Relates to confidentiality in papers filed in civil proceedings.
TITLE OF BILL: An act to amend the civil practice law and rules, in relation to confidentiality 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 confidentiality 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 presumptively public once filed with the county clerk or the clerk of court. Court records are presumptively open. See, e.g., Nixon v Warner Communications, 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 information).
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 redaction 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 consumer credit transaction to include the last four digits of the defendant's account number, if any. If the defendant appears and denies responsibility 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 defendant'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 measure 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)
STATE OF NEW YORK ________________________________________________________________________ 4580--A 2011-2012 Regular Sessions IN 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 THEEXPLANATION--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.