1. Protecting Information in Court Records: Clarifying Three Problem Areas
Wisconsin Judicial Conference
November 11, 2015
Presented by Hon. Gerald P. Ptacek
Circuit Court of Racine County

2. Three new rules THREE NEW RULES
keeping SSNs and financial account numbers out of open court files
identifying confidential information when filed
providing a procedure for motions to seal

3. RECURRING THEMES Burden is on the filer Prospective rule
to identify confidential information
to move for its protection
to verify that it has been redacted
Prospective rule
old documents only on motion

4. 801.19: Protecting sensitive numbers
NEW WIS. STAT –
PROTECTING SENSITIVE NUMBERS
801.19: Protecting sensitive numbers
Why: prevent identity theft and protect privacy
What: omit or redact 5 types of numbers
social security number
employer/tax ID
financial account numbers
passport number
driver license number
20 other states, federal courts have similar rules

5. Protecting sensitive numbers
Who: anyone who files a document
attorneys and pro se litigants
judges writing orders and opinions
Where: all court case filings
forms, briefs and exhibits
all cases, even confidential case types
When: documents filed 7/1/16 and after

6. Filer’s options FILER’S OPTIONS
Simply omit the protected information -OR-
If necessary to the action, submit on new “protected information form” -OR-
If document already in existence (exhibit), submit redacted copy for public file and unredacted copy attached to form

7. Or put another way… OR PUT ANOTHER WAY…
For a new document (brief, order), omit it
if unnecessary, just leave the number out
if necessary, submit on protected info. form
For existing document (exhibit), black it out
if unnecessary, just black out the number

8. Confidential information form
PROTECTED INFORMATION FORM
Confidential information form
Modeled on confidential petition addendum used for SSNs in family cases
Sensitive numbers go on form – IF needed
If a document too difficult to redact, party can submit the whole document attached to form
Clerk will treat form and attachments as confidential – on paper and in CCAP

9. ENFORCEMENT AUTHORITY
If a party fails to comply, court may seal improperly filed documents, order new filing
If party reveals another person’s protected information
court may impose attorney fees and costs
court may sanction as contempt

10. 801.20: Confidential documents
NEW –
CONFIDENTIAL DOCUMENTS
801.20: Confidential documents
Problem: parties assume documents are confidential -OR-
confidential material is not obvious to the clerk
appears in an attachment
buried in a brief
stamped “confidential” but unclear why
Areas of ambiguity: medical records, victim information, child parties, QDRO

11. Resolving the ambiguity
RESOLVING AMBIGUITY
Resolving the ambiguity
Solution: list of documents made confidential
by statute
list prepared by Director of State Courts Office
No motion necessary for the usual suspects:
presentence investigation
marital financial disclosure
victim notification cards
all the confidential case types
If it’s not on list of confidential documents, parties must move to seal, stating rationale

12. NEW – SEALING
801.21: Sealing
Problem: No statutory sealing procedure or form, all based on case law
hard for pro se & even some attorneys
New rule provides procedure for sealing
not intended to change substantive law
new sealing form requested
Burden on parties: if information not listed in or , party must move to seal

13. LEGAL ANALYSIS Court reviews based on statutes, common law
balancing test of Bilder v. Delavan Township
least restrictive means that achieves objective
Court determines who can view
Clerk seals as directed by court
Court record: “Plaintiff’s medical record sealed by order of Judge Jones”
Under temporary seal until court can review

14. Let sleeping dogs lie OLD DOCUMENTS
Clerk does not have to redact documents filed before 7/1/16 except on motion
Motion to redact filed by person affected
must identify exact location of information in file
Clerk will handle actual blacking out
using new redaction software for electronic docs
Party must verify that redaction made

15. Transcripts TRANSCRIPTS
Court reporter will report protected numbers if said in court
Parties must request redaction from transcript
identify by page and line
within 30 days of filing with clerk, or with permission of court
court reporter provides replacement pages
Not kept confidential before redaction – unlike federal court

16. More forms! NEW FORMS 1) Protected information form
for submitting the five numbers
for attaching a document that can’t be redacted
2) Form to request sealing of court record
for an item of information, like an address
or a whole document, like a medical report
3) Form to request sealing of transcript
for an item of information, like a name
or a whole section, like a confidential informant(??)

17. Conclusion CONCLUSION
No more personal identifiers and financial account numbers in open case files
Parties will flag confidential information when filing it
Parties will move to seal information not on list provided by the court
Greater protection and greater clarity