Relates to confidentiality in papers filed in civil proceedings

This measure would add a new CPLR rule 2103-b to address the confiden- tiality of personal information in the filing of papers in civil proceedings. We believe that frequently there are cases with filed papers involving myriad sensitive personal information including, but not limited to, social security numbers and other numerical identifiers which, if revealed, increase the risk of identity theft, fraudulent use or disclosure in violation of state or Federal law. We urge adoption of this measure to further the protection of that information. As the court system enters the electronic age, courthouse papers are increasingly accessed by Internet services and personal information is of increasing interest to identity thieves. Further, we believe that by necessity practitioners are aware of the risks associated with revealing sensitive personal information and have access to all state and Federal laws concerning identity theft issues.

Generally, personal information is increasingly subject to protection by law (see Public Officers Law §96-a (g) (eff. Jan. 1, 2010; added L. 2008, c. 279) and General Business Law §399-dd (6) (eff. Jan. 3, 2009; added L. 2008, c. 279)). However, in New York, court papers are presump- tively public once filed with the county clerk or the clerk of court. Court records are presumptively open. See, e.g., Nixon v Warner Communi- cations, 435 U. S. 539 (1978); Danco Laboratories, Ltd. v Chemical Workers of Dedeon Richter, Ltd., 274 A.D.2d 1 (1st Dept. 2000). The Federal Courts have implemented Rule 5.2 of the Federal Rules of Civil Procedure (23 USCA 5.2) to address protection of privacy in Federal cases.

Currently, however, there are no statutes addressing generally the protection of the confidentiality of sensitive personal information in civil court papers. There are certain specific statutes which do address Particular information and certain information may be Presumptively sealed by statute. Compare. e.g., Mental Health Information - N.Y. Mental Hygiene Law § 33.14 (Sealing of records pertaining to treatment for mental illness) with HIV Information - N.Y. Public Health Law §2785 (Court authorization for disclosure of confidential HIV related informa- tion).

This measure defines "confidential personal information" broadly and clearly provides that the rule applies "except as otherwise provided by law or order" and expressly excepts matrimonial actions from the purview of the rule. This measure places the responsibility of compliance

squarely on the parties in a matter and adopts a mandatory requirement that "the parties shall redact" confidential personal information. The measure omits "address" information on the rule under the rationale that address information is required in many papers and judgments in civil actions. The measure does not allow the inclusion of "limited or partial" confidential information; our Advisory Committee rejected this approach as too subjective, unnecessarily opening the door to ancillary litigation and possible disclosure of such information.

The measure makes clear that the court has, sua sponte or in response to a motion, discretion to order redaction or sealing under the Rule 216.1 (22 NYCRR §216.1) standard. Also, the measure adopts a "good cause shown" standard by which a court might vary the provisions of the rule. In addition, the measure expressly provides that the court has discretion to order redaction and replacement of information in papers filed previous to enactment and, if the court deems it necessary, under the standard of Rule 216.1 to order the offending paper sealed. Further, the measure allows the court to "look back" in the case and order redac- tion of papers already filed in a pending action upon motion or sua sponte.

The measure requires the plaintiff in an action arising out of a consum- er credit transaction to include the last four digits of the defendant's account number, if any. If the defendant appears and denies responsibil- ity for that account, the court may review plaintiffs amended paper in-camera or, if filed under the standard of Rule 216.1, under seal. The Committee recommends addition of a new subdivision (i) to CPLR 3016, making clear the obligation to plead the last four digits of the defend- ant's account number in the complaint asserting a claim arising out of a consumer credit transaction.

We believe that F.R. Civ. P. Rule 5.2, while helpful as a privacy meas- ure for Federal cases, is quite limited in scope, protecting only four specified items of information, and fails to provide the bench with sufficient discretion to order redaction. We recommend that New York lead the way in state practice by enacting in the CPLR a broader rule designed to correct the current practice whereby far too revealing personal information is included or attached to papers for filing in the state courts.

We recognize the important report by the Subcommittee on Electronic Court Records, Council on Judicial Administration, New York City Bar Association, entitled "Report Recommending a New York State Court Rule Requiring That Sensitive Personal Information be Omitted or Redacted From Documents Filed with Civil Courts"(February 2, 2010) and the work of the Civil Court Committee, New York City Bar Association.

This measure would have no fiscal impact on the State. It would take effect immediately.

2011 LEGISLATIVE HISTORY:

OCA 2011-5 Senate 4580 (Bonacic) (Judiciary)