Wisconsin Judicial ConferenceNovember 11, 2015

Presented by Hon. Gerald P. PtacekCircuit Court of Racine County

PROTECTING INFORMATION IN COURT RECORDS:

CLARIFYING THREE PROBLEM AREAS

Three new rules

1) keeping SSNs and financial account numbers out of open court files

2) identifying confidential information when filed3) providing a procedure for motions to seal

THREE NEW RULES

• Burden is on the filer – to identify confidential information– to move for its protection– to verify that it has been redacted

• Prospective rule– old documents only on motion

RECURRING THEMES

801.19: Protecting sensitive numbers

• Why: prevent identity theft and protect privacy• What: omit or redact 5 types of numbers– social security number– employer/tax ID– financial account numbers– passport number– driver license number

• 20 other states, federal courts have similar rules

NEW WIS. STAT. 801.19 – PROTECTING SENSITIVE NUMBERS

Protecting sensitive numbers

• Who: anyone who files a document– attorneys and pro se litigants– judges writing orders and opinions

• Where: all court case filings– forms, briefs and exhibits– all cases, even confidential case types

• When: documents filed 7/1/16 and after

PROTECTING SENSITIVE NUMBERS

Filer’s options

1) Simply omit the protected information -OR-2) If necessary to the action, submit on new

“protected information form” -OR-3) If document already in existence (exhibit),

submit redacted copy for public file and unredacted copy attached to form

FILER’S OPTIONS

Or put another way…

• For a new document (brief, order), omit it– if unnecessary, just leave the number out– if necessary, submit on protected info. form

• For existing document (exhibit), black it out– if unnecessary, just black out the number– if necessary, submit on protected info. form

OR PUT ANOTHER WAY…

Confidential information form

• Modeled on confidential petition addendum used for SSNs in family cases

• Sensitive numbers go on form – IF needed• If a document too difficult to redact, party can

submit the whole document attached to form• Clerk will treat form and attachments as

confidential – on paper and in CCAP

PROTECTED INFORMATION FORM

• If a party fails to comply, court may seal improperly filed documents, order new filing

• If party reveals another person’s protected information– court may impose attorney fees and costs– court may sanction as contempt

ENFORCEMENT AUTHORITY

801.20: Confidential documents

• Problem: parties assume documents are confidential -OR-

• confidential material is not obvious to the clerk– appears in an attachment– buried in a brief– stamped “confidential” but unclear why

• Areas of ambiguity: medical records, victim information, child parties, QDRO

NEW 801.20 –CONFIDENTIAL DOCUMENTS

Resolving the ambiguity

• Solution: list of documents made confidential by statute– list prepared by Director of State Courts Office

• No motion necessary for the usual suspects: – presentence investigation– marital financial disclosure– victim notification cards– all the confidential case types

• If it’s not on list of confidential documents, parties must move to seal, stating rationale

RESOLVING AMBIGUITY

801.21: Sealing

• Problem: No statutory sealing procedure or form, all based on case law– hard for pro se & even some attorneys

• New rule provides procedure for sealing– not intended to change substantive law – new sealing form requested

• Burden on parties: if information not listed in 801.19 or 801.20, party must move to seal

NEW 801.21 – SEALING

• Court reviews based on statutes, common law– balancing test of Bilder v. Delavan Township– least restrictive means that achieves objective

• Court determines who can view• Clerk seals as directed by court• Court record: “Plaintiff’s medical record sealed

by order of Judge Jones”• Under temporary seal until court can review

LEGAL ANALYSIS

Let sleeping dogs lie

• Clerk does not have to redact documents filed before 7/1/16 except on motion

• Motion to redact filed by person affected– must identify exact location of information in file

• Clerk will handle actual blacking out– using new redaction software for electronic docs

• Party must verify that redaction made

OLD DOCUMENTS

Transcripts

• Court reporter will report protected numbers if said in court

• Parties must request redaction from transcript– identify by page and line– within 30 days of filing with clerk, or with

permission of court– court reporter provides replacement pages

• Not kept confidential before redaction – unlike federal court

TRANSCRIPTS

More forms!

1) Protected information form– for submitting the five numbers– for attaching a document that can’t be redacted

2) Form to request sealing of court record– for an item of information, like an address – or a whole document, like a medical report

3) Form to request sealing of transcript– for an item of information, like a name– or a whole section, like a confidential informant(??)

NEW FORMS

Conclusion

• No more personal identifiers and financial account numbers in open case files

• Parties will flag confidential information when filing it

• Parties will move to seal information not on list provided by the court

• Greater protection and greater clarity

CONCLUSION