Ark. Supreme Court Proposes New Rules on Privacy | The Hoglawyer

Thursday, July 10, 2008

Ark. Supreme Court Proposes New Rules on Privacy

Posted By on Thu, Jul 10, 2008 at 11:26 AM

This is one of those simple rules lawyers don't notice unless you look at Sup. Ct. website every week .     Just a proposed rule for now but fairly non-controversial so I'm sure it will be made final in a few months.  Complete text in extended entry. 

SUPREME COURT OF ARKANSAS

IN RE: RULES OF CIVIL

PROCEDURE 5, 11, AND 58;

PROPOSED ADMINISTRATIVE

ORDER 19.1; RULE OF APPELLATE

PROCEDURE –CIVIL 11; RULES OF

THE SUPREME COURT AND

COURT OF APPEALS 1-2, 2-1, 2-3, 3-4,

AND 4-1.

Opinion Delivered

June 5, 2008

PER CURIAM

In February 2007, we adopted Administrative Order 19, which governs access

to court records. In our

this comprehensive new Administrative Order and recommend any needed changes

in our court rules for civil cases. The Committee has completed its work and made

a special report. We have reviewed the Committee’s work, and we now publish for

comment from the bench and bar the suggested amendments and a proposed new

Administrative Order about administrative records created by courts. The proposed

changes are comprehensive: they reach three Rules of Civil Procedure and six rules

about appellate practice. The Notes explain the changes, and the proposed changes are

set out in “line-in, line-out” fashion (new material is italicized; deleted material is lined

through).

per curiam we asked our Committee on Civil Practice to study

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We express our gratitude to the Chair of the Committee, Judge Henry

Wilkinson, its Reporter, Judge D.P. Marshall Jr., and all the Committee members for

their faithful and helpful work with respect to the Rules.

Comments on these suggested rule changes should be made in writing before

July 30, 2008 to: Leslie W. Steen, Clerk, Supreme Court of Arkansas, Attn.: Civil

Procedure Rules—Redaction, Justice Building, 625 Marshall Street, Little Rock,

Arkansas 72201. Administrative Order 19's redaction requirements will become

effective in January 2009. We will therefore act promptly after receiving comments

so that the bench and bar will be ready to comply with the redaction requirements at

the start of the new year.

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!

Rule 5. Service and Filing of Pleadings and Other Papers.

RULES OF CIVIL PROCEDURE

* * *

(c) Filing.

(1) All papers after the complaint required to be served upon a party or his

attorney shall be filed with the clerk of the court either before service or within a

reasonable time thereafter. The clerk shall note the date and time of filing thereon.

However, proposed findings of fact, proposed conclusions of law, trial briefs, proposed

jury instructions, and responses thereto may but need not be filed unless ordered by the

court. Depositions, interrogatories, requests for production or inspection, and answers

and responses thereto shall not be filed unless ordered by the court. When such

discovery documents are relevant to a motion, they or the relevant portions thereof

shall be submitted with the motion and attached as an exhibit unless such documents

have already been filed. The clerk shall not refuse to accept for filing any paper

presented for that purpose solely because it is not presented in the proper form. In

counties where the county clerk serves as the ex officio clerk of any division of the

circuit court, the filing requirement for any pleading, paper, order, judgment, decree,

or notice of appeal shall be satisfied when the document is filed with either the circuit

clerk or the county clerk.

(2) Confidential information as defined and described in Sections III(A)(11) and VII(A)

of Administrative Order 19 shall not be included as part of a case record unless the confidential

information is necessary and relevant to the case. Section III(A)(2) of the Administrative Order

defines a case record as any document, information, data, or other item created, collected, received,

or maintained by a court, court agency or clerk of court in connection with a judicial proceeding.

If including confidential information in a case record is necessary and relevant to the case:

(A) The confidential information shall be redacted from the case record to which public

access is granted pursuant to Section IV(A) of Administrative Order 19. The point in the case

record at which the redaction is made shall be indicated by striking through the redacted material

with an opaque black mark or by inserting the following in brackets: [Information Redacted] or

[I.R.]. The requirement that the redaction be indicated in case records shall not apply to court

records rendered confidential by expungement or other legal authority that expressly prohibits

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disclosure of the existence of a record; and

(B) An un-redacted copy of the case record with the confidential information included shall

be filed with the court under seal. The un-redacted copy of the case record shall be retained by the

court as part of the court record of the case. It is the responsibility of the attorney for a party

represented by counsel and the responsibility of a party unrepresented by counsel to ensure that

confidential information is omitted or redacted from all case records that they submit to a court.

It is the responsibility of the court, court agency, or clerk of court to ensure that confidential

information is omitted or redacted from all case records, including orders, judgments, and decrees,

that they create.

(2)

transmissions of any paper filed under this rule and may charge a fee of $1.00 per page.

Any signature appearing on a facsimile copy shall be presumed authentic until proven

otherwise. The clerk shall stamp or otherwise mark a facsimile copy as filed on the date

and time that it is received on the clerk's facsimile machine during the regular hours

of the clerk's office or, if received outside those hours, at the time the office opens on

the next business day.

(3) If the clerk's office has a facsimile machine, the clerk shall accept facsimile

Addition to Reporter’s Notes 2008 Amendment:

amended to incorporate Administrative Order 19's requirements, which grant the public broad

access to case records while safeguarding confidential information in those records.

Administrative Order is appended to the Rules of Civil Procedure.

obligates lawyers, and pro se litigants, to identify and shield confidential information that is

necessary and relevant to the case by redacting that information in all publicly available documents

they file with the court. The rule places primary responsibility for protecting information that the

law has adjudged confidential on those individuals best situated to recognize and protect that

information—lawyers and pro se parties. They know the facts of their cases better than court staff

or courts; they create almost all the documents coming into the court’s record; and they have the

greatest incentive to minimize and protect confidential information in case records.

Under subdivision 2(B), courts, court agencies, and clerks are responsible for

omitting or redacting confidential information from case records—including orders, judgments, and

decrees—that they create. A parallel change reflecting this obligation in judgments and decrees has

been made in Rule of Civil Procedure 58.

Administrative Order 19 defines categories of confidential information and the

Commentary to the Order explains the legal basis for the confidentiality. Section VII of the

Order lists the following categories of confidential information in case records that are excluded from

public access absent a court order allowing disclosure:

Subdivision (c) of the rule has been(The) Amended Rule 5(c)

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(1) information excluded from public access pursuant to federal law;

(2) information excluded from public access pursuant to the Arkansas Code

Annotated;

(3) information excluded from public access by order (including protective order)

or rule of court;

(4) Social Security numbers;

(5) account numbers of specific assets, liabilities, accounts, credit cards, and

personal identification numbers (PINs);

(6) information about cases expunged or sealed pursuant to Ark. Code Ann.

§ 16-90-901, et seq.;

(7) notes, communications, and deliberative materials regarding decisions of

judges, jurors, court staff, and judicial agencies; and

(8) litigant addresses and phone numbers.

The Commentary to Section VII of Administrative Order 19 discusses confidential

information protected from public disclosure under federal and Arkansas law. The Commentary

includes a non-exhaustive list of Arkansas Code Annotated sections regarding confidentiality of

records whose confidentiality may extend to the records even if they become court records. See also

the Arkansas Personal Information Protection Act, Ark. Code Ann. § 4-110-101, et seq.

New subsection (c)(2) embodies Order 19's important threshold requirement: only

confidential information that is “necessary and relevant to the case” should be in a case record.

Litigants are likewise best able to make this evaluation. And because they must redact any such

information in a case record, litigants will have an incentive to reduce redactions by screening out

unnecessary and irrelevant confidential information when creating documents for filing.

The amended rule provides two methods of redaction: blacking out the protected

information or inserting a bracketed reference to the fact of redaction. Both achieve Administrative

Order 19's balance between public access and confidentiality.

Because a litigant will have deemed redacted information necessary and relevant,

the court will need access to that information in handling and deciding the case. To allow this

access, subdivision 2(B) obligates litigants to file unredacted copies of all their court papers under

seal.

Former subsection (c)(2) has been renumbered, and is now (c)(3).

-6-

Rule 11. Signing of Pleadings, Motions, and Other Papers; Sanctions.

(a) Every pleading, motion, and other paper of a party represented by an

attorney shall be signed by at least one attorney of record in his individual name, whose

address shall be stated. A party who is not represented by an attorney shall sign his

pleading, motion, or other paper and state his address and telephone number, if any.

Except when otherwise specifically provided by rule or statute, pleadings need not be

verified or accompanied by affidavit. The signature of an attorney or party constitutes

a certificate by him that he has read the pleading, motion, or other paper; that to the

best of his knowledge, information, and belief formed after reasonable inquiry it is well

grounded in fact and is warranted by existing law or a good faith argument for the

extension, modification, or reversal of existing law, and that it is not interposed for any

improper purpose, such as to harass or to cause unnecessary delay or needless increase

in the cost of litigation.

5(c)(2) regarding redaction of confidential information from case records submitted to the court.

, and that it complies with the requirements of Rule of Civil Procedure

If a pleading, motion, or other paper is not signed, it shall be stricken unless it is signed

promptly after the omission is called to the attention of the pleader or movant. If a

pleading, motion, or other paper is signed in violation of this rule, the court, upon

motion or upon its own initiative, shall impose upon the person who signed it, a

represented party, or both, an appropriate sanction, which may include an order to pay

to the other party or parties the amount of the reasonable expenses incurred because

of the filing of the pleading, motion, or other paper, including a reasonable attorney's

fee.

Addition to Reporter’s Notes, 2008 Amendment:

by adding a new element to the certifications made by a pro se party or an attorney when that

person signs a pleading, motion, or other paper. The attorney or party is now also certifying

compliance with Administrative Order 19's mandate for redaction of necessary and relevant

confidential information in the case record being filed. The incorporation of Administrative Order

19's mandate here gives the circuit court a ready method for enforcing this mandate.

Subdivision (a) has been amended

Rule 58. Entry of Judgment or Decree

Subject to the provisions of Rule 54(b), upon a general or special verdict,

or upon a decision by the court granting or denying the relief sought, the court may

direct the prevailing party to promptly prepare and submit, for approval by the court

and opposing counsel, a form of judgment or decree which shall then be entered as the

judgment or decree of the court. The court may enter its own form of judgment or

-7-

decree or may enter the form prepared by the prevailing party without the consent of

opposing counsel.

provided in Rule 5(c)(2).

A judgment or decree shall omit or redact confidential information as

Every judgment or decree shall be set forth on a separate document. A

judgment or decree is effective only when so set forth and entered as provided in

Administrative Order No. 2. Entry of judgment or decree shall not be delayed for the

taxing of costs.

Reporter’s Note, 2008 Amendment:

Administrative Order 19's requirement that any necessary and relevant confidential

information in a case record—a category which includes judgments and decrees—must

be redacted. See Addition to Reporter’s Notes, 2008 Amendment to Rule of Civil

Procedure 5.

The rule has been amended to reflect

!

ADMINISTRATIVE ORDERS

ADMINISTRATIVE ORDER NUMBER 19.1 — REDACTION

IN ADMINISTRATIVE RECORDS

Confidential information as defined and described in Sections III(A)(11) and VII(B) of

Administrative Order 19 shall not be included as part of an administrative record unless the

confidential information is necessary to the administration of the judicial branch of government.

Section III(A)(3) of the Order defines an administrative record as any document, information,

data, or other item created, collected, received, or maintained by a court, court agency, or clerk of

court pertaining to the administration of the judicial branch of government. If inclusion of

confidential information in an administrative record is necessary to the administration of the

judicial branch of government:

(A) The confidential information shall be redacted from the administrative record to which

public access is granted pursuant to Section IV(A) of Administrative Order 19. The point in the

administrative record at which the redaction is made shall be indicated by striking through the

redacted material with an opaque black mark or by inserting the following in brackets:

[Information Redacted] or [I.R.]. The requirement that the redaction be indicated in an

administrative record shall not apply to administrative records rendered confidential by

expungement or other legal authority that expressly prohibits disclosure of the existence of a record;

and

(B) An un-redacted copy of the administrative record with the confidential information

-8-

included shall be filed with the court under seal. It is the responsibility of a court, court agency,

or clerk of court creating an administrative record to ensure that confidential information is omitted

or redacted from administrative records. As noted in Section XI of Administrative Order 19, a

court may use its inherent contempt powers to enforce this rule.

Reporter’s Explanatory Note:

Order 19's redaction requirements for court “Administrative Records”—documents,

information, data, or any other item created, collected, received, or maintained by any

court, court agency, or clerk related to judicial administration. This Order is needed

because courts, court agencies, and clerks are responsible for generating these materials,

and therefore must complete all needed redactions themselves.

This new Order implements Administrative

!

Rule 11. Certification by Parties and Attorneys; Frivolous Appeals;

Sanctions

(a) The filing of a brief, motion or other paper in the Supreme Court or the

Court of Appeals constitutes a certification of the party or attorney that, to the best of

his knowledge, information and belief formed after reasonable inquiry, the document

is well grounded in fact; is warranted by existing law or a good faith argument for the

extension, modification, or reversal of existing law; and is not filed for an improper

purpose such as to harass or to cause unnecessary delay or needless increase in the cost

of litigation.

5(c)(2) regarding redaction of confidential information.

paper in violation of this rule, or party on whose behalf the paper is filed, is subject to

a sanction in accordance with this rule.

* * *

RULES OF APPELLATE PROCEDURE—CIVIL.; and that the document complies with the requirements of Rule of Civil ProcedureA party or an attorney who files a

Addition to Reporter’s Notes, 2008 Amendment:

by adding a new element to the certifications made by a party or an attorney when that person

signs a brief, motion, or other paper, including a petition for rehearing or review. The change

parallels the 2008 amendment to Rule of Civil Procedure 11. When counsel or a pro se litigant

signs a brief, motion, petition, or other paper filed with the appellate court, the person is also

certifying compliance with Administrative Order 19's mandate for redaction of necessary and

relevant confidential information in the paper being filed. The redaction/filing-under-seal

procedure for confidential information is outlined in Rule of Civil Procedure 5(c)(2)(A) & (B) and

explained in the Addition to Reporter’s Notes, 2008 Amendment to that Rule.

Subdivision (a) has been amended

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!

APPEALS

Rule 1-2. Appellate jurisdiction of the Supreme Court and court of

appeals.

RULES OF THE SUPREME COURT AND COURT OF

The Informational Statement is described in subdivision (c) of this Rule

and appended to the Rule.

INFORMATIONAL STATEMENT

* * *

VI. CONFIDENTIAL INFORMATION

(1) Does this appeal involve confidential information as defined by

Sections III(A)(11) and VII(A) of Administrative Order 19?

___ Yes ___ No

(2) If the answer is “yes,” then does this brief comply with Rule 4-1(d)?

___ Yes ___ No

Reporter’s Explanatory Note

for the Informational Statement mandated by Rule 1-2(c) and Rule 4-2(a)(2). The

new section requires parties to evaluate and state whether the appeal involves

confidential information as defined by Administrative Order 19. If it does, then the

party filing the brief must confirm compliance with Rule 4-1(d)’s requirements for

handling that confidential information: eliminate it from all parts of the brief if possible;

and if not, redact it in the publicly available copy of the brief and file a duplicate brief

without any redactions under seal. This new section will alert parties to the special

requirements for handling confidential information in appellate briefs and will alert the

appellate court to the presence of confidential information in the case.

: This amendment creates a new section

Rule 2-1. Motions, general rules.

* * *

(f) Compliance with Administrative Order 19 required. Every motion, response, similar

paper, memorandum of authorities, and any document attached to any of those papers, must

comply with the redaction requirements for confidential information established by Administrative

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Order 19. Counsel and unrepresented parties shall follow the filing procedure established by Rule

of Civil Procedure 5(c)(2)(A) & (B). That procedure includes: (1) eliminating all unnecessary

or irrelevant confidential information; (2) redacting all necessary and relevant confidential

information; and (3) filing an unredacted version under seal.

Reporter’s Explanatory Note

Administrative Order 19's protections for necessary and relevant confidential

information apply to all filings on appeal, including motions and related papers.

Unrepresented parties and counsel must follow the redaction/filing-under-seal

procedure outlined in Rule of Civil Procedure (5)(c)(2)(A) & (B) for all “case records.”

That term is defined by Administrative Order 19 Section III (A)(2), and it includes all

motions, responses, memoranda of authorities, and any similar paper filed on appeal.

The term also includes any materials attached to these papers. See Addition to

Reporter’s Notes, 2008 Amendment to Rule of Civil Procedure 5.

: Subdivision (f) is new. It reflects that

Rule 2-3. Petitions for rehearing

* * *

(l)

in support, and brief in response must comply with the redaction requirements for confidential

information established by Administrative Order 19. Counsel and unrepresented parties shall

follow the filing procedure established by Rule of Civil Procedure 5(c)(2)(A) & (B). That

procedure includes: (1) eliminating all unnecessary or irrelevant confidential information; (2)

redacting all necessary and relevant confidential information; and (3) filing an unredacted version

under seal.

.Compliance with Administrative Order 19 required. Every petition for rehearing, brief

Reporter’s Explanatory Note

Administrative Order 19's protections for necessary and relevant confidential

information apply to all filings on appeal, including petitions for rehearing and related

papers. Unrepresented parties and counsel must follow the redaction/filing-under-seal

procedure outlined in Rule of Civil Procedure (5)(c)(2)(A) & (B) for all “case records.”

That term is defined by Administrative Order 19 Section III (A)(2), and it includes

petitions for rehearing and related papers See Addition to Reporter’s Notes, 2008

Amendment to Rule of Civil Procedure 5.

: Subdivision (l) is new. It reflects that

Rule 2-4. Petitions for review.

* * *

(g) Compliance with Administrative Order 19 required. Every petition for review,

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response, and supplemental brief of any kind on review must comply with the redaction

requirements for confidential information established by Administrative Order 19. Counsel and

unrepresented parties shall follow the filing procedure established by Rule of Civil Procedure

5(c)(2)(A) & (B). That procedure includes: (1) eliminating all unnecessary or irrelevant

confidential information; (2) redacting all necessary and relevant confidential information; and (3)

filing an unredacted version under seal.

Reporter’s Explanatory Note

Administrative Order 19's protections for necessary and relevant confidential

information apply to all filings on appeal, including petitions for review and all related

papers. Unrepresented parties and counsel must follow the redaction/filing-under-seal

procedure outlined in Rule of Civil Procedure (5)(c)(2)(A) & (B) for all “case records.”

That term is defined by Administrative Order 19 Section III (A)(2), and it includes

petitions for review, responses to these petitions, and all related briefs filed on appeal.

See Addition to Reporter’s Notes, 2008 Amendment to Rule of Civil Procedure 5.

: Subdivision (g) is new. It reflects that

Rule 4-1. Style of briefs.

* * *

(d) Compliance with Administrative Order 19 required. All parts of all briefs, including

the abstract and any document attached to any brief in the addendum, must comply with the

redaction requirements for confidential information established by Administrative Order 19.

Counsel and unrepresented parties shall follow the filing procedure established by Rule of Civil

Procedure 5(c)(2)(A) & (B). That procedure includes: (1) eliminating all unnecessary or

irrelevant confidential information; (2) redacting all necessary and relevant confidential

information; and (3) filing an unredacted version under seal.

(d)(

accepted by the Clerk.

e) Non-compliance. Briefs not in compliance with this Rule shall not be

Reporter’s Explanatory Note

redesignated as (e). New subdivision (d) addresses confidential information in appellate

briefs. It reflects that Administrative Order 19's protections for necessary and relevant

confidential information apply to all filings on appeal, including briefs and the record

material in both the abstract and the addendum to briefs. Unrepresented parties and

counsel must follow the redaction/filing-under-seal procedure outlined in Rule of

Civil Procedure (5)(c)(2)(A) & (B) for all “case records.” That term is defined by

Administrative Order 19 Section III (A)(2), and it includes appellate briefs. The term

includes the abstract of hearings and trial. The term also includes any materials attached

to briefs. Therefore, confidential information in any document in the addendum must

: Former subdivision (d) has been

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be redacted too. See Addition to Reporter’s Notes, 2008 Amendment to Rule of

Civil Procedure 5.

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