BILL ANALYSIS
AB 782
Page 1
Date of Hearing: May 20, 2004
ASSEMBLY COMMITTEE ON JUDICIARY
Ellen M. Corbett, Chair
AB 782 (Kehoe) - As Amended: May 5, 2004
FOR CONCURRENCE
SUBJECT : FAMILY LAW: PRIVACY OF PERSONAL AND FINANCIAL
INFORMATION
KEY ISSUE : SHOULD NEW PROCEDURES BE ESTABLISHED FOR PARTIES WHO
ARE DIVORCING OR LEGALLY SEPARATING TO REQUEST THAT THE LOCATION
AND IDENTIFYING INFORMATION ABOUT THEIR ASSETS AND LIABILITIES
BE SEALED?
SYNOPSIS
This urgency measure seeks to establish new procedures available
to divorcing or separating parties to request the court to seal
their personal information. In support of the bill, the author
notes that the measure creates important new privacy protections
for Californians who are getting divorced or seeking an
annulment or legal separation, and that currently, whenever a
couple goes to court in these cases, their bank accounts, credit
card information, lists and locations of assets, and other
personal information virtually automatically become public. She
notes that by exposing private financial information to public
view, our court system currently inadvertently opens divorcing
couples up to identity theft and other potential abuse of their
private information. The bill is supported by the Privacy
Rights Clearinghouse and the Peace Officers Research Association
of California and is opposed by the California Newspaper
Publishers Association and the California Association of
Licensed Investigators.
SUMMARY : Establishes procedures for parties who are divorcing
or legally separating to request that the location and
identifying information about their assets and liabilities be
sealed. Specifically, amongst other things, this bill :
1)Provides that the petitioner or respondent in marital
dissolution and separation cases may redact (shield) any
social security number from any pleading, attachment,
document, or other written material filed with the court
AB 782
Page 2
pursuant to a petition for dissolution of marriage, nullity of
marriage, or legal separation (hereafter "divorce").
2)Provides that, upon request by either party to a petition for
divorce, the court shall order any pleading containing the
parties' financial assets and liabilities, or providing the
location or identifying information about those assets and
liabilities, sealed from public view. The request may be made
by ex parte application, and any pleading sealed pursuant to
this procedure may not be unsealed except upon petition to the
court and good cause shown.
3)Requires that the party making the request to seal a pleading
to serve a copy of the pleading on the other party and file a
proof of service with the request to seal the pleading.
EXISTING LAW :
1)Provides that court proceedings shall be public, except as
provided in Family Code Section 214 or other provisions of
law. (Code of Civil Procedure Section 124.)
2)Provides that the court may, when it considers it necessary in
the interests of justice, direct the trial of any issue of
fact joined in a family law proceeding to be private, and may
exclude all persons except the officers of the court, the
parties and their witnesses and counsel. (Family Code Section
214. All other references are to the Family Code unless
otherwise indicated.)
3)Limits the authority of the court to seal family law
proceedings to the closing, under some circumstances, of court
hearings and procedures, and that Family Code Section 214 is
not generally applicable to the issue of sealing court files.
( Green v. Uccelli (1989) 207 Cal. App. 3d 1112, followed by
Marriage of Lechowick (1998) 65 Cal. App. 4th 1406.)
FISCAL EFFECT : Unknown
COMMENTS : According to the author, while open records
principles should generally govern state action and judicial
records and proceedings, the time has come to make a carefully
tailored exception for records and information that affect only
AB 782
Page 3
the parties to a dissolution or annulment of marriage or legal
separation. The author cites numerous anecdotes not only of
stolen identities but also of intrusive and unjust media
publicity about divorcing couples with substantial assets. In
most cases, the author states, the public clearly has no need to
know what assets a couple has accumulated, where those assets
are located, and how those assets are to be divided. Yet, the
author notes, under existing law there is effectively little
that a party can do to protect his or her private financial
information from public knowledge once he or she walks into a
courthouse to file for divorce.
According to the author, concerns about identity theft,
stalking, kidnapping of the divorcing couple's children, theft
of art works and other property, and other finance-related
crimes have instigated parties and their attorneys to file
motions to make such records private under seal. In all of
these cases, the attempt to sequester this information from
public dissemination requires a noticed motion, a hearing in
open court, and a court weighing of the privacy interest of the
parties against the public's right to access the documents,
absent a stipulation by the parties for a court order to seal.
The author states this bill would ensure that information
containing confidential or private information in family court
proceedings are kept confidential, while allowing public access
to the records in general.
Statutory and Common Law Backdrop : It is well-established
policy in California to allow maximum public access to judicial
proceedings and records. ( Estate of Hearst (1977).) Besides
Hearst , other cases have held that "judicial records are
historically and presumptively open to the public and there is
an important right of access which should not be closed except
for compelling countervailing reasons." ( Pantos v. City and
County of San Francisco (1984); Champion v. Superior Court
(1988); NBC Subsidiary (KNBC-TV) Inc. v. Sup. Ct. (1999).)
Trial courts do possess limited inherent power, exercisable only
under "exceptional circumstances" and on a "showing of good
cause" to restrict public access to portions of court records on
a temporary basis. However the showing must be compelling to
justify a sealing order. (See, e.g., Estate of Hearst (1977) 67
Cal. App. 3d 777 at 785, and Marriage of Lechowick , supra at
1416, explaining the quite rigorous procedure by which motions
to seal court records generally must be made and decided.)
AB 782
Page 4
In addition, the trial court may also order that the trial of
any issue of fact be conducted in private, excluding all persons
other than the court officers, parties, witnesses and counsel,
if the court considers a closed hearing "necessary in the
interests of justice and the persons involved." (Family Code
section 214; Marriage of Lechowick , supra at 1411.)
However, as noted above, Family Code section 214 does not
authorize broad exclusion orders. A section 214 order must
pertain to the trial of one or more particular issues of fact,
and the moving party bears the burden of showing a
'particularized need' for a closed trial on those issues.
( Marriage of Lechowick , supra at 1414 (emphasis added).) Nor
does section 214 authorize the sealing of court records in the
case (except with respect to transcripts and other records of a
hearing ordered closed to the public). ( Marriage of Lechowick ,
supra at 1411-1415.)
Thus the same general principles against protecting personal
information in civil cases generally currently apply to family
law cases as well, as stated in the California appellate court's
decisions in Green v. Uccelli (1989) and Marriage of Lechowick .
These two cases affirmed that Section 214 of the Family Code
substantially limits the court's authority to close court
hearings. (See, e.g., Marriage of Lechowick , supra at 1413,
where the court states "[I]n general, court files in family law
cases should be treated no differently than the court files in
any other cases for purposes of considering the appropriateness
of granting a motion to seal ...")
Since the courts' decisions in Uccelli and Lechowick , concerns
related to financial privacy and identity theft resulting from
information made available to the public on the internet and
public documents such as court filings have indeed proliferated.
The author notes that accounts of the ease by which criminals
have accessed financial and other identifying information of
private individuals have attracted intense media attention. In
response, the Legislature enacted laws such as SB 660 (Speier,
Ch. 154, Stats. 2003) (restricting access to social security
numbers) and AB 1286 (Rod Pacheco, Ch. 563, Stats. 2001) (making
confidential specified financial information related to a
conservatorship). Additionally, a number of bills have been
introduced in recent years at both the federal and state levels
to regulate the sharing of customer information among financial
AB 782
Page 5
institutions and their affiliates.
ARGUMENTS IN SUPPORT : In support of this measure, Privacy
Rights Clearinghouse, a consumer privacy protection group,
writes:
Most divorce records and similar proceedings in
California's Family Courts contain a great deal of
highly sensitive personal information, including
information about minors and about the financial
affairs of the parties. Currently, such records are
easily accessible because they are public records
without a way to ensure that the sensitive information
they contain remains out of the public eye... This
leaves the personal details of what can be a painful,
private experience, open for public scrutiny. Details
of the psychological evaluation of children for
instance contain sensitive medical information. And,
with easy access to public records on the Internet,
identity thieves find personal information that could
be used to destroy a person's financial health since
such court records can include Social Security numbers
(SSNs), date of birth, and bank and credit account
numbers... Because AB 782 provides Californians with
more control over the personal information contained
in public records, we support this legislation. We
believe it will not only safeguard sensitive
information in Family Court records, but also ensure
that criminals cannot use sensitive financial
information in Family Court record
ARGUMENTS IN OPPOSITION : The California Newspaper Publishers
Association strongly opposes the bill, stating that, "AB 782
would do nothing short of creating a system of secret justice in
the family courts. [The] bill would seal court records without
regard to the content of the record, without regard to its value
to the public and without regard to whether or not the record's
disclosure would actually harm a litigant. The bill would sweep
away centuries of common law and subordinate the presumptive
First Amendment right of access to court records to a system
that would foreclose access to mountains of evidence the
disclosure of which would harm no one. The bill would create an
environment in which economically, politically and legally
powerful litigants whose pleadings would automatically be sealed
would be able to take advantage of weaker parties?We
AB 782
Page 6
respectfully assert [the] bill is impossible to square with the
First Amendment and the many U.S. Supreme Court and California
Supreme Court decisions that establish a presumptive right of
access to court records."
Related Legislation:
SB 1139 (Morrow) as introduced in 1999 would have protected
certain information from public access. This bill was never
heard in a committee.
SB 660 (Speier) signed into law in 2003 requires that an
individual's social security number that is part of a court file
in a dissolution matter be placed in the confidential portion of
the court file, but the remainder of that file shall be open to
public inspection.
SB 1284 (Morrow), as introduced in 2004, would have protected
certain information from public access. This bill was never
heard in a committee.
SB 1440 (Burton), as introduced in 2004, contained nearly
identical provisions to AB 782.
REGISTERED SUPPORT / OPPOSITION :
Support:
Privacy Rights Clearinghouse
Peace Officers Research Association of California (PORAC)
Opposition:
California Newspaper Publishers Association
California Association of Licensed Investigators
Analysis Prepared by : Drew Liebert / JUD. / (916) 319-2334