Pleadings, Privacy and Ethics
The PACER system,89 started as a pilot program in 1988, and the CM/ECF system,90 first implemented as a pilot program in 1996, both received additional support under the Act. Consistent with the Act, the Judicial Conference of the United States issued a 2006 report recommending the adoption of uniform national policies regarding privacy protection for federal court records.91 The report noted that federal court case files, unless sealed or otherwise subject to restricted access by statute, federal rule or other policy, are presumed to be available for public inspection and copying.92 Indeed, the tradition of public access to federal court case files is rooted in constitutional principles.93 The report noted, however, that “public access rights are not absolute, and courts balance access and privacy interests in making decisions about the public disclosure and dissemination of case files.”94 The report concluded that “[c]ertain types of cases, categories of information, and specific documents may require special protection from unlimited public access[.]”95 On Dec. 1, 2007, amendments to the federal civil, criminal and appellate and bankruptcy rules of procedure, which require that personal identification information be redacted from documents filed with any federal court, took effect.96 The information required to be redacted by these rules differs slightly from the recommendation and includes full Social Security and taxpayer identification numbers, full names of minor children, full financial account numbers, year of an individual’s birth and in criminal cases, home addresses.97 In partial explanation of the new rules, the Judicial Conference noted 89. PACER stands for Public Access to Court Electronic Records. The PACER system, which is used by all federal district courts and circuit courts of appeal except the Court of Appeals for the Federal Circuit, permits citizens to gain access to court records through an internet-based electronic system. See http://www.pacer.gov. 90. CM/ECF stands for Case Management/Electronic Case Files. The CM/ECF system permits attorneys and parties to file and retrieve court documents through an internet-based electronic system. See http://www.uscourts.gov/courtrecords. 91. See R eport of the Judicial C onference C ommittee on C ourt A dministr ation a nd C ase M a nage ment on P rivacy a nd P ublic A ccess to E lectronic C ase F iles (Dec. 2006), available at http:// www.privacy.uscourts.gov/Policy.htm. 92. Id. (citing Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978) (holding that there is a common law right “to inspect and copy public records and documents, including judicial records and documents”)). 93. See id. (citing Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 575-78 (1980)). 94. Id. (citing Nixon, 435 U.S. at 596 (“[E]very court has supervisory power over its own records and files, and access has been denied where court files might have become a vehicle for improper purposes”)). 95. Id. The report recommended special protection for “identifiers” such as Social Security numbers, dates of birth, financial account numbers and names of minor children, and recommended that public access to criminal case records should be restricted. 96. See F ed. R. C iv. P. 5.2: F ed. R. C rim . P. 49.1; F ed. R. A pp. P. 25(a)(5); and F ed. R. Ba nkr . P. 9037. 97. Additional sensitive information may also require protection. See Fed. R. Civ. P. 5.2, Advisory Committee Notes (“It may also be necessary to protect information not covered by the redaction requirement—such as driver’s license numbers and alien registration numbers—in a particular case.”). Bankruptcy provisions recognize several other forms of redaction provisions. Section 107 of the Bankruptcy Code permits motions, by a “party in interest,” to protect trade secrets and confidential information, or to “protect a person with respect to scandalous or defamatory matter” in a document filed in a bankruptcy case. 11 U.S.C. § 107(b); See In re French, 401 B.R. 2965 (Bankr. E.D. Tenn. 2009) (reviewing legislative history of Section 107); see also 10 Collier on Bankruptcy, ch. 107 (2008) (same). Separately, Bankruptcy Code § 332 permits a court to appoint a “consumer privacy ombudsman,” to provide the court with information regarding “personally identifiable information” that may be the subject of a sale or lease in bankruptcy. 11 U.S.C. § 332. In effect, the ombudsman represents the interests of absent third parties (the subjects of the sensitive information). See, generally, Walter W. Miller, Jr. & Maureen A. O’Rourke, Bankruptcy Law vs. Privacy Rights: Which Holds The Trump Card?, 38 Hous. L. R ev. 777 (2001-2002) (outlining problem of consumer information in bankruptcy cases).
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Volume 2, I ssue 1