Redaction

A View from the Bottom – Redaction

By Victor VeVea

Protected Personal Identifying Information

Statutory law provides many protections to restrict the disclosure of information that could be used to harm a victim or witness, and multiple laws, both state and federal, prohibit disclosure of medical records.

The main restrictions on disclosure applicable to criminal cases are found in Penal Code §§964 and 1054.2, but Penal Code §528 et. seq. further restricts disclosure of personal identifying information if that information is to be used for an unlawful purpose.

Penal Code §1054.2 prohibits an attorney from disclosing “the address or telephone number of a victim or witness…” in a criminal case.  When a defendant is acting as his own attorney, the burden falls on the court “to protect the address and telephone number of a victim or witness…”

Penal Code §964 places a burden on “the district attorney and the courts… to protect confidential personal information regarding any witness or victim [which] includes, but is not limited to, an address, telephone number, driver’s license or California Identification Card number, social security number, date of birth, place of employment, employee identification number, mother’s maiden name, demand deposit account number, savings or checking account number, or credit card number.”

Penal Code §530.55 lists specific items of information that should be kept private, including “…taxpayer identification number… state or federal driver’s license, or identification number, social security number, place of employment…[and] information contained in a birth [] certificate…”

Unfortunately, the many laws meant to prevent disclosure are often bypassed.

Protections against the disclosure of medical records are bypassed by the belief that a defendant’s right to assist in his own defense trumps a victim’s right to privacy.  Discussion of this issue could fill volumes, but disclosure of medical records usually poses little danger to victims and witnesses.  There is a much greater danger in the disclosure of information that can be used to locate, contact, and intimidate victims and witnesses, such as the information protected by Penal Code §§964 and 1054.2.

In Kern County, the duties placed on the court by Penal Code §964 normally are bypassed because police reports are not generally filed with the court.  Nonetheless, the prosecution continues to have the duty to protect confidential personal information that is delivered to them, despite their duty to disclose evidence to the defense under Penal Code §1054.1.  In theory, disclosure to the defense attorney does not violate §964 because the confidential personal information will be protected by the defense attorney, but this is only a theory.  The theory often fails when defense counsel discloses redacts pursuant to §1054.2 but ignores information protected by §964.  The theory also fails when a defendant acts as his own attorney, and the theory fails when the defense discloses reports without any redaction.

The protection against disclosure by an attorney prohibited by Penal Code §1054.2 is also little more than a theory.  Confidential personal information is routinely disclosed to defendants.  There appear to be multiple sources of disclosure, including probation officers, private investigators, defense attorneys, and even the prosecution.

Probation Officers

For unrepresented defendants, misdemeanor arraignments in Kern County are conducted without the presence of prosecutors or public defenders.  A probation officer has the case discovery, and it is a probation officer who generally negotiates a disposition of a misdemeanor case.  If a case is not disposed of at arraignment, it is common practice for the discovery to be given to the defendant.  This practice can be especially problematic in domestic violence or other assault cases because the police reports contain information that a defendant can use to contact the victim and the victim’s family, even if the victim has moved to avoid the defendant.

If the defendant is in custody, the disclosure and subsequent actions by the defendant can seriously hamper the defense.  If the defendant contacts victims or witnesses either through the mail or the during phone calls this new evidence may be used against the defendant because mail and calls are subject to monitoring.  Mail sometimes makes it through the system unchecked, but inmate phone calls appear to be always monitored and they are often incriminating.  In a recent case, the in-custody defendant received full, unredacted discovery which was used to locate the alleged victim’s wife and attempt to contact her.   Part of the discovery was received at arraignment and other portions were received from defense counsel.

Private Investigators

Disclosure by private investigators appears to be limited to private investigators assigned to assist pro per defendants, and disclosure appears to stem from three sources: inadvertence, limitation on services, and lack of knowledge regarding redaction requirements.  Disclosure of confidential information by private investigators appears to be almost universally limited to pro per defendants.

Inadvertent disclosure happens when an investigator picks up discovery from the district attorney and delivers it to the defendant without reading it.  The investigator simply does not know that the discovery contains confidential information, so the discovery is delivered in unredacted form.

Limitation of services appears to be a primary cause of the inadvertent disclosure.  Defendants request investigators from the court, but investigators are assigned through the Indigent Defense Program.  IDP places severe restrictions on the investigators and specifically limits their services to investigation only.  After the court appoints an investigator for a defendant, the defendant must apply to IDP to fulfill the appointment order.  In the IDP application for appointment, the defendant is required to describe the proposed scope of work to and receive authorization for the specifically requested scope of work.  It is doubtful that a defendant will every mention confidentiality and request that the scope of work include redaction.  Even if such a scope were requested, investigators are not paid to review discovery; their sole job is to investigate the facts of the case as outlined in their appointment order and the IDP assignment sheet.  This results in discovery being delivered to in-custody defendants without first being read by the investigator.  The original IDP charter allowed for investigator support staff to perform mundane tasks, such as redaction, but the support staff system has not yet been put in place, so there is essentially no one available to redact discovery.

Lack of knowledge also leads to disclosure of personal identifying information.  If the investigators do not know that the information must be redacted, it will not be redacted.

Defense Attorneys

Defense attorneys also appear to be a source of disclosure of personal identifying information, and that disclosure also appears to stem from three sources: inadvertence, conflict of law, and lack of funding.

Inadvertent disclosure can be through simple mistakes by the attorney or support staff, but it appears to happen with some frequency under scenarios involving pro per defendants, such as the following.  An attorney appears in court with his client.  The hearing may be a Motion to Withdraw or an arraignment signaling the termination of the attorney’s assignment on the case, but it is a proceeding that is expected to be the attorney’s last appearance in the case, so the attorney packages the discovery for the next attorney.  The IDP duty attorney is standing by to accept the appointment, but the defendant exercises his Faretta rights.  The discovery package is handed to the defendant, and the next case is called.  The first attorney was relieved before discovery was given to the defendant, and the duty attorney was never really assigned to the case, so it is unclear which attorney had a duty to redact.

Conflict of law between bar rules and statutes protecting personal identifying information also lead to disclosure to pro per defendants.  Rules of Professional Conduct, Rule 3-700(d) requires that “A member whose employment has terminated shall: (1) Subject to any protective order or nondisclosure agreement, promptly release to the client, at the request of the client, all the client papers and property. “Client papers and property” includes correspondence, pleadings, deposition transcripts, exhibits, physical evidence, expert’s reports, and other items reasonably necessary to the client’s representation.”  Unredacted discovery appears to be an item reasonably necessary for a pro per defendant to prepare his defense, especially if the pro per defendant does not have any support personnel.

Lack of funding also appears to contribute to and support the first two causes of disclosure to pro per defendants.  When an IDP attorney is relieved on a case, there is no more funding.  The attorney is not paid to conduct further review and redaction of discovery.  Even before the attorney is relieved, redaction and mass copying of discovery is generally something that is not paid for by IDP.  Redaction can be very time-consuming for a large file.  The original IDP charter allowed for paralegals and other support staff for attorneys, but the support staff system has not yet been put in place, so attorneys must do their own redaction, which is billed at rates that are cost prohibitive to IDP.

Prosecution

The prosecution has a duty to disclose under Penal Code § 1054.1, which conflicts with Penal Code §§ 964 and 1054.2.  If the prosecution does not disclose contact information for victims and witnesses, the defendant will arguably be unable to properly prepare for trial.  This avenue of disclosure does, however, appear to be the least common.  I have only seen discovery provided by the prosecution to a defendant in unredacted form in two cases, and that discovery was provided in electronic format that could not be read by the in-custody defendants.

Solution

The first part of any solution to the disclosure problem should be to inform anyone who is granted access to discovery of their duty to protect personal identifying information, and to provide each person with a list of what information must be withheld.

A proposed list of matters to be redacted is below.  It is based on the position that defendants should not receive unredacted discovery, despite conflicts of law.  It is also based on the belief that redaction should include all personal identifying information as described in Penal Code §530.55, except people’s names.  The prohibition on disclosure of the information described in Penal Code §530.55 is limited to disclosure for an “unlawful purpose,” but there appears to be no reasonable, lawful purpose for an inmate to have the described information, so best practice is to withhold disclosure.

All pro per defendants, including misdemeanor defendants, should be assigned an intermediary.  The intermediary can be an investigator, paralegal, legal support service, legal secretary, or other person or persons with a duty to receive, redact, and deliver discovery.  Without an intermediary, there is no one with a both a duty to redact and funding to redact.

Redaction List

Redact the following information concerning all victims and witnesses:

  1. Address
  2. Phone number
  3. Date of birth
  4. Place of employment
  5. Employee identification number
  6. Mother’s maiden name
  7. Demand deposit account number
  8. Credit card number
  9. Health insurance number
  10. Taxpayer identification number
  11. School identification number
  12. State or federal driver’s license, or identification number
  13. Social security number
  14. Professional or occupational number
  15. Savings account number
  16. Checking account number
  17. PIN (personal identification number)
  18. Password
  19. Alien registration number
  20. Government passport number
  21. Any information contained in a birth or death certificate