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WASHINGTON � The Executive Office for U.S. Trustees, which oversees the federal bankruptcy system, wants the federal judiciary to require debtors to file data-enabled bankruptcy forms. But the judiciary, not yet sold on the idea, is worried about privacy, costs and fairness. “Data tags” mark each piece of data entered into individual fields in a data-enabled form. They permit the computer system to automatically extract and aggregate financial and other information from bankruptcy filings. The tags are invisible to the user. Clifford White III, director of the executive office, recently told a House committee that the mandatory forms would make the U.S. Trustee Program’s implementation of the new bankruptcy reform law “vastly more time and cost efficient” in several key areas, such as calculating the means test to determine eligibility for Chapter 7 relief and identifying cases for audit under statutory case selection standards. White said the data tags also could aid the courts in performing administrative functions and would assist policymakers and researchers in analyzing the effectiveness of the bankruptcy system. Last June, White sent a letter to 3rd U.S. Circuit Court Judge Marjorie Rendell, then chairwoman of the Judicial Conference on Administration of the Bankruptcy System, in which he enclosed a matrix detailing about 650 data elements to be included in the mandatory, data-enabled forms. “We don’t think it’s such a great idea,” said Henry J. Sommer, president of the National Association of Consumer Bankruptcy Attorneys. Sommer said there are privacy issues with such a database, and despite the executive office’s promise of privacy protection, he added, “We’ve heard that before. The software for the forms also is quite expensive, he said, and that may discourage some attorneys from handling debtor cases, further reducing access to the system. “We also are somewhat skeptical of what they are requesting,” said Sommer. “They want to use it for all sort of reasons that are much more ambitious than just responding to Congress’ requests for information.” But bankruptcy scholar Robert Lawless of the University of Illinois College of Law said, “This would be a tremendous, tremendous advance in terms of being able to do real actual policy research on what’s happening on the ground in bankruptcy cases.” The information is already public but has to be collected from individual courthouses, he said. Consumer bankruptcy lawyers, he said, should “embrace” data-enabled forms “because, in the long run, availability of this type of information will greatly help the interests of their clients who tend to be up against big financial interests.” Regardless, the judiciary is proceeding cautiously. A conference subcommittee may make a recommendation to the full bankruptcy committee next month, according to a spokesman for the Administrative Office of the U.S. Courts, Richard Carelli. Although most bankruptcy filings are public, the judiciary’s primary concern is privacy, Carelli said. Anyone on the Internet, including data miners, can collect sensitive information on filers and create databases for any purpose. Because of the cost of upgrading software, the judiciary is also concerned about a “potential burden” on some vendors, lawyers and members of the public to pay for or provide the special software, he added. And, Carelli said, “use of data-enabled forms will give an undue advantage to one of the parties, the U.S. Trustee, to the detriment of pro se debtors and attorneys who only occasionally file bankruptcy petitions, or that approving such a request from a potential litigant may give the appearance of favoring that litigant.”

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