March 2010

Should I Redact That?  New Rule Proposal for Sensitive Personal Information in Civil Court Documents

With the introduction of e-filing in New York Civil Courts, the public no longer needs to trudge over to a courthouse to view papers filed in civil court cases.  With the click of a mouse, anyone can electronically view complaints, briefs, and other pleadings for an increasing number of New York civil courts. These documents can sometimes contain specific information on the parties involved, including social security numbers, birth dates, bank accounts, and more.

Alongside this access come questions of privacy, says the City Bar’s Council on Judicial Administration.  In a recent report and letter to Chief Judge Jonathan Lippman and Chief Administrative Judge Ann Pfau, the Council proposed a new statewide rule regarding the inclusion of sensitive personal information in civil court documents. As the report notes, there currently is no statewide standard for such information disclosure practices.

The committee’s main concerns were the increased accessibility of court documents online, and the potential permanence of documents online.  As the report notes, even when documents are removed or information changed, copies of previous incarnations can still linger, posted in other places or cached in Google searches.

The proposed rule provides slightly more protection than a rule used by the federal court system in two ways.  First, the proposed rule protects more kinds of information.  The federal courts limit disclosure of fives types of information: social security numbers, financial account numbers, taxpayer identification numbers, birth dates, and names of minors.  The council’s proposal includes these as well as passport, driver’s license, and government issued ID numbers, as well as any other identification number that would uniquely identify an individual.   

Second, unlike the federal rule, the proposed New York rule creates a presumption that no part of the protected information should be included in filings absent a compelling need.  If there is a compelling reason to include such numbers in the filing, then only the last four digits, or no more than half of any identification number, should be included; names should only be printed as initials; and only an individual’s year of birth should be printed.  

“We believe the rule we’ve proposed is necessary to protect sensitive and personal information, and guard against identity theft, especially in light of e-filing and Internet posting present in the courts today,” said Jay G. Safer, Chair of the Council on Judicial Administration. “We want to draw attention to the problems with disclosing sensitive personal information in civil court documents, which are presumptively public records.”

Steve Kayman, chair of the subcommittee tasked with researching and reporting on the issue, said the key was balancing open courts with the need for privacy. “We can’t predict every case,” said Kayman. “That’s why we’ve built flexibility in, so that judges can do as justice requires.”

Read the Council on Judicial Administration's report and letter here.

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