Management Matters: Be redaction ready for July 1
Vol. 79, No. 3 / May - June 2023
Jeffrey R. Schoenberger
Jeffrey R. Schoenberger is a lawyer and senior consultant for Affinity Consulting. Schoenberger specializes in practice management advisory services, including content development, CLE presentations, and member consultations. He is also Affinity’s designated Apple expert. Schoenberger received a B.A. in history from Yale University and J.D. from the University of Virginia.
Starting July 1, the public will have expanded remote public access to nearly all public case documents.
Anyone with a computer, smartphone, or tablet will be able to view public case documents from anywhere via Case.net. This increased transparency fulfills a long-term goal of greater access to Missouri courts – and reinforces the already-existing responsibility for lawyers to redact sensitive materials.
The provisions effective July 1 (1) contain a more explicit and forceful statement of who is responsible for adequately redacting a document, (2) require filers to submit contemporaneously a confidential redacted information sheet,1 and (3) make nearly everything filed public. The stakes for correctly redacting are high.
While the new Rule 2.02(c) lists examples of potentially redactable information, that list is not exhaustive, stating “confidential information can include, but is not limited to,” the provided examples and that one must redact information deemed “confidential pursuant to statute, court rule or order, or other law.” Once you identify the covered data, turn to your PDF program to mark and apply redactions.
Redaction-capable PDF tools for Windows users
The Missouri Bar’s Remote Public Access and Redaction Resource Center offers a comparison chart of PDF programs. Three of the four listed brands have two product tiers. In each case, only the higher tier contains the redaction feature. The products to compare are Adobe Acrobat Pro (subscribe for $239.88/year), Foxit PDF Editor Pro ($99/year subscription), Kofax Power PDF Advanced ($179 one-time purchase), and Nitro PDF Pro ($179.99 one-time purchase).
Redaction-capable PDF tools for Mac users
The comparison chart doesn’t list Mac products, but the developers are mostly the same. Mac users can choose from Adobe Acrobat Pro (same price as Windows), Foxit PDF Editor for Mac ($79/year subscription), Kofax Power PDF Standard for Mac ($129 one-time purchase), and Nitro PDF Pro for Mac ($179.99 one-time purchase).
Notice the different product names for Foxit and Kofax between Windows and Mac. Each company makes only one PDF program for Macs, so the “standard” version on the Mac includes redaction while the “standard” version on Windows does not. Adobe also makes only one version for the Mac, but it’s the “professional” version that includes redaction.
Mac users have two additional redaction options unavailable to Windows users. The first is Preview, a PDF application that ships with every Mac. The second is PDF Expert ($80/year or a $140 one-time purchase).
Whether subscribing to PDF software or purchasing outright makes more sense depends on the firm size, technical support, and mobile needs.
Creating the PDF
Rule 103.04 establishes two requirements for electronic filings relevant to creating a PDF before redacting confidential information.2
Rule 103.04(b) states, “Electronic documents that are part of the official court record shall be self-contained and shall not contain hyperlinks other than those generated by the electronic filing system.” The easiest way to ensure consistent compliance with Rule 103.04(b) is to create PDF/A files. The difference between a “normal” PDF and a PDF/A document is that PDF/A-compliant documents must be fully self-contained. The “/A” denotes that the PDF meets the 19005-1 archival standard. In layman’s terms, a PDF/A file cannot link to the outside world, like a hyperlink to a news article, court rule, or YouTube video. Filers must include any such material in the PDF as addenda. The goal with PDF/A is that someone opens the file 100 years hence and everything still works.
Making a PDF/A is almost as easy as making a “normal” PDF. Microsoft Word (both Windows and Mac) supports saving documents as PDF/A, and all major PDF programs can create PDF/A-compliant PDFs.
If the filer chooses to submit a copy of the document to the court on read-only media, like a CD, in addition to filing electronically, then Rule 103.04(c) specifies that the electronic document on the read-only media be text-searchable. That “text-searchable” requirement applies just to read-only media documents but is increasing slowly.3 Nevertheless, it’s advantageous for all PDFs to be text-searchable, for the lawyer’s benefit, if no one else. How you create the PDF affects the steps taken to make it text-searchable.
All digital. If the document you intend to PDF, redact, and file never sees paper, it’s text-searchable by default. The document transitions from the word processor straight to the PDF creation software, and any “signing” is done by a signature graphic or “/s/” under Rule 103.04(d).
Wet signature. Conversely, printing, signing, and scanning the signed document may automatically produce a text-searchable PDF. To check whether a PDF is text-searchable, try to highlight a sentence or line of text, as you would in a word processor if you wanted to bold or italicize a phrase. The PDF is likely text-searchable if you can highlight individual letters and words. If the attempted highlighting does nothing or highlights the entire page, the PDF needs to be optically character recognized (OCR) to be text-searchable.
Redacting the PDF
Occasionally news stories circulate discussing how a lawyer filed an improperly redacted document. In these cases, the redaction tool did not fail the lawyers. Rather, instead of using the redaction tool included with most “professional grade” PDF programs, the lawyer simply used a drawing tool to cover the sensitive areas with black boxes. A curious individual, such as a reporter, need only highlight the filed PDF’s text (Ctrl + A), copy it (Ctrl + C), and paste it into a word processor (Ctrl + V) to reveal everything. The black boxes hid the text from the human eye, but not from the reporter’s computer.
Redaction is much more sophisticated. It is the digital equivalent of taking a piece of paper, cutting out what you want to conceal, shredding the excised portion, and then burning the shreddings. Redaction is permanent and irreversible, which is the goal when expunging material from a filing.
Redacting a PDF is a four-step process:
- Save a copy of the unredacted PDF. Since redaction is permanent, you may want to preserve a version of the original PDF. Most PDF programs warn you of this fact and propose saving the final, redacted version as “File Name_redacted.pdf.” Making a copy beforehand is the belt-and-suspenders approach.
- Mark relevant parts of the document for redaction. There are up to three methods of marking redactions. First, all redaction-capable PDF programs let users select an area of the page to redact. Second, for text-searchable PDFs, some PDF programs permit users to mark areas for redaction by a find-and-replace method. Tell the program to search for a specific name or account number, and the program finds that text and marks it for redaction. Redactions marked this way are not foolproof. There may be false positives and false negatives. A third redaction marking method is to mark an entire document page for redaction. Irrespective of the method used, marked redactions initially look like drawn black boxes over text. Hovering over the text reveals what was marked.
- Apply the redactions. This step differentiates black boxes drawn over text from true redactions. Applying the redactions is what erases the digital information. Failing to do this step is what makes news.
- Review the document. Page through the document and ensure that all redactions are applied. This step is uniquely necessary when using the find-and-replace method because the computer may miss some in PDFs.
The bottom line is drawing black boxes is insufficient!
Remote Public Access and Redaction Resource Center
The Missouri Bar created a Remote Public Access and Redaction Resource Center at MoBar.org/RemotePublicAccess that contains how-to videos from Affinity Insight using various redaction tools; educational resources – including CLE information on the upcoming changes – the Supreme Court of Missouri’s orders; and redlines between current and future rules.
Finally, at no-cost, Missouri Bar members can ask Affinity Consulting Group questions using the “Ask an Expert” consultation service located at MoBar.org/LPM or by emailing MoBarLPM@affinityconsulting.com.
1 Prior rules gave lawyers 10 days to submit such a statement.
2 For civil actions in circuit courts, Rule 43.02(c) permits electronic filing of pleadings consistent with Rule 103. For criminal actions, Rule 19.02 says that Rule 103 governs.
3 For example, effective Jan. 1, 2024, Rules 81.21(c) and 84.03(c) will require the following filings to be text-searchable PDFs: applications and motions; suggestions; briefs; petitions for a writ; and answers and returns to a writ.