Jay M. Polk
7310 N. 16th St. Suite 330
Phoenix, AZ 85020-8212
I am a member of the Probate Rules Committee (the "Committee"), but submit this response only on my own personal behalf and not on behalf of the Committee.
According to its Petition to Amend Rule 7, Arizona Rules of Probate Procedure (the "Petition"), the Arizona Association of Superior Court Clerks (the "Clerks") proposes that documents currently defined as confidential documents "be processed as sealed documents." The problem with this approach is that sealed documents may not be viewed (nor may copies of sealed documents be obtained) except by order of the court. The Committee went to great pains to come up with a system that would balance the public's right (not to mention the parties' and the court's need) to access public records with the need to prevent identiy theft. Rule 7 is the product of the Committee's hard work in that regard.
The Clerks' Petition first would amend Rule 7(A)(1)(b), which defines the term "confidential document," to include a citation to A.R.S. section 14-5206, supposedly (according to the Petition) for the purpose of including "medical or other records" relating to minor guardianships within the definition of "confidential document." However, A.R.S. section 14-5206 does not deal with guardian reports for minors; instead, it deals only with whom should be appointed as the guardian for a minor and with the fingerprinting requirement. In fact, no statute or court rule requires the filing of an annual report of guardian in connection with a minor guardianship. Consequently, the proposed change to Rule 7(A)(1)(b) is misplaced.
The Clerks' Petition next would amend Rule 7(A)(2) so as to include the social security number of a deceased person within the definition of "confidential information" (currently, the definition applies to the social security number of a living person but not to a deceased person). When drafting Rule 7, the Committee specifically considered whether the social security number of a deceased person should be included within the definition of "confidential information." Ultimately, the Committee decided that it should not. The reason for our decision was based on the fact that social security numbers are contained on death certificates, which sometimes must be filed with the court. For example, according to A.R.S. section 14-3971(E), a certified copy of the decedent's death certificate must be attached to an affidavit of succession to real property. If the decedent's social security number were considered within the definition of "confidential information," then the social security number would need to be redacted (which it cannot be because such redaction would be altering an official government record) or the entire affidavit would need to be filed as a confidential document (which would not be practical because, under A.R.S. section 14-3971(E), the clerk must issue a certified copy of the affidavit, which then must be recorded to transfer title to the property). Consequently, we determined that including the social security number of a deceased person within the definition of "confidential information" was not practical.
The Clerks' Petition would revise Rule 7(A)(3) to include a "debit card account" within the definition of "financial account." I agree with this proposed revision as it makes sense to include such accounts within the definition of "account."
The Clerks' Petition would revise Rule 7(A)(4) to include a sentence that places the burden of redacting a document upon the person who "originat[ed]" it. The addition of such sentence in Rule 7(A)(4) is inappropriate because Rule 7(A)(4) simply defines the word "redact." Moreover, the issue of who should redact confidential information is already addressed in Rule 7(E)(2), which provides that the court may order that confidential information in a non-confidential document be redacted and which also states that the “redaction shall be performed by the originator of the document in instances where the document has yet to be filed.” In addition, the proposed addition to Rule 7(A)(4) would not be feasible in cases when a document that has already been filed with the court needs to be redacted (because the the party who is to be redacting the document would be tampering with an official court document). Furthermore, if the Court were to adopt the Clerks' proposal to amend Rule 7(E)(2), the definition of "redact" would no longer be necessary because the term would no longer be used in Rule 7.
The Clerks' Petition would amend Rule 7(E)(2) so as to give the court the authority to order that a document containing confidential information be sealed rather than redacted. The court already has the inherent power to order any document be sealed. Moreover, as already mentioned, if a document is sealed, it can only be unsealed by court order. This inhibits the parties' ability to access documents that they should have access to. For example, if a conservator accidentally includes a complete account number (rather than just the last four digits) in a petition and the petition is then sealed, the court-appointed attorney then will need to obtain a court order to obtain a copy of the petition if it is sealed (whereas, if the petition is filed as a confidential or redacted document, the court-appointed attorney will not need any court order to obtain a copy of the petition). In addition, if the document is sealed, it arguably would be denying the public access to a public record. Consequently, documents should be sealed sparingly, not as a matter of course.
The Clerks' Petition would amend Rule 7(G)(4) and 7(H)(4) so as to authorize not only judicial officers but also "court administration staff and any other authorized court personnel" to access confidential documents. The Committee expressly considered language similar to that suggested by the Clerks, but was concerned about court staff who did not need access to the information using the information for identity theft. Thus, the Committee intentionally did not include court staff. In addition, the phrase "authorized court personnel" is ambiguous. (E.g., authorized by whom and for what purpose?). If the phrase "authorized court personnel" is to be added to Rule 7(G)(4) and Rule 7(H)(4), either the phrase should be defined in Rule 7(A) or the comment to Rule 7 should be amended to provide some guidance as to what is intended by that phrase.
Last, the Clerks' Petition would make some minor revisions to the Comment to Rule 7. I have no objection to those proposed revisions and support those proposed changes.
Jay M. Polk