Manhattan Surrogate’s Court at 31 Chambers St. (NYLJ/Monika Kozak)
State court administrators have adopted a new rule that limits access to information contained Surrogate’s Court filings, despite objections from media attorneys and others that it is too broad.
Rule 207.64 was added to the Uniform Civil Rules of the Surrogate’s Court by Chief Administrative Judge A. Gail Prudenti, herself a former surrogate, on Feb. 19 after being submitted for comment on Sept. 30, 2013.
The rule has been billed as a measure to combat identify theft. It applies to death certificates, tax returns, firearms inventories, the inventories of assets and documents containing Social Security numbers filed before the court.
In addition, it covers “all papers and documents” in guardianship proceedings under Articles 17 or 17-A of the Surrogate’s Court Procedure Act.
The rule restricts access to those documents to “interested” parties—potential beneficiaries and their attorneys and trustees—as well as public administrators, counsels to government agencies and to authorized court personnel (See form to request access).
For all others, the rule says the surrogate or the chief clerk of the court must give prior permission in writing to seeing the materials, with the stipulation that such approval “shall not be unreasonably withheld.” It would up to surrogate to make that determination.
The rule was adopted on the recommendation of the OCA’s Surrogate’s Court Advisory Committee, chaired by former Manhattan Surrogate Renee Roth (See the committee’s report).
Suffolk County Surrogate John Czygier, a member of the advisory committee, said the rule is designed to deter what he called “electronic dumpster diving,” the scouring of electronic records for personal financial information that could be misused for identity theft or other illegal purposes.
The rule “tries to strike a delicate balance between permitting those people with a valid reason to get information to obtain that information, but to prevent abuses at the same time,” Czygier said in an interview Monday. “In the best of cases, the abuses would be a person who is curious how big his neighbor’s estate was. In the worst-case scenario, it would be the theft of a person’s identity.”
Prudenti adopted the rule against the advice of the New York City Bar’s Committee on Communications and Media Law and the Estates, Trusts and Surrogate’s Court Practice Section of the New York County Lawyers’ Association (See comments).
Both committees contended that the rule is overly restrictive and runs the risk of violating the basic tenet that court information in New York should be open and accessible to the public.
The city bar’s media law committee pointed out that court documents are presumed to be open absent a finding of “good cause” in writing. The new rule shifts that presumption to one favoring the sealing of certain records, the committee argued in comments submitted by its chairman, Jonathan Donnellan of Hearst Co.
“The proposed rule’s confidential treatment for all forms of select categories of documents, no matter the information contained therein nor the particular circumstances at hand, also goes far beyond any justifiable protection against the risk of identity theft,” Donnellan wrote. “Not all financial information warrants sealing on privacy or any other grounds, and the redaction of partial account numbers can suffice to prevent the risk of identity theft.”
Donnellan added that the public “would not, and should not, tolerate an entirely secret system of justice in guardianship proceedings.” In fact, he said that public oversight “is essential to ensuring that New York’s most vulnerable citizens are protected under the law.”
Nor, said the committee, was there any basis in “law or logic for the wholesale exclusion of public access to any firearms inventory, inventory of assets, tax returns or death certificates.”
Donnellan did not return calls for comment.
The Estates, Trusts and Surrogate’s Court Practice Section of the New York County Lawyers’ Association also urged court administrators to reject the proposed rule.
The NYCLA committee said in comments submitted by its chairwoman, Faith Carter, an associate at Holland & Knight, that while it agreed with the rule’s premise that a “significant risk” exists of the misuse of personal identifying information in court filings, the rule is “overly broad in its scope, as well as prohibitively difficult to enforce.”
“The proposed new rule would likely create an added burden upon the courts and their personnel to review requests for written permission to access court files, as well as to review court files in order to determine” if they contain the restricted information, Carter wrote.
Carter said that she could not comment beyond the section’s submission.
While the city bar’s media law committee opposed the rule, its Trusts, Estates and Surrogate’s Courts Committee spoke out in favor. The chairwoman, Sharon Klein, managing director at Wilmington Trust in Manhattan, said the rule strikes a “reasonable and necessary balance” between the privacy rights of individuals and the need for transparency of judicial proceedings.
However, the committee proposed putting more of the onus for restrictions on information on those making filings instead of the courts themselves.
Klein noted that for more than a decade, §5.2 of the Federal Rules of Civil Procedure, has required the filers in cases, whether parties or nonparties, to partially redact identifying information such as Social Security and financial account numbers. New York administrators rejected such a requirement in the final version of their rule.
Prudenti declined to comment. David Bookstaver, a spokesman for the court system, noted that access to sensitive information is restricted in other litigation, such as matrimonial actions and proceedings in Family Court.
“This was done to prevent Internet identity thefts,” Bookstaver said of the new rule. “I don’t think that media groups want access to Social Security numbers and bank account numbers. I don’t think that redacting that information in any way impedes newsgathering. What it impedes is criminal misuse of that very information.”
Bookstaver added, “To not do this would be irresponsible.”
Czygier said he has gotten assurances from Prudenti that court administrators are open to alternations to the rule if the need arises.
“To some extent, it is a work in progress and if we think it has to be tweaked or has to be modified, I am sure she would be receptive to considering them,” Czygier said.
@|Joel Stashenko can be reached at firstname.lastname@example.org.