Wednesday, April 27, 2016

Sensitive Data In Filed Family Law Documents

Texas Rule of Civil Procedure 21c Privacy Protection for Filed Documents has had a substantial impact on family law cases.

A divorce with children could, and oftentimes will, have filings that include all of the types of sensitive data this rule addresses. Rule 21c became effective January 1, 2014, and it states:

(a) Sensitive Data Defined. 
Sensitive data consists of: (1) A driver’s license number, passport number, social security number, tax identification number, or similar government issued personal identification number; (2) a bank account number, credit card number, or other financial account number; and (3) a birth date, home address, and the name of any person who was a minor when the underlying suit was filed.

(b) Filing of Documents Containing Sensitive Data Prohibited. 
Unless the inclusion of sensitive data is specifically required by a statute, court rule, or administrative regulation, an electronic or paper document, except for wills and documents filed under seal, containing sensitive data may not be filed with a court unless the sensitive data is redacted.

(c) Redaction of Sensitive Data; Retention Requirement.
Sensitive data must be redacted by using the letter “X” in place of each omitted digit or character or by removing the sensitive data in a manner indicating that the data has been redacted. The filing party must retain an unredacted version of the filed document during the pendency of the case and any related appellate proceedings within six months of the date the judgment is signed.

(d) Notice to Clerk.
If a document must contain sensitive data, the filing party must notify the clerk by: (1) designating the document as containing sensitive data when the document is electronically filed; or (2) if the document is not electronically filed, by including on the upper left hand side of the first page the phrase: “NOTICE: THIS DOCUMENT CONTAINS SENSITIVE DATA.”

(e) Non-Conforming Documents.
 The clerk may not refuse to file a document that contains sensitive data in violation of this rule. But the clerk may identify the error to be corrected and state a deadline for the party to resubmit the redacted, substituted document.

(f) Restrictions on Remote Access.
Documents that contain sensitive data in violation of this rule must not be posted on this rule. Texas Family Code Section 102.008 “Contents of Petition” subsection (a) requires that the petition and all other documents filed in all suits affecting the parent-child relationship, except suits for adoption, be entitled “In the interest of______________, a child.” Section 102.008 (b) requires that petitions include the name and birthdate of the child. If the child’s name must be in the title of all documents filed in a suit affecting the parent child relationship, and the child’s name is sensitive data, aren’t all filings going to include sensitive data? It is entirely possible that a Judge could reach that conclusion.

 Many attorneys use the child’s initials in place of the child’s full name in the style of all documents filed after the original petition. However, this would not comply with a strict interpretation of Texas Family Code Section 102.008 (a). It is best that you contact the court clerk to determine if the Judge in your case has a stance on this issue and if so, how they want you to style your filings. Texas Family Code Section 105.006 (a) lists the information that must be included in a final order in a suit affecting the parent child relationship, except for terminations and adoptions. This information is as follows:

(1) the social security number and driver’s license number of each party to the suit, including the child, except that the child’s social security number or driver’s license number is not required if the child has not been assigned a social security number or driver’s license number; and
(2) each party’s current residence address, mailing address, home telephone number, name of employer, address of employment, and work telephone number, except as provided by Subsection (c). This means that in all final orders in suits affecting the parent-child relationship, other than termination and adoptions, there will be numerous types of sensitive data.

 Many attorneys will redact social security numbers, and driver’s license numbers and leave only the last three to four digits in the final order. A strict interpretation of Texas Family Code Section 105.006 (a) and Texas Rule of Civil Procedure 21c (b) is that the driver’s license numbers and social security numbers are required by statute and therefore should not be redacted. Again, the best way to determine how to address this situation is by calling the court clerk to determine the court’s preference.