Illinois Bar Journal

November 2013Volume 101Number 11Page 554

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Will Rule 138 privacy provisions be changed before taking effect?

The ISBA supports changes to Rule 138's soon-to-be effective limitations on disclosure of personal identity information in response to concerns raised by divorce lawyers and others.

An Illinois Supreme Court rule adopted last October seemed rather non-controversial on its face: It protects privacy by prohibiting certain "personal identity information" from appearing in publicly filed court documents, and most provisions of the rule became effective on July 1.

However, some bar associations and other advocates - particularly those involved in family law matters - have sought amendments to the rule to eliminate perceived conflicts with other statutes and court rules. While some legal groups and court authorities believe the current version is ready for enactment, others fear the rule could cause unnecessary complications in certain kinds of legal actions.

In response to requests to reconsider the rule from numerous lawyers and bar groups, including the Illinois State Bar Association, the supreme court announced on June 27 that it would delay implementation of sections (c)(2) and (c)(3) of Rule 138 until January 1, 2014. The court's Rules Committee then held a public hearing on October 4 to hear comments from, and ask questions of, the concerned parties.

The ISBA's Family Law Section Council had voted unanimously in June to seek amendments to Rule 138 in relation to the ways in which a minor's names and birth dates are prohibited from public disclosure under the current version of the rule. The proposals were designed to address potential conflicts with other statutes that, for example, require a child's name and birth date to be included in unified orders of child support and joint parenting agreements.

Pursuant to the current provisions of Rule 138, only the minor's initials - not his or her full name - and only the minor's year of birth - not his or her birthday - could be included in such court orders and agreements unless those documents are filed under seal along with a notice stating: "Personal Identity Information Within Court Filing."

Although the family law statutes call for that information to become part of the public record, Rule 138 would allow the protected information to be available for inspection only by the parties, the court, and certain courthouse personnel.

Similar conflicts could arise with name-change statutes that require public disclosure of a person's full date of birth and his or her former and current names. The rule could also complicate probate cases, making it impossible to determine which of several children is to receive a specific gift pursuant to their parents' will. (For a more detailed discussion of potential conflicts, see the August 2013 LawPulse.)

A proposed fix

On behalf of the Family Law Section, ISBA General Counsel Charles J. Northrup sent a letter to the supreme court's rules committee recommending a relatively simple amendment to sections (c)(2) and (c)(3) of Rule 138. The proposed language, in italics, was tacked on to the existing rule as follows:

(c) A redacted filing of personal identity information for the public record is permissible and shall only include…

(2) the year of the individual's date of birth except where required by statute, rules of the Supreme Court, or as otherwise necessary to implement an order or judgment of court;

(3) the minor's initials except where required by statute, rules of the Supreme Court, or as otherwise necessary to implement an order or judgment of court.

Northrup attended the public hearing and said the rules committee showed interest in the proposals made by the ISBA and other groups, but it also heard comments from other groups and courthouse officials who spoke in support of the current version of the rule.

"The committee was engaged at the hearing, with lots of questions," Northrup said. "But as is typical, the committee gave no indication what it might be thinking."

Northrup said that in response to questions from the committee, some attorneys from other groups testified that they thought the ISBA's curative language would address many of their concerns. Still, there's no guarantee the committee will recommend to the court that it adopt those proposals.

"There were also some groups - notably the Cook County [Circuit] Clerk - who said the rule is just fine the way it is and they are implementing it already," Northrup said. "I have no clue what the court will do."

Adam W. Lasker <> is a lawyer in the Chicago office of Ancel, Glink, Diamond, Bush, DiCanni & Krafthefer.

Member Comments (1)

How did the bar association come to support these ridiculous--and unneeded--rules that do nothing to protect anyone's privacy and make it all the more difficult for practioners to navigate through potential malpractice mine fields?

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