Section 4.50(c) of the Access Rules forbids any publicly available court record from containing the full social security number of an individual. Section 40-4-105 M.C.A. requires the social security numbers of the persons subject to a decree of dissolution to be “recorded in the records” — made a part of the court file. However, if a litigant requests, the clerk of court must keep the social security number confidential. See Section 40-4-105(6) M.C.A.
Archive for February, 2008
Social Security Numbers
Wednesday, February 20th, 2008Sealing of parenting plan investigative reports
Wednesday, February 20th, 2008The reports of parenting plan investigators appointed under Section 40-4-215 (4) M.C.A. must be filed as part of the court record but “… may, without objection, be sealed.” The investigator must make not only the report generated, but the underlying documents, testing results, names of everyone the investigator spoke with — upon which the report is based. The investigator has broad powers: to obtain medical records of a child (less than 16 years of age) without obtaining the parents’ or the child’s consent. This is clearly a discretionary judicial act, but no standard for ruling is expressed.
With the new Access Rules, best practice is to routinely move to seal such reports and underlying documents.
Motion to seal parenting plan interviews, reports, investigations, testimony
Wednesday, February 20th, 2008Section 40-4-216 (4) M.C.A. allows a court to seal interviews, reports, investigations and hearing testimony if it finds that keeping the information secret is necessary to protect the child’s welfare. Ironically, the new Access Rules may make it far easier to seal such records — when the only alternative is internet publication.
Section 40-4-216 (3) allows the public to be barred from a parenting plan hearing if barring the public is in the best interests of the child.
Cell Phone Numbers
Sunday, February 17th, 2008At least one court I know is collecting cell phone numbers. I expect this will become common as the only practical way to contact victims, witnesses, and jurors. Not only is there no protection from internet publication of cell phone numbers under the new Access Rules, Section 4.10 (c) specifically forbids any district court or court of limited jurisdiction from adopting any rule restricting the internet publication of these telephone numbers.
Cell phone numbers are, of course, not published in the Dex Telephone Book or competing paper directories. So this information will be quite valuable commercially. Telemarketers, political operatives and others will embrace this new source of information regarding thousands of Montanans. Google and an increasing array of commercial companies can be expected to download and index these cell phone numbers as well.
Medical Records
Saturday, February 16th, 2008Medical records are not protected from internet publication by the new Access Rules. They SHOULD be protected. As the Access Rule Commentary to Section 4.50 admits, HIPAA does not protect such documents because state courts are not included within the definition of “health care entities”.
“The Health Insurance Portability and Accountability Act of 1996 (HIPAA) and regulations adopted pursuant to it limit disclosure of certain health related information about people by certain healthcare entities. 42 U.S.C. § 1320d; 45 C.F.R. Part 160 and 164. Whether the limitation extends to state court records is not clear, however, state courts are not included within the definition of health care entities that are covered by HIPAA.” See Access Rule Commentary to Section 4.50.
Once a medical record, psychological evaluation, child custody evaluation and other similar documents are admitted into evidence or attached as exhibits to affidavits filed before the courts, they become “court records” under Section 3.10 of the Access Rules. All court records except for records that are expressly not publicly available are slated for internet publication under the Access Rules.
In my family law practice it is not unusual to have psychologists involved to help the court decide contested parenting plan cases. The reports from psychologists performing custody evaluations include a detailed personal history of the adults, the children, psychological testing results, mental health diagnoses and recommendations of the professional for the court.
Why are not medical records, including psychological evaluations and medical and mental health related information categorically protected from internet publication? Why did not the Task Force add these records to 4.50 (c)?
As the Montana Psychological Association comment from June 1, 2006 noted, lots of harm to Montanans can come from unrestricted internet publication of such records.
We should routinely file motions to seal these documents in light of the harm to be done by internet publication.
Juror Questionnaires
Saturday, February 16th, 2008Juror questionnaires are “court records” in the parlance of the Access Rules under Section 3.10 (a). Rule 9 of the Montana Uniform District Court Rules require every potential juror to fill out a questionnaire. I include the questionnaire below. It requests a lot of pretty personal information: where they work, education level, information about their spouse, whether they have sued or been sued, whether they have been injured or have a disability, whether they have an attorney and so forth. Rule 9 states that questionnaires are available to counsel before trial. Rule 9 does NOT forbid the public from examining these documents. Although Section 4.50 of the Access Rules prohibits internet publication of court records “not to be accessible to the public”, it would not appear to offer any protection to the thousands of Montanans annually who are part of our pools of potential jurors.
Juror questionnaires are among the multitude of court records to be published on the internet under the Access Rules simply because the Access Rules mandate internet publication of ALL court records to which the public has access.Under the electronic framework the Access Rules contemplate, there is no distinction between a “public” document and a “published” document. So as we move to a digitized court record environment, all kinds of information about Montanans will be available on Google and other commercial search engines.
Internet publication of juror questionnaires is both unnecessary and unwise. We ought to be encouraging Montanans to serve on juries. Jury service is a critical part of our Montana justice system, but represents a significant burden on those called to serve: we ask them to miss work, leave their small children in daycare and so forth. Then we ask them to fill out questionnaires and later submit to voir dire sitting in a crowd of strangers.
Jury service is compulsory, but in our existing environment many look for reasons not to serve. These Access Rules will make that worse.
Here is the Juror Questionnaire form each juror in the State of Montana is mandated to fill out.
FORM “B”
MONTANA UNIFORM DISTRICT COURT RULES
PLEASE FILL OUT AND RETURN THE FOLLOWING WITHIN SEVEN (7) DAYS TO THE CLERK OF
THE DISTRICT COURT, BOX _______, MONTANA
QUESTIONNAIRE AS TO QUALIFICATION FOR JURY SERVICE
(PLEASE PRINT OR TYPE)
1. Name______________________________
2. Address _________ City __________ Zip Code ______
3. If you live outside of the city limits, please state the round trip mileage from your home to the city limits _____
4. Telephone: Home _____ Office _____
5. How long have you resided there? _____ Years in State? _____
6. Married ____ Single ____ Age ____ Sex ____
7. Do you have children? ____ Ages ____ Sex ____
8. What education have you had?
9. Are you employed at present? _____ Occupation
10. Employer’s name ________ Address
11. a. If you are married, name of spouse.
b. If married, occupation of spouse.
c. If retired, or not working, give last occupation.
d. If married, give spouse’s employer.
e. Do you own or are you buying your own home?
12. Have you ever served as a juror? _____ If so, in what court?
13. Have you or any member of your immediate family ever been injured in an
accident? _____ If so, what type? _____________
14. Are you, or any member of your immediate family involved in law
enforcement in any official capacity? _____ If so, briefly explain. ____
15. Have you or any member of your immediate family ever been a plaintiff or
defendant in a lawsuit? _____ What type of suit? _____
16. Are you or your spouse related to any attorney? _____ If so, his or her
name and address. ________________
17. Are you or your spouse presently being represented by an attorney? _____
If so, his or her name and address __________________
18. Do you have any disability which you feel would make it difficult to serve
on a jury? _____ If so, briefly explain____________________
19. In order to serve as a trial juror, you must be a registered elector whose
name appears on the most recent list of all registered electors as
prepared by the county registrar, and not convicted of malfeasance in
office or any felony or other high crime.
20. Do you feel you should be excused from serving as a juror? _____ If you
answer “yes”, complete the enclosed affidavit and have your signature
notarized and return within seven (7) days to the Clerk of the District
Court.
I certify that the foregoing statements are true to the best
of my knowledge and belief.
DATE ______ SIGNATURE ____________
