Senate Bill S4580A

                                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)