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December 3, 2013
Comments re: Legislative Proposal by the Office of Court
Administration’s Surrogate’s Court Advisory Committee
The New York County Lawyers’ Association’s Estates, Trusts and Surrogate’s Court Practice Section (the “Section”) submits the following comments regarding a September 30, 2013 legislative proposal by the Surrogate’s Court Advisory Committee of the Office of Court Administration of New York (the “Proposal”, annexed hereto as Exhibit A).
The Proposal recommends the adoption of a new rule limiting public access to certain documents filed in Surrogate’s Courts containing personal identifying and financial data. Specifically, the Proposal recommends that new statute 22 NYCRR § be adopted to read as follows:
The following documents may be viewed only by persons interested in the estate of the decedent, as defined by SCPA § 103(39), or their counsel; the Public Administrator or counsel thereto; counsel for any Federal, State or local governmental agency; or court personnel; except upon written permission of the Surrogate or Chief Clerk of the court which shall not be unreasonably withheld:
For the following reasons, this Section does not support the adoption of the new statute 22 NYCRR § 207.64 recommended in the Proposal.
This Section agrees that, as set forth in the Proposal, currently there exists a significant risk of misuse of the personal identifying and financial information contained in the categories of documents to which the proposed new statute applies. As the Proposal aptly notes, public access to the records of the Surrogate’s Court is an important and uncontroverted right; nevertheless, this right must be balanced with the court’s duty to safeguard personal identifying information contained in its records.
However, this Section is of the opinion that the proposed new rule is overly broad in its scope, as well as prohibitively difficult to enforce. The Section recognizes that the proposed new rule would likely create an added burden upon the courts and their personnel to review requests for written permission to access court files, as well as to review court files in order to determine whether they contain any of the categories of documents to which the public would not have automatic access under the proposed rule. Other concerns held by the members of this Section include the potential for delay in obtaining courts’ written permission to access files and the potential limitation on the ability of an interested person’s counsel to obtain filed documents through a non attorney intermediary (e.g., a non-lawyer employee or a lawyer service).
Therefore, although this Section agrees that action is needed in order to address the risk of misuse of personal information contained in Surrogate’s Court filings, the Section does not agree that the adoption of the statute promulgated by the Proposal is warranted in order to generate a uniform statewide procedure for allowing public access to information, but believes there exists a need for a less restrictive solution to these issues.
For the foregoing reasons, this Section does not agree with the Proposal
Recommendation for Certain Regulation
The Committee has examined the issue of public access to the Surrogate Court records containing personal and financial information. It is uncontroverted that the records of the Surrogate’s Court are public and access should be afforded to all persons interested. However, it is also clear that, given the vast amount of personal identifying Information contained in these files, the risk for misuse of the court’s records for illegal purposes is significant.
Recognizing the potential for misuse of this information, many Surrogate’s Courts have initiated various procedures in an attempt to balance the public’s right of access with the court’s obligation to safeguard the personal identifying information it must collect. The Committee has concluded therefore that there is a need for a statewide rule in order to remedy the current practice of informal, piecemeal application of different procedures, especially in light of the concern that the informal procedures currently utilized also may lack express guidelines.
Therefore, the Committee recommends enactment of the following proposed rule. The rule would be in accordance with existing statutory parameters on public access to information and allow access on a limited scope to a specified list of documents. These documents are death certificates, tax returns, documents containing social security numbers, firearms inventories and the inventory of assets, as well as guardianship proceedings instituted pursuant to SCPA Articles 17 and 17A.
With respect to these documents the proposed rule would allow access without the need for court permission to persons interested in the estate of the decedent, as defined by SCPA §103(39), or their counsel; the Public Administrator or counsel thereto; counsel for any Federal, State or local governmental agency; or court personnel. Importantly, a person not listed in paragraph 39 of section I03 may seek written permission from the Court to view the documents and the rule states expressly that such permission shall not be unreasonably withheld.
207.64 Public Access to Certain Filings
The following documents may be viewed only by persons interested in the estate of the decedent, as defined by SCPA §103(39), or their counsel; the Public Administrator or counsel thereto; counsel for any Federal, State or local governmental agency; or court personnel; except upon written permission of the Surrogate or Chief Clerk of the court which shall not be unreasonably withheld:
Surrogate’s Court Advisory Committee