senate Bill S4580A

Relates to confidentiality in papers filed in civil proceedings

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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actions

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

Summary

Relates to confidentiality in papers filed in civil proceedings.

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Bill Details

Versions:
S4580
S4580A
Legislative Cycle:
2011-2012
Current Committee:
Senate Judiciary
Law Section:
Civil Practice Law and Rules
Laws Affected:
Add R2103-b, CPLR

Sponsor 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)

view bill text
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 4580--A

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                             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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