December 30th, 2014

Privacy in South Carolina’s Trial and Appellate Courts Duty to Redact Personal Identifying Information from Court Filings

by Kathleen Barnes in Appellate Procedure, Brief Writing

Big data. We hear that term almost every day and regularly read about data breaches and the resulting dangers of identity theft. As our state court system is placing more filed court documents online via the Appellate Case Management System, attorneys contribute to the generation of big data. As a result, the Supreme Court issued an Order on April 15, 2014, addressing an attorney’s duty to protect personal identifying information in documents filed with the Supreme Court and Court of Appeals. The Order follows section 30-2-330 of the South Carolina Code, adopted by the legislature in 2008. Under the Order, a party or attorney must completely or partially (if inclusion is necessary) redact personal identifying information from documents filed with a state appellate court.

What is personal identifying information?

Luckily, the Order lists some specific types of information:

  1. Social security number
  2. Taxpayer identification number
  3. Driver’s license number
  4. Passport number
  5. Names of minor children (names of minor victims of sexual assault, abuse, or neglect must be completely redacted and replaced with a term such as “victim” or “child.” In all other cases, use the minor’s initials or the first name and first initial of last name, e.g., S.M. or Sally M.)
  6. Financial account number (if relevant, include only the last 4 digits)
  7. Bank account number
  8. Personal identification number (PIN) code
  9. Password
  10. Home address of a minor, non-party, and victim of sexual assault, abuse, and neglect (if address must be included, use only city and state)
  11. Date of birth (if date must be included, use only the year)

The Order also warns a party or attorney to “exercise caution in including other sensitive personal data in their filings,” such as:

  1. Personal identifying numbers
  2. Medical records
  3. Employment history
  4. Individual financial information
  5. Proprietary or trade secret information
  6. Information regarding national security, a victim of criminal activity, or an individual’s cooperation with the government

Discuss with a client and opposing counsel whether there is any information for redaction. The appellate courts are not responsible for reviewing filings for personal identifying information and place that responsibility directly on the parties and counsel. However, the clerk of court’s office may notify an attorney if it finds information in a filing that should be redacted.

What if some personal identifying information is needed in a filing?

If the party or attorney determine some of the information listed above is needed for the Court’s review in the filing or record on appeal, the information must still be redacted but filed with Form 21 “Confidential Reference List of Redacted Identifiers.” This form can be found on the appellate Court Forms section of the South Carolina Judicial Department website. A filed Confidential Reference form is not available to the public and serves as a key to the court, identifying the redacted information and the corresponding substituted information. For example, the redacted information may be the minor victim’s home address “123 Washington Street” with the corresponding substituted information “victim address.”

What happens if you violate the Order?

The Order is silent about any penalty for a violation. However, it does reference section 30-2-330 of the South Carolina Code, which prohibits filing a document with similar personal identifying information with a county clerk of court or register of deeds. Section 30-2-330(A) states violation of the section is a misdemeanor and carries a fine up to $500.00 per violation. Civil Procedure Rule 41.2 was also adopted in April 2014 and essentially mirrors the Supreme Court Order’s privacy protections for lower court filings. Given the prevalence of data breaches and identity theft, it is better to be safe than sorry and err on the side of redaction.