The Wisconsin Supreme Court recently passed three new rules, effective July 1, 2016, affecting confidential information in court records. These rules protect Social Security numbers and financial account numbers, require parties to identify confidential information as it is filed, and create forms and procedures for sealing records and redacting information.¹

Taken together, the new rules are intended to reduce the opportunity for identity theft, enhance personal privacy, and provide greater clarity on protecting sensitive information.

The New Rules

• Wis. Stat. section 801.19 provides protection for five specific numbers often found in court records: Social Security, employer and tax identification, financial account (such as bank and credit card), driver license, and passport numbers.

• Wis. Stat. section 801.20 provides a procedure for identifying confidential information when it is filed. The Director of State Courts has created a list of commonly filed documents and case types that the clerk of court will automatically treat as confidential without a motion.

• Wis. Stat. section 801.21 provides a procedure for motions to seal. A party seeking to protect information not covered above must move to seal or redact it and must specify the authority for restricting public access.

Recurring Themes

The new rules share several underlying themes. First, they begin from the position that Wisconsin public policy favors public access to government records and that court records are open to the public unless otherwise provided.²

Second, the rules put responsibility on attorneys and self-represented parties to identify information affected by the rules at the time of filing. The clerk of circuit court and the register in probate are not required to review filings to find affected information.

Third, the new rules operate prospectively. Courts are not required to undertake the daunting task of reviewing records filed before July 1 of this year. However, if parties want to remove Social Security numbers and other identifiers from old records, they may move to do so.

Finally, the rules come with forms to clarify the process and make it more consistent.³ The forms relating to the new rules will be finalized in early June.

Protecting Five Specific Numbers

Wis. Stat. section 801.19 protects five specific numbers that sometimes appear in court filings: Social Security, employer and tax identification, financial account (such as bank and credit card), driver license, and passport numbers.

The objectives of this rule are simply to prevent identity theft and protect personal privacy. The federal courts and at least 20 other state courts have similar rules.

When preparing a new document such as a complaint or motion, parties should omit these numbers and refer to them generically (for example, “plaintiff’s checking account”). If the number is necessary to the action, the party must submit it to the court using a new form similar to the confidential petition addendum for family cases.

When submitting a previously existing document such as an exhibit, the party should redact the number by blanking it out on a copy, so the redacted version can be placed in the court file. As defined by the new rule, “redact” means to obscure individual items of information within an otherwise publicly accessible document. If the number is necessary to the action, the party should submit it on the protected-information form or by attaching an unredacted copy to the form. The court may require the submitting party to produce the original unredacted document if necessary, but it need not be routinely submitted.

This rule applies in all cases, even in confidential matters such as juvenile and guardianship proceedings. The general rules of confidentiality for these cases still have several exceptions allowing nonparty access to the files, so protection of identifying numbers has value here as well.

If a party or the party’s attorney fails to comply with the new rule and files a pleading with the numbers still visible, several things may happen. If a party fails to protect the party’s own information, the protection offered by the rule is considered waived and the pleading can simply remain in the file. The court may, on motion or on its own initiative, seal the improperly filed documents and order a new filing.

If a party fails to protect the information of another person, the court may impose reasonable expenses, including attorney fees and costs, for bringing the motion and preparing the new document. For serious violations, the court may sanction the violation as contempt.

The rule is limited to the five specific items of information. For other identifying numbers, a motion to seal must be submitted, as discussed below.

This rule may result in a change in practice for some firms. For instance, it is common to attach credit card statements and bank statements as exhibits to pleadings and motions. Less often, tax returns and W-2 forms may appear. Attorneys should make sure that support staff are aware of the new rules and take care to redact the numbers before any exhibits are submitted.

As noted above, this rule is prospective in nature. If parties wish to redact the five numbers from old court records, they must file a motion and identify all places in the records where the number appears. The same is true for redaction of transcripts. Forms will be provided to guide this process.

Judges are likewise required to omit the five numbers when writing orders and opinions. Using these mechanisms, public court files will be free of these numbers beginning July 1, 2016.

Identifying Confidential Information

Wis. Stat. section 801.20 requires parties to identify confidential court records at the time of filing. This is often an area of confusion for attorneys, the public, and even court personnel. Attorneys and self-represented litigants may mistakenly assume that certain documents are confidential and that the court will take steps to protect them. Clerks may make the same assumptions, treating certain records as confidential despite the fact that no statute or court order requires it. Parties sometimes also submit confidential material without identifying it for the court, burying it in a brief, or submitting it as an attachment.

To address these issues, new Wis. Stat. section 801.20 requires the Director of State Courts Office to publish a list of the commonly filed documents and case types that the court will automatically treat as confidential without a motion because they are protected by statutes, court rules, or case law.

For example, the clerk will continue to recognize all proceedings for adoption, guardianship, children’s and juvenile justice codes, substance abuse and mental health, and protective services and placement as confidential without any motion or notice by the parties. Likewise, the clerk will recognize presentence investigation reports, family financial disclosures, and confidential petition addendum forms as confidential without a motion.

For other documents protected by statute, the party must properly identify the document at the time it is filed. These will include child pornography as evidence, criminal competency determinations and criminal mental-disease reports, pupil records provided for in camera inspection, treatment records of criminally committed individuals, and evidence acquired through wiretaps. The clerk is not required to review documents to look for confidential material.

If a party wishes to protect a document or item of information that is not on the list, the party must move to seal as described below.

Issues to Keep in Mind

There are several important areas in which statutory protection is unclear and the case law is not fully developed. Attorneys should consider a motion to seal in cases in which protection is needed for the following information:

Medical and Psychological Records. Although health care records are confidential in many contexts, that confidentiality does not necessarily extend to the records once they are submitted as part of a court proceeding. A motion to seal medical records may be based on the privacy interests expressed by HIPAA and by Wis. Stat. section 146.82.⁴ There are also specific statutory protections for some medical and psychological records.

Crime Victim Information. Wisconsin law requires that crime victims and witnesses be treated with fairness, dignity and respect for their privacy; they should not have their personal identifiers used for a purpose unrelated to official government business.⁵ However, confidentiality for crime victim names and addresses is not specifically provided in circuit court proceedings.⁶ To ensure that a victim’s name, address, or other information is kept confidential, attorneys should consider filing a motion to seal.⁷

Children’s Names. Because cases involving children are confidential under the Children’s Code and the Juvenile Justice Code,⁸ many people assume that children’s names are always confidential. In most other matters, the names of children are not confidential without a specific motion and court order.

Qualified Domestic Relations Orders (QDROs). The financial disclosure form and exchange of financial information are confidential in family cases, so parties sometimes assume that a qualified domestic relations order will be confidential as well. These orders often contain Social Security numbers and account numbers. If a QDRO is filed with the court, both a redacted and unredacted version should be submitted in accordance with Wis. Stat. section 801.19.

Driver Records. The federal Driver’s Privacy Protection Act (DPPA) provides a federal cause of action for using personal information obtained from a state department of motor vehicles for any purpose other than allowed by the statute. The scope of the privacy provided by federal law is currently being litigated.⁹

By highlighting these areas of inconsistent practices, the rule may promote additional case law and statutory development.

Sealing Court Records

Wis. Stat. section 801.21 provides procedures and forms for making a motion to seal or redact. The rule is procedural in nature and is not intended to expand on the current case law.

The rule states that “seal” means to order that a portion of a document or an entire document not be accessible to the public. Sealing orders apply to the information in all formats:

• For paper court files, sealed documents are placed in an envelope separate from the rest of the file and are provided only to the persons identified in the court order.

• Information on the Wisconsin Circuit Court Access website (WCCA) is sealed through the use of codes that keep information from appearing online or on the public access terminals located in the clerk’s office.

• Documents in e-filed cases are available only to parties and attorneys when they are logged into the court website. Clerks will have settings available that allow parties to access sealed documents only as provided by the court order. Documents in e-filed cases are not available to the public on the court website.

If information is not included on the list of confidential information described above, a party who wishes to protect it must file a motion to seal and must notify the other parties. The motion may extend to an item of information like a name or address, a document like a medical report, or in rare instances the whole case.

The information may be filed under a temporary seal making it inaccessible to the public, sometimes even to the other party, until the court rules on the motion. The court may determine that a hearing is necessary and may require that the moving party provide notice to the general public.

The substantive law on sealing court records is beyond the scope of this article. Briefly stated, in addition to the public records law, Wis. Stat. section 59.20(3) authorizes public inspection of “all papers required to be kept” by the clerk of circuit court and register in probate. Court records are open for public inspection with three exceptions: 1) a statute authorizes confidentiality; 2) there is a showing that disclosure would infringe upon a constitutional right; or 3) a court uses its “inherent power to preserve and protect the exercise of its judicial function … when the administration of justice requires it.”¹⁰

To invoke exercise of the court’s inherent power, a party seeking to seal a court record must demonstrate that the administration of justice requires denying public access to court records.¹¹ The court will then review the motion to determine whether there are sufficient grounds to restrict public access according to applicable constitutional, statutory, and common law.

If the court decides that sealing or redacting is required, the court must use the least restrictive means that will achieve the purpose. The public record will indicate that an order was issued and the name of the court official entering the order, for example, “Plaintiff’s medical record sealed by order of Judge Jones.” Portions of transcripts can be sealed using the same motion practice.

Conclusion

Starting July 1, 2016, attorneys must be aware of three new rules governing court filings.

• Parties must omit or redact five specific numbers from filed documents: Social Security, employer and tax identification, financial account, driver license, and passport numbers.

• Parties must flag confidential information when filing it, using a list of confidential documents and proceedings provided by the court.

• To protect other information, parties must make a motion to seal, citing appropriate authority.

• New forms will be provided for each procedure. Together, the new rules will reduce the opportunity for identity theft, enhance personal privacy, and provide greater clarity on protecting sensitive information.

Endnotes

¹ The full text of the new rules is posted on the Wisconsin Legislature’s statute website. Guidance on using the new rules will be posted on the court website at www.wicourts.gov/services/attorney/redact.htm.

² Wis. Stat. §§ 19.31, 59.20(3).

³ Court forms are developed by the court Records Management Committee and are posted on the court website.

⁴ In State v. Hancock, 2015 WL 3403226 (unpublished), the court of appeals considered the interplay of Wis. Stat. section 146.82, confidentiality of medical records, and section 59.20(3), access to court records. This case is currently back before the court of appeals on a petition for review, 2015AP2406.

⁵ Wis. Stat. § 950.04(1v), (2w).

⁶ Crime victims cannot be identified by name in briefs and opinions in the Wisconsin Court of Appeals and Supreme Court. See Wis. Stat. §§ 809.19, 809.81, 809.86. Other protections apply to victims of abuse and harassment under Wis. Stat. chapter 813.

⁷ A crime victim’s right to privacy in medical records is also at issue in State v. Hancock, 2015 WL 3403226.

⁸ The Children’s Code is Wis. Stat. chapter 48; the Juvenile Justice Code is Wis. Stat. chapter 938. Child abuse restraining orders and injunctions are also confidential under Wis. Stat. section 813.122(3)(bq).

⁹ 18 U.S.C. §§ 2721-2725. The privacy issue is being litigated in New Richmond News v. City of New Richmond, 2014AP1938.

¹⁰ State ex rel. Bilder v. Township of Delavan, 112 Wis. 2d 539, 554-57, 334 N.W.2d 252 (1983).

¹¹ For information about the Wisconsin Public Records Law and the cases that interpret it, see Wisconsin Department of Justice, Wisconsin Public Records Law Compliance Guide (Nov. 2015). Many state statutes require other custodians to keep certain information confidential, and these may be useful in formulating a motion to seal. For a list of these statutes, see the Wisconsin Public Records and Open Meetings Handbook, appendix D (State Bar of Wisconsin PINNACLE 5th ed. 2016).