Making redactions for the public good
Vol. 79, No. 3 / May - June 2023
Diane C. Howard
Diane C. Howard is a lawyer with The Limbaugh Firm in Cape Girardeau, where she has practiced since 1984. She graduated from Mississippi University for Women (summa cum laude) and the Saint Louis University School of Law. She practices primarily in personnel and employment law, family law, and education law.
She served on active duty with the U.S. Navy (JAG Corps) from 1980-1984. She continued in the Naval Reserves until she retired from the Navy Reserves in 2005 with the rank of captain.
Howard has served on The Missouri Bar Board of Governors and The Missouri Bar Young Lawyers’ Section Council. She has chaired The Missouri Bar Education Law Committee and the Family Law Section. She has also served on the Missouri Court Automation Committee since 1996.
Christopher W. Lebeck
Christopher W. Lebeck is a senior assistant prosecuting attorney with the Greene County Prosecuting Attorney in the special victim’s unit, where he prosecutes cases involving children and vulnerable victims. He is a graduate of the University of Illinois and the University of Missouri School of Law.
He has served as the chief assistant prosecuting attorney for Taney County, the first assistant prosecuting attorney for Christian County, and city attorney for Branson. He currently serves as a member of the Springfield Planning and Zoning Commission and is also an adjunct instructor in the Finance and Risk Management Department at Missouri State University.
He has served on the Missouri Court Automation Committee since 2021.
Our judiciary is about to embark on a new chapter of public access in July.
For seasoned practitioners, we can recall a time when to obtain a document or pleading, we had to travel to the clerk’s office at the courthouse to physically inspect and copy the document directly from the court file. Compare that to the level of access we are afforded today. With the help of the Office of the State Court Administrator and their technology team, we – as lawyers – can access, directly from the mobile device found in our pocket, entire case files with just some credentials and the swipe and tap of a finger. In line with our long-standing tradition of open courts and Rule 2.02, that same ease of access to documents will be open to the public starting July 1.
With expanded access to the public comes a heightened responsibility for us members of The Missouri Bar to protect confidential information in our pleadings and filings. Effective July 1, filings in all courts must follow the recently revised Rule 2.02 and Rules 19.10, 55.025, and 84.015, which place redaction requirements on all our filings. These rules obligate any counsel, party, or person filing a document in any Missouri court in this state to redact confidential information from filings.
Most public documents filed before July 1 will not be publicly available through Missouri Case.net. Those documents may still be accessed through a public access terminal. The clerk’s office will continue to redact documents that were filed before July 1 if those documents are printed at that terminal.
These new redaction rules reflect confidentiality requirements that exist already through statute or our own ethical requirements. Section 509.520, RSMo, effective since Aug. 28, 2009, requires pleadings, attachments, exhibits, or judgments not include the whole social security number, credit card number, or financial account number of any party or child. Section 595.226, RSMo, effective since Aug. 28, 2007, places similar confidentiality obligations on filings in sexual abuse and domestic violence cases. These rules also complement Rule 25.04, which allows prosecutors to redact discovery responses, and Rule 25.11, which allows protective orders for redactions.
The filing of a confidential case filing sheet, which is publicly available, is required by § 509.520, RSMo. These contain the names, addresses, current employers, and social security numbers of the parties; and the names, dates of birth, and social security numbers of any minor children who are subject to the action. The clerk is required under § 509.520, RSMo to redact confidential information if a member of the public asks for a copy of the document through the public access terminal.
Under revised Rule 2.02, it is now the obligation of the filing party to redact confidential information starting July 1. Rule 2.02 sets out a non-exclusive list of what constitutes “confidential information” that must be redacted. These include, but are not limited to, social security numbers; driver’s license numbers; state identification numbers; taxpayer identification numbers; passport numbers; financial accounts; credit or debit card numbers; personal identification numbers; passwords relating to financial accounts; dates of birth; and names of minors.
A filer should not include any confidential information in pleadings and other court filings that is not required. Redaction is necessary if confidential information is required in the filing or is contained in other documents being filed with the courts. For example, § 452.310.2(4), RSMo requires a dissolution petition include the name of each child who is the subject of the action. The minor child’s name must be redacted as required by Rule 2.02. The information sheet required to be filed with the unredacted version of the petition would identify the child’s name.
Filers should not insert confidential information in pleadings when not required to do so. For example, § 452.310.8, RSMo requires parties in a dissolution action to file a proposed parenting plan. The statutory guidelines include a sample plan containing the children’s names and dates of birth. Since 2009, filers have revised their plans to include the children’s ages but not the dates of birth. Section 452.310.8, RSMo does not require the parenting plan to include the names, ages, or dates of birth. A filer may therefore omit this information, including the names, and not trigger a redaction.
Reconciling statutes to determine what must be included in a pleading can be challenging. Section 452.312.1, RSMo provides that the names and addresses of employers should be listed in accordance with § 509.520, RSMo, which requires the use of the confidential case filing sheet. However, § 452.312.2, RSMo provides that all responsive pleadings must include the name and address of the employer. Both parties using the case information sheet eliminates the redaction requirement as to this information.
Similarly, § 210.830, RSMo requires that the minor child who is the subject of a paternity action must be a party to the action. Paternity actions are level three security cases and not publicly available. Therefore, redaction would not be required as to most parentage pleadings. However, the final judgment in a parentage action is a public document. Paternity modification cases are also public. Therefore, the minor child’s name and other confidential information must be redacted in those public documents.
These problems are further compounded when considering that a document not publicly available when filed may later be incorporated into a public document. A parenting plan, when filed, is not publicly available, but that parenting plan, when incorporated into the judgment, is publicly available. A child support worksheet, when filed, may be assigned level three or higher and, therefore, not be publicly available. However, that Form 14 will be publicly available when attached to a judgment. The rules do not require the children’s names be included on Form 14, and therefore this should not occur.
Many financial documents filed with the courts are at security level three or higher and, therefore, not publicly available. However, to comply with § 509.520, RSMo, practitioners should use only the last four digits of social security, credit card, or financial account numbers on all such documents.
For many prosecutors and criminal practitioners, these changes should not be new or come as a surprise to many. Out of an abundance of caution and as a best practice, many lawyers do not include personally identifiable information of victims, witnesses, and suspects already in court filings. If we must include such information, we redact it. However, one of the most significant changes you will see starting July 1 is in the charging documents and probable cause statements in many jurisdictions throughout the state. To be hypervigilant, many prosecuting attorney offices will begin removing identifiers, replacing names with initials, and using pseudonyms such as “VICTIM 1” to protect witnesses and victims from public identification when expanded public access goes live.
Ultimately, all practitioners must take utmost care to protect confidential information through this heightened obligation towards redaction in filings. For many, the most significant change is that we will now be obligated when redacting information from a pleading to contemporaneously file a confidential redaction information filing sheet that has the unredacted version attached or sets out the information redacted. Basically, what this means is we need to be prepared to file two copies with the court – a redacted and unredacted copy of any pleading that contains redacted information.
If we work together, we can ensure the same ease of access lawyers have to the courts for the benefit of all, while protecting the confidential information of our cases, clients, suspects, and victims. This process might be challenging initially, and we encourage you to review the resources available to incorporate redaction into your practice. The Missouri Bar created the Remote Public Access and Redaction Resource Center, where you can find frequently asked questions, tutorial videos, continuing legal education opportunities, and more. Visit this page at MoBar.org/RemotePublicAccess.
In the end, with our hard work, this change can benefit the public good by providing meaningful open access to our courts.
1 The list of information requiring redaction includes (1) social security numbers, driver’s license numbers, state identification numbers, taxpayer identification numbers, and passport numbers; (2) financial institution account numbers, credit or debit card numbers, personal identification numbers, or passwords used to secure any such accounts or cards, names, addresses; (3) contact information of informants, victims, witnesses, and persons protected under orders of protection or restraining orders; (4) dates of birth; (5) names of individuals known to be minors; and (6) case numbers of confidential, expunged, or sealed records.