Lessons from Bankruptcy Court Public Records

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Lessons from Bankruptcy CourtPublic RecordsKristin A. Henderson aa Carney Badley Spellman , Seattle, WA, USAPublished online: 21 Sep 2008.

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Lessons from Bankruptcy CourtPublic Records:

A Conflict of Values for Law Librarians

Kristin A. Henderson

ABSTRACT. This article addresses the conflict in values for law li-brarians posed by the online availability of consumer bankruptcy courtrecords. There is a significant amount of personal and financial infor-mation in a consumer bankruptcy filing. Law librarians espouse freeaccess to legal information, which is a value served by online access tobankruptcy court records. However, law librarians also advocate indi-vidual privacy, which is a conflicting value. This article briefly exam-ines the contents of a consumer bankruptcy filing, then examines thecompeting values. The conflict is apparent to policymakers as well,and the article examines responses of each of the three branches ofgovernment to the tension between access and privacy in bankruptcycourt records, including changes to the Federal Rules of BankruptcyProcedure and the Official Bankruptcy Forms. Finally, the article of-fers suggestions as to what law librarians might do in continuing to ad-dress the conflict in values. [Article copies available for a fee from TheHaworth Document Delivery Service: 1-800-HAWORTH. E-mail address:<[email protected]> Website: <http://www.HaworthPress.com>© 2004 by The Haworth Press, Inc. All rights reserved.]

KEYWORDS. Privacy, bankruptcy, court records, access to govern-ment information

Kristin A. Henderson is Law Librarian, Carney Badley Spellman, Seattle, WA.This article was written while Ms. Henderson was a student in the law librarianshipprogram at the University of Washington Information School. Ms. Henderson is also agraduate of the UCLA School of Law.

The paper that was the basis for this article won the 2003 Earl Borgeson Research inLaw Librarianship Award.

Legal Reference Services Quarterly, Vol. 23(2/3) 2004http://www.haworthpress.com/web/LRSQ

2004 by The Haworth Press, Inc. All rights reserved.Digital Object Identifier: 10.1300/J113v23n02_02 55

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I. INTRODUCTION

My hypothetical former neighbor, who now lives in Boise, Idaho,filed bankruptcy in 2002 in that city. Being a curious (maybe nosy) sortof person, I knew that I could learn an awful lot about her personal andfinancial life by visiting the website for the bankruptcy court in Idaho.1Using RACER (Remote Access to Court Electronic Records), I couldsearch that court’s bankruptcy filings by name and pull up the docket forher bankruptcy case. From that docket, I could pull up images of herschedules and statement of affairs, which give detailed information onher financial life and a fair amount of insight into her personal life, notto mention her social security number. I could retrieve the imaged docu-ments without registration, without a login, and without cost.

But something gave me pause. As a law-librarian-in-the-making, Iknew that free, online access to images of bankruptcy court documentscoincided with my new profession’s value of free, equal access to infor-mation for all. I am in favor of that. However, the free, online availabil-ity of my former neighbor’s social security number, the names and agesof her dependent children, her credit card numbers, and the disclosurethat she has substantial unpaid medical bills (and the names of all thehealthcare providers to whom she owes money) concerned me. I wastroubled by the fact that the personal information mentioned above wasavailable to anyone in the world with an Internet connection and someability to read and write English. I was, in a professional sense, concernedwith the privacy of my former neighbor and the confidentiality of certaindetails of her personal and financial life. Thus, while I applauded the con-venience and accessibility of imaged documents online, I was uneasywith the amount and kinds of personal information about any debtor inIdaho that are now so conveniently available. I was not alone.

Online access to imaged documents in individual debtors’ bank-ruptcy court files poses a conflict in values for law librarians. The readyonline availability of the contents of bankruptcy court files coincideswith the profession’s core value of open and effective access to legal in-formation. However, the types of information available online–sensi-tive personal and financial information–raise concerns about individualprivacy. Although protection of individual privacy other than users’ pri-vacy is not an explicit ethical principle of the AALL, the profession’sinherent concern for this value is implicit in positions that the organiza-tion has taken. This article will explore these two conflicting values,taking into account some of the literature examining the competing val-ues of access and privacy. In addition, this article will discuss federal

56 LEGAL REFERENCE SERVICES QUARTERLY

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executive, judicial, and legislative responses to the issues posed by theconflict.2

The stage is set with a brief introduction to consumer bankruptcy andthe contents of an individual’s bankruptcy filing. Following that is a briefdiscussion of the principal means of accessing imaged bankruptcy courtrecords online. Access to bankruptcy court records through RACER as itcurrently exists on the District of Idaho website makes a good vehiclefor exploring the conflict between access to legal information and infor-mational privacy. However, the predominant technology for Internetaccess to bankruptcy court records is and likely will be PACER, partic-ularly as bankruptcy courts move to a new case management system,Case Management/Electronic Case Files (CM/ECF). Thus, a very briefexplanation of online access to bankruptcy court records follows. Then,this article explores the two competing values–what they are and whythey are important, not only to librarians but also to individuals and oursociety as a whole.

Of course, the conflict posed by the online availability of bankruptcycourt records is apparent not only to librarians, but also to other individ-uals, groups, and governmental entities. Each of the three branches ofthe federal government has taken some major action that either tries tostrike the balance between access and privacy or affects that balance.Accordingly, this article discusses the following government responsesto the tension between public access and individual privacy:

1. The Executive response: Study of Financial Privacy and Bank-ruptcy, prepared by the Department of Justice, the Department ofthe Treasury, and the Office of Management and Budget.3

2. The Judicial response:

a. Report of the Judicial Conference Committee on Court Admin-istration and Case Management on Privacy and Public Accessto Electronic Case Files.4

b. Proposed amendments to the Federal Rules of Bankruptcy Pro-cedure and Official Bankruptcy Forms.5

3. The Legislative response: Section 205 of the E-Government Actof 2002,6 with a nod to the pending Bankruptcy Abuse Preventionand Consumer Protection Act of 2003, pending in Congress as ofDecember 29, 2003.7

Finally, the article offers suggestions as to what we might do goingforward.

Kristin A. Henderson 57

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II. CONSUMER BANKRUPTCY 101

Bankruptcy is an organized judicial process for insolvent individualsand other entities. The Bankruptcy Code, Title 11 of the United StatesCode, 11 U.S.C. §§ 101-1330, is organized into chapters, four of whichpertain to the various types of bankruptcy that an individual may file.Consumer bankruptcies are typically thought of as those filed under ei-ther Chapter 7 or Chapter 13.8

Chapter 7 is sometimes referred to as “liquidation.” Once a debtorfiles under chapter 7, the debtor’s estate is administered by a chapter 7trustee. The trustee’s principal job is to gather and sell the debtor’s as-sets that are not exempt from creditor’s claims or subject to a securityinterest to pay creditors according to the provisions of the BankruptcyCode.9

Chapter 13 is sometimes referred to as “Adjustment of Debts of anIndividual with Regular Income.” Chapter 13 requires court approval ofa plan of repayment. The debtor makes payments to creditors throughthe Chapter 13 trustee over what is typically a period of three to fiveyears.10

The goal of a bankruptcy debtor is the discharge of debts. A dis-charge in a Chapter 7 or Chapter 13 case releases the debtor from per-sonal liability for discharged debts and enjoins the creditors to whomthose debts were owed from taking any action to collect the debtsagainst the debtor or the debtor’s property.11

Individuals wishing to obtain bankruptcy relief must file a bank-ruptcy petition,12 as well as schedules and a statement of affairs,13 usingthe Official Bankruptcy Forms.14 Among the information to be includedin the bankruptcy petition are the debtor’s address and other names thedebtor has used in the last six years.15 Until December 1, 2003, the peti-tion included the debtor’s full social security number as well.16 Thedebtor’s schedules require the disclosure of the description, location,and value of all real and personal property.17 In addition, the debtormust disclose all claims, secured or unsecured, including account num-bers and the nature of the debts.18 Until December 1, 2003, full accountnumbers were required. As of that date, debtors are required to provideonly the last four digits of account numbers, although debtors mayprovide full account numbers if they choose.19 The debtor must alsodisclose marital status, the age and relationship of all dependents, em-ployment information for the debtor and spouse, and monthly in-come.20 (Until December 1, 2003, debtors also had to disclose thenames of minors and other dependents.21) In addition, the debtor must


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file a list of monthly expenses.22 Finally, the debtor must file a state-ment of financial affairs requiring disclosure of, among other things,gross income for the year of filing to date plus the two prior years, allsuits to which the debtor is or was a party within one year preceding thefiling of the bankruptcy, and a list of certain gifts and charitable contri-butions made within one year immediately preceding the filing.23

Full disclosure is the name of the game in bankruptcy. The petition,schedules, and statement of financial affairs must be verified or containan unsworn declaration.24 Failure to make full disclosure exposes thedebtor to criminal penalties and the denial of a discharge.25

A caveat: this section describes consumer bankruptcy as it exists inDecember, 2003. In the 107th Congress, bankruptcy reform legislationthat would have had a major impact on consumer bankruptcy came veryclose to passing. Similar legislation was introduced in the 108th Con-gress on February 27, 2003, and passed by the House of Representativeson March 19, 2003.26

III. ACCESS TO BANKRUPTCY COURT RECORDSTHROUGH BANKRUPTCY COURT WEBSITES

At present, if I log onto the website for the United States District andBankruptcy Court for the District of Idaho,27 I can link to RACER to ac-cess bankruptcy case information. According to the “Help” feature forRACER, I can search by case number, party name, date range, or pro-fessional name. I performed a search for all cases filed on a particulardate and all cases in which those with a common last name were a party(the results of the second search are not limited to those who are debt-ors). In both instances, the results list contained, among other things, thecase number, the date the case was filed, and the chapter of the Bank-ruptcy Code under which the case was filed. The case number is a hy-pertext link to a summary information sheet for the case and a menu ofadditional search features. Clicking on the “View Docket” control re-trieves the docket for the case, with links to those documents that areimaged. Among the documents that are imaged are the bankruptcy peti-tion, schedules, and statement of affairs. Images of those documents canbe retrieved by clicking on the hypertext link in the docket. In turn, theimages can be printed. I can do all of this without registration and login,and without cost.28


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The version of RACER on the District of Idaho website was initiallychosen as the vehicle to explore the conflict of values in this article. Be-cause it has been so easy to retrieve case documents from certain courtwebsites that use RACER, access to Idaho bankruptcy court recordsthrough that site starkly illustrates the conflict between access and pri-vacy. However, most bankruptcy courts that provide access to imageddocuments do so through PACER.29 As currently structured, PACERprovides some barriers that may deter the nosy neighbors and the ill-in-tentioned, as well as any number of other users: PACER requires estab-lishment of an account, as well as registration and login for a session.30

In addition, there are currently charges for using PACER through awebsite.31 Finally, registration under PACER allows tracking of accessthrough the registration and login.32

IV. THE CONFLICT FOR LAW LIBRARIANS

What follows is an exploration of the two conflicting values. Thevalue of open and effective access to information is first examined bylooking at what “access” means, the reasons for public access to bank-ruptcy court records regardless of format, and the reasons for imagedbankruptcy court documents available online. The discussion of “ac-cess” culminates in a discussion of the principal policy issue in thisarena: Should access to online bankruptcy court records be the same asaccess to paper records?

Next, the discussion focuses on the competing value, privacy, begin-ning with an introduction to “informational privacy” and the impor-tance of privacy to us as individuals and as a society. Unlike “access,”there is no AALL ethical precept that speaks to the value of protectinginformational privacy as a societal value, so the discussion proceeds toshow that two positions taken by the AALL demonstrate the profes-sion’s commitment to this value–which, as we know, must be weighedagainst the value of open and effective access to information.

A. Access

1. What Does “Access” Mean and What Does It Encompass?

What do we mean when we say that the profession promotes accessto information? After all, one of the AALL Ethical Principles states:


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“We promote open and effective access to legal and related informa-tion.”33

Of the two competing values, access and privacy, “access” is the eas-ier to define. A dictionary definition will do: “Access” is the “freedomor ability to obtain or make use of.”34 Thus, in the context of bankruptcycourt files, “access” is the means of obtaining the files or individualdocuments or pleadings within the file. For records that exist only in pa-per, the possibilities for access include visiting the courthouse duringregular business hours to view the file, writing to the court and askingfor (and paying for) a copy of the file, and sending a messenger to copythe file.

As we know, files in many bankruptcy courts are available electroni-cally. Electronic court files are being created in two ways. Many courtscreate electronic images of all paper documents that are filed.35 Othercourts receive court filings over the Internet directly from attorneys, sothat there is no longer an “original” paper file but a collection of theelectronic documents filed by the parties and the court.36 Electronic fil-ing will become more common as federal courts implement an elec-tronic case management system, Case Management/Electronic CaseFiles (CM/ECF).37

For records that are available both as paper files and as imaged files,the records may be obtained using the methods described above, butthey may also be obtained by visiting the court website and viewing therecords by means of whatever technology is available. For records thatare available only as imaged files, the records may be viewed at thecourthouse or by visiting the court’s website from anywhere that hasInternet access, and then using that court’s means of online access.

Why is access to bankruptcy court documents in any format impor-tant to parties in interest and the public at large? Why is online access toimaged bankruptcy court documents of value?

2. Reasons for Access (Regardless of Format)

There are three principal reasons why the public has access to bank-ruptcy court records regardless of the format of those records. First,such access is mandated by the Bankruptcy Code. Second, access tobankruptcy court records promotes the effective and efficient disposi-tion of cases. Finally, public access to bankruptcy court records allowsthe public to monitor the bankruptcy system.


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a. Public access to bankruptcy court records is required by statute.

Although the Bankruptcy Code does not speak to public access to im-aged bankruptcy court records, Section 107(a) of the Code does specifythat bankruptcy records are public records and requires that they beopen for examination “at reasonable times without charge.”38 The pub-lic thus has a right of free access to bankruptcy court files, which isbroad, but not absolute. A “party in interest,” which would include thedebtor, may ask for a protective order to (1) protect an entity with re-spect to a “trade secret or confidential research, development or com-mercial information” or (2) protect a person with respect to “scandalousor defamatory matter” contained in a paper filed in a case.39 Because thefirst exception is limited to commercial interests, the second exceptionis the only one that is likely to apply to a consumer debtor. Protection ofprivacy is not a stated reason for protecting a document from disclosureunder Section 107(b), although at least one bankruptcy court has sug-gested that if a party asserts a privacy interest that implicates a constitu-tionally protected privacy right, then a court may consider protectionunder section 107(b) (2).40

There is a split of authority as to whether the provisions of Section107(b) are exclusive; that is, whether a bankruptcy court may seal a fileonly for the reasons set forth in Section 107(b) or whether otherprotections from disclosure remain under the common law.41

b. Public access to bankruptcy court records promotes the efficientand effective disposition of cases.

Public access to bankruptcy records promotes the efficient and effec-tive disposition of cases. The various types of information collected inthe case and the availability of that information should promote thegoals of bankruptcy–a fresh start for debtors and equitable distributionto creditors.42 Knowing the debtor’s profile helps creditors assess thepossibilities of repayment. In addition, creditors may be able to furnishthe trustee with information of the debtor’s wrongdoing that may resultin the recovery of assets, the denial of a discharge or criminal penal-ties–for example, a creditor may know about assets that the debtor didnot disclose. Also, those who are not listed as creditors need to knowabout the case to determine if they need to assert their rights in the case.

Electronic access, along with electronic filing, also results in in-creased efficiencies for the courts and litigants. Court administrators as-sert that they are only able to keep pace with increased filings because of


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the increased efficiencies that accompany electronic files and remoteaccess.43 Lawyers who file electronically are beginning to report signif-icant savings.44

c. Public access to bankruptcy court records allows the public tomonitor the bankruptcy system.

Public access to bankruptcy court records allows the public to moni-tor the bankruptcy court system and to ensure that it operates effec-tively.45 The Preamble to the AALL Code of Ethics speaks to this valuein the context of access to legal information overall:

When individuals have ready access to legal information, they canparticipate fully in the affairs of their government. By collecting,organizing, preserving, and retrieving legal information, the mem-bers of the American Association of Law Libraries enable peopleto make this ideal of democracy a reality.46

Access to court records (not just bankruptcy court records) “ensures‘that those who administer justice should always act under the sense ofpublic responsibility, and that every citizen should be able to satisfyhimself with his own eyes as to the mode in which a public duty is per-formed.’”47

In the bankruptcy context, so it is said, public access to bankruptcyrecords “forces integrity on the bankruptcy system by placing all thathappens under harsh public scrutiny.”48 Bankruptcy has (or at least had)a reputation for lack of openness that engendered suspicions that bank-ruptcy courts operated “in the shadows and for the benefit of insiders.”49

Second, the integrity of the system flowing from this openness to publicscrutiny helps to maintain the public’s confidence in the bankruptcysystem.50 Finally, general public access allows accurate, reliable dataabout the bankruptcy system to be collected to evaluate the need tochange bankruptcy laws.51

The Enron bankruptcy illustrates the positive impact of electronic ac-cess to court records, both for monitoring the bankruptcy court processand for “leveling the geographic playing field.” In the seven months fol-lowing the filing of the Enron bankruptcy in the Southern District ofNew York, 6.7 million pages of documents were downloaded throughPACER.52 Creditors, former employees, and stockholders of the com-pany would not have been able to monitor the case nearly as effectivelywithout remote access to the case files.53


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3. Reasons for Online Access to Imaged Documents

Online access to imaged documents increases access to bankruptcycourt records and to the judicial system overall. First, imaged bank-ruptcy court documents allow 24/7 access from anyplace that has anInternet connection. Online access provides access for those that maynot be able to go to the courthouse for whatever reason, including dis-ability.54 In addition, online access allows concurrent access.55

Online access is convenient for attorneys and members of the public,including self-represented debtors and creditors. An attorney can view afile at any time and download and print copies of documents. Online ac-cess makes it easier for out-of-town lawyers, their clients, and creditorsin general to know what is transpiring in bankruptcies in other locationsin which they have an interest. Similarly, pro se debtors and creditorscan access a file at any time and need not take time off work or travel toa distant courthouse to learn what is going on in a case. Finally, anyonewishing to look at bankruptcy files to monitor the functioning of thebankruptcy system may do so without having to travel to the court-house.

4. Should Access to Online Bankruptcy Court RecordsBe the Same as Access to Paper Records?

The possibilities and threats of imaged online bankruptcy court rec-ords raise the fundamental policy question posed by the conflict: Shouldaccess to bankruptcy court records be the same regardless of medium?That is, should online access mirror access to paper records at the court-house? Is online access to imaged documents qualitatively differentfrom access to paper records in the courthouse?

That depends on your point of view. Those that advocate equal ac-cess for paper and online documents contend that public documentsshould be public regardless of medium.56 New technology merely of-fers greater and more convenient access to information that is alreadypublic–the means of access is different but the information is not.57 Per-sonal information in bankruptcy files has been publicly available for along time.58

The “public is public” advocates contend that the tension between ac-cess and privacy should be addressed by means other than limiting on-line access. For instance, policymakers should determine the types ofmisuse that are most likely to occur as a result of online access to courtdocuments.59 In addition, policymakers should review the necessity of


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information currently required in court papers rather than restricting ac-cess.60 As we shall see, policymakers have begun to review the neces-sity for all of the information currently required in an individual’sbankruptcy filing.61

There is another camp that perceives a qualitative difference betweenpaper documents and online documents. That difference is usually al-luded to by pointing to the “practical obscurity” of paper documents.The concept of “practical obscurity” pervades the literature on the ten-sions between access and privacy.62 In the context of the debate aboutonline access to court records, “practical obscurity” refers to the statusthat information residing solely in courthouse paper records enjoys.While that information is available, it requires effort to obtain. In orderfor someone to retrieve a document, he or she must travel to the court-house during business hours, request a file, wait for the file, and thenmake a photocopy.63 Paper records obtainable only at the courthousepresent practical barriers to access, which in turn operate to impede (orpreclude) access to sensitive personal information.64

Online access is also different in that it allows retrieval and manipu-lation of information in large numbers of case files in a short period oftime. This in turn facilitates data aggregation and “digital biography,”which some view as the real threat to privacy posed by online access tobankruptcy documents and other court records.65 The use of an individ-ual’s social security number as a unique identifier in multiple databasesenables data aggregators to compile a “digital biography.”66 The infor-mation available as a matter of public record in a bankruptcy case canadd a fair amount of detail to a digital biography.67

Finally, debtors may view online access as qualitatively differentthan paper access. Having extensive personal and financial informationon file in the courthouse may be perceived as an acceptable price to payfor a bankruptcy discharge. Having it available to the public onlinemight not be. (This assumes that debtor actually knows that the contentsof his or her bankruptcy file will be online. There is no requirement thatdebtors have notice that their file is a matter of public record or that itwill be available online if that is the case.)

B. Privacy

1. What Is Privacy?

There is no single definition of “privacy” that encompasses all theconcepts that the word embraces.68 Privacy is a loaded word, and it


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means different things to different people in different contexts. The di-mensions of an individual’s interest in privacy might be categorized as:

a. Privacy from physical intrusion by others.b. Privacy with regard to one’s own actions.c. Informational privacy.69

“Informational privacy” is the aspect of privacy at issue in this article.In turn, “informational privacy” has been defined as a limitation upon

the ability of another to gain, disseminate, or use information about one-self.70 Similarly, the ALA, in Principles for the Networked World, de-fines privacy as “The freedom to choose the degree to which personalinformation is monitored, collected, disclosed, and distributed.”71 TheSupreme Court has used a dictionary definition: “[I]nformation may beclassified as ‘private’ if it is ‘intended for or restricted to the use of aparticular person or group or class of persons: not freely available to thepublic.’”72 Broadly speaking, informational privacy denotes privacy inpersonal information and identity.73

2. Why Is Privacy Important?

Although a philosophical discourse on the importance of privacy isbeyond the scope of this article, it helps to understand the issues posedby the conflict if we remember some of the reasons that privacy is im-portant to us.

First, privacy is important to “personhood.” That is, privacy is es-sential if a person is to develop a sense of self and become and remaina person.74 Second, privacy is necessary for intimate and social rela-tionships.75 In addition, privacy is important to liberty.76 Finally, pri-vacy–at least informational privacy–reduces the threat of certain economicand physical harms, such as identity theft and stalking.

3. What Does the Profession Have to Say About Informational Privacy?

The AALL Ethical principles speak to privacy as an ethical value, butthey do so exclusively in the context of patron privacy and confidential-ity.77 That is not surprising; ethical precepts are to guide our behaviorand there is not much we can do on a day-to-day basis about what courtsput on their websites. Thus, the conflict this article addresses is not oneof ethical values per se because there is no ethical command to be thewatchdog for informational privacy.


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However, that does not mean there is not a conflict in professionalvalues, viewed as something other than stated ethical principles. Al-though there is no ethical precept requiring the advocacy of protectionfor informational privacy, it is clear that informational privacy is a valuethat the profession advocates. The AALL’s comments to the JudicialConference of the United States with respect to privacy and public ac-cess to electronic case files demonstrate that the profession does careabout informational privacy–in this instance, in the context of court rec-ords:

Concurrent with AALL’s strong commitment to the public’s rightto access government information is our equally strong belief thatpublic access through the Internet must be tempered by privacyrights concerning personal information held in government filesand private sector databases. We support strong federal and stateprivacy laws that insulate sensitive personal information from aworld of interconnected databases.78

In addition, the AALL’s endorsement of a brochure prepared by theALA Washington Office of the American Library Association, Prin-ciples for the Networked World,79 demonstrates the profession’s com-mitment to informational privacy beyond the doors of the library.Principles for the Networked World identifies a number of policy is-sues, including privacy and access to content, that must be addressed ifthe “networked world is to fulfill its promise.”80 As we have seen, “pri-vacy” is defined as “The freedom to choose the degree to which per-sonal information is monitored, collected, disclosed, and distributed.”81

Any policy addressing privacy must recognize that privacy “is a right ofall people and must be protected in the networked world.”82 Further-more, policies addressing access to content, including public informa-tion from government sources, must allow the privacy of personalinformation to be maintained when providing access to public rec-ords.83 The AALL endorsement of these principles is another exampleof the value that the profession places on informational privacy.

V. GOVERNMENT ADDRESSES THE CONFLICT

All three branches of the government have in some fashion tried tobalance the conflicting values of access to bankruptcy court recordsand the privacy of individual debtors. Addressed below are the execu-


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tive branch response (Study of Financial Privacy and Bankruptcy), thejudicial branch response (the Judicial Conference Privacy Policy andamendments to the Federal Rules of Bankruptcy Procedure and the Of-ficial Bankruptcy Forms), and the legislative response (Section 205 ofthe E-Government Act of 2003 and provisions in the pending Bank-ruptcy Abuse and Consumer Protection Act of 2003).

However, one cannot examine the governmental responses to thetension between privacy and access as it pertains to bankruptcy rec-ords without an awareness of an earlier executive branch report con-cerning the larger issues. In 1973, the U.S. Department of Health,Education and Welfare published Records, Computers and the Rightsof Citizens (1973) (“HEW 1973 Report”).84 Although the HEW 1973Report does not pertain to bankruptcy, it was and is extremely influentialin addressing the tension between access and privacy,85 and has informedthe executive, judicial and legislative responses below. Indeed, one com-mentator states that “[i]t is generally understood that the challenge of pri-vacy protection in the information age is the application and enforcementof Fair Information Practices and the OECD Guidelines.”86 The HEW1973 Report recommended the enactment of a federal “Code of Fair In-formation Practice,” to be built around five basic principles:

• There must be no personal data record-keeping systems whosevery existence is secret.

• There must be a way for an individual to find out what informationabout him is in a record and how it is used.

• There must be a way for an individual to prevent information abouthim that was obtained for one purpose from being used or madeavailable for other purposes without his consent.

• There must be a way for an individual to correct or amend a recordof identifiable information about him.

• Any organization creating, maintaining, using, or disseminatingrecords of identifiable personal data must assure the reliability ofthe data for their intended use and must take precautions to preventmisuse of the data.87

These principles are the first explicit articulation of what have come tobe known as Fair Information Practices.88 In 1980, the Organization forEconomic Cooperation and Development also established a compre-hensive set of Fair Information Principles for protecting privacy.89

These principles are:


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Notice–Entities collecting personal data from individuals shouldprovide them notice about the uses that will be made of that infor-mation and/or for what purpose the information will be used.

Limitation on Collection–Entities should limit the data they col-lect to what is necessary to their purpose.

Limitation on Use–Entities should not disclose data for purposesother than those specified, except as authorized by law.

Choice–Entities should provide, where appropriate, choice as tohow their information will be used and/or disclosed, particularlywhen the information is being used or disclosed beyond the statedpurpose of the information collection.

Access–Individuals should have reasonable access to the informa-tion that entities hold about them. They also should have the rightto request correction or deletion of incorrect information.

Security–Entities should ensure that the personal data they collectis secure from unauthorized access and disclosure. This includesnot only network security, but also physical security of data andpersonnel security.

Accountability–There should be a mechanism to ensure that enti-ties are held accountable for complying with these principles.90

A. The Executive Branch Response: Study of Financial Privacyand Bankruptcy

In 2000, President Clinton directed three federal agencies to study“‘how best to handle privacy issues for sensitive financial informationin bankruptcy records,’ including ‘the privacy impact of electronicavailability of detailed bankruptcy records, [sic] containing financialinformation of vulnerable debtors.’”91 The result was the Study of Fi-nancial Privacy and Bankruptcy (subtitled Financial Privacy In Bank-ruptcy: A Case Study on Privacy In Public and Judicial Records)(“Study”).92

The Study addressed the need for general public access to financialinformation in bankruptcy, focusing on the two main purposes of accessin that context: “facilitating the fair and efficient disposition of cases,


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and promoting public trust and accountability in the bankruptcy sys-tem.”93 The first purpose, fair and efficient disposition of cases, gener-ally encompasses the use of the information in the debtor’s schedulesand statement of affairs by creditors and the trustee.94 The second pur-pose, promoting public trust and accountability, is part of the more gen-eral right to know about the workings of government.95

The Study cited the special privacy interests of debtors in bankruptcy.In particular, much of the information available in a bankruptcy file–bank account numbers, bank balances, social security numbers, value ofreal and personal property, income, and medical expenditures–is notreadily available from other sources and is often protected from disclo-sure in other settings.96 The Study noted that this disparity in treatmentof the same information is perhaps a reason to reconsider the currentsystem that allows unrestricted access to the general public.97

Next, the Study briefly examined other models for balancing privacyand access. An alternative to turning to the court to determine whetherpersonal information should be accessible is a “rules-based approach”that would apply generally across the board.98 Access to public infor-mation could be restricted based upon (1) the content of the informa-tion, (2) the identity of the recipient of the information, or (3) therecipient’s intended use of or ability to use the information.99 As weshall see, the judiciary did indeed adopt a rule that restricts access to oneimportant piece of information, the debtor’s social security number.

The Study resulted in four findings, two of which speak to access andtwo of which speak to privacy. First, certain personal information, in-cluding detailed financial information, must be available to the court,parties in interest, and governmental entities to ensure the fair and effi-cient administration of cases.100

Second, some personal information filed in bankruptcy cases shouldbe made available to the general public to ensure public accountabilityand prevent abuses of the bankruptcy system.101

Third, debtors have a privacy interest in certain information. Certainpersonal information collected in bankruptcy proceedings is highly sen-sitive and is protected from access by the general public in other con-texts by financial privacy laws. Individual debtor’s privacy interests insuch information are not expressly recognized in the current bankruptcysystem.102

Finally, the storage of personal information in government electronicsystems poses new privacy concerns. Although government use of elec-tronic systems provides a host of benefits to Americans, there is a need


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to safeguard the privacy of personal information that is electronicallycompiled and transmitted to private entities.103 Also, because electronicsystems create the capability to release great amounts of personal infor-mation to more remote users, additional protections will sometimes berequired in order to avoid a large increase in the level of disclosure ofpersonal information.104

Based on these findings, the Study made four recommendations.First, interests in efficiency, government accountability, and privacy

should be better balanced. Protection of personal financial informationshould be given increased emphasis in the bankruptcy system.105

Second, the general public should continue to have access to core in-formation as a means of holding the bankruptcy system accountable.This information includes the fact that an individual has filed for bank-ruptcy, the type of bankruptcy proceeding, the identities of parties in in-terest, and other (unidentified) core information. However, the generalpublic should not have access to certain highly sensitive information,including social security numbers, credit card and bank account num-bers, and dates of birth. In addition, schedules showing detailed profilesof debtors’ personal spending habits and medical information should beremoved from the public record.106

Third, parties in interest, as well as potential parties in interest (forexample, entities that do not know whether or not they have a claimagainst the debtor), should continue to have access to a broad range ofinformation collected in bankruptcy proceedings. However, private en-tities that have such access should generally be prohibited from reusingor re-disclosing the information for purposes unrelated to the adminis-tration of a bankruptcy cases.107 In addition, detailed information thatappears in a bankruptcy filing should be available to researchers in amanner that would not identify individuals.108

Finally, the bankruptcy system should incorporate the Fair Informa-tion Practices of notice, consent, access, security and accountability.109

In this author’s view, the concept of notice seems particularly impor-tant. The Study recommended that debtors be informed in writing thatcertain information that they disclose in their petitions and schedulesmay be disclosed to the general public, and that, consistent with the law,may be disclosed to parties in interest, law enforcement, and other gov-ernmental entities.110 Notice seems doubly important if imaged docu-ments are to be made available online.

Interestingly, in its recommendation regarding the incorporation ofFair Information Practices, the Study omitted discussion of the principle


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that entities should limit the data they collect to what is necessary totheir purpose. That is curious. If we assume that online access is here tostay, then one of the adjustments we must make is to our thinking aboutwhat information really needs to be collected. As we will see, both thejudicial branch and Congress are beginning to question the need for allof the information that currently appears in a bankruptcy filing.

B. The Judicial Branch Response

The judicial branch’s initial response to the tensions between onlineaccess to court records and privacy followed shortly behind that of theexecutive branch. This section outlines the Judicial Conference PrivacyPolicy as it pertains to bankruptcy court records and describes recentamendments to the Federal Rules of Bankruptcy Procedure and the Of-ficial Bankruptcy Forms that tip the balance a bit more toward the pri-vacy of the debtor.

1. Report of the Judicial Conference Committee on CourtAdministration and Case Management on Privacyand Public Access to Electronic Case Files

In the fall of 2000, the Judicial Conference of the United States,Committee on Court Administration and Case Management, Subcom-mittee on Privacy and Electronic Access to Court Files sought com-ments concerning policies to address issues of privacy and securityconcerns with respect to public electronic access to court case files.111

The Judicial Conference sought comments with respect to policies ad-dressing four categories of court files: civil case files, criminal casefiles, bankruptcy case files, and appellate case files.112 This article onlyaddresses the policy with respect to bankruptcy court records.

The Judicial Conference posed four policy alternatives for bank-ruptcy court records:

Option 1: Seek an amendment to section 107 of the BankruptcyCode in two respects. First, specify that only “parties in interest”may obtain access to certain types of information. Second, amendsubsection (b) allowing court records to be sealed to clarify thatjudges may provide protection from disclosure based upon pri-vacy and security concerns.


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Option 2: Require less information on petitions, schedules andstatements filed in bankruptcy cases.

Option 3: Restrict use of Social Security, credit card, and other ac-count numbers to only the last four digits to protect privacy and se-curity interests.

Option 4: Segregate certain sensitive information from the publicfile by collecting it on separate forms that will be protected fromunlimited public access and made available only to the courts, theU.S. Trustee, and to parties in interest.113

The Judicial Conference received over 240 comments in response,114

including comments from the AALL.115 With respect to bankruptcycourt files, the AALL asserted that the risks of identity theft and otherunlawful activities from unfettered access to social security numbers,bank account numbers and other information outweighed the public’sright to access.116 The AALL also stated its agreement with the majorfindings of the Study, particularly the finding that the general publicshould not have access to highly sensitive information that poses sub-stantial privacy risks, and that access by interested parties should besubject to re-use and re-disclosure limitations.117 Finally, the AALLsupported Option 4 above; that is, sensitive information should be seg-regated on forms protected from unlimited public access and madeavailable only to the courts, the U.S. Trustee, and parties.118

The Judicial Conference determined that, for the most part, bank-ruptcy files should be treated much the same as civil files. With respectto civil files, the basic policy is “public is public.” All documents in civilcases, with the exception of social security cases, should be made avail-able electronically to the same extent that they are available at the court-house.119 The policy is meant to “level the geographic playing field” byallowing attorneys not located in geographical proximity to the court-house easy access to court files. In addition, the Conference viewed the“public is public” policy as a means of deterring a “cottage industry” indata resale that might develop if electronic access were restricted. Thatis, data resellers could go to the courthouse, copy the files, downloadthem to a private website, and charge for access to the website, therebyprofiting from the sale of public information and circumventing restric-tions meant to protect privacy.120

The Conference did make one change in policy with respect to civilcases that in turn applies to bankruptcy cases: litigants are required to


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modify or redact certain “personal data identifiers,” such as social secu-rity numbers, dates of birth, financial account numbers, and the namesof minor children.121 With respect to bankruptcy files in particular, theConference contemplated that only the last four digits of a debtor’s so-cial security number and account numbers would be used in any publicdocument, whether paper or electronic. The bankruptcy court wouldcontinue to collect the full social security number for internal use. In ad-dition, the names of minor children are not to be included in either elec-tronic or hard copies of documents.122

The Conference recommended that Section 107(b) of the BankruptcyCode be amended to establish privacy and security concerns as a basisfor the sealing of a document.123 However, aside from the changesnoted above, the Conference rejected the alternatives for requiring lessinformation to be filed in bankruptcy cases. In addition, the Conferencerejected the proposal for segregating information sensitive private in-formation from the public file by collecting it on separate forms and al-lowing access only to the courts, the U.S. Trustee, and parties ininterest.124

2. Amendments to Federal Rules of Bankruptcy Procedureand Official Bankruptcy Forms

The Judicial Conference proposed amendments to the Federal Rules ofBankruptcy Procedure and several of the Official Bankruptcy Forms toimplement many of the recommendations of the Federal Courts PrivacyPolicy. In March 2003, the Supreme Court transmitted the proposed rulechanges to Congress.125 The changes to the rules and bankruptcy formswent into effect December 1, 2003.

The amendments mean that a debtor’s full social security numberwill no longer appear in the public bankruptcy file and will thereforeno longer be a matter of public record. The debtor need only providethe last four digits of his or her social security number on the bank-ruptcy petition.126 The debtor must submit a verified statement giv-ing the debtor’s full social security or stating that the debtor does nothave a social security number.127 That verified statement is not in-cluded in the case file.128 The notice of the filing of the case that issent to all creditors includes the full social security number, as that isrequired by statute.129 However, the copy of that notice that will ap-pear in the court file only shows the last four digits of the debtor’s so-cial security number.130 Therefore, a debtor’s full social security


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number will not be a matter of public record but will be made avail-able to creditors.

In addition, the instructions to the schedules of debts are amended toinstruct the debtor that he or she need only provide the last four digits ofaccount numbers, although the full account number may be provided ifthe debtor so chooses.131 Also, the schedule of expenditures has beenamended so that the names of the debtor’s dependents no longer have tobe listed.132

C. The Legislative Branch Response

In late 2002, Congress passed the E-Government Act of 2002. Withthe exception of Section 205, summarized below, most of the Act pertainsto agencies rather than to the courts. However, Section 205 of the Act ad-dresses access to information from federal court websites. The key provi-sions of Section 205 that pertain to the balance between access andprivacy in the context of bankruptcy court records are addressed below.

The chief bankruptcy judge for each district is to establish and main-tain a website that provides specified information or links to websiteswith the information.133 The court website is to provide access to docu-ments filed with the court in electronic form.134 There are detailed pro-visions with respect to electronic filings. With two general exceptions,documents that are filed electronically are to be made publicly availableonline, as are paper documents that are converted to electronic ver-sions.135 However, documents that are not otherwise available to thepublic, such as those filed under seal, are not required to be made pub-licly available online.136 In addition, the Supreme Court is to prescriberules to protect privacy and security concerns relating to electronic fil-ing of documents and their public availability.137 Documents that areprotected from disclosure pursuant to such rules are not to be madeavailable online.138

Section 205 also speaks to the duration of online availability toclosed files. Electronic files and docket information for cases closed formore than one year are not required to be made available online, withthe exception of written opinions.139

Finally, the E-Government Act of 2002 amended Section 303(a) ofthe Judiciary Appropriations Act, 1992, 28 U.S.C. § 1913 note, whichpertains to charges for access to electronic documents. The amendmentmeans that the Judicial Conference “may, only to the extent necessary”prescribe such fees.140


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A final note on the legislative response to the tension between accessand privacy: this article would not be complete without mention of theBankruptcy Abuse and Consumer Protection Act of 2003 that passedthe House and is pending in the Senate as of December 2003. First, thebill does not provide for amendment of 11 U.S.C. § 107(b) to list pri-vacy as a grounds for entering a protective order or sealing a file.141 Sec-ond, the bill would add a provision to the Bankruptcy Code to the effectthat a debtor may not be required to disclose in public records the nameof a minor child.142 Finally, the bill contains a provision expressing thesense of Congress that:

[A]ll data held by bankruptcy clerks in electronic form, to the ex-tent such data reflects only public records (as defined in 11 U.S.C.§ 107) should be released in a usable electronic form in bulk to thepublic, subject to such appropriate privacy concerns and safe-guards as Congress and the Judicial Conference of the UnitedStates may determine . . .143

VI. WHAT SHOULD LAW LIBRARIANS DO?

What can and should law librarians do in addressing this conflict ofvalues?

First, we should take note of what the profession has done in bringingthese issues to the fore and making constructive contributions to the de-bate. This is not merely self-congratulations but a reminder that seem-ingly intractable problems can be addressed even if they cannot besolved.

Second, at least as “privacy” and “access” are presently understood,we should acknowledge that privacy and access to bankruptcy court rec-ords on the Internet are two values that are at odds.144 Given that, weshould continue to advocate for changes to the Bankruptcy Code and tocourt rules that tip the balance more towards privacy. In this vein, weshould urge policymakers to continue to question the need to providethe various pieces of information that are required in a bankruptcy fil-ing. Recent changes in the Federal Rules of Bankruptcy Procedure andOfficial Bankruptcy Forms, as well as the provision of the pendingBankruptcy Abuse and Consumer Protection Act of 2003 prohibitingthe disclosure of names of minor children, demonstrate that this ques-tioning is already underway.


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Third, we should examine the issues in terms of Fair InformationPractices and propose solutions based on those practices. For instance,debtors should be given notice before they file bankruptcy that their en-tire file, including petition, schedules, and statement of affairs, will beavailable online. There currently is no such notice requirement. At pres-ent, it is likely that many debtors have no idea that their bankruptcycourt filings are public records that may be available online through thebankruptcy court’s website.145 Such a notice requirement would not bedifficult to implement. Attorneys representing consumer debtors are re-quired to indicate on the petition that they advised the client of the vari-ous chapters under which they might file bankruptcy.146 A similarrequirement could be imposed on counsel with respect to advising cli-ents of the public nature of their bankruptcy court files and their possi-ble online availability.

Another possibility, which better takes into account pro se debtors, isto require debtors to sign an acknowledgment that they have read an ac-companying notice regarding the public nature of their bankruptcy file,as well as its online availability. The Bankruptcy Code currently re-quires that before an individual debtor with primarily consumer debtscommences a bankruptcy case, the clerk must give written notice to thatindividual that indicates each chapter of Title 11 under which the indi-vidual may proceed.147 Similarly, in courts that allow access to imagedcourt documents through the Internet, the clerk of the court could givenotice to individual debtors that their bankruptcy file is a matter of pub-lic record, that it may be available on the Internet, and the means of itsavailability.

VII. CONCLUSION

As a (new) law librarian, I am still concerned about my hypotheticalformer neighbor’s informational privacy, although I applaud the in-creased access and convenience that online bankruptcy court recordspromote. Bankruptcy court records will increasingly be available onlinethrough court websites. I am heartened to learn that policymakers havetaken steps to protect debtor’s social security numbers, account num-bers and names of dependents from disclosure. I also take some comfortfrom the existence of Fair Information Practices and the advocacy forfollowing them. We should continue to look to those practices in weigh-ing the competing values.


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NOTES

1. See the United States District and Bankruptcy Court for the District of Idahowebsite, http://www.id.uscourts.gov (last visited Dec. 29, 2003). As of December2003, bankruptcy court records from the District of Idaho are accessible via RACERwithout registration and login, and without cost. However, the District of Idaho, in-cluding the bankruptcy court, is slated to begin implementing CM/ECF (Case Manage-ment/Electronic Case Files) in May 2004. That project is expected to take eight to tenmonths to complete. Welcome, Case Management/Electronic Case Files, United StatesDistrict and Bankruptcy Court for the District of Idaho, http://www.id.uscourts.gov/cm_ecf/index.html (last visited Dec. 29, 2003). Once that system is implemented, courtrecords will be available on the Internet through PACER. CM/ECF Frequently AskedQuestions, United States District and Bankruptcy Court for the District of Idaho,http://www.id.uscourts.gov/cm_ecf/faqs.html (last visited Dec. 29, 2003).

2. The United States Constitution gives Congress the exclusive power to establish“uniform Laws on the subject of Bankruptcies throughout the United States. . . .” U.S.Const. art. I, § 8, cl. 4.

3. U.S. Dep’t of Justice, et al., Study of Financial Privacy and Bankruptcy (2001),available at http://www.usdoj.gov/ust/privacy/BnkrStdy011601.pdf [hereinafter Study].The three appendices to the Study are separate documents that are linked fromhttp://www.usdoj.gov/ust/privacy/privacy.htm. The page numbering in the online ver-sion of the Study and its appendices does not necessarily match that of the print version.

4. Report of the Judicial Conference Committee on Court Administration andCase Management on Privacy and Public Access to Electronic Case Files (adopted bythe Judicial Conference, Sep. 2001), http://www.privacy.uscourts.gov/Policy.htm[hereinafter Judicial Conference Privacy Policy].

5. See Section V.B.2. below.6. E-Government Act of 2002 § 205, 44 U.S.C.A. § 3501 note (West Supp. 2003).7. Bankruptcy Abuse Prevention and Consumer Protection Act of 2003, H.R. 975,

108th Cong. (2003), http://thomas.loc.gov. The bill passed the House of Representa-tives March 19, 2003, but, as of December 29, 2003, no major action has been taken bythe Senate.

8. Study, supra note 3 at 5.9. See id. at 6.

10. Id.11. Id. at 8.12. 11 U.S.C. § 301; Fed. R. Bankr. P. 1002(a).13. 11 U.S.C. § 521(1); Fed. R. Bankr. P. 1007(b) (1).14. See Fed. R. Bankr. P. 9009.15. See Official Bankruptcy Forms, Form B1 (voluntary petition), Bankruptcy

Forms Manual, http://www.uscourts.gov/bkforms/bankruptcy_forms.html (last vis-ited Dec. 29, 2003).

16. See Official Bankruptcy Forms, Form 1, 2003 committee note, http://www.uscourts.gov/bkforms/official/b1-note.pdf (last visited Dec. 29, 2003).

17. See Official Bankruptcy Forms, Forms B6A and B6B (schedules of real and per-sonal property), Bankruptcy Forms Manual, supra note 15.

18. See Official Bankruptcy Forms, Forms B6D, B6E, and B6F (schedules of credi-tors holding secured, unsecured priority, and unsecured nonpriority claims, respec-tively), Bankruptcy Forms Manual, supra note 15.


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19. See Official Bankruptcy Forms, Form 6, 2003 committee note, http://www.uscourts.gov/bkforms/official/b6-note.pdf (last visited Dec. 29, 2003).

20. See Official Bankruptcy Forms, Form B6I, (current income of individual debt-ors), Bankruptcy Forms Manual, supra note 15.

21. See Official Bankruptcy Forms, Form 6, 2003 committee note, supra note 19.22. See Official Bankruptcy Forms, Form B6J, (current expenditures of individual

debtors), available at Bankruptcy Forms Manual, supra note 15.23. See Official Bankruptcy Forms, Form 7 (statement of financial affairs), Bank-

ruptcy Forms Manual, supra note 15.24. Fed. R. Bankr. P. 1008.25. Study, supra note 3 at 9; 18 U.S.C. § 152 (criminal penalties); 11 U.S.C. §

727(a) (denial of discharge).26. See Bankruptcy Abuse and Consumer Protection Act of 2003, H.R. 975, 108th

Cong. (2003), supra note 7.27. See United States District and Bankruptcy Court for the District of Idaho,

website, supra note 1. This is true as of December 2003, when this article is being sub-mitted. However, it will likely not be true at some point after May 2004. See Welcome,Case Management/Electronic Case Files, United States District and Bankruptcy Courtfor the District of Idaho, supra note 1.

28. The use of RACER does not necessarily result in the same barrier-free access toimaged bankruptcy court records in all courts. For example, the United States Bank-ruptcy Court for the Southern District of Georgia employs RACER, but users must login through PACER. See Welcome to U.S. Bankruptcy Court PACER, United StatesBankruptcy Court for the Southern District of Georgia, http://pacer.gasb.uscourts.gov/default.html (last visited Dec. 29, 2003).

29. See Public Access to Court Electronic Records, PACER web links, http://pacer.psc.uscourts.gov/cgi-bin/links.pl (last visited Dec. 29, 2003).

30. J. Rich Leonard, Having Thought About Private Matters: The Federal Court’sInitial Response, 77 Am. Bankr. L.J. 9, 19 (2003).

31. See Administrative Office of the U.S. Courts PACER Service Center, PublicAccess to Court Electronic Records, Frequently Asked Questions, http://pacer.psc.uscourts.gov/faq.html#GP8 (last visited Dec. 29, 2003). The charges may change be-cause of the E-Government act of 2002. See Section V.C. below.

32. Judicial Conference Privacy Policy, supra note 4; Leonard, supra note 30 at 19.33. AALL Ethical Principles (Apr. 5, 1999), http://www.aallnet.org/about/policy_

ethics.asp.34. Webster’s Third New World Dictionary (1981).35. Committee on Court Administration and Case Management, Subcommittee on

Privacy and Electronic Access to Court Files, Notice of Request for Public Comment,65 Fed. Reg. 67016, 67017 (November 8, 2000).

36. Id.37. Id.38. 11 U.S.C. § 107(a).39. 11 U.S.C. § 107(b) (1) and (2).40. William T. Bodoh & Michelle M. Morgan, Protective Orders in the Bankruptcy

Court: The Congressional Mandate of Bankruptcy Code Section 107 and Its Constitu-tional Implications, 24 Hastings Const. L.Q. 67, 88-90 & n.111 (1996) (citing In re Bell& Beckwith, 44 B.R. 661, 662-63 (Bankr. N.D. Ohio 1984)).


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41. See Mary Jo Obee & William C. Plouffe, Jr., Privacy in the Federal BankruptcyCourts, 14 Notre Dame J.L. Ethics & Pub. Pol’y 1011, 1060-61 (2000).

42. Id. at 1064-65.43. Leonard, supra note 30 at 21.44. Id. at 20-21.45. See Obee & Plouffe, supra note 41 at 1069, 1070; Study, supra note 3 at 20-21.46. AALL Ethical Principles, supra note 33.47. Daniel J. Solove, Access and Aggregation: Public Records, Privacy and the

Constitution, 86 Minn. L. Rev. 1137, 1140 (2002) (quoting Cowley v. Pulsifer, 137Mass. 392, 394 (1884) (Holmes, J.)).

48. See Obee & Plouffe, supra note 41 at 1069.49. Joseph A. Guzinski, Government’s Emerging Role As a Source of Empirical In-

formation in Bankruptcy Cases, Am. Bankr. Inst. J., Oct. 1998, at 43, Westlaw,17-OCT AMBKRIJ 8.

50. Obee & Plouffe, supra note 41 at 1069.51. Id.52. Leonard, supra note 30 at 20.53. Id.54. See James Cissell, Privacy and Court Records on the Internet Mutually Exclu-

sive Concepts, Judges J., Summer 2001, at 30.55. See id.; Kyla Kitajima, Note, Electronic Filing and Informational Privacy, 27

Hastings Const. L. Q. 563, 565 (2000).56. Office of Judges Programs of the Administrative Office of the United States

Courts, Privacy and Access to Electronic Case Files in the Federal Courts, 7 (Dec. 15.1999), at http://www.uscourts.gov/privacyn.pdf [hereinafter Privacy and Access];Kitajima, supra note 55 at 569.

57. Guzinski, supra note 49 at 8; Kate Marquess, Open Court? A.B.A.J., Apr. 2001,at 56-57.

58. Marquess, supra note 57 at 57.59. Cissell, supra note 54 at 30.60. Id. See also Privacy and Access, supra note 56 at 7.61. See Section V. below.62. See, e.g., Marquess, supra note 57 at 55, 59; Obee & Plouffe, supra note 41 at

1012, 1017; Solove, supra note 47 at 1178-79. The term originated in United States De-partment of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749(1989), which addressed informational privacy in the context of the Freedom of Infor-mation Act.

63. See Kitajima, supra note 55 at 570; Richard Lauter, Privacy Concerns and Safe-guards in the Governmental Dissemination of Bankruptcy Data on the Internet, Am.Bankr. Inst. J., May 2000, at 10, Westlaw, 19-MAY AMBKRIJ 10; Obee & Plouffe,supra note 41 at 1012.

64. See Lauter, supra note 63 at 10.65. See Obee & Plouffe, supra note 41 at 1012; Solove, supra note 47 at 1184-95.66. See Obee & Plouffe, supra note 41 at 1019; Solove, supra note 47 at 1185, 1199.67. See Obee & Plouffe, supra note 41 at 1020.68. See Judith Wagner DeCew, In Pursuit of Privacy Law, Ethics, and the Rise of

Technology, 13 (1997).69. Obee & Plouffe, supra note 41 at 1020-21.70. Id. at 1021.


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71. ALA Washington Office, American Library Association, Principles for theNetworked World (Feb. 2003), at http://www.ala.org/Content/NavigationMenu/Our_Association/Offices/ALA_Washington/Publications16/principles.pdf.

72. United States Dep’t of Justice v. Reporters Committee for Freedom of the Press,489 U.S. 749, 763-64 (1989) (quoting Webster’s Third New International Dictionary1804 (1976)).

73. Obee & Plouffe, supra note 41 at 1021.74. Id. at 1022-23.75. Id.; James Rachels, Why Privacy Is Important, 4 Philosophy and Public Affairs,

323, 326-31 (1975).76. Obee & Plouffe, supra note 41 at 1022, 1023.77. See AALL Ethical Principles, supra note 33.78. Comments to the Judicial Conference of the United States Committee on Court

Administration and Case Management, Subcommittee on Privacy and Electronic Ac-cess to Court Files Submitted by the American Association of Law Libraries (Jan. 26,2001), available at http://www.ll.georgetown.edu/aallwash/lt01262001.html [herein-after AALL Comments to Judicial Conference].

79. Principles for the Networked World, supra note 71.80. Id.81. Id.82. Id.83. Id.84. Secretary’s Advisory Committee on Automated Personal Data Systems, U.S.

Department of Health, Education & Welfare, Records, Computers and the Rights ofCitizens (July 1973) [hereinafter HEW 1973 Report]. With the exception of a few ap-pendices that are still being recreated, the HEW 1973 Report is available in html formatat http://aspe.os.dhhs.gov/datacncl/1973privacy/tocprefacemembers.htm (last visitedDec. 29, 2003).

85. Solove, supra note 47 at 1165.86. Marc Rotenberg, Fair Information Practices and the Architecture of Privacy

(What Larry Doesn’t Get), 2001 Stan. Tech. L. Rev. 1, ¶ 45 (2001), at http://stlr.stanford.edu/STLR/Articles/01_STLR_1/article_pdf.pdf.

87. HEW 1973 Report, supra note 84 at xx-xxi. The five principles are quoted ver-batim from the HEW 1973 Report with no effort to make the language gender neutral.

88. Rotenberg, supra note 86 at ¶ 42 n.74.89. Study, supra note 3 at 30.90. Id. at 30-31.91. Notice: Public Comment on Financial Privacy and Bankruptcy, 65 Fed. Reg.

46735 (July 31, 2000).92. Study, supra note 3.93. Id. at 19.94. Id. at 19-20.95. Id. at 20.96. Id. at 23.97. Id.98. Id. at 24-25.99. Id. at 25.

100. Id. at iii, 34.101. Id.


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102. Id.103. Id. at iv, 35.104. Id.105. Id.106. Id. at iv, 37.107. Id. at iv, 39.108. Id. at iv, 39.109. Id. at v, 42-45.110. Id. at 42.111. Committee on Court Administration and Case Management, Subcommittee on

Privacy and Electronic Access to Court Files; Notice of Request for Public Comment,supra note 35.

112. Id. at 67018.113. Id.114. Comments Received by the Administrative Office of the United States Courts in

response to Request for Comment on Privacy and Public Access to Electronic CaseFiles, at http://www.privacy.uscourts.gov/matrix.htm (last visited Dec. 29, 2003). Thisis a summary matrix of all of the comments received, with a link to the full text of eachcomment.

115. AALL Comments to Judicial Conference, supra note 78.116. Id.117. Id.118. Id.119. Judicial Conference Privacy Policy, supra note 4.120. Id.121. Id.122. Id.123. Id.124. Id.125. Communication from the Chief Justice, the Supreme Court of the United States

Transmitting Amendments to the Federal Rules of Bankruptcy Procedure That HaveBeen Adopted by the Court, Pursuant to 28 U.S.C. 2075, 215 F.R.D. 398 (2003).

126. See Fed. R. Bankr. P. 1005 (requiring last four digits of debtor’s social securitynumber in caption of petition); Official Bankruptcy Forms, Form B1 (voluntary peti-tion), Bankruptcy Forms Manual, supra note 15.

127. See Fed. R. Bankr. P. 1007 (f).128. See Fed. R. Bankr. P. 1007, 2003 Advisory Committee note.129. See 11 U.S.C. § 342 (c), Fed. R. Bankr. P. 2002 (a) (1).130. See Fed. R. Bankr. P. 2002, 2003 Advisory Committee note; Official Bank-

ruptcy Forms, Form 9, Bankruptcy Forms Manual, supra note 15.131. See Official Bankruptcy Forms, Forms B6D, B6E, and B6F, Bankruptcy Forms

Manual, supra note 15.132. See Official Bankruptcy Forms, Form B6I, id.133. E-Government Act of 2002 § 205(a), supra note 6.134. Id. § 205(a) (6).135. Id. § 205(c) (1).136. Id. § 205(c) (2).137. Id. § 205(c) (3).138. Id. § 205(c) (1).


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139. Id. § 205(b) (2).140. 28 U.S.C.A. § 1913 note (West Supp. 2003).141. Id. For a synopsis of the current effort to amend 11 U.S.C. § 107, see Leonard,

supra note 30 at 17-18.142. Bankruptcy Abuse Prevention and Consumer Protection Act of 2003, H.R.

975EH § 233, 108th Cong. (2003), http://thomas.loc.gov.143. Id. § 604(1).144. Cf. Cissell, supra note 54 at 30 (addressing online court records in general).145. See Statement of the National Data Center, Inc., in Response to Request for

Public Comment on Financial Privacy and Bankruptcy 8, Public Comments on Finan-cial Privacy and Bankruptcy, http://www.usdoj.gov/ust/privacy/comments1.pdf (lastvisited Dec. 18, 2003) (the Statement of the National Data Center begins at page 289 ofthe PDF file).

146. See Official Bankruptcy Forms, Form B1, Bankruptcy Forms Manual, supranote 15.

147. See 11 U.S.C. § 342(b).

Received: 05/01/03Revised and Accepted: 01/01/03


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