

Membership
Subdivision (e) of the rule outlines the membership and organization of the Commission. The membership of the Commission is expanded from the current 17 members to 25 members, which will be appointed by the Chief Justice after consultation with the Court. The membership will include both institutional users of court technology, such as judges, court administrators, court technology officers, and trial and appellate clerks of court, as well as non-court personnel, including members of The Florida Bar and members of the public at large.[12] All members must represent the interests of the public and state courts generally rather than the separate interests of any particular district, circuit, county, division, or other organization. However, we have modified subdivision (e)(2) to add an additional clerk of court to the membership, for a total of four clerks of court. Allowing for the appointment of an additional trial court clerk should ensure that small, medium, and large counties will be represented on the Commission.

In adopting the new rule, we considered the comment filed by the FACC. The FACC’s stated concern is with the composition of a permanent body that would be created by the Legislature to oversee and monitor the development, management, and implementation of the integrated computer system referred to in section 29.008(1)(f)(2), Florida Statutes (2009) See Technology Review Workgroup, Plan for Identifying and Recommending Options for Implementing the Integrated Computer System for the State Court System (2010). The FACC urges that the composition of such a governance body must ensure that all justice system partners, including state attorneys, public defenders, and guardians ad litem, as well as courts and clerks of court, have a role in the governance structure. We appreciate the FACC’s concern that all justice system partners have a forum to address technology issues that may impact them. But the focus of the Court’s concern here and the present need in the judicial branch is for a permanent body to assist with the governance and oversight of technology relating to case processing and case and records management, including access to court records. The FCTC’s responsibility, under the new rule, will be to advise the Court on technology issues impacting the judicial branch and to oversee the development and use of technology in our trial and appellate courts. To that end, the FCTC’s membership appropriately includes district, circuit, and county court judges, clerks of court, court administrators, and court technology officers, as well as Florida Bar members and members of the public.

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The FCTC’s focus will continue to be on the development of technology in our courts. However, to the extent participation and input from other justice system partners is warranted, the new rule provides for that participation and input. For example, subdivision (b)(14)(C) of the new rule specifically requires the Commission to address technology issues raised by the courts’ justice system partners. Subdivision (c)(1) requires the FCTC to establish a method for ensuring input on judicial branch technology issues from all interested constituencies in the state. And under subdivisions (c)(7) and (c)(8), the Commission must establish procedures for appointing workgroups and subcommittees that may include non-commission members when non-member participation is warranted. Therefore, justice system partners not represented on the Commission will have a vehicle to bring technology issues that may impact them to the Commission and the Commission will have established procedures for seeking valuable input and active participation in the development of court technology.

Accordingly, we adopt new Rule of Judicial Administration 2.236 as reflected in the appendix to this opinion. The new rule shall become effective immediately upon the release of this opinion.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, J J., concur.

APPENDIXRULE 2.236. FL COURTS TECHNOLOGY COMMISSION
(a) Purpose. The purpose of this rule is to establish a Florida CourtsTechnology Commission with responsibility for overseeing, managing, anddirecting the development and use of technology within the judicialbranch under the direction of the supreme court as specified in thisrule. For the purpose of this rule, the term “judicial branch” does notinclude The Florida Bar, the Florida Board of Bar Examiners, or theJudicial Qualifications Commission.
(b) Responsibilities. The Florida Courts Technology Commission ischarged with specific responsibility to:
(1) make recommendations to the supreme court on all matters oftechnology policy impacting the judicial branch to allow the supremecourt to establish technology policy in the branch;
(2) make recommendations to the supreme court regarding policies forpublic access to electronic court records;
(3) make recommendations to the supreme court about the relativepriorities of various technology projects within the judicial branch sothat the supreme court can establish priorities. The commission shouldcoordinate with the Trial Court Budget Commission and District Court ofAppeal Budget Commission to secure funds for allocation of thosepriorities;
(4) direct and establish priorities for the work of all technologycommittees in the judicial branch, including the Appellate CourtTechnology Committee, and review and approve recommendations made by anycourt committee concerning technology matters or otherwise implicatingcourt technology policy.
(5) establish, periodically review, and update technical standards fortechnology used and to be used in the judicial branch to receive,manage, maintain, use, secure, and distribute court records by electronicmeans, consistent with the technology policies established by the supremecourt. These standards shall be coordinated with the strategic plans ofthe judicial branch,

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rules of procedure, applicable law, and directions from the supremecourt, and shall incorporate input from the public, clerks of court,supreme court committees and commissions, and other groups involved inthe application of current technology to the judicial branch;
(6) create procedures whereby courts and clerks and other applicableentities can apply for approval of new systems, or modifications toexisting systems, that involve the application of technology to thereceipt, management, maintenance, use, securing, and distribution ofcourt records within the judicial branch, and between the public and thejudicial branch;
(7) evaluate all such applications to determine whether they complywith the technology policies established by the supreme court and theprocedures and standards created pursuant to this rule, and approve thoseapplications deemed to be effective and found to be in compliance;
(8) develop and maintain security policies that must be utilized toensure the integrity and availability of court technology systems andrelated data;
(9) ensure principles of accessibility are met for all court technologyprojects, with consideration and application of the requirements of theAmericans with Disabilities Act of 1990 and any other applicable state orfederal disability laws;
(10) ensure that the technology utilized in the judicial branch iscapable of required integration;
(11) periodically review and evaluate all approved technology in thejudicial branch to determine its adherence to current supreme courttechnology policies and standards;
(12) review annual and periodic reports on the status of courttechnology systems and proposals for technology improvements andinnovation throughout the judicial branch;
(13) recommend statutory and rule changes or additions relating tocourt technology and the receipt, maintenance, management, use,securing, and distribution of court records by electronic means;
(14) identify technology issues that require attention in the judicialbranch upon:

(A) referral from the chief justice;
(B) referral from the supreme court;

or
(C) identification by the Florida Courts Technology Commission on itsown initiative based on recommendations of the public, commissionmembers, judges, justice system partners, The Florida Bar, clerks ofcourt, the Florida Legislature (either informally or through the passageof legislation), the Governor, the cabinet, or executive branchagencies; and
(15) coordinate proposed amendments to rules of court procedure andjudicial administration necessary to effectuate the commission’s chargewith appropriate Florida Bar rules committees.
If a program, system, or application is found not to comply with thepolicies established by the supreme court or the standards and proceduresestablished by the commission, the commission may require that it beterminated or modified or subject to such conditions as the commissiondeems appropriate.
(c) Operational Procedures. The Florida Courts Technology Commissionshall establish operating procedures necessary to carry out itsresponsibilities as outlined in subdivision (b), subject to finalapproval by the supreme court. These procedures shall include:

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(1) a method for ensuring input from all interested constituencies inthe state of Florida;
(2) a method for monitoring the development of new court technologyprojects, reviewing reports on new technology projects, and reviewing theannual reports;
(3) a method whereby courts and clerks and other applicable entitiescan apply for approval of new technology systems or applications, ormodifications to existing systems or applications, that affect thereceipt, management, maintenance, use, securing, and distribution ofcourt records;
(4) a system to evaluate all applications for new or modifiedtechnology systems to determine whether they comply with the policies andtechnical standards established by the supreme court and the procedurescreated pursuant to this rule, and are otherwise appropriate to implementin the judicial branch;
(5) a process for making decisions on all applications for new ormodified technology systems and communicating those decisions tointerested parties. If an application is found to comply with technologypolicies and standards, the commission may approve the application and itswritten approval shall authorize the applicant to proceed. For allapplications that are not approved, the commission shall assist theapplicant in remedying any deficiencies that the commission identifies;
(6) a method to monitor all technology programs, systems, andapplications used in the judicial branch to ensure that such programs,systems, and applications are operating in accordance with the technologypolicies established by the supreme court and technical standardsestablished by the commission. The commission may ask any operator of aprogram, system, or application to appear before it for examination intowhether the program, system, or application complies with technologypolicies and standards;
(7) a process to conduct the limited, short-term work of the commissionthrough work groups that it may constitute from time to time. Work groupsmay make recommendations to the commission as a whole. The chair of thecommission may appoint non-commission members to serve on any workgroup; and
(8) a process to conduct substantial work of the commission requiringlong-term commitment through subcommittees. Subcommittees may makerecommendations to the commission as a whole. The chair of the commissionmay appoint non-commission members to serve on any sub-committee.
(d) Action by Supreme Court or Chief Justice on Recommendations of orDecisions by Florida Courts Technology Commission. The supreme court orchief justice, as appropriate, may take any of the following actions onrecommendations or decisions made by the Florida Courts TechnologyCommission:
(1) Adopt the recommendation or decision of the commission in whole orin part, with or without conditions.
(2) Refer specific issues or questions back to the commission forfurther study or alternative recommendations.
(3) Reject the recommendation or decision in whole or in part.
(4) Take alternative action.
(e) Membership and Organization.
(1) The Florida Courts Technology Commission shall be composed of 25voting members appointed by the chief justice after consultation with thecourt. All members shall represent the interests of the public and ofFlorida courts generally rather than the separate interests of any

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particular district, circuit, county, division, or other organization.The membership shall include members who have experience in differentdivisions of courts, in court operations, and in using technology incourt for case processing, management, and administrative purposes, andshall provide geographic, racial, ethnic, gender, and other diversity.
(2) The membership shall include 2 district court judges, 5 circuitcourt judges (1 of whom must be a chief judge), 2 county court judges, 3court administrators, 3 court technology officers, 4 clerks of court (1of whom must be a clerk of an appellate court), 4 members of The FloridaBar (1 of whom must be a member of the Board of Governors of The FloridaBar), and 2 members of the public at large.
(3) The members of the commission who are judicial officers, courttechnology officers, and court administrators must constitute a majorityof the commission and must constitute a majority of any quorum at allmeetings of the commission.
(4) A supreme court justice shall be appointed by the chief justice toserve as supreme court liaison to the commission.
(5) Each member will be initially appointed for a 1-, 2-, or 3-yearterm, with the terms staggered to ensure continuity and experience on thecommission and for three year terms thereafter. Retention andreappointment of each member will be at the discretion of the chiefjustice.
(6) The chief justice shall appoint 1 member to serve as chair for atwo-year term.
(f) Schedule of Reports. The Florida Courts Technology Commission shallprepare an annual report of its activities, which shall include itsrecommendations for changes or additions to the technology policies orstandards of Florida courts, its recommendations for setting or changingpriorities among the programs within the responsibility of the commissionto assist with budget resources available, its recommendations forchanges to rules, statutes, or regulations that affect technology inFlorida courts and the work of the commission. The report also shallinclude recommendations of the Appellate Court Technology Committee thatimplicate court technology policy and the action taken on thoserecommendations by the commission. This report shall be submitted to thesupreme court on April 1 of each year.
(g) Appellate Court Technology Committee.
(1) Purpose. The purpose of this subdivision is to establish theAppellate Court Technology Committee as a standing committee of theFlorida Courts Technology Commission responsible for providing technicalguidance and consultation to the commission regarding information systemsdevelopment and operational policies and procedures relating toautomation in the district courts of appeal.
(2) Responsibilities. The Appellate Court Technology Committee ischarged with specific responsibility to:
(A) coordinate with and provide advice to the Florida Courts TechnologyCommission regarding the development of standards and policies forimplementing new technologies, system security, public access to districtcourt information, and system support;
(B) develop, recommend, and implement policy and procedures consistentwith the overall policy of the supreme court relating to technologyissues affecting the district courts of appeal;
(C) recommend and coordinate the purchase and upgrade of hardware andsoftware in relation to the district courts’ office automation systemsand networks;

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(D) oversee and direct expenditures of designated state court systemtrust funds for technology needs in the district courts;
(E) promote orientation and education programs on technology and itseffective utilization in the district court environment;
(F) ensure principles of accessibility are met for all court technologyprojects, with consideration and application of the requirements of theAmericans with Disabilities Act of 1990 and any other applicable state orfederal disability laws;
(G) propose amendments to rules of court procedure and judicialadministration necessary to effectuate the committee’s charge, aftercoordination with appropriate Florida Bar rules committees; and
(H) identify budget issues and funding sources and coordinate with theDistrict Court of Appeal Budget Commission on recommendations requiringadditional funding or resources for implementation in the district courtsof appeal.
(3) Membership and Terms.
(A) The chief justice will select the chair of the committee from amongthe judges of the district courts, with input from the chief judges.
(B) The chief judges of the remaining district courts will designate arepresentative from each of their courts to serve as member of thecommittee.
(C) The chair and members will serve 3-year terms. Retention andreappointment of the chair will be at the discretion of the chiefjustice. Retention and reappointment of the representative from eachdistrict court will be at the discretion of the district court chiefjudge.
(4) Commission Approval and Reporting of Policy Recommendations.Committee recommendations that implicate court technology policy must bereviewed and approved by the commission. The commission will report thecommittee’s policy recommendations and the action taken on them by thecommission to the supreme court. The committee may submit to the court acompanion report on its recommendations, supporting or opposing theaction taken by the commission.
(h) Staff Support and Funding. The Office of the State CourtsAdministrator shall provide primary staff support to the Florida CourtsTechnology Commission and the Appellate Court Technology Committee.Adequate staffing and resources shall be made available by the Office ofthe State Courts Administrator to ensure that the commission andcommittee are able to fulfill their responsibilities under this rule.