For Attorneys

Privacy and Public Access to Case Files

Introduction

The E-Government Act of 2002 (Pub. L. No. 107- 347), requires the Supreme Court, in accordance with the federal judicial rulemaking process, to develop rules to protect privacy and security concerns relating to the electronic filing of documents and the public availability of documents filed electronically. The Rules Committee, in consultation with its advisory committees, drafted these rules, which are based in large part on the Judicial Conference Privacy Policy. Proposed Appellate Rule 25, Bankruptcy Rule 9037, Civil Rule 5.2, and Criminal Rule 49.1 were published for public comments in 2005 and approved by the Judicial Conference in September 2006. They will be effective on December 1, 2007, unless the Supreme Court or Congress acts to the contrary. Until the time the new rules become official, as the Act provides, the Judicial Conference Privacy Policy is to serve as the interim rules.

In September 2001, the Judicial Conference approved a privacy policy on remote public electronic access to case files. This judiciary-wide policy permitted remote access to civil and bankruptcy case files and required filers to partially redact certain personal data identifiers. However, remote public electronic access to criminal case files was prohibited pending a reexamination within two years. To facilitate that reexamination, the Conference in March 2002 approved creation of a pilot program to allow participating courts to provide such access to criminal case files.

In September 2003, the Judicial Conference noted that the pilot courts had found no evidence of any personal harm resulting from remote public access to criminal case files and that such access upheld the principle that the courts are an open and public institution. The Conference amended the policy to allow remote public electronic access to criminal case documents to the same extent as the public had access to such documents at the courthouse. To address privacy and security concerns, the policy required filers to partially redact certain personal data identifiers from all filed documents. In March 2004, the Conference approved specific guidance and a model local rule for access to criminal cases, similar to the existing guidance for civil and bankruptcy cases. Following necessary modifications to the CM/ECF software, the policy became effective for documents filed on or after November 1, 2004.

The Judicial Conference Privacy Policy

General Principles

The policy establishes the following general principles:

There should be consistent, nationwide policies to ensure that similar privacy protections and access presumptions apply regardless of which court is the custodian of a particular case file.
Notice of these nationwide policies should be given to all federal litigants so that they will be aware that materials submitted in a federal court proceeding could become available on the Internet.
Members of the bar must be educated about the policies and their responsibility to protect their clients by carefully excising all sensitive, private information from filed documents and making all appropriate motions to protect documents from electronic access.
Except where otherwise noted, the policies apply to both paper and electronic files.
Electronic access to docket sheets through PACER and to court opinions on court websites will not be affected by these policies.
Nothing in these recommendations is intended to create a private right of action or to limit the application of Rule 11 of the Federal Rules of Civil Procedure.

Source: Report of the Proceedings of the Judicial Conference of the United States, September/October 2001, at 48-50.

Specific Case-Type Policy Guidance

Civil Case Files: Documents in civil case files must be made available electronically to the same extent as in paper, with one exception: Social Security cases must be excluded from remote public electronic access. (Under Civil Rule 5.2, to become effective on December 1, 2007, immigration cases also will be excluded from remote electronic public access.)

A document’s filer is responsible for redacting personal data identifiers:

Social Security numbers to the last four digits
financial account numbers to the last four digits
dates of birth to the year
names of minor children

Criminal Case Files: Documents in criminal case files must be available to the public electronically to the same extent they are available at the courthouse.

As with civil cases, a document’s filer has the obligation to partially redact personal identifying information before filing it, including:

Social Security numbers to the last four digits
financial account numbers to the last four digits
dates of birth to the year
names of minor children
home addresses to the city and state (Note: This provision was added to address heightened security concerns in criminal cases.)

Certain criminal documents are not to be publicly available either remotely or at the courthouse due to security and law enforcement issues unique to criminal case files, including:

unexecuted summonses or warrants of any kind
pretrial bail or presentence investigation reports
statements of reasons in the judgment of conviction
juvenile records
documents containing identifying information about jurors or potential jurors
financial affidavits filed pursuant to the Criminal Justice Act
ex parte requests for authorization of investigative, expert, or other services pursuant to the Criminal Justice Act
sealed documents

Bankruptcy Case Files: Documents in bankruptcy cases should be made generally available electronically to the same extent paper documents are available at the courthouse. The same policy restricting the use of certain personal identifiers in civil cases should be applied. Upon recommendation of the Judicial Conference, 11 U.S.C. § 107 has been amended to add privacy and security concerns as a basis for restricting public access to a document. The Bankruptcy Code and Rules have been amended to allow the court to collect a debtor's full Social Security number but display only the last four digits. (See below for detailed information about special procedures governing bankruptcy cases.)

Appellate Case Files: Appellate case files are to be treated the same way in which the files are treated at the lower court level.

Policy Implementation

Most courts have implemented the Judicial Conference privacy policy by adopting local rules or procedures. Most of these courts have also posted notices for attorneys and litigants to inform them about public access to case files, including access through the Internet. The Committee on Court Administration and Case Management has developed guidance by means of a model local rule and a model notice.

Questions about the policy or its implementation should be addressed to the Court Administration Policy Staff, at 202-502-1560.

Unredacted Filings

Under the Judicial Conference privacy policy (and under the proposed federal rules), a party may file an unredacted version of a document under seal, which the court must retain as a part of the record. The court retains the authority to require a party to file a redacted copy of the document for placement in the public file. In August 2004, the E-Government Act was amended to provide for an additional method of handling redacted documents through the filing of a “reference list” that would include the complete version of each personal identifier and a corresponding partially redacted version of each identifier. The redacted version of the identifier would be used in all documents and be deemed to represent the full identifier. The “reference list” would be filed under seal and would be able to be amended as necessary. Use of the “reference list” would eliminate the filing of two versions of a document – one unredacted (and automatically sealed) and one redacted, while at the same time allowing the inclusion of complete identifiers in one protected document when such information is necessary.

Special Privacy Policy Considerations Affecting Bankruptcy Cases

Bankruptcy Rule 1005: In accordance with the Judicial Conference’s privacy policy requiring modification to or redaction of personal identifiers, amended Bankruptcy Rule 1005 directs that the caption of the bankruptcy petition include only the last four digits of the debtor’s Social Security number. Because the petition is available to the public via CM/ECF and PACER, the debtor’s full Social Security number should not be included in the caption of a bankruptcy petition.
Official Forms 1, 5, and 16A: Official Forms 1 (Voluntary Petition) and 5 (Involuntary Petition) incorporate the requirement to partially redact the debtor’s Social Security number. Under Official Form 16A (the full caption), subsequently filed papers may include only the last four digits — or no Social Security number at all if Official Form 16B (the short caption) were used.
Bankruptcy Rule 1007: Although compliance with the Judicial Conference’s privacy policy is designed to protect the debtor’s full Social Security number from publication on the Internet, the court and parties to a bankruptcy case still need access to that information.
Bankruptcy Rule 1007(f), requires debtors to “submit” to the court (not “file”) a verified statement under penalty of perjury indicating their full Social Security number or that they do not have a Social Security number. Because this document is not “filed” with the court, it should not be posted on the Internet or become part of the public case file. CM/ECF technology accommodates a “submission” accessible to the court but not the public.
Bankruptcy Rule 2002(a)(1): Bankruptcy Rule 2002(a)(1), requires clerks to include the debtor’s full Social Security number on a § 341 notice. The Committee Note states that the copy of the § 341 notice that comes back to the court from the noticing center should have only the last four digits of the debtor’s Social Security number (because the document would be filed in the case and would therefore be available to the public either electronically or in the court’s paper files). As noted above, Official Form 16A (the full caption) requires that other bankruptcy papers include only the last four digits — or no Social Security number at all if Form 16B (the short caption) is used.
Bankruptcy Code: Section 342(c) of the Bankruptcy Code requires only the last four digits of the debtor’s taxpayer identification number, which is usually his or her Social Security number, on most notices given by the debtor to creditors. If the notice concerns an amendment to the schedules which adds a creditor, the debtor is required to include the full taxpayer identification number on the copy of the notice sent to the creditor and the last four digits of the number on the copy of the notice filed with the court.