Private Information, Family Law Pleadings, and CRC Rule 1.201

By: Michael C. Peterson, CFLS

Sometimes California Rules of Court outside of Title 5 (i.e. rules applicable to family law proceedings) escape notice by family law practitioners (despite all statutes and judicial counsel rules being generally applicable to family law proceedings per CRC Rule 5.2). I recently came across one such rule effective on January 1, 2017, while we were researching our client's remedies as against an attorney, and her client, who filed our client's highly personal information as exhibits to support the claims in their motion. They negligently failed to redact the identifying information in the bank statements, and checks, which is extremely distressing to our client and an invitation to identity theft.

This rule creates new authority requiring the mandatory redaction of private information from court pleadings. CRC Rule 1.201 provides in pertinent part:

"(a) Exclusion or redaction of identifiers

To protect personal privacy and other legitimate interests, parties and their attorneys must not include, or must redact where inclusion is necessary, the following identifiers from all pleadings and other papers filed in the court's public file, whether filed in paper or electronic form, unless otherwise provided by law or ordered by the court:

(1) Social security numbers

If an individual's social security number is required in a pleading or other paper filed in the public file, only the last four digits of that number may be used.

(2) Financial account numbers

If financial account numbers are required in a pleading or other paper filed in the public file, only the last four digits of these numbers may be used.

(b) Responsibility of the filer

The responsibility for excluding or redacting identifiers identified in (a) from all documents filed with the court rests solely with the parties and their attorneys. The court clerk will not review each pleading or other paper for compliance with this provision...."

On nearly a daily basis, many family law practitioners examine and use documents containing information within the scope of CRC Rule 1.201, in fashioning their arguments to the Court. Examples include paycheck stubs, credit applications, canceled checks, bank or credit card statements, and tax returns containing social security numbers. Depository and investment account statements contain account numbers. Often such documents come to be filed as exhibits to declarations and contain information that impacts court's decisions and rulings.

Until January 1 of this year, custom and convention generally dictated that a family law practitioner redact all but the last four digits of social security and account numbers, and this has been how the professionals among us conducted ourselves. But statutory authority had simply provided that such information “may be” redacted by the filer without mandating such redaction (see Fam. C. § 2024.5), and a statute provided (for a short time) for procedures to seal pleadings containing identifying information about assets and debts. Fam. C. § 2024.6 allowed for the sealing of a pleading containing private identifying or financial information. It was held unconstitutional by In re Burkle (2006) 135 CA4th 1045, 37 CR3d 805 because the statute, allowing an entire pleading to be sealed if it contained private personal or financial information, was found to infringe the public’s First Amendment right to right to access other information that might law outside a recognized zone of privacy within the public record. Therefore, the statute was overly-broad since less-intrusive means, such as redaction, could serve the same purpose. BTW, one of the many reasons Mr. Arnold urges utilizing mediation or collaborative divorce is in order to avoid your divorce records, including unseemly accusations or your private financial information, being available to anyone under Burkle and the California Constitution.

Now, with CRC Rule 1.201, custom and convention is codified regarding redaction of personal identifying and financial information; social security numbers and financial account numbers must be redacted and only the last four digits can be included in pleadings and exhibits. However, the question remains, how does one enforce the rule (especially if Fam. C. § 2024.6 is unavailable), and what disincentives exist to prevent the bell from being wrung in the first place? Unfortunately, the rule does not impose attorney fee or other sanction type consequences.

So what do you do if this happens to you or your client? The remedy should be an ex parte motion to have the court staff redact the offending information and purge the records of such information. However, I have run into this issue and another problem emerges, one of already-scanned documents in the electronic filing system of Riverside County. It seems that court staff should simply be able to redact, re-scan, and re-enter the imaged document into the electronic filing system. But upon my request that a local bench officer order the same, I was met with resistance because this is apparently not so easy to do as one might think. I never did learn why exactly this solution was problematic, whether it is to do with time-costs involved for staff, lack of redaction oversight of court staff, technological problems with revising imaged documents in the electronic filing system, or some other issue such as internal rules for court staff not to alter documents received. But an efficient solution through the court clerks and staff needs to be created to allow litigants aggrieved by the opposing party’s failure to abide by CRC Rule 1.201 with a quick, low-cost remedy.

There ought to be some form of strong sanction against a party or attorney who violates CRC Rule 1.201. Personally, I am scared to death of identity theft, and I am surprised identity thieves do not use court records as a harvesting ground for private information (or, perhaps, they do). There is no record of who requests and obtains court records, and now they are often available on-line such that a fake identity can be made to obtain private information (i.e. one could be dealing with multiple layers of identity theft, a stolen identity can be used to open a credit card to purchase court documents to steal more identities). Moreover, the havoc that it can create with baseless money judgments against an innocent person, decreased credit ratings, and hours of time and energy to (try to) fix one’s stolen identity is mind-boggling. And I say “try to” with some cynicism in connection with fixing identity theft occurrences because sometimes corrected results are impossible to obtain. Certain type of information simply should not be allowed into the record in the first instance. So, the sanction should be commensurate with the risk of harm caused by the lack of diligence of a litigant or his/her attorney. Monetary sanctions are most appropriate, because money problems are the primary result a violation CRC Rule 1.201. If so, how much is an appropriate sanction amount? In the old west, it was a hanging offense to steal a horse because there was an inability for law enforcement to recover stolen horses. So too now there is such an inability for law enforcement to recover/delete stolen identities. If your social security number ends up on some dark-web site, good luck to you scrubbing it from the Internet. Hang ‘em high, I say!

A future option is to modify CRC Rule 1.201(b) and expressly require court staff to review pleadings and exhibits for private identifier and financial information. Of course, the increased costs to the court will be high and courthouse budgets are already at their breaking point. But the problem of identity theft (i.e. the gravity of risk of harm to innocent litigants) looms so large that such precautions should be enforced. To the extent that the public fisc cannot absorb clerks policing filings in this way, all the more reason why the cost and consequences for same should be shifted to the attorneys or parties who wrongly introduce personal data into the public record.

Litigants and practitioners need to be keenly aware of, and abide by, CRC Rule 1.201. Attorneys should meet with their paralegals and other staff to train them to assure that documents containing private information are properly redacted, and attorneys themselves should be double-checking every page that goes to be filed with the court. Bench officers need to facilitate redactions when privacy violations occur. Quick, effective remedies need to be in place to cure violations of CRC Rule 1.201.

And, teeth in the form of financial consequences needs to be added to the rule. In time, attorneys will take notice and self-represented parties will learn of this too - indeed, it would be a simple matter for the Judicial Council to add (yet another) warning that financial documents must be redacted for the court to accept them for filing.

Author: Michael C. Peterson, CFLS