February 2014 • Volume 102 • Number 2 • Page 62
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Some Supreme Court Rule 138 privacy provisions delayed until 2015
Effective January 1, the rule keeps personal information like social security numbers out of public civil court files. But a bar on using birthdates and names of minors is put off till next year.
Continuing a process that began more than a year ago, the Illinois Supreme Court has officially implemented an amendment to a rule intended to protect certain privacy interests of civil litigants by prohibiting confidential information from inclusion in public court files.
Under the rule, in civil cases, specified personal identity information is to be excluded from the public court file, including social security and individual taxpayer identification numbers, driver's license numbers, financial account numbers, and debit and credit card numbers.
In addition, the birth dates and names of minors are also to be excluded. But the prohibition of using birthdates and names of minors - one of the issues that raised the most concern - will not take effect until 2015.
Some members of the family bar and family law organizations had taken issue with the rule, which was adopted in October 2012, and had amendments added that were to take effect in July 2013. But the court delayed implementation of the amendments and held a public hearing last October. The result was Amended Rule 138, which took effect on January 1.
Family law practitioners worried that leaving names and birthdates of minors out of the public file would conflict with family-law statutory provisions and complicate the filing of custody, parentage, order of protection, child support enforcement, and other actions.
For example, those against whom an order of protection is filed need to know the name of the child they are barred from contacting. Employers asked to garnish wages for child support must know the social security numbers of the employee and the person to whom the funds are to be transferred. The initial filing of a divorce case requires that all names of children be identified.
"The purpose of Rule 138 is to address practical considerations associated with the supreme court's goal of protecting against identity theft in the age of electronic records," said Michael Tardy, director of the Administrative Office of the Illinois Courts. "The rule is intended to support the ultimate objectives of e-filing, including remote access to actual documents filed in a case. The amendments filed December 24, 2013 provide clarifications to the process and allow additional time for consideration of the deferred provisions regarding birth dates and minor names, as these identifiers impact high volume calls such as parentage and child support cases."
Under the rule, attorneys may still file public "redacted" documents containing personal identity information, but these filings may only include the last four digits of a social security or individual taxpayer identification number, the last four digits of a drivers license number, and the last four digits of credit and debit card numbers. In addition, beginning in 2015, redacted filings could include an individual's date of birth and a minor's initials, but those provisions do not take effect until 2015.
Tension between statutes and rule
In 2011, the ISBA expressed support for the court's efforts to address the problem of identity theft by way of public documents. But in a letter to the court prior to the public hearing on Rule 138, the ISBA expressed opposition to the non-disclosure of minors' names and birthdates in redacted filings, which are contained in (c)(2) and (c)(3) of Rule 138, on the grounds that they might conflict with other statutes and rules. ISBA suggested language, drafted by the Family Law Section Council, designed to remove that conflict.
While the court did not adopt those suggestions, it did add substantial language to the rule allowing parties to file a "Notice of Confidential Information within Court Filing," which would contain the redacted information and be impounded by the court. The confidential information would be made available to the parties "where it is required by law, ordered by the court, or otherwise necessary to effect a disposition of a matter…."
The confidential information in the impounded document could also be transferred to law enforcement authorities, "guardian ad litem, the State Disbursement Unit (SDU), the Secretary of State or other governmental agencies, and legal aid agencies or bar association pro bono groups." In other words, when the information is needed and required under the family law statute to effectuate an order, the court will allow the information to be made available.
Gary L. Schlesinger, a Lake County family lawyer who has criticized the rule, complained that it conflicts with many family-law statutory provisions. Acknowledging that the impounded confidential filing solves some of the problems, he complained that having to file yet another formal document and then appear before the judge every time a particular matter arises in which the confidential information is needed will add time and expense for litigants.
"The problem I have is there were no divorce lawyers involved in this. There was nobody to [pose] these questions," Schlesinger said. "I guess we're going to struggle with this and try to sort it out. I don't want to get sued by a client because my notice to withhold income for child support was filed in accordance with this rule" but not in accordance with an Illinois Supreme Court case requiring that employers be provided the full social security numbers for wage garnishment, he said.
Time for 'creative thinking'?
Others questioned whether the rules of confidentiality would apply to prove-ups, when divorce lawyers as a matter of procedure identify their clients and the names of their children. This information is recorded by a court reporter. "Are we going to have to start speaking in code?" asked Pam Kuzniar, a Chicago family lawyer and chair of the ISBA's Family Law Section Council.
Kuzniar said she agrees with the need to protect privacy and deter identity theft. She, too, had concerns that some of the provisions in Rule 138 conflict with the family law statutes, including 750 ILCS 5/403 (Pleadings - Commencement - Abolition of Existing Defenses - Procedure), 750 ILCS 5/501 (Temporary Relief), 750 ILCS 5/602 (Best Interests of Child), 750 ILCS 5/607 (Visitation), and 750 ILCS 45/9.1 (Notice to Presumed Father).
The council prepared a memo, which it sent to the Illinois Supreme Court. In addition, council member Michele Jochner testified at the October hearing.
"We agree that identity theft is an issue, but taking a minor's name out doesn't solve anything," she said. In fact, Kuzniar opposes allowing the last four digits of a social security number to be included in a redacted filing, as the amended rule now permits. "I think the last four digits of anyone's social is a gift to identity thieves," she said, adding that the information could easily be used with other information to steal a person's privacy and identity.
Kuzniar suggested getting creative in thinking of ways to solve the problem. "I understand the dilemma," she said. "Remember when our insurance cards used to contain our social security numbers, before HIPAA? That's not the case anymore." She said the courts should continue to work with identity-protection experts and perhaps come up with a new identifying number that could be used in place of a social security number and remain in the court record (and recognized by other relevant agencies).
Kuzniar also noted that since most discovery documents are not in the public court filing, there might be another way to start protecting individuals identity: "Go back and seal all the old divorce files that used to contain all discovery."