December 2001

The New "Access to Family Law Court Records" Court Rule 

by J. Mark Weiss

On October 1, 2001, GR 22, "Access to Family Law Court Records," became effective. This new court rule only affects the portions of family law court files that can be viewed, but also changes how family law cases are commenced and how some documents must be filed. The primary goal of the new rule — forged by the Washington State Supreme Court with input from many groups, including the WSBA Family Law Section, county clerks, and superior court and court of appeals judges — is to protect family law litigants from identity theft. New and revised mandatory forms have been developed, and new legislation (Ch. 42, Laws of 2001) works in tandem with the new rule.

Family law court procedures are sui generis in several respects. For instance, family law pleadings must be on mandatory forms. Also, "temporary orders" are frequently obtained shortly after filing to provide for residential arrangements and support for children and spouses, and to preserve the peace and status quo. The issues decided at temporary motion hearings tend to be similar to many of the ultimate issues that are decided at trial, making these hearings significant for the parties. Temporary motion hearings are heard on affidavits in most, if not all, counties. Even after trial, family law cases continue to differ from other civil cases in that many orders tend to require future acts by ex-spouses, such as paying ongoing support or parenting children. Unlike other civil cases, some final orders remain modifiable.

Unique procedures have evolved to handle the special needs of family law cases. For instance, in order to make decisions involving support, courts need evidence of income and obligations. That evidence is normally attached to mandated financial affidavits, and consists of income-tax returns, paystubs, bank-account statements, credit-card statements, and similar documents. Once the court determines a party’s support obligation, the Department of Social and Health Services Washington Division of Child Support usually provides support-enforcement services.

To provide effective administration of orders, parties are required to file detailed information about themselves and their children. This information includes social-security numbers, dates of birth, addresses and driver’s license numbers. Much of this information is statutorily required in the initial petition filed with the court, and is also set forth in various orders and other filings. The final decree often contains account numbers of credit cards and bank accounts. The reality is that there is no other category of civil case where so much personal-identifier information is routinely placed in the court file. When so much information can be found in the public file, it should be no surprise that family law court files can become magnets for identity theft. With plans to make documents from court files available on the Internet, concerns about identity theft have become greater. Indeed, there have already been several cases of identity theft linked to family law court files — and such documents are not yet available on the Internet.

GR 22 provides safeguards by declaring litigants’ personal-identifer information to be "restricted personal identifiers." The rule attempts to keep this information out of the public court file. The rule applies to all family law proceedings, including the parts of the parentage files that are sealed under RCW 26.26.200.

The new rule specifically provides that "[p]arties … shall not be required to provide restricted personal identifiers in any document filed with the court…." (Emphasis added.) To comply with this prohibition, the mandatory forms have been modified to delete places where restricted personal identifiers were previously requested. For instance, the financial declaration form no longer requests the party’s social-security number. By implication, this provision of GR 22 also makes it permissible to redact restricted personal identifiers from exhibits.

Because restricted personal identifiers are still needed to provide support-enforcement services, and because the court still needs documents that contain such information to determine financial issues, alternate means to supply the information had to be devised. The goal was to seal the restricted personal identifiers without sealing the entire file and without imposing undue burdens on practitioners, parties, clerks, courts, news media or the public.

Parties will now provide restricted personal identifiers in a confidential information form (CIF), a new form that will be sealed. The form serves as the single document that collects identification information for support enforcement and court purposes. No longer will restricted personal identifiers appear in multiple documents throughout the court file. Court clerks will transmit the form to the Division of Child Support (DCS). To ensure that DCS has current data, parties are required to file an updated CIF if information changes.

Also sealed will be "financial source documents." Until now, these were attached to financial declarations (e.g., income-tax returns, bank statements and paystubs). To be automatically sealed, the financial source documents must be attached to a new mandatory cover sheet. The cover sheet itself (with the attachments removed) will remain in the public file, so anyone can ascertain that financial source documents were filed. If financial source documents are filed the old-fashioned way, by simply attaching them to the financial declaration in violation of GR 22 (or if they are attached to another declaration or to a motion), the source documents will end up in the publicly accessible file. It is the cover sheet that triggers the clerk to automatically seal the attached financial source documents.

Besides the CIF and the attachments to the cover sheet, no other document or information in a court file will be automatically sealed.

To carry out the intent of the court rule, legislative changes were required. The new legislation makes statutes consistent with the new rule. For instance, RCW 26.09.020 had to be amended to no longer require parties to supply their social-security numbers and residence addresses in petitions.

Parties and counsel of record will automatically have access to all records in their cases, except for filed CIFs. Only for good cause shown, with notice given to the parties, will the court provide access to nonparties for the sealed documents in the files. GR 22 contains specific protective language to limit access to personal information.

GR 22 makes it possible — indeed mandatory — to protect certain types of client information. Having the latest mandatory forms is perhaps the most important first step for practitioners, because the new forms will no longer elicit protected information. Court clerks will reject petitions unaccompanied by the new CIF. Attachments to financial declarations must now be filed under a separate cover sheet. The rule does not require any other changes in the way attorneys practice family law.

Despite the promulgation of GR 22, it remains possible that restricted personal identifiers and financial source documents will end up in the public court file. This could occur, for instance, if a practitioner or party disregards the rule or provides exhibits that contain restricted personal identifiers. Only the CIF and financial source documents that are attached to the cover sheet will be automatically sealed.

There are good reasons why practitioners may want to do more than the minimum to keep restricted personal identifiers out of the public court file. It does not take much imagination to envision the possibility that a former client (or opposing party) may seek redress from counsel who files exhibits that contain restricted personal identifiers that have been abused. Because electronic scanning of documents filed with the court is becoming routine (it is currently done in approximately 15 counties, with plans for all counties to eventually come online), and future electronic access to court-filed documents files is a near certainty, potential accessibility to personal-identifier information is of concern.

Once documents are available electronically on the Internet, anyone, anywhere in the world, with a computer programmed to scan for personal identifiers contained in digitized versions of public documents will be able to extract such information and use it as they see fit. It is therefore simply not prudent to allow restricted personal identifiers to get into the court file.

To protect clients, practitioners should carefully consider what they file. It has become increasingly common to see information filed that could be invasive of privacy or that could compromise a client’s financial security if abused. For example, it is not uncommon to see account numbers listed in dissolution decrees. A bank or credit-card account number can be valuable information to a criminal. Account numbers are placed in decrees solely to provide clarity and enforceability of the decree. If the same clarity and enforceability can be attained by truncating account numbers to just two or three digits — enough to avoid confusion in a subsequent court proceeding — why not truncate the numbers and simply state in the decree that the number has been truncated? Complete account numbers could be exchanged between counsel in confirming memoranda that are not filed with the court. This is just one example of how a simple change in practice can provide benefits to clients.

As of this writing, the following new mandatory forms were being adopted in response to the new legislation and court rule:

•  WPF DRPSCU 09.0200: confidential information form

•  WPF DRPSCU 09.0210: addendum to confidential information form for additional parties and children

•  WPF DRPSCU 09.0220: sealed financial source documents cover sheet

•  WPF DRPSCU 09.0230: stipulation and order to allow access to sealed records under GR 22(g)(2)

•  WPF DRPSCU 09.0240: motion/declaration to allow access to records under GR 22(g)(3)

•  WPF DRPSCU 09.0250: order re: access to records under GR 22(g)(3)

In addition to these new forms, a large number of mandatory forms are being revised to comply with this new legislation and rule, as well as the new Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).

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