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Court gives initial OK to privacy rule (UPDATE)

By: Dan Shaw, [email protected]//April 28, 2015

Court gives initial OK to privacy rule (UPDATE)

By: Dan Shaw, [email protected]//April 28, 2015

Lawyers and others who file court documents will be legally responsible for blacking out social-security numbers and similar personal information beforehand, under a rule petition adopted by the Wisconsin Supreme Court on Tuesday.

The rule, which will take effect Jan. 1 if given a final approval at a later date, will apply to legal documents that are kept on file at circuit courts and are now open to the public. Current procedures generally allow judges to order certain parts of those filings – often social-security and bank-account numbers – to be blacked out.

But there is no uniform rule making it clear who is responsible for ensuring the information does not appear in public documents in the first place. Nor are there policies establishing how records that are supposed to be kept confidential can later be blacked out should they make their way into a filing by mistake.

“We have no common way of dealing with this issue,” said Justice Annette Ziegler. “So we are trying to highlight this issue and create a reasonable process, so people know what to do.”

Tuesday’s petition was filed by the Director of State Court Office’s Consolidated Court Automation Programs Steering Committee, which helps set the state court system’s policies concerning information technology. Racine Judge Gerald Ptacek, a member of the committee, said on Tuesday that the increasing prevalence of identity theft is largely behind the push to ensure the courts are making a concerted effort to ensure certain parts of legal filings remain private.

Ptacek said court clerks now have almost no authority to prevent the public from seeing personal information that has made its way into court documents. That’s true even if they suspect the records will be used for nefarious purposes.

The rule given preliminary approval on Tuesday would require confidentiality for the numbers used for social-security, employer- or taxpayer- identification, financial-account, drivers-license and passport purposes. It would also allow courts to issue orders that add to the sorts of records that must be kept private.

Filers who fail to meet the requirements could find themselves having to pay “reasonable expenses” imposed by the court, including attorneys’ fees and related costs.

When information that is automatically treated as being confidential is deemed pertinent to the arguments being made in a case, lawyers and other filers will have to submit it using special forms provided by court clerks. The records will then only be open to specific persons: the parties in the case, lawyers, judicial officers, guardians ad litem, court staff and representatives of other agencies.

Keeping the information from being closed off entirely, Ptacek said, will help ensure that the confidentiality requirements are not abused by those who might be trying to hide something during the discovery phase of court proceedings.

Ptacek and other supporters of the rule petition before the court on Tuesday said they wanted to avoid making clerks responsible for keeping specific personal information out of filings. Carlo Esqueda, speaking in favor of the petition for the Wisconsin Clerks of Circuit Court Association, said he and his colleagues throughout the state do not have the staff or time to comb through every line of legal filings to find personal information that should be blacked out.

While making lawyers and other filers responsible for keeping social-security numbers and similar records out of public view, the petitioners also established a procedure that would allow for the removal of information that had already made its way into court documents.

A party to a case could file a motion with the court at a later date asking that the records be blacked out. Court clerks could then furnish only the revised documents to the public and would have to keep the old ones sealed.

The ability to make certain types of information confidential would extend not only to social-security numbers and similar personal identifiers but also to other sorts of information that a party might have a strong interest in keeping confidential.

A private company’s financial accounts, for instance, could easily be among the records that a reasonable person could conclude should be kept under seal, Ptacek said. Making that information off-limits to the public would require the consent of a judge, he said.

The Director of State Courts, meanwhile, will maintain a list of commonly filed documents that will be automatically treated as being confidential. Those records will be placed under seal without the need for a party in a case to make a motion or obtain a court order.

The petition given preliminary approval Tuesday will only apply to documents filed Jan. 1 or later. Still, the Justices approved a provision that would allow parties to request the removal of personal information that was filed at a previous date.

The petition also allows judges to issue orders that would have personal records removed from transcripts of court proceedings.

Just before giving the rule petition preliminary approval on Tuesday, the Supreme Court Justices proposed several amendments, including one that would have all the digits of a social-security number blacked out from public court documents, rather than leave the last four numbers visible. Another, coming from Justice Michael Gableman, would let judges decide if a hearing on a motion to make certain records confidential should be conducted in the open or in private.

Once the changes have been made, the court will return, most likely in June, to give the rule a final approval.

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