S4580A-2011 Actions

• Feb 17, 2012: PRINT NUMBER 4580A
• Feb 17, 2012: AMEND AND RECOMMIT TO JUDICIARY
• Jan 4, 2012: REFERRED TO JUDICIARY
• Jun 24, 2011: COMMITTED TO RULES
• May 23, 2011: ADVANCED TO THIRD READING
• May 18, 2011: 2ND REPORT CAL.
• May 17, 2011: 1ST REPORT CAL.741
• Apr 12, 2011: REFERRED TO JUDICIARY

S4580A-2011 Votes

S4580A-2011 Memo

BILL NUMBER:S4580A

TITLE OF BILL:
An  act to amend the civil practice law and rules, in relation to confi-
dentiality in papers filed in civil proceedings

This is one in a series of measures being introduced at the  request  of
the  Chief  Administrative Judge upon the recommendation of her Advisory
Committee on Civil Practice.

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)

S4580A-2011 Text

 S T A T E   O F   N E W   Y O R K
 
 4580--A
 2011-2012 Regular Sessions
 I N  SENATE
 April 12, 2011
 
 Introduced  by Sen. BONACIC -- (at request of the Office of Court Admin
 istration) -- read twice and ordered printed, and when printed  to  be
 committed  to the Committee on Judiciary -- recommitted to the Commit
 tee on Judiciary in accordance with Senate Rule 6, sec. 8 -- committee
 discharged, bill amended, ordered reprinted as amended and recommitted
 to said committee
 

AN ACT to amend the civil practice law and rules, in relation to  confi
 dentiality in papers filed in civil proceedings
 

THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM
 BLY, DO ENACT AS FOLLOWS:

 

Section 1. The civil practice law and rules is amended by adding a new
 rule 2103-b to read as follows:

 RULE 2103-B. CONFIDENTIALITY IN CIVIL  PROCEEDINGS.  1.  EXCEPT  IN  A
 MATRIMONIAL  ACTION  OR  AS OTHERWISE PROVIDED BY LAW OR COURT ORDER AND
 WHETHER OR NOT A SEALING ORDER IS OR HAS BEEN SOUGHT, THE PARTIES  SHALL
 OMIT  OR REDACT CONFIDENTIAL PERSONAL INFORMATION IN PAPERS SUBMITTED TO
 THE COURT FOR FILING. FOR PURPOSES OF THIS RULE,  CONFIDENTIAL  PERSONAL
 INFORMATION MEANS INFORMATION WHICH IF PUBLICLY FILED WOULD INCREASE THE
 RISK  OF  IDENTITY  THEFT, FRAUDULENT USE OR DISCLOSURES IN VIOLATION OF
 STATE OR FEDERAL LAW.  CONFIDENTIAL PERSONAL INFORMATION  INCLUDES,  BUT
 IS NOT LIMITED TO, A SOCIAL SECURITY NUMBER, A DATE OF BIRTH, A DRIVER'S
 LICENSE  NUMBER,  A  NON-DRIVER  PHOTO  IDENTIFICATION  CARD  NUMBER, AN
 EMPLOYEE IDENTIFICATION NUMBER, A MOTHER'S MAIDEN NAME, AN INSURANCE  OR
 FINANCIAL  ACCOUNT  NUMBER, A CREDIT CARD NUMBER, A COMPUTER PASSWORD OR
 COMPUTER ACCESS INFORMATION, ELECTRONIC SIGNATURE DATA OR UNIQUE  BIOME
 TRIC DATA OR PATIENT MEDICAL INFORMATION.
 2. THE COURT, SUA SPONTE OR ON MOTION BY ANY PERSON, MAY ORDER A PARTY
 TO REMOVE CONFIDENTIAL PERSONAL INFORMATION FROM PAPERS OR TO RESUBMIT A
 PAPER WITH SUCH INFORMATION REDACTED; ORDER THE CLERK TO SEAL THE PAPERS
 OR  A  PORTION  THEREOF  CONTAINING CONFIDENTIAL PERSONAL INFORMATION IN
 ACCORDANCE WITH RULES PROMULGATED BY  THE  CHIEF  ADMINISTRATOR  OF  THE
 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
 [ ] is old law to be omitted.
 LBD09320-02-2
 
       S. 4580--A                          2
 COURTS;  FOR  GOOD  CAUSE, PERMIT THE INCLUSION OF CONFIDENTIAL PERSONAL
 INFORMATION IN PAPERS; OR DETERMINE THAT  PARTICULAR  INFORMATION  IN  A
 PARTICULAR ACTION IS NOT CONFIDENTIAL.
 3.  IN  AN  ACTION  ARISING  OUT  OF A CONSUMER CREDIT TRANSACTION, AS
 DEFINED IN SUBDIVISION (F) OF SECTION ONE HUNDRED FIVE OF THIS  CHAPTER,
 THE COMPLAINT SHALL INCLUDE THE LAST FOUR DIGITS OF THE RELEVANT ACCOUNT
 NUMBERS, IF ANY. IN THE EVENT THE DEFENDANT APPEARS AND DENIES RESPONSI
 BILITY  FOR  THE IDENTIFIED ACCOUNT, THE PLAINTIFF MAY, WITHOUT LEAVE OF
 COURT, AMEND HIS OR HER PLEADING TO ADD  FULL  ACCOUNT  OR  CONFIDENTIAL
 PERSONAL  INFORMATION  BY (A) SUBMITTING SUCH AMENDED PAPER TO THE COURT
 ON WRITTEN NOTICE TO DEFENDANT FOR IN CAMERA REVIEW; OR (B)  IN  ACCORD
 ANCE  WITH  RULES  PROMULGATED  BY THE CHIEF ADMINISTRATOR OF THE COURTS
 FILE SUCH FULL ACCOUNT OR OTHER CONFIDENTIAL PERSONAL INFORMATION  UNDER
 SEAL.
 

S  2.  Rule  3016  of  the  civil practice law and rules is amended by
 adding a new subdivision (i) to read as follows:

 (I) CONSUMER CREDIT TRANSACTION. IN AN ACTION ARISING OUT OF A CONSUM
 ER CREDIT TRANSACTION AS DEFINED  IN  SUBDIVISION  (F)  OF  SECTION  ONE
 HUNDRED  FIVE OF THIS CHAPTER, THE COMPLAINT SHALL INCLUDE THE LAST FOUR
 DIGITS OF THE RELEVANT ACCOUNT NUMBERS, IF ANY.
 

S 3. This act shall take effect immediately.

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