Time is Running Out! Confidentiality Policy Required by May 1, 2024

New Texas Rule of Judicial Administration Rule 7.1 requires all courts to adopt a policy governing court confidentiality no later than May 1, 2024. The Supreme Court order, including the text of the rule, as well as the Supreme Court’s Confidentiality Policy and agreement is provided below.

The Basic Requirements

The policy must: (1) define who it applies to, (2) define confidential information, (3) impose a duty of confidentiality on all court staff that continues after employment at the court ends, (4) address when, if ever, the disclosure of confidential information is authorized, (5) provide the language of relevant laws, (6) address negligent or accidental disclosure of confidential information, (7) warn of potential penalties for improper disclosure, and (8) require all court staff to acknowledge receipt of the policy in writing. The policy must be provided to all new court staff members and training on it must be given prior to the new staff member beginning any substantive work for the court. Furthermore, all existing court staff members must be provided with the policy biannually.

Where to Start

If you are scrambling to create and adopt this new policy, please know that you have a good starting point. The Texas Supreme Court has provided its Confidentiality Policy that can be used as a sample (see file above). Because this is The Supreme Court’s policy, it does not mention the municipal-court-specific confidentiality provisions contained in Articles 45.0217/45A.462, 45.0218/45A.055, and 45.313 of the Code of Criminal Procedure. TMCEC has created an adapted municipal-court-specific sample (provided below as a downloadable word document), which includes, among other things, these statutes. Arguably, these added provisions are not required in the policy, but it would create a more complete definition of “confidential information” as required under the rule.

Questions

Does the confidentiality policy have to be submitted to the State?

The rule itself does not require that it be submitted to the State. The order from the Supreme Court of Texas requires the clerk of that court to file it with the Secretary of State, send it to members of the state bar and legislators, and publish in the Texas Register. Those directions are for the clerk of the Supreme Court of Texas to send the Supreme Court’s order—not a municipal court clerk to send their city’s individual policy.

How do we adopt it? Does the city council have to adopt it?

This rule must be adopted by every court. There is no requirement that city officials adopt a rule. Generally, a reference to a court is a reference to the judge of that court. Once a policy is created, adoption can be as simple as a signed and stamped order from the judge (or presiding judge) that the court adopts the policy as attached.

How often do we have to provide a copy of the policy to staff?

There has been some discussion about this. The rule requires that the policy be provided to court staff at least biannually. In the dictionary, biannually means twice a year (versus biennially which means every other year). There may be some instances where biannually is used to mean every other year, but the safe route is to follow the common definition and provide it to staff twice a year.

What does the training have to look like?

This will be up to each court. There are no specifics as to what the training must consist of. The rule requires that all new court staff members be provided with the policy and be trained on it prior to beginning any substantive work for the court.

Does this apply to volunteers or third-party workers that might work with the court?

The model rule mentions “employees of this court.” It gives no clues beyond that. Each court, within its rule, is to define who it applies to—so there is some room for flexibility here. The model rule includes this sentence:

This policy applies to all Court staff, including interns.

This sentence could be modified to specify who it applies to in your specific court. If you want to include volunteers, independent contractors, etc., this would be where to include them.