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The push for privacy: New rules will change how court records must be filed

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Without laws prohibiting names and other identifying information from appearing in court documents, a nasty case involving “sextortion” in a New Berlin school only became more of a nightmare for the victims once details were posted online.

Attorney General Brad Schimel and Jill Karofsky, executive director of the Department of Justice’sOffice of Crime Victim Services, participated in the movement to draft the crime victim privacy rule that will take effect July 1.

Attorney General Brad Schimel and Jill Karofsky, executive director of the Department of Justice’s Office of Crime Victim Services, participated in the movement to draft the crime victim privacy rule that will take effect July 1.

In 2010, Anthony Stancl, a former student at New Berlin’s Eisenhower High School, was sentenced to 15 years in prison for an impersonation scheme perpetrated on Facebook. Stancl, assuming a female identity online, would get male classmates to provide him with naked pictures of themselves and then, in some cases, use the images to blackmail the senders into performing sexual acts.

Brad Schimel, who was Waukesha County District Attorney at the time and is now the state’s Attorney General, said he and others tried to protect the victims by identifying them in court documents only with initials and dates of birth. Those precautions were undermined, though, when the magazine Wired published the criminal complaint on its website.

Even though the document did not contain full names, students had no trouble piecing together who the victims were.

“These were very invasive, coerced sexual assaults,” Schimel said. “These things all became public. These kids were destroyed. One attempted to take his own life.”

It’s cases like the one in New Berlin that have Schimel and many other legal professionals in the state convinced that the time is ripe for changes meant to ensure that much of the personal information contained in court documents is shielded from prying eyes.

Two rules recently debated by members of the state’s Supreme Court — one already adopted and one pending — would put a series of checks on what sorts of information can appear in the online versions of appellate documents and the publicly available versions of circuit court documents. With both types of records, the goal is to make it much harder for those outside of the legal profession to see names, bank account numbers, Social Security numbers and other personal identifiers.

The first of the two rules is scheduled to take effect July 1 and will require the names of crime victims to be blacked out from the online versions of appellate briefs. The other, which is still awaiting approval from the state Supreme Court, would require that certain personal information be similarly concealed in the public versions of circuit court documents, while establishing a separate procedure that would make the unedited originals available only to legal professionals.

Schimel said court documents were public long before the advent of the Internet. But it is the Web that has made unprecedented amounts of information available at a keystroke.

Before the Web, those who wanted to comb through case records for nefarious purposes usually had no way to gain access save by paying a visit in person to a county courthouse. That need to be physically present — and sometimes to travel long distances to retrieve records stored in another county — had served as an indirect safeguard of privacy.

“This isn’t something that would have been a significant discussion 15 years ago,” Schimel said. “But because of the Internet, it is so easy to find information about people.”

Change on the way

The desire for greater privacy protection is felt most keenly with appellate briefs, which, unlike circuit court documents, are now posted to the Internet as a matter of routine. Come July 1, lawyers who practice in courts of appeal will be required to black out crime victims’ names that would otherwise appear in the electronic versions of documents posted online.

To promote compliance, appellate documents will be modified to contain a section at the end where filers will be expected to certify that they have kept names concealed. In other words, the new rule’s requirements will fall almost entirely on lawyers.

Brian Blanchard, a District 4 Court of Appeals judge who worked on the rule, said he has little concern that lawyers will have trouble complying. The rule is not overly complicated, he said, and judges, for their part, will probably be inclined to be lenient about enforcement — at least at first.

“In my own view, we want to encourage people to take on appellate work,” he said. “Intentional violations are very rare, so inadvertent violations would probably be subject to a warning.”

Greg Weber, director of the Wisconsin Department of Justice’s Criminal Appeals Unit, says he has noticed that criminal defense attorneys are already following the new rule. Prosecutors, Schimel said, are likewise ready to comply.

“It will be easy for us,” Schimel said. “I’m sure there will be a learning curve, but everyone will get used to it and it will become second nature.”

Judge Brian Blanchard, of the District 4 Court of Appeals,led the committee that drafted the crime victim privacy rule. (Photo by Kevin Harnack)

Judge Brian Blanchard, of the District 4 Court of Appeals,
led the committee that drafted the crime victim privacy rule. (Photo by Kevin Harnack)

Privacy and circuit court filings

Appellate briefs, because of their routine posting on the Internet, were first priority for privacy advocates. But the concerns did not end there.

Circuit court documents, though often more difficult to get to, can contain a trove of personal information, sometimes even full Social Security and bank account numbers. That has some worried not so much about what might appear on the Internet, but rather about what that sort of information could be used for if it got into the wrong hands.

The possible harm goes well beyond the type of public shaming seen in the New Berlin high school case. For many, identify theft is the chief concern.

New rules, pending and approved

Pending final approval from the state Supreme Court, the following personal identifiers will not be allowed in circuit court filings starting Jan. 1:

  • Social Security numbers
  • Employer or taxpayer ID numbers
  • Financial account numbers
  • Driver’s license numbers
  • Passport numbers
  • Other information protected by court order.

Meanwhile, a separate rule, scheduled to take effect July 1, will require victims’ names to be blacked out from appellate briefs before they are published online.

“That’s the crime of the future,” Schimel said. “Frankly, we’re approaching a time when the best criminals won’t need to leave their houses.”

Judges have not been unified in their responses to those threats. They now can order certain parts of filings to be blacked out — and some do. But no state law lays out who is responsible for preventing personal information from appearing in public documents.

The pending rule before the state’s Supreme Court – the justices are likely to vote on a final version at a meeting on June 10 — would have a set of standard procedures in place statewide by the beginning of next year. Like the new requirements for appellate briefs, those applying to circuit court documents would place the compliance burden squarely on lawyers’ shoulders.

Starting on Jan. 1, lawyers would be responsible for blacking out Social Security numbers, driver’s license numbers and other personal information from the public versions of documents they file in circuit court. The Director of State Courts, under the rule, would also be charged with keeping a list of commonly filed documents that are already treated by law or precedent as being confidential and that should automatically be placed under seal.

Among the filings that lawyers might have to flag immediately as being off-limits would be private companies’ financial records. Failing to meet the requirements could result in a filer having to pay “reasonable expenses” determined by the court, including attorneys’ fees and related costs.

For documents that are not automatically treated as being confidential, lawyers could still request a court to order that they be sealed. Similar procedures could also be used to have information blacked out from documents that were filed before the rule took effect, as well as from transcripts of courtroom proceedings.

Racine County Circuit Court Judge Gerald Ptacek, who spoke in favor of the rule before the state Supreme Court in April, said the drafters borrowed heavily from similar restrictions adopted in South Dakota. At least 20 state courts have rules meant to protect personal information, each imposing slightly different requirements. The federal courts, for their part, insist on the removal of all Social Security and bank account numbers except for the last four digits, names of minor children and dates of birth, as well as home addresses from filings in criminal cases.

Ptacek said Wisconsin’s proposed rule on circuit court filings is more complicated than the one requiring that victims’ names be removed from appellate documents. He said that between the final adoption of the rule and Jan. 1, lawyers and others will have various ways to learn more about the coming changes. Presentations, for instance, will be given at conferences for judges and court clerks.

“We want to make it as user friendly as possible,” he said.

Even with a common goal, final version of rule didn’t come easy

April Southwick, a staffattorney with the Wisconsin Judicial Council, helped draft the crime victim privacy rule and testified in front of the state Supreme Court in support of the rule. (Photo by Kevin Harnack)

April Southwick, a staff attorney with the Wisconsin Judicial Council, helped draft the crime victim privacy rule and testified in front of the state Supreme Court in support of the rule. (Photo by Kevin Harnack)

For the group that drew up new rules governing what sort of information can appear in appellate briefs, the main objectives were easy.

They knew from the start that they wanted to place a check on current procedures that allow victims — even those involved in the worst sorts of sexual assault cases — to be easily identified by quick searches of documents that are now posted online as a matter of routine.

The real difficulties came with some relatively smaller matters. A first draft, for instance, would have had victims’ proper names removed from appellate briefs and instead replaced with references to “Victim 1,” “Victim 2,” and the like.

The proposal did not sit well with defense attorneys, who worried their briefs would lose force when they were prohibited from identifying clients except by names prescribed by a numerical system. The result was a decision to allow the use of pseudonyms, said April Southwick, a staff attorney at the Wisconsin Judicial Council, a group charged with recommending changes to the rules governing the state’s court system.

“If you’re forced to use one specific term like (Victim 1), it could interfere with the flow of the story,” Southwick said. “It would be too sterile and clinical sounding. It wouldn’t read as well. That was the driving force for using a pseudonym. We tried to craft a rule that would allow defense attorneys as much creativity in the writing as possible while still protecting the victim’s identity.”

The committee also debated if there ever could be justification for allowing crime victims’ full names to appear in appellate briefs or opinions. In other words, might there be a situation in which a victim’s real name would somehow be essential to a legal argument?

Those were the sorts of questions that the Judicial Council’s Appellate Procedure Committee wrestled with for eight months before finally arriving at something that they were ready to present to the state Supreme Court, which oversees the rules governing the state’s court system. In the end, said Brian Blanchard, a District 4 Court of Appeals judge and chairman of the committee, he and others on the committee decided that there would indeed be times when the use of a victim’s real name would be unavoidable.

But those would be exceedingly rare, he said.

“In the run of cases,” said Blanchard, “we were comfortable in concluding that was not the case.”

Disagreements on relatively small matters were common from the beginning. The initial push for the new rules came from Jill Karofsky, executive director of the Department of Justice’s Office of Crime Victim Services.

“The only way the criminal justice system works if victims come forward,” she said. “They have to be so brave to do that.”

Karofsky went to the Judicial Council in 2011 and asked what could be done to keep victims’ names and other identifying information out of online documents. She also got involved in the rule’s drafting, sitting ad hoc on the council’s Appellate Procedure Committee. By July 2012, the committee had a draft version of a proposed remedy.

Then came a period, lasting until September 2012, when the public was invited submit comments. That’s when things got a bit rocky.

The committee members found that their opinions, in many cases, differed greatly from those that were coming in from the outside.

“Because there was so much opposition raised in the comments,” Southwick said, “it started to filter into the committee.”

She said some committee members suggested scrapping the rules and others doubted whether they’d ever be able to reach a consensus. For about four months, serious questions lingered over the rule’s chances of ever going forward.

“It took some discussion to get everyone on the same page,” Blanchard said.

The committee members found themselves responding to the comments by reopening a number of matters for debate. Among them were whether the members had settled on the right definition of the word “victim,” whether the rule should apply to appellate briefs and opinions only or also to other sorts of documents, and whether civil cases should also be included.

The council went back to the drawing board on Jan. 13. The following eight or nine months brought six revisions in total.

“Judge Blanchard did a fabulous job of having members find a common ground and build a consensus,” Southwick said.

By January 2014, the Judicial Council was ready to petition the Wisconsin Supreme Court to adopt a rule that would require crime victims’ names to be abbreviated or replaced with pseudonyms in appellate court briefs and opinions. The justices debated the petition and held a public hearing in September 2014.

“There was next to no opposition by the time we got to the Supreme Court public hearing,” said Southwick.

The Supreme Court justices issued an order March 2 adopting the new rule. With that decision, all filers of briefs in state courts of appeal – starting July 1 – will be prohibited from identifying crime victims except by their initials or by another “appropriate pseudonym or designation.” At the same time, victims’ names will not be removed from documents already posted on the Internet, unless someone files a petition to have the public version of the records modified.

In one of the most significant changes to the Judicial Council’s original proposal, the rules were made to apply only to appellate briefs, not opinions. Meanwhile, the Court of Appeals and the Supreme Court questioned whether it would be appropriate to try to restrict their own practices using court rules – which they have the final say over. In the end, the courts decided it would be better to modify their operating manuals.

“They had a lot of questions,” Blanchard said, “and I think they spent a lot time looking the issues. I think the outcome was good one.”

— Erika Strebel

About Erika Strebel, erika.strebel@wislawjournal.com

Erika Strebel is the law beat reporter for the Wisconsin Law Journal and a law school student at UW-Madison. She can be reached at 414-225-1825.

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