BLACK LIVES MATTER

Pasternak & Fidis Reporter

November 30, 2016

Privacy and the Courts

Most of us are concerned with protecting our personal information from getting into the wrong hands.  We take precautions to protect our privacy such as password protecting computers and mobile devices, using passwords for online services, limiting personal information on social media profiles, and carefully choosing when to give out social security numbers and birth dates.

Court files are public records. Most such files are available to be reviewed in person by any member of the public; eventually they may be accessible over the internet. If you are ever a party in a legal dispute you may be concerned about how to protect your personal information from becoming available in a public record.  In recent years, courts in the District of Columbia, Maryland and Virginia have enacted rules to safeguard the privacy of personal information of parties to lawsuits. At the same time, court records are becoming more accessible online.

Personal Information in Court Filings

District of Columbia.  D.C. Superior Court Civil Rule 5 provides that an individual’s social security number or taxpayer identification number and financial account numbers must be redacted in any electronic or paper filing unless the court orders otherwise. Proposed Rule 5.2 of the Domestic Relations Rules tracks the Civil Rule. It has become the practice in the Family Court to redact such information from court filings. When Rule 5.2 is adopted, it will become mandatory. Counsel, or the unrepresented party, is responsible for redacting his or her own personal information from any filing.  If a party makes a filing without redacting his or her information, then the party waives the protection of Rule 5.2.  If a party wishes to include personal identifiers in a document, then a motion to seal an unredacted document must be filed with the court.  Otherwise, this personal information will become part of the public record.  In D.C., no case or document can be sealed without a court order.  A court order sealing a document or case means that protected information cannot be examined except as authorized in the court order.

Maryland.  Maryland Rule 1-322.1 requires that all court filings exclude social security numbers, taxpayer identification numbers, and financial and medical account identifiers, subject to exceptions or court order.  A filing may include the last four digits or characters if it is necessary to identify the content.  A party waives protection under this Rule if he or she files without redaction or under a court order sealing the file.

Virginia.  Code of Virginia §20-121.03 requires that counsel or an unrepresented party ensure that the social security numbers of any party or minor child of a party, and financial account numbers be contained in a separate private addendum.  The addendum is filed with the pleading but is sealed by the clerk and made available only to the parties, their attorneys, court personnel and such other persons as the court determines.

Public Access to Court Records

Courts in D.C., Maryland and Virginia provide access to some case information via the internet and permit personal inspection of court records.  Generally, an individual may personally inspect most case files, including the files of civil cases, divorce cases and criminal cases.  Some types of court files, such as adoption files, are not open to the public.  If a court file is otherwise public, anyone can review it unless there is a court order sealing the file.  Such orders are not the norm.  Until recently all pleadings were filed in paper form at the courthouse, but now courts are in the process of permitting or requiring electronic filing so that court files exist in an electronic format that could become open to the public.  For example, D.C. Superior Court requires electronic filing for many types of cases.  Currently, only the attorneys in the case, or the self-represented parties in the case, can view or download all the documents in the case file.  An interested party can still obtain paper copies by going to the courthouse.

Other courts are in the process of studying or implementing electronic filing.   With the advent of electronic court filing the day may come when the courts will decide to make all court files available electronically to anyone. Like social media, when court filings become readily available online, anyone can check this information at any time, making it virtually impossible to safeguard private information that is in a court file from getting into the public domain.

A wealth of information can be gleaned from viewing a court docket in a particular case.   The docket of a case is a court record that includes the case number, the names of the parties, parties’ addresses, the type of case, the case status, the attorneys’ names, the dates that pleadings were filed and the titles of the pleadings, scheduling information for court deadlines and hearings, the date of court rulings and orders, and the final disposition of the case.

In Maryland, an interested person can easily obtain basic case docket information by going to the Maryland Judiciary Case Search website (casesearch.courts.state.md.us/casesearch/) and searching on a person’s name, a company name, an attorney’s name or a case number.   For example, if a search is run by the name of an individual, a list of all cases in which that person was a plaintiff or defendant is displayed.  The user can select the matters he or she is interested in and the docket for those cases will be displayed.  An individual can obtain traffic, criminal and civil case records from the district courts and criminal and civil (including domestic relations) case records for the circuit courts. At present, the actual pleadings in the case are not available online.

Protecting Personal Information

  • There are some steps lawyers and parties can take to protect personal information, whether a case is in litigation or not:
  • Redact social security numbers, dates of birth and all but the last four digits of financial accounts in documents before providing them to opposing counsel, a third party, or a court.
  • Settlement agreements should not include social security numbers and financial accounts should be referenced by their last four digits only.  In some cases it may be appropriate to have a separate schedule with complete information of the parties’ assets and liabilities. The agreement could provide that this schedule not be filed with the court as part of the divorce proceeding, but may be used in a future proceedings to resolve a dispute under the agreement.
  • Qualified domestic relations orders and similar orders that transfer retirement assets from one spouse to the other should not include a party’s social security number and date of birth. Such information can be provided in a separate letter to the plan administrator.
  • Parties should not use an employer’s internet and email for communications with their lawyers because this information is generally not private and can be scrutinized by the employer or be subpoenaed by the opposing party.
  • Parties in settlement negotiations may enter into a confidentiality agreement prior to exchanging sensitive information or documents, for example, business records, to prohibit the documents from being disseminated to third parties.  If a case is in litigation, a party may file a motion for protective order to achieve the same objective as a confidentiality agreement.
  • Parties may want to consider binding arbitration instead of a court-based resolution process to resolve a dispute.  Arbitration proceedings are not open to the public as are courtrooms.  Any materials disclosed in these proceedings can be protected through a confidentiality agreement or protective order.
  • The best way for parties to prevent private information from becoming part of a public court record is to settle their legal dispute and stay out of court.