Study of Financial Privacy

and Bankruptcy

January 2001

FINANCIAL PRIVACY IN BANKRUPTCY:

A Case Study on Privacy In Public and Judicial Records
Table of Contents

EXECUTIVE SUMMARY

1. INTRODUCTION: BANKRUPTCY DATA IN CONTEXT.........................................................1

(a) Clinton Administration Initiatives to Protect Financial Privacy .......................................................1

(b) Privacy in Public and Judicial Records .......................................................................................2

(c) Privacy and Corporate Bankruptcy.............................................................................................3

Outline of the Report..........................................................................................................................4

(e) Limitations of the Study.........................................................................................................4

2. BANKRUPTCY LAW AND PERSONAL INFORMATION IN BANKRUPTCY........5

(a) Overview of the Consumer Bankruptcy Process.....................................................................5

(b) Personal Information Collected from the Debtor......................................................................8

(c) Access to the Debtor’s Personal Information.. ....................................................................... 9

(d) Limits on Access to the Debtor’s Personal Information..........................................................10

(e) Judicial Branch Policy on General Public Access to Case Files..............................................11

(f) National Data Center Policy on Access to Case Files............................................................12

(g) Financial Privacy Statutes That May Apply in Bankruptcy Proceedings .................................13

(i) The Fair Credit Reporting Act....................................................................................13

(ii) Gramm-Leach-Bliley Act...........................................................................................13

3. THE NEED FOR GENERAL PUBLIC ACCESS TO FINANCIAL INFORMATION

IN BANKRUPTCY...........................................................................................................16

(a) Facilitating the Fair and Efficient Disposition of Bankruptcy Cases.........................................16

(b) Promoting Public Trust and Accountability in the Bankruptcy System.....................................17

4. PRIVACY INTERESTS IN FINANCIAL INFORMATION IN BANKRUPTCY......17

(a) Privacy Interests in Financial Information...............................................................................17

(b) Special Privacy Interests of Debtors in Bankruptcy ..............................................................19

5. MODELS FOR BALANCING PRIVACY AND ACCESS............................................20

(a) Introduction – Case-By-Case Determinations.......................................................................20

(b) Rules Based Models ............................................................................................................21

(c) Fair Information Principles....................................................................................................24

(d) Hybrid Models.....................................................................................................................24

6. CONCLUSIONS...............................................................................................................27
(a) Findings...............................................................................................................................27

(i) Access to Information is Necessary for Case Administration.......................................27

(ii) Access to Information is Necessary to Ensure Accountability......................................27

(iii) Debtors Have a Privacy Interest in Certain Highly Sensitive Information......................28

(iv) Storage of Personal Information in Government Electronic Systems Poses New Privacy

 

Concerns...........................................................................................................................

...28

Recommendations............................................................................................................................28

(i) Balance Interests In Efficiency, Government Accountability and Privacy......................28

(ii) Th General Public Should Have Access to Core Information

............................................30

(iii) Parties In Interest Should Have Access to the Full Range of Non-Public Information,

Subject to Re-use Limitations.....................................................................................32

(iv) Incorporate Fair Information Principles.......................................................................34

Appendix

I. Summary of the Public Comments

Information Provided on the Bankruptcy Petition and Related Schedules

III. Bibliography
-i- -iExecutive Summary

INTRODUCTION

In April 2000, President Clinton announced a plan to provide consumers with

comprehensive protection of their sensitive financial information. One set of issues was reserved for

special study: the implications for personal privacy of the availability of personal financial information in

bankruptcy cases. The President’s announcement noted that “bankruptcy records contain detailed

sensitive information about debtors (including account numbers, social security numbers, account

balances, income sources, and payment histories). In addition, aggregation and electronic distribution of

this information could lower bankruptcy costs, but it also could make information easily available to

neighbors, employers, marketers and predators looking for those most likely to be lured by scams.”

The President directed three federal agencies, the Department of Justice, the Department

of the Treasury, and the Office of Management and Budget (the Study Agencies), to study how best to

handle private entities’1 access2 to personal financial information found in bankruptcy court records.

ACCESS AND PRIVACY INTERESTS IN INFORMATION IN BANKRUPTCY

Bankruptcy is a process for adjudicating the debts of an individual or business unable to meet

obligations to creditors. In seeking relief, a debtor is required, particularly in cases involving consumer

debts, to provide significant amounts of personal information to the courts and trustees, such as

schedules of assets and liabilities, current income and expenditures, and a statement detailing the

debtor’s financial affairs. Current law does not explicitly balance the legitimate needs for general public

access to bankruptcy records and debtors’ interests in protecting the privacy of their most sensitive

 

1

For the purposes of this report, the term “private entities” includes the general public, parties in interest, and other

non-governmental entities, but does not refer to private bankruptcy trustees appointed under Title 28 U.S.C. § 586(a)

or to governmental entities, including law enforcement and regulatory agencies. 

2

 The term “access” often is used by the privacy community to denote an individual’s access to his or her own

records. In this report, however, the Study Agencies use the term “access” to refer more broadly to anyone’s access

to an individual’s records, including access by the general public or a limited category of individuals or entities, as

evident from the context of a particular discussion.
-ii- -iifinancial information. Current law provides that all documents filed with the court in a bankruptcy case

are public records and are subject to public examination unless sealed, and places no restrictions on

how trustees can handle information about debtors in the course of administering cases. 

Although information provided by debtors in consumer bankruptcy is essential to the

administration of cases and to the integrity of the bankruptcy system, the comprehensive data provided

by debtors contains sensitive personal information, such as Social Security numbers, bank or credit card

account numbers, incomes, and detailed listings showing individuals’

medical expenses and other regular expenses. This information, if used improperly, can damage a

debtor’s ability to obtain the financial “fresh start” afforded by bankruptcy, and can be used to

perpetrate identity theft and other crimes. 

The emergence of new technologies has an impact on both general public access to information

in bankruptcy and the debtor’s interest in the privacy of such information. Increased use of the Internet

and other powerful databases – both in the judicial system and among the general public – is lowering

the barriers to access for parties that have an interest in that information. Personal, often sensitive

information, now may be accessed and manipulated from a distance and used in ways not envisioned

when the rules that currently govern such records were created. This, in turn, heightens the interests of

debtors in ensuring that this information is protected from misuse by private entities.

REQUEST FOR PUBLIC COMMENT

 To assist preparation of the Study, in July the Study Agencies requested public comment on a

series of questions focused on: the types of information collected from individual debtors in bankruptcy;

the need for the general public to have access to such information; the privacy interests of debtors; and

the impact of technology on the debtor’s privacy, general public access, and principles for the

responsible handling of personal data. The Study Agencies received and evaluated approximately 40

comments from the creditor industry, the information industry, consumer and privacy advocates,

bankruptcy experts, academics, and others.

OUTLINE OF THE REPORT

The body of this report discusses in greater detail the competing interests of private entities in

access to a debtor’s information in the personal bankruptcy process and the debtor’s interest in privacy.

 It concludes with a set of recommendations on how the system can strike a better balance between

these interests. Chapter One introduces the issues and places them in context. Chapter Two describes

the consumer bankruptcy process and the types of information collected from debtors during the

process. Chapter Three explains the purposes of general public access to bankruptcy records,

emphasizing the importance of facilitating the efficient disposition of cases and the need for public trust

and accountability in the system. Chapter Four discusses protecting the privacy of the debtor’s

personal financial information in bankruptcy court filings in the context of access and re-use by private
-iiientities. 

The report then turns to finding solutions to the conflict between access by the general public

and the debtor’s privacy. Chapter Five describes models illustrating how the interests of privacy and

general public access have been balanced with respect to other collections of personal data. The report

covers models that strike different balances between the need for access by the general public to

information and interests in privacy. The Study Agencies also considered the need for adoption of “fair

information principles” described in the body of the report. Finally, Chapter Six presents a series of

findings and recommendations designed to foster a more appropriate balance between the debtor’s

privacy and general public access to this information in the bankruptcy process.

LIMITATIONS OF THE REPORT

The purpose of the report is to address the access and re-use by private entities of personal

information disclosed in bankruptcy filings. The report’s recommendations are not intended to address

the access or use of bankruptcy information by governmental entities in connection with their important

public responsibilities, or the communication of personal financial information by or to governmental

entities for functions they serve. The report also does not address possible First Amendment issues

regarding access to information in bankruptcy cases by the public and the news media. 

The access and use of bankruptcy information by governmental entities serve important

purposes in protecting the integrity of the bankruptcy system, fighting crime and fraud, and addressing

other issues of public policy.

CONCLUSIONS

The conclusions of the Study Agencies are divided into findings and recommendations.

The key findings of the Study are:

The rights of parties in interest and the fair and efficient administration of cases require that certain

personal information be available to the courts, parties in interest and governmental entities;

Ensuring accountability and preventing abuses of the bankruptcy system requires that some personal

information filed in bankruptcy cases be available to the general public;

Certain personal information collected from debtors in bankruptcy proceedings is highly sensitive

and, in other contexts, is protected by financial privacy laws; and
-ivInformation held by government, including the judicial branch, increasingly is being collected, stored,

and transmitted electronically. Although the use of electronic systems provides more efficient

services, it may create new hazards for the privacy of personal information.

To address these findings, the Study Agencies submit the following recommendations:

(1) Balance Interests in Efficiency, Government Accountability and Privacy. The Study Agencies

recommend that the goal of protecting personal privacy be given increased

emphasis in the bankruptcy system. Bankruptcy information policy should better balance

society’s interests in fair and efficient case administration, bankruptcy system integrity,

government accountability, and the debtor’s privacy. As electronic tools for accessing case

information develop and improve, there is an increased need for analysis of access issues to

ensure the integrity and proper administration of the system. 

(2) The General Public Should Have Access to Core Information. The Study Agencies recommend

that the general public continue to have access to some general information so that the public

can hold the bankruptcy system accountable. At the same time, the Study Agencies

recommend that the general public not have access to certain highly sensitive information that

poses substantial privacy risks. This information may include, among other items: Social

Security numbers, credit card numbers, loan accounts, dates of birth, and bank account

numbers. Similarly, the Study Agencies recommend that schedules that show detailed profiles

of personal spending habits and debtors’ medical information be removed from the record

available to the general public. Finally, the Study Agencies recommend that special attention be

given to protecting information regarding entities or individuals who are not parties to the

bankruptcy proceeding. This includes detailed personal and financial information regarding nonfiling spouses, relatives, or business partners.

(3) Parties in Interest Should Continue to Have Access to Non-Public Highly Sensitive Data,

Subject to Re-use and Re-disclosure Limitations. The Study Agencies recommend that parties

in interest and potential parties in interest have access to a broad range of information collected

in bankruptcy proceedings in order to exercise their rights and responsibilities. When private

entities have such access, however, the Study Agencies

recommend that they generally be prohibited from reusing or re-disclosing the information for

purposes unrelated to administering bankruptcy cases. However, these re-use and redisclosure limitations should not restrict private entities from continuing to share information with

governmental entities, including law enforcement and government regulatory entities. The Study

Agencies recommend that as decision makers craft information policy on non-public

information, they do so in a way that does not infringe upon the current ability of governmental

entities to gain access and use of this information. The Study Agencies also recommend that the

detailed information that appears in a bankruptcy filing be available to academics and other

researchers on a de-identified basis, while preserving access for parties in interest and
-vgovernmental entities.

(4) Incorporate Fair Information Principles. The Study Agencies recommend that the bankruptcy

system incorporate fair information principles of notice, consent, access, security, and

accountability.

BROADER IMPLICATIONS OF THE STUDY

This report focuses on how to balance the need for access to information by private entities and

the debtor’s interests in the privacy of his or her personal financial information in the context of

bankruptcy cases and proceedings. The Study Agencies intend, however, that the report’s

methodology and principles also will contribute to the continuing debates over access to records by the

general public and privacy in non-bankruptcy contexts.

For example, one such debate – focusing on judicial records generally – is currently underway. 

In the judicial branch, accessible files containing information relevant to individual proceedings allow

members of the general public and the media to monitor the judicial process closely and prevent abuses

of judicial power. At the same time, judicial files – beyond bankruptcy filings in court – also often

contain sensitive personal information. For example, personal injury litigation may involve motions,

depositions, and interrogatories that contain detailed information about a patient’s medical condition,

including the results of psychiatric examinations. An individual’s privacy concerns may be heightened if

that information is made available through a simple name search on the Internet. The Administrative

Office of the U.S. Courts has sought public comment on the need to balance accountability and privacy

concerns in light of more widespread access to sensitive information in case files. 

State and local governments are also faced with this challenge. Generally speaking, state and

local governments operate under an open records system. As a result, one can visit a state or local

government office and view personal property records, tax records, marriage licenses, recreational

licenses, and professional licenses, among other personal data. As more of this information becomes

available electronically to remote and largely anonymous users, private entities easily can gain access to

the intimate details of an individual’s life by compiling a profile of that individual based on a wide range

of public record data. 

These areas – judicial records and state and local government records – are ripe for further

study. The Study Agencies hope that the methodology and principles applied in this bankruptcy study

may be drawn upon by researchers looking at public records and privacy more broadly. 
-1-

1. INTRODUCTION: BANKRUPTCY DATA IN CONTEXT

1(a) Clinton Administration Initiatives to Protect Financial

On April 30, 2000, President William J. Clinton announced a legislative proposal to provide

American consumers with comprehensive protections for their sensitive personal financial data. Building

on the foundation of strong new financial privacy protections signed into law as part of financial services

modernization legislation in 1999, this effort featured as its centerpiece the proposed Consumer

Financial Privacy Act. This proposed legislation was designed to close gaps in existing laws, provide

consumers with choice about the use of their data within rapidly growing and diversifying financial

conglomerates, and provide special protections for the use of medical data and detailed information

about individuals’ overall spending habits. In announcing the proposed legislation, the President said:

“your information doesn't belong to just anyone; every consumer and every family deserves choices

about how their personal information is shared.”

At the same time, the President identified one area for additional examination by the

Administration, directing the Department of Justice, the Department of the Treasury, and the Office of

Management and Budget to conduct a study of the privacy issues raised by the

availability of personal financial information in bankruptcy cases to the general public. A release

announcing this study said:

Bankruptcy records contain detailed, sensitive information about debtors (including

account numbers, social security numbers, account balances, income sources, and

payment histories). Aggregation and electronic distribution of this information could

lower bankruptcy costs, but it also could make information easily available to

neighbors, employers, marketers and predators looking for those most likely to be

lured by scams.3

In response to the President’s directive, the Study Agencies considered three

broad issues. First, the personal information about debtors collected in bankruptcy cases includes 

types of information that were the subject of the Administration’s financial privacy initiative. At present,

debtors filing for bankruptcy are required to submit substantial amounts of personal information to

courts and trustees. This information is crucial to several functions of the bankruptcy system, including

providing notice to interested creditors and other parties, facilitating the administration of bankruptcy

cases, protecting creditors’ rights, and allowing the general public to monitor the functioning of the

bankruptcy system. At the same time, the data submitted by debtors contains highly sensitive personal

financial information that, if used improperly, could damage a debtor’s ability to regain a solid financial

footing, and could be used to perpetrate identity theft or other fraud. The potential for misuse of this

 

3

See Federal Register Notice Requesting Public Comment on Financial Privacy and Bankruptcy, 65 Fed. Reg. 46735

(July 31, 2000). Available at http://www.usdoj.gov/ust/privacy/privacy.htm.
-2-

data raises questions about appropriate boundaries for its dissemination, particularly since the same

financial information openly available in bankruptcy files is often legally protected from disclosure when

held by financial institutions in other contexts. 

A second issue addressed by the study is the dramatic change in access by the general public to

information in bankruptcy cases. In particular, private bankruptcy trustees, interested in providing

improved access to information in bankruptcy cases, have begun planning for a data center to collect

information from trustees and disseminate this information electronically in compiled form to creditors

who subscribe to the data center. As part of their system development, they are seeking input on what

safeguards should be included to protect the personal financial information contained in bankruptcy files

from re-use by creditors that subscribe to the data center.

Third, concerns about the collection and use of personal data have been accentuated by

proposals to collect information electronically for easier, faster, and less expensive dissemination in

bankruptcy proceedings. In the age of the Internet, where anonymous remote access and dissemination

of large amounts of information is possible, new questions arise regarding how to safeguard personal

privacy interests without inappropriately compromising access to information crucial to the efficient

functioning of the bankruptcy system. 

This report explores these and other issues and offers recommendations for consideration

by decision makers and participants in the bankruptcy system about how to strike an appropriate

balance between the values of government accountability, fair and efficient case administration, and

personal privacy. It focuses on access to the information provided by debtors as part of their initial filing

commencing a bankruptcy case, i.e., the identifying information about the debtor and the details about

the debtor’s financial condition provided to the court or bankruptcy trustee as part of the administration

of the case. The report also focuses on the way in which dissemination of this information to private

entities through electronic databases can heighten the legitimate interests of debtors in their financial

privacy.4

 

1(b) Privacy in Public and Judicial Records

This study’s discussion of access by private entities to data in personal bankruptcy court files

 

4

The Study Agencies recognize that bankruptcy information often can be obtained not only from data contained in

court files, but also, for example., from observation of bankruptcy proceedings and from materials filed with the court

in connection with dispositive motions -- in which case the information may form, in part, the basis for a court’s

adjudication. These alternative ways in which information may be disclosed in bankruptcy proceedings present

somewhat different privacy concerns and may raise significant common-law access and First Amendment questions

that typically are not as pronounced in a case where the records are not used as a specific basis for adjudication. 

This report does not address those questions, nor possible First Amendment issues that could arise if there were

undue restrictions on the public and the media in accessing bankruptcy case information.
-3-

occurs against the backdrop of an ongoing, broader debate over privacy in public and judicial records. 

Public accountability is a fundamental characteristic of the American system of government. The

primary vehicle for preserving that accountability has been the open, public nature of the U.S. system of

executive and judicial record keeping. In the judicial branch, accessible files containing information

relevant to individual proceedings allow members of the public and the media to monitor the judicial

process closely and prevent abuses of judicial

power. State and local governments also generally make their records available to the general public to

enhance accountability.

However, the rapid growth of information technology has raised concerns about the sensitivity of

some of the information traditionally contained in public files. A presumption that all information should

be a matter of public record raised fewer privacy concerns when such information was on paper in

courthouses and other government offices, was time-consuming to access, and more difficult to compile

and analyze. Internet databases that provide instantaneous access to all who seek it may change the

calculus regarding the advantages and disadvantages of keeping vast amounts of information in public

files in the future. 

Some parts of the judiciary currently are reviewing how best to balance the need to make court

records publicly available against individuals’ interests in protecting personal privacy. The

Administrative Office of the U.S. Courts has sought public comment on the need to balance

accountability and privacy concerns in light of more widespread access to sensitive information in case

files.5 Given the current debate, this report is timely in addressing issues related to one area of the

discussion, general public access to personal financial information in bankruptcy cases. It may also

serve as a useful resource for policymakers addressing other issues of privacy in public and judicial

records.

1(c) Privacy and Corporate Bankruptcy

Although this report deals solely with personal bankruptcy proceedings, the Study Agencies note

the growing controversy regarding the disposition of customer information held by companies that file

for bankruptcy. In one instance, a retailer of significant size attempted to treat information about

customers in its files as an asset that may be sold to raise money to pay creditors in a corporate

bankruptcy. The retailer sought to sell its customer database despite assurances to its customers that

their purchasing and other data would be kept confidential and would not be sold or transferred to

outside entities.

 

5

See Administrative Office of the U.S. Courts Press Release: Judiciary Seeks Public Comment on Internet Access to

Court Documents (November 13, 2000). Available at http://www.privacy.uscourts.gov/Press.htm.
-4-

The case involving the retailer and similar proceedings highlight significant uncertainties regarding

the treatment of personal financial data in corporate bankruptcy, including: the ownership of data in

corporate databases; the rules governing the transfer of data during changes of corporate ownership;

and the rights of consumers to control their personal data on an ongoing basis, beyond the time at which

data is supplied or collected. The sensitivity – as well as the sheer volume – of data involved in this kind

of situation merits further attention. This report is focused on information involved in personal

bankruptcy proceedings, and will not address these corporate bankruptcy issues directly. However, the

Study Agencies believe that these issues should be examined carefully in the future in an ongoing effort

to better understand the privacy interests at stake in all types of bankruptcy proceedings. 

1(d) Outline of the Report

This report discusses in greater detail the competing interests of access by the general public

and the debtor’s privacy in the personal bankruptcy process and concludes with a set of

recommendations on how the system can strike a better balance between these interests. Chapter One

introduces the issues and places them in context. Chapter Two describes the consumer bankruptcy

process and the types of information collected from debtors during the process. Chapter Three explains

the purposes of general public access to bankruptcy records, emphasizing the importance of facilitating

the fair and efficient disposition of cases and the need for public trust and accountability in the system. 

Chapter Four discusses reasons for protecting the debtor’s privacy of personal financial information

from access by the general public in the specific context of consumer bankruptcy. 

The report then turns to identifying solutions to the conflict between general public access and

the debtor’s privacy. Chapter Five describes models illustrating how the interests of privacy and

general public access have been balanced in other contexts in which personal information is collected. 

The report covers models that strike different balances between the need for access by the general

public to information and interests in privacy. The Study Agencies also considered the need for

adoption of fair information principles. Finally, Chapter Six presents a series of findings and

recommendations designed to foster a more appropriate balance between the debtor’s privacy and

general public access to information in the bankruptcy process.

1(e) Limitations of the Study

The purpose of the report is to address the general public access to personal information

disclosed in bankruptcy filings and the re-use of that information. The report’s recommendations on

these issues are not intended to address the access or use of bankruptcy information by governmental

entities, including for law enforcement, government debt collection, and regulatory activities, in

connection with their important public responsibilities, or the communication of bankruptcy information

by or to governmental entities for functions they serve.

Governmental entities use bankruptcy information in a variety of contexts. If a government entity
-5-

has a claim in a bankruptcy case, it will be a “party in interest” and will obtain information related to the

case in the same manner as any other party in interest. Governmental entities, including law

enforcement, also may need access to bankruptcy information in other contexts, such as representing

the interests of the federal government, in the investigation and prosecution of bankruptcy fraud, tax

fraud and other crimes, and for regulatory and civil enforcement. Private entities also may have an

obligation or desire to share information with governmental entities in connection with one or more of

these or similar purposes. Significantly, the needs of law enforcement and other legitimate governmental

uses are afforded exceptions

from statutes and regulations governing privacy, or may be allowed broader rights of access and

use than private parties.6

The access to and use of bankruptcy information by governmental entities serve important

purposes in protecting the integrity of the bankruptcy system, detecting and prosecuting non-bankruptcy

related crimes, and addressing issues of public policy. Indeed, the Study Agencies are not aware of any

alleged abuse of bankruptcy information by government agencies. This report is not intended to address

these needs, nor should it be considered as recommending any change in current policy in this regard.

2. BANKRUPTCY LAW AND PERSONAL INFORMATION IN BANKRUPTCY

This chapter provides an overview of the consumer bankruptcy process, including a description

of the kinds of information a debtor must provide during a consumer bankruptcy case and how that

information is made available to the general public. This chapter also describes two major financial

privacy laws as they relate to information in the bankruptcy system.

2(a) Overview of the Consumer Bankruptcy Process

Bankruptcy is a judicial process for adjudicating the debts of an individual or a business unable

to meet obligations to creditors. A bankruptcy case is a collective proceeding involving a debtor and

the debtor's creditors. There are five types of bankruptcy cases provided for under the Bankruptcy

Code, two of which – Chapter 7 and 13 cases – commonly are referred to as consumer bankruptcies.

Chapter 7 and 13 Cases

 

6

See, e.g., Privacy Act, 5 U.S.C. § 552a(b)(7); Gramm-Leach-Bliley Act, Pub. L. No. 106-102, 113 Stat 1338, 1438 (1999)

(15 U.S.C. § 6802(e)(5)).
-6-

A Chapter 7 proceeding, sometimes referred to as “Liquidation,” involves a court-supervised

procedure by which a trustee collects the assets of the debtor's estate, reduces them to cash, and makes

distributions to creditors, subject to the debtor's right to retain certain exempt property and the rights of

secured creditors. In many Chapter 7 cases, there is little or no money available from the debtor’s

estate to pay creditors. As a result, there are few issues or disputes, and the debtor is normally granted

a “discharge” of most debts without objection. This means that the debtor will no longer be personally

liable for repaying the debts.

In a Chapter 13 proceeding, sometimes referred to as “Adjustment of Debts of an Individual

With Regular Income,” the debtor usually remains in possession of the property of the estate and makes

payments to creditors through the trustee, based on the debtor's anticipated income over the life of a

plan that is approved by the court, usually three to five years. Unlike in proceedings under Chapter 7,

the debtor does not receive an immediate discharge of debts. The debtor must complete the payments

required under the plan before the discharge is received. The debtor is protected from lawsuits,

garnishments, and other creditor action while the plan is in effect. Thus, a Chapter 13 proceeding often

enables the debtor to keep a valuable asset, such as a house.

Appointment of The Trustee

Chapter 7 and Chapter 13 trustees are not federal employees, but rather are private individuals

appointed pursuant to Title 28 U.S.C. § 586(a), and supervised by the Department of Justice.

 Following a Chapter 7 filing, an impartial case trustee is appointed by the United States trustee,

or in Alabama and North Carolina, the Bankruptcy Administrator, to administer the case and liquidate

the debtor's nonexempt assets.7 If, as is often the case, all of the debtor's assets are exempt or subject

to valid liens, there will be no distribution to unsecured creditors. Typically, as mentioned above, most

Chapter 7 cases involving individual debtors are "no asset" cases. If the case appears to be an "asset"

case at the outset, unsecured creditors who have claims against the debtor must file their claims with the

clerk of court within 90 days after the first date set for the first meeting of creditors called under § 341

of the Bankruptcy Code.8

Upon the filing of the Chapter 13 petition, an impartial trustee is appointed to administer the

case.9 If the number of cases so warrants, the United States trustee or Bankruptcy Administrator may

appoint a standing trustee to serve in all Chapter 13 cases in a district.10 A primary role of the Chapter

13 trustee is to serve as a disbursing agent, collecting payments from debtors and making distributions

to creditors.11 In a Chapter 13 case, unsecured creditors who have claims against the debtor must file

 

7

 11 U.S.C. § 701.

8

 Fed. R. Bankr. Proc. 3002(c).

9

 11 U.S.C. § 1302.

10 28 U.S.C. § 586(b).

11 11 U.S.C. § 1302.
-7-

their claims with the court within 90 days after the first date set for the meeting of creditors.12 The

debtor must file a plan for the repayment of creditors.13

Meeting of Creditors

A "meeting of creditors," commonly referred to as a "341 meeting" is usually held 20 to 40 days

after the petition is filed. The debtor must attend this meeting, at which creditors may appear and ask

questions regarding the debtor's financial affairs and property.14 The trustee also attends this meeting

and the debtor must provide the trustee with financial records requested by the trustee. 

 

12 Fed. R. Bankr. Proc. 3002(c).

13 11 U.S.C. §§ 1321, 1322.

14 11 U.S.C. § 343.

Confirmation of the Plan (Chapter 13)
-8-

After the meeting of creditors is concluded, the bankruptcy judge must determine at a

confirmation hearing whether the debtor’s plan for repayment of creditors is feasible and meets

standards for confirmation set forth in the Bankruptcy Code.15 Within thirty days after the filing of the

plan, even if the plan has not yet been approved by the court, the debtor must start making payments to

the trustee.16 If the plan is confirmed by the bankruptcy judge, the Chapter 13 trustee commences

distribution of the funds received in accordance with the plan "as soon as practicable."17

Discharge

A discharge in a Chapter 7 or Chapter 13 case releases the debtor from personal liability for

discharged debts and prevents the creditors owed those debts from taking any action to collect the

debts against the debtor or his or her property. In most Chapter 7 cases, unless a complaint has been

filed objecting to the discharge or the debtor has filed a written waiver, the discharge will be granted

relatively early in the case, that is 60 to 90 days after the date first set for the meeting of creditors.

A Chapter 13 debtor is entitled to a discharge upon successful completion of all payments under

the confirmations plan.18 In return for the willingness of the Chapter 13 debtor to undergo the discipline

of a repayment plan of three to five years, a broader discharge is available under Chapter 13 than in a

Chapter 7 case. As a general rule, the debtor is discharged from all debts provided for by the

confirmation plan or disallowed, except certain long-term obligations (such as a home mortgage), debts

for child support, and debts for most government funded or guaranteed educational loans or benefit

overpayments.19

Adversary Proceedings and Contested Matters

In addition to the bankruptcy process described above, there are two types of litigation that

may arise in the course of a bankruptcy proceeding: adversary proceedings and contested matters. 

Adversary proceedings resemble ordinary federal court civil lawsuits. They include most actions: to

recover money or property; to determine the validity, priority, or extent of a lien; to determine the

debtor's right to a discharge in bankruptcy or the dischargeability of a particular debt; and to obtain an

injunction or other equitable relief, as well as several other categories of important suits. 

 

15 11 U.S.C. §§ 1324, 1325.

16 11 U.S.C. § 1326(a)(1).

17 11 U.S.C. § 1326(a)(2).

18 11 U.S.C. § 1328(a).

19 11 U.S.C. § 1328(a).
-9-

The procedures and practice in an adversary proceeding are similar to those in an ordinary civil

action in the federal district court. The Federal Rules of Civil Procedure are made applicable for the

most part, being incorporated verbatim by reference or sometimes with modifications to accommodate

special bankruptcy requirements. Thus, an adversary proceeding involves the filing of a complaint, an

answer, and the other pleadings and motions permitted by the civil rules. The discovery rules, the rules

governing trial, judgment, and provisional and final remedies are all made applicable in whole or to a

considerable extent.

Bankruptcy litigation that is not an adversary proceeding is defined as a "contested matter." 

Examples of contested matters include: objections to claims or to the debtor's asserted exemptions;

disputes concerning relief from the automatic stay, or the debtor's right to use a secured party's

collateral, or to assume or reject an executory contract; and proceedings involving objections to

confirmation of a repayment plan under the rehabilitation Chapters of the Bankruptcy Code. 

2(b) Personal Information Collected from the Debtor

Both Chapter 7 and Chapter 13 cases begin with the debtor filing a petition in a bankruptcy

court serving the area where the debtor lives.20 In addition to the petition, the debtor is required to file

with the court schedules of assets and liabilities, current income and expenditures, and executory

contracts and unexpired leases, as well as a statement answering detailed questions about the debtor's

financial affairs.21 To complete the Official Bankruptcy Forms that make up the petition and schedules,

a debtor must compile:

_ a list of creditors and the amount and nature of their claims;

_ the source, amount, and frequency of the debtor's income;

_ a list of all of the debtor's property; and

_ a detailed list of the debtor's monthly living expenses, such as, food, clothing, shelter,

utilities, taxes, transportation, and medical expenses. 

Many items, such as insurance policies and annuities, must be itemized and valued and the

policy numbers disclosed. If a debt is a charge account or related to a credit card, the account number

must be provided in addition to the name and address of the creditor. In addition, the schedule of

current income must include the names, ages, and relationships of all dependents of the debtor. The

debtor's Social Security number also appears on the front of the voluntary petition.22 A debtor who fails

to make full and complete disclosure risks denial of a discharge23 and criminal penalties.24

 

20 28 U.S.C. § 1408.

21 11 U.S.C. § 521(1).

22 See Official Form 1. The specific information required on the bankruptcy petition, related schedules, and statement

of financial affairs is included in Appendix II.

23 11 U.S.C. § 727(a).
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24 18 U.S.C. § 152 (imposing criminal sanctions on persons who knowingly and fraudulently give false information,

withhold information, conceal property, or present a false proof of claim in connection with a bankruptcy case).

Bankruptcy Rules also contain provisions regarding information about the debtor that must be

filed with the court. Rule 3001(c) requires that an original or duplicate of any writing that is the basis of

a claim against a debtor be filed with the proof of claim. Pursuant to this rule, a variety of documents

containing personal financial information may be filed with the bankruptcy court. Under Rules 1005 and

9004(b) the bankruptcy petition and every other
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document filed by the debtor must contain the title of the case, which includes the debtor’s Social

Security number and tax identification number.25

As discussed above, the debtor is required to attend the meeting of creditors, at which time

supplemental information may be obtained through examinations of the debtor by the trustee or

creditors, who appear and ask questions regarding the debtor's financial affairs. Rule 2004 provides for

further examination of the debtor or of other entities on order of the court. A Rule 2004 examination

permits a broad range of inquiry into all matters relevant to the debtor's financial affairs, which includes

an inquiry into the validity of a creditor's disputed claim. Rule 2004 is designed to enable the parties in

interest and primarily the trustee, to conduct an examination in addition to the examination of the debtor

at the meeting of creditors regarding matters that relate to the general administration of the estate,

including matters relating to the debtor's right to a discharge of an individual debt. Although transcripts

of these examinations can be made, they are not routinely made a part of the court record. Similarly,

the documents produced are not typically made a part of the record until used in litigation. 

2(c) Access to the Debtor’s Personal Information

General Public Access Under Bankruptcy Code § 107(a)

Under § 107(a) of the Bankruptcy Code, information filed in a bankruptcy case generally

becomes part of the public record. Section 107(a) provides:

Except as provided in subsection (b) of this section, a paper filed in a case under this

title and the dockets of a bankruptcy court are public records and open to examination

by an entity at reasonable times without charge.26

Section 107(a) essentially codifies for the bankruptcy courts the common law right of general

public access to court records. The legislative history of § 107 makes it clear that all documents filed

with the bankruptcy court are subject to public review. 27 In practice, therefore, any paper filed with the

court in a bankruptcy case is subject to public inspection unless sealed (see discussion below).

 

25 Official Bankruptcy Form 16B (Short title) modifies the definition of the title of the case in Rule 1005 for many

documents.

26 11 U.S.C. § 107(a). As discussed further below, § 107(b) provides for certain exceptions to this general

rule.

27 H.R. Rep. No. 595, 95th Cong., 1st Sess. 317-318 (1977); S. Rep. No. 989, 95th Cong, 2d Sess. 30 (1978).
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Under the Bankruptcy Code, therefore, public disclosure issues are resolved under §107.28

Consequently, some courts take the position that a bankruptcy court need not balance the equities in

deciding a general public access issue because Congress already did so when it enacted §107.29

Pursuant to this approach, a bankruptcy court would focus on whether the information at issue falls

under an exception to access set forth in §107(b), which is discussed further below.

The mandatory nature of §107(a) and the comprehensiveness of documents subject to it,

therefore, may afford bankruptcy courts less flexibility in resolving disclosure issues than courts

operating solely under the common law doctrine of general public access, which leaves a determination

regarding the presumptive right of general public access to the discretion of the trial court.30

Access by Parties In Interest Under Bankruptcy Code § 704(7)

Under § 704(7) of the Bankruptcy Code, a trustee appointed in a bankruptcy case has a

statutory duty to provide information concerning a debtor’s estate and its administration at the request of

any party in interest.31 A bankruptcy trustee also is subject to fines and forfeiture of office for refusing a

party in interest a reasonable opportunity to inspect documents and accounts relating to a debtor’s

estate.32 There are no statutory limitations on further dissemination of the information provided by the

trustee, but the court retains discretion to limit disclosure in situations where protection is warranted.

2(d) Limits on Access to the Debtor’s Personal Information

Limits on Access Under Bankruptcy Code § 107(b)

As described above, there are some limitations under §107 as to what material becomes part of

the public record. Specifically, §107(b) provides:

(b) On request of a party in interest, the bankruptcy court shall, and on the bankruptcy

court's own motion, the bankruptcy court may:

(1) protect an entity with respect to a trade secret or confidential

research, development, or commercial information; or

 

28 See generally Mark D. Bloom, et al., Reorganizing in a Fish Bowl: Public Access vs. Protecting Confidential

Information, 73 Am. Bankr. L. Rev. 775 (Fall 1999); William T. Bodoh & Michelle M. Morgan, Protective Orders in the

Bankruptcy Court: The Congressional Mandate of Bankruptcy Code Section 107 and its Constitutional

Implications, 24 Hastings Const. L. Q. 67, 76-81 (Fall 1996).

29 See In re Orion Pictures Corporation, 21 F.3d 24, 27 (2d Cir. 1994); In re In re Phar-Mor, Inc., 191 B.R. 675, 679

(Bankr. N.D. Ohio 1995).

30 See, e.g., United States v. McVeigh, 119 F.3d 806, 811 (10th Cir. 1997); United States v. Amodeo, 71 F.3d. 1044, 1047-

50 (2d Cir. 1995).

31 11 U.S.C. § 704(7).

32 18 U.S.C. § 154.
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(2) protect a person with respect to scandalous or defamatory matter contained

in a paper filed in a case under this title.

Whether certain information at issue falls under the §107(b) exception is a question of fact to be

determined by the court.33 Section 107(b) is generally viewed as a restriction on the general public’s

right of access warranted only when dissemination of the subject information risks substantial and

serious harm and there is no less intrusive means of protection.34 Some bankruptcy courts apply a

balancing of interests approach even when information is sought that falls squarely within a §107(b)

exception.35

Limits On Access Under Bankruptcy Rule 7005

 Bankruptcy Rule 7005, which incorporates Federal Rules of Civil Procedure 5 (Federal Rule

5) also provides some limit on access to documents filed in adversary proceedings in bankruptcy court.

 Federal Rule 5 provides:

Rule 5. Serving and Filing Pleadings and Other Papers

. . .

 (d) Filing; Certificate of Service. All papers after the complaint required to be

served upon a party, together with a certificate of service, must be filed with the

court within a reasonable time after service, but disclosures under Rule 26(a)(1)

or (2) and the following discovery requests and responses must not be filed until

they are used in the proceeding or the court orders filing: (i) depositions, (ii)

interrogatories, (iii) requests for documents or to permit entry upon land, and

(iv) requests for admission.

Federal Rule 5 provides some protection to personal information that is disclosed in discovery,

but not used in the course of litigation. However, Bankruptcy Rule 7005, which incorporates Federal

Rule 5, applies only to adversary proceedings in bankruptcy court. Many issues in bankruptcy court,

such as the validity of claims and exemptions, are litigated as contested matters and not as adversary

proceedings. Because there is no prohibition against filing discovery materials obtained during the

course of contested matters, additional personal financial information may become part of the court

record.

 

33 2 Collier on Bankruptcy, &107.03[2] (Matthew Bender 15th Ed. Revised).

34 See 2 Collier on Bankruptcy, &107.03[1] (Matthew Bender 15th Ed. Revised); Krause v. Rhodes, 671 F.2d 212, 219

(6th Cir. 1982); In re Halkin, 598 F.2d 176 (D.C. Cir. 1979); Ad Hoc Protective Committee for 10% Debenture Holders

v. Itel Corp. (In re Itel Corp.), 17 B.R. 942 (B.A.P. 9th Cir. 1982).

35 See In re Ionosphere Clubs, Inc., 156 B.R. 414, 433 (S.D.N.Y. 1993); In re Continental Airlines, 150 B.R. 334, 339-341

(D. Del. 1993).
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2(e) Judicial Branch Policy on General Public Access to Case Files

Case files are maintained by the clerk of court as the official record of litigation in the federal

courts. As a general rule the public case file consists of all pleadings, orders, notices, exhibits, and

transcripts filed with the clerk of court. It is currently standard practice that case files are open for

inspection and copying during normal business hours. There is also a general presumption that court

files are available to anyone upon request. Courts do not make access determinations based on the

status of the requestor. The federal judiciary also offers various electronic public access (EPA) services

that allow the public to gain quick access to official court information and records from outside the

courthouse.

Disputes over access to case files are addressed on a case-by-case basis by individual judges. 

Judges address privacy interests in case files mainly through discretionary sealing of files or documents. 

Although judges may act on their own initiative, sealing of case files usually occurs on a case-by-case,

or document-by-document, basis in response to a motion to seal.

The federal courts are moving swiftly to create electronic case files, and to provide general

public access to those files through the Internet. This transition from paper files to electronic files is

transforming the way case file documents may be used by attorneys, litigants, courts, and the public by

providing new access capabilities. The creation of electronic case files means that the ability to obtain

documents from a court case file no longer will depend on physical presence in the courthouse where a

file is maintained. Increasingly, case files may be viewed, printed, or downloaded remotely by anyone,

at any time, through the Internet.

Electronic files are being created in two ways. Many courts are creating electronic images of all

paper documents that are filed. Other courts are receiving electronic court filings over the Internet

directly from attorneys, so that the original file is no longer a paper file, but a collection of the electronic

documents filed by the attorneys and the court. Over the next few years electronic filing, as opposed to

making electronic images of paper documents, will become more common as most federal courts begin

to implement a new case management system, called Case Management/Electronic Case Files

(CM/ECF). That system gives each court the option to create electronic case files by allowing lawyers

and parties to file their documents over the Internet. CM/ECF also allows the courts to combine

electronic images with other electronic documents to create a complete electronic case file.

The courts plan to provide general public access to electronic files, both at the courthouse

through public computer terminals, and remotely, through their Internet websites. The web-based

systems will contain both the dockets (a list of the documents filed in the case) and the actual case file

documents.

2(f) National Data Center Policy on Access to Case Files
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The National Association for Chapter Thirteen Trustees (NACTT) is in the process of

establishing a National Data Center (NDC) that will make case information maintained by the private

trustees assigned to the debtor’s bankruptcy case available over the Internet to parties in interest. The

NDC has indicated that it will contract with the private trustees regarding transmission of the

information and will provide debtors notice that parties in interest will have Internet access to their case

information. In addition, by signing the contract, private trustees agree to investigate and rectify errors in

the data reported should errors be discovered. To protect against parties in interest re-disclosing

debtor information to outsiders, the NDC also will contract with creditors to ensure that they only use

this information with respect to bankruptcy claims, and to prohibit the selling or re-disclosing of debtor

information. Finally, the NDC has asserted that it will establish and maintain a secure electronic

database to prevent unauthorized access, and limit accessibility of debtors’ sensitive information.

2(g) Financial Privacy Statutes That May Apply In Bankruptcy Proceedings

In addition to the Bankruptcy Code and other bankruptcy rules and policies, there are two

general financial privacy statutes that may have relevance to the collection and use of information in the

bankruptcy process: the Fair Credit Reporting Act and the Gramm-Leach-Bliley Act.

2(g)(i) The Fair Credit Reporting Act

The Fair Credit Reporting Act (FCRA)

36 governs certain kinds of financial and other personal

information included within the definition of a “consumer report.” This generally includes information

bearing on any one or more of the following characteristics of an individual: credit worthiness, credit

standing, credit capacity, character, general reputation, personal characteristics, or mode of living (the

seven factors), where the information is intended to be used as a factor in establishing the individual’s

eligibility for credit or insurance, for employment purposes, or for any other purpose permitted under the

FCRA.37 An entity that collects this type of information may be deemed to be a “consumer reporting

agency” under the FCRA, and as such, subject to certain restrictions on its use and disclosure of the

information.

Information about a bankruptcy debtor’s bank cards, auto loans and leases, mortgages, and

 

36 15 U.S.C. §§ 1681 et seq.

37 See 15 U.S.C. § 1681a(d)(1). These permissible purposes are limited to situations where the consumer report is: (1)

provided in response to a court order or grand jury subpoena; (2) made pursuant to the consumer’s written

instructions; (3) used in connection with a credit transaction, insurance underwriting or other transaction initiated by

the consumer, such as leasing an apartment if there is a legitimate business need for the report; or (4) used for

employment purposes. A report may also be provided when the consumer has applied for a government benefit,

when the user intends to offer credit or insurance to consumers meeting specified criteria, or in specified

circumstances involving a legitimate business need (such as to review an account to determine if the consumer

continues to meet the terms of the account). See 15 U.S.C. § 1681b(a).
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student loans, including credit limits, payment histories, and high credit balances – all of which may be

made available in a bankruptcy case – is precisely the type of information covered by the FCRA. 

However, since the FCRA does not apply unless this information is used or expected to be used in

order to make credit, employment or other types of decisions about an individual specified in the

FCRA, the use of this information to administer the bankruptcy process is not likely to implicate the

FCRA. Nonetheless, if an entity regularly collects the type of personal information described above

from bankruptcy court records and other phases of the bankruptcy process and communicates it for any

of the purposes covered by the FCRA, that entity may be deemed to be a consumer reporting agency

subject to the FCRA. The FCRA then would govern the processing of the information by the entity that

collected it, by organizations that furnish the information to the entity, and by recipients of the

information, i.e., users of consumer reports. 

2(g)(ii) Gramm-Leach-Bliley Act of 1999

 Title V of the Gramm-Leach-Bliley Act of 1999 (GLBA)

38 limits the extent to which banks,

insurance companies, or other financial institutions39 may disclose personal information about

consumers40 with whom they do business. As discussed further below, the GLBA’s disclosure

limitations appear to have limited application to information about a debtor generated in a bankruptcy

case because much of that information is made part of the public record and, therefore, is outside the

scope of the GLBA’s limits on disclosure. Moreover, the GLBA does not restrict a financial

institution’s ability to disclose information to its affiliates.41 Consequently, the GLBA does not appear to

provide comprehensive legal protections for debtors’ privacy interests in the bankruptcy context.

 It is important to note, however, that the GLBA’s financial privacy provisions are in the early

stage of implementation, and full compliance with their requirements is not required until July 1, 2001.42

Consequently, many interpretive issues that are likely to arise – such as how the law applies to

information generated in the bankruptcy process – have not ripened to the point where the agencies

 

38 See GLBA, tit. V, 113 Stat. 1436-1445 (15 U.S.C. § 6801 et seq.).

39 Under subtitle A of title V of the GLBA, a financial institution generally is any banking institution, securities entity

(such as a broker-dealer, mutual fund, or investment adviser), or insurance company, as well as any other business

that engages in activities that are financial in nature under section 4(k) of the Bank Holding Company Act of 1956. 

See 15 U.S.C. § 6809(3); 12 U.S.C. § 1843(k).

40 Under the GLBA, a consumer is an individual who obtains from a financial institution financial products or services

to be used primarily for personal, family, or household purposes. See GLBA sec. 509(9) (15 U.S.C. § 6809(9)).

41 The FCRA, however, requires financial institutions to give individuals notice and the opportunity to block the

sharing of certain information among affiliated companies. See 15 U.S.C. § 1681a(d)(2)(A)(iii).

42 The federal regulators for the various categories of financial institutions subject to the GLBA have issued

comparable implementing regulations that require full compliance beginning July 1, 2001. See 65 Fed. Reg. 35161

(June 1, 2000) (Federal Reserve Board, Federal Deposit Insurance Corporation, Office of the Comptroller of the

Currency, Office of Thrift Supervision); 65 Fed. Reg. 40333 (June 29, 2000) (Securities and Exchange Commission); 65

Fed. Reg. 31721 (May 18, 2000) (National Credit Union Administration;) 65 Fed. Reg. 33645 (May 24, 2000) (Federal

Trade Commission). Implementing regulations of the various State insurance regulators are still pending.
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charged with administering the law have had the opportunity formally to address them. Nonetheless, it

is possible to discuss the GLBA’s requirements generally and to identify specific issues that may bear on

how the law applies in the bankruptcy context.

 The GLBA provides that before a financial institution may disclose nonpublic personal

information about a consumer to a non-affiliated company, the institution must give the consumer notice

of the types of companies that may receive the information and the opportunity to prevent (i.e., opt out

of) the disclosure.43 In general, nonpublic personal information is any personally identifiable financial

information about the consumer, other than publicly available

 

43 See GLBA secs. 502, 503 (15 U.S.C. §§ 6802, 6803).
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information.44 Nonpublic personal information includes not only specific information about an

individual’s finances – such as annual income, outstanding loans, and payment history – but also any

identifying information – such as an individual’s Social Security number, address and telephone number

– that is obtained by a financial institution for the purpose of providing a financial product or service to

the individual.45 In addition, the fact that an individual has obtained a financial product or service from a

financial institution as a consumer, or has a customer relationship46 with a financial institution, is

nonpublic personal information if it is not publicly available.47

 If the consumer exercises his right to opt out of the disclosure of his nonpublic personal

information, the financial institution must honor the consumer’s opt-out direction until the consumer

revokes it.48 Furthermore, the opt-out direction applies to any nonpublic personal information collected

by the financial institution that is related to the institution’s customer relationship with the consumer, even

if the customer relationship has terminated.49 Consequently, the opt-out direction continues to be

effective as to nonpublic personal information collected by a financial institution as a party in interest in a

bankruptcy proceeding filed by one of its customers or former customers.50

 Although a debtor’s opt-out direction continues to apply during the bankruptcy process, it

generally does not apply to information that is publicly available.51 A financial institution may consider

information to be publicly available if the institution reasonably believes that the information is lawfully

made available to the general public from, among other sources, federal

government records.52 As discussed above, documents filed in bankruptcy cases are generally available

for public inspection pursuant to § 107(a) of the Bankruptcy Code53 and current judicial branch policy. 

These documents include the identities of a debtor’s creditors and detailed information about his assets

and liabilities. Consequently, the existence of a debtor’s customer relationship with a financial institution

and the details of that relationship become publicly available as a result of a bankruptcy filing and,

 

44 65 Fed. Reg. 35198 (June 1, 2000)(to be codified at 12 C.F.R. § 40.3(n)).

45 A consumer’s account numbers and access codes for credit card, deposit, and transaction accounts also are

nonpublic personal information. The GLBA bars a financial institution from disclosing this type of information to

non-affiliated companies for marketing purposes, except in certain limited circumstances. See 15 U.S.C. § 6802(d);

See, e.g., 65 Fed. Reg. 35203 (June 1, 2000) (to be codified at 12 C.F.R. § 40.12).

46 A customer relationship is a continuing relationship between a consumer and a financial institution under which

the financial institution provides one or more products or services to the consumer that are to be used primarily for

personal, family, or household purposes. See, e.g., 65 Fed. Reg. 35197 (June 1, 2000)(to be codified at 12 C.F.R. §

40.3(i)(1)).

47 65 Fed. Reg. 35198 (June 1, 2000)(to be codified at 12 C.F.R. § 40.3(o)(2)(C)).

48 See, e.g., 65 Fed. Reg. 35202 (June 1, 2000) (to be codified at 12 C.F.R. § 40.7(g)(1)).

49 See, e.g., 65 Fed. Reg. 35202 (June 1, 2000) (to be codified at 12 C.F.R. § 40.7(g)(2)).

50 See, e.g., 65 Fed. Reg. 35202 (June 1, 2000) (to be codified at 12 C.F.R. § 40.7(g)(2)).

51 See GLBA sec. 509(4)(B) (15 U.S.C. § 6809(4)(B)). In some cases, a consumer’s opt-out direction will apply to

publicly available information, such as where it is made part of a list of consumers that is derived from nonpublic

personal information. See, e.g., 65 Fed. Reg. 35198 (June 1, 2000)(to be codified at 12 C.F.R. § 40.3(n)(2)(i)).

52 See, e.g., 65 Fed. Reg. 35199 (June 1, 2000) (to be codified at 12 C.F.R. § 40.2(p)(1)(i)).

53 11 U.S.C. § 107(a).
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therefore, would not be subject to the debtor’s right to opt-out of disclosure by the financial institution.54

 

54 The one exception may be in the case of account numbers and account codes for a debtor’s transaction accounts. 

The GLBA generally prohibits financial institutions from disclosing this information to nonaffiliated companies for

marketing purposes, without regard to whether the information is publicly available. See 15 U.S.C. § 6802(d); See,

e.g.,65 Fed. Reg. 35203 (June 1, 2000) (to be codified at 12 C.F.R. § 40.12).

In contrast, other financial information about the debtor that is generated in a bankruptcy case

may be available only to parties in interest. For instance, in a Chapter 13 case, a debtor’s record of

making payments to a trustee pursuant to a payment plan generally is not the type of information that

would be included in a document filed with the court. The trustee may provide this information to the

parties in interest, however, so that they may verify that the trustee is distributing payments in

accordance with the terms of the plan. This type of information probably would not be considered to

be publicly available under the GLBA and, therefore, might be subject to a debtor’s right to opt-out of

disclosure of the information. 

In sum, the GLBA’s disclosure limitations appear to have limited applicability in the bankruptcy

context because a large amount of information detailing a debtor’s customer relationship with a financial

institution becomes part of the public record in a bankruptcy proceeding and, therefore, is outside the

scope of the GLBA.

3. THE NEED FOR GENERAL PUBLIC ACCESS TO FINANCIAL INFORMATION

IN BANKRUPTCY

This chapter examines the need for access by the general public to financial information in

bankruptcy proceedings. In particular, this chapter reviews the two main purposes of access: facilitating

the fair and efficient disposition of cases, and promoting public trust and accountability in the bankruptcy

system.

3(a) Facilitating the Fair and Efficient Disposition of Bankruptcy Cases

As discussed above, a debtor must file with the bankruptcy court schedules listing assets,

income, liabilities, the names and addresses of all creditors, and the amount owed to each creditor. This

information generally is necessary for the identification and collection of assets and the proportionate

distribution to creditors that is central to the bankruptcy process.
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The clerk of court uses the information contained in the debtor's schedules to notify all listed

creditors that the debtor has filed a bankruptcy petition. Once the creditors receive notice, they are

required to file proofs of claim in order to share in any distribution from the debtor's property. 

Creditors use the account numbers and the Social Security number provided by the debtor to positively

identify the debtor, whose name may be similar to that of other account holders. Account balance

information submitted by the debtor allows the creditor to compare the amount the debtor thinks he or

she owes the creditor with the creditor’s own records. In addition, by looking at the amount of the

debtor’s other liabilities, the nature of those liabilities, and the debtor’s assets and income, the creditor

can evaluate what if any dividend it will receive on its claim.

The information in the schedules and the statement of financial affairs also allows the trustee to

challenge unjustified claims by creditors, investigate possible misconduct by the debtor before and

during the bankruptcy, and recover claims that the bankruptcy estate may have

against third parties, including entities who may have received fraudulent transfers or preferential

payments from the debtor during the period immediately before bankruptcy.

At the end of the liquidation process, individual debtors normally receive a "discharge" of all

pre-bankruptcy claims against them, except for certain non-dischargeable claims, such as support of

dependents or taxes. Any party in interest, including creditors and the trustee in bankruptcy, may object

to the discharge of a particular claim or to the debtor's general discharge, on grounds such as fraud by

the debtor (e.g., that debtor failed to disclose all assets). If a timely objection is made, the bankruptcy

court will hold a hearing. The financial information contained in the debtor's schedules and statement of

affairs is important in the determination by a trustee, creditor, or law enforcement investigator of whether

a debtor has tried to defraud a single creditor such that a specific claim should not be discharged or

whether the debtor has tried to defraud all creditors such that the debtor should be denied a general

discharge.

In a Chapter 13 case, the trustee will use the information in schedules filed by the debtor to

determine whether the debtor is eligible for relief under Chapter 13 and whether the debtor's repayment

plan meets the requirements of the Bankruptcy Code. The creditors will use the information to

determine whether to object to confirmation of the plan.

3(b) Promoting Public Trust and Accountability in the Bankruptcy System

Section 107(a) of the Bankruptcy Code codifies the general public's right under common law to

inspect and copy public documents, including judicial records.55 The right of general public access to

court case files is a subset of the more general public “right to know” about the workings of government.

 The courts have consistently recognized the salutary purposes of general public access, focusing on the

 

55 See 2 Collier on Bankruptcy, &107.01 (Matthew Bender 15th Ed. Revised).
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public’s need to ensure judicial fairness and accountability. Courts have noted, for example, that

general public access to court records: “allows the citizenry to monitor the functioning of our courts,

thereby insuring quality, honesty, and respect for our legal system”;

56 “diminish[es] possibilities for

injustice, incompetence, perjury and fraud”; and promotes “a more complete understanding of our

judicial system and a better perception of its fairness.”57

4. PRIVACY INTERESTS IN FINANCIAL INFORMATION IN BANKRUPTCY

This chapter examines the protection of personal financial information and the special privacy

interests of debtors.

4(a) Privacy Interests in Financial Information

 

56 In re Continental Illinois Securities Litigation, 732 F.2d 1303, 1308 (7th Cir. 1984).

57 Republic of the Philippines v. Westinghouse Electric Corp., 949 F.2d 653, 660 (3d Cir. 1991)

Privacy is considered by many Americans to be a fundamental right. Over time, the legal

framework protecting individual privacy has evolved to respond to changes in the way sensitive personal

information is obtained, retained, and used. Personal financial records, which can include lists of

purchases, bank account numbers, and other unique identifiers, contain some of the most sensitive

information about individuals. If used unscrupulously, this information can cause substantial harm.

In a world of paper records and unaffiliated financial institutions, which characterized the U.S.

financial system for most of its history, financial privacy concerns were relatively minor. Information on

individuals was difficult to obtain, was not widely shared among institutions, and was not generally used

as an asset for marketing or other purposes. Today, however, three major developments are raising

new concerns about protection of personal financial information.

First, financial information now flows much more rapidly, and in much greater volumes, than

ever before. An ordinary desktop computer is now significantly more powerful than the mainframe of

30 years ago, and can store, manipulate, and analyze far more information at vastly lower costs. 

Advances in telecommunications allow this information to be sent anywhere in the world instantaneously,

at similarly low costs. These technological developments have created opportunities for the sharing of

information among institutions that were scarcely envisioned even a few years ago. In addition, the

advent of large databases available through the Internet creates new opportunities for access by the

general public to information about individuals, often without the subject’s knowledge or consent. The

free flow of information that is now possible offers many advantages in economic efficiency and

individual well-being. At the same time, it poses potential new threats to a debtor’s privacy.
-22-

A second key change is the growing integration and consolidation among financial services

providers. Interstate banking and branching have allowed banks to grow larger than ever before, and

the removal of regulatory restraints has allowed financial services organizations to enter lines of business

that were previously off limits. Banks, for example, may now affiliate with firms ranging from travel

agencies to health insurance providers. This integration will allow firms and consumers to benefit from

“economies of scale,” in which the provision of related financial services together can better meet

consumers’ demands at a lower cost. But these economies stem, in part, from an ability to share

consumer data across affiliated entities – and that sharing also raises legitimate privacy concerns. 

A third change is the increasing use of electronic means of purchasing and payment. Americans’

increasing use of credit cards, debit cards – and more recently electronic bill payment – in lieu of cash

now allows financial services companies to collect enormous amounts of detailed information about an

individual’s transactions. Until recently, neither institutions nor individuals were able to create detailed

lifestyle portraits using such information.

The creation of electronic case files and the electronic collection and dissemination of

bankruptcy information are in their earliest stages. Data on the actual harm resulting from these

developments are relatively scarce. However, these developments could create a risk for possible

misuse or objectionable re-use. As the comment submitted on behalf of 20 State Attorneys General

noted, “the ready availability of such information, particularly when it may be easily obtained and copied

from electronic filings that can be accessed from the Internet, greatly increases the concerns about the

uses to which the data might be put. . . . The ability to obtain

large amounts of information at low cost makes the use of bankruptcy data for commercial purposes

economically feasible in ways that were not possible when the data had to be hand-gathered in person

from individual clerk’s offices.”

The consequence of each of these developments can be better targeting of financial products to

individual consumers, which can lower prices and improve service. However, these trends also may

increase the risks of illegal, discriminatory, or invasive uses of highly sensitive personal information. 

Included among the concerns raised by the State Attorneys General and privacy advocates are:

Identity Theft. More widespread availability of information such as Social Security numbers, credit

card numbers, and other personal identifiers create greater opportunities for unscrupulous individuals to

commit identity theft.

Predatory Lending. Greater sharing of information within and among financial institutions

could lead to an increase in the use of such information by unscrupulous lenders. For example,

marketers engaged in predatory lending may use this information to target especially vulnerable debtors.

 Although limiting access to detailed personal information in bankruptcy filings will not by itself eliminate

predatory lending practices, it is one step that can be taken to address this problem.
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4(b) Special Privacy Interests of Debtors in Bankruptcy

Beyond these general financial privacy concerns, the bankruptcy process raises some

particular issues involving the handling of financial information. Much of the data available to the general

public from a bankruptcy proceeding generally is not readily available from other sources. This includes:

bank account numbers and funds in those accounts; Social Security numbers; market value of real

property; market value of automobiles; employment income; cash on hand; alimony and other support

due; alimony and other support owed; account numbers with creditors and amount owed to creditors;

and medical expenditures, among other information. Although credit reporting agencies currently are

permitted to provide some financial information to private entities and individuals, they are subject to

specific regulations and penalties for improper disclosure. The comprehensive nature of the information

required in bankruptcy proceedings, and the fact that such information is often restricted in other

contexts, suggests that there may be reasons to reconsider the current system, which allows unrestricted

access to such data by the general public.

In addition, debtors in bankruptcy face a combination of two circumstances that may make them

particularly vulnerable to misuse of data available about them. First, debtors in

bankruptcy are by definition facing extraordinary financial difficulties. Many end up in the bankruptcy

system in order to relieve pressure from collection agents and others who threaten to repossess homes

and other real property. As noted in a recent joint report of the Treasury Department and the

Department of Housing and Urban Development, such consumers often are targeted for credit offers on

unfavorable terms, exacerbating a cycle of financial trouble.58 Second, once a debtor enters

bankruptcy, he or she cannot receive a bankruptcy discharge for another seven years under Chapter 7,

or three years under Chapter 13. Consequently, if an individual coming out of bankruptcy falls victim to

a predatory practice and lands once again in financial difficulty, he or she will have no recourse to the

bankruptcy system to protect basic assets such as a home.

5. MODELS FOR BALANCING PRIVACY AND ACCESS

5(a) Introduction – Case-by-Case Determinations

In determining how the competing interests in access to information and protection of personal

financial information may be balanced in the consumer bankruptcy process, it is helpful to compare the

approach embodied in current bankruptcy law to approaches used in other contexts. 

The federal bankruptcy statutes and case law under them reflect a case-by-case approach to

balancing access by the general public and protection of personal financial information, with that balance

weighted heavily in favor of access for the general public and parties in interest, except as to

 

58 See Curbing Predatory Home Mortgage Lending: A Joint Report, U.S. Department of Housing and Urban

Development and U.S. Department of Treasury at 72 (June 2000).
-24-

“scandalous or defamatory” information. Under common law in non-bankruptcy cases, there is a

presumption that court records are open to the public, though courts exercise discretion in balancing

interests in access by the general public and individual privacy interests, and may seal records or grant

protective orders upon the showing of a compelling interest.59 Similarly, with respect to federal

executive branch records, the courts use a balancing test under the Freedom of Information Act to

weigh individuals’ interests in preventing “clearly unwarranted invasions of personal privacy” from the

disclosure of personal information in government records, versus the general public’s interest in access

to records in order to shed light on the workings of the government.60

 

59 See e.g., United States v. Beckham, 789 F.2d 401, 409-15 (6th Cir. 1986)(trial court "must set forth substantial reasons

for denying" access to its records).

60 5 U.S.C. §552(b)(6); see U.S. Dept. of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 772

(1989). In Reporters Committee, a case involving a database of information summarized in a criminal "rap sheet," the

Supreme Court recognized a privacy interest in information that is publicly available through other means, but is

"practically obscure." The Court specifically noted:

the vast difference between the public records that might be found after a diligent search of

courthouse files, county archives, and local police stations throughout the country and a

computerized summary located in a single clearinghouse of information.

489 U.S. at 764. In weighing the public interest in releasing personal information against the privacy interests of

individuals, the Court identified a public interest in access to information that would "shed light on the conduct of

any Government agency or official," 489 U.S. at 773, not information about a particular private citizen. The Court also

noted "the fact that an event is not wholly private does not mean that an individual has no interest in limiting

disclosure or dissemination of the information." 489 U.S. at 770.

5(b) Rules Based Models

As an alternative to calling on the courts or others to determine whether personal information
-25-

should be disclosed or kept private, one could also use a “rules-based approach,” which would

generally apply across the board. Each of the following models for balancing access by the general

public and the debtor’s privacy can be viewed on a continuum from a fully open to a full closed system

of information management. Although there are many differences in the particulars of such sets of rules,

they usually combine elements of three basic conceptual models, which restrict access by the general

public to information based upon: 1) the content of the information; 2) the identity of the recipient of the

information; or 3) the recipient’s intended use of – or ability to use – the information. 

This section briefly describes these three conceptual models for access and gives examples of

how they are reflected in particular statutes or rules. It then outlines a set of generally recognized “fair

information principles” that may provide additional guidelines for the implementation of any of these

models. Finally, it illustrates how the access models and fair information principles are combined in

practice into hybrid approaches that achieve a balance between the protection of personal information

and access appropriate to a particular situation.

Limits on Access to Information Based on the Content of the Information

One approach to protecting personal information is to limit access by the general public based on

the content of the information. Some types of information may be considered more sensitive than others

because of the consequences that may result from disclosure of the information. For instance,

disclosure of personal health information or genetic information may result in inappropriate discrimination

against an individual in credit or employment decisions. Disclosure of certain personal identifiers or

financial account information, such as an individual’s Social Security number, may facilitate identity theft.

The Administration has recognized a number of categories of sensitive information and has taken

steps to establish enhanced protections in these areas, including: consumer financial information, Social

Security numbers, individual health information, and information collected from children on the Internet. 

There are several federal laws that incorporate enhanced privacy protections for these categories of

information. The Administration has also proposed additional protections for personal information held

by financial institutions. For instance:

· The GLBA, which generally allows financial institutions to share consumers’ personal

financial information with non-affiliated companies under specified conditions, places stricter limits

on sharing of account numbers and account codes for a consumer’s transaction accounts.

· The President’s proposed Consumer Financial Privacy Act (introduced in both the House and

Senate in May of 2000) would amend the GLBA to impose stricter limits on financial institutions’

disclosure of consumers’ health information and information about a consumer’s personal spending
-26-

habits.61

 

61 See H.R. 4380, 106th Cong, 2d Sess. secs. 3, 4 (2000); S. 2513, 106th Cong, 2d Sess. secs. 3, 4 (2000).
-27-

? The Children’s Online Privacy Protection Act limits the circumstances in which web-site operators

may collect personally identifiable information from children on the Internet.62

· The Driver’s Privacy Protection Act of 1994 (DPPA), which limits the extent to which state

departments of motor vehicles may disclose information about individuals in motor vehicle records,

places stricter limits on disclosure of an individual’s photograph or image, Social Security number,

and medical or disability information than on other personal information contained in such records.63

Limits on Access to Information Based on the Identity of the Recipient

Another approach to protecting personal information is to limit the categories of entities eligible

to receive the information. A particular industry, market, or activity may be structured in a manner that

makes identity-based distinctions feasible or desirable. The current bankruptcy system, with its

distinction between “parties in interest” and all other private individuals and entities, illustrates how such

divisions can be made in statute or regulation. A clear example is provided by the GLBA, which limits

the conditions under which a financial institution may disclose consumers' personal financial information

to entities that are not affiliated with the financial institution. Disclosures of such information to affiliated

companies, in contrast, are not restricted.64

Most federal laws that limit access by recipient also explicitly limit the purpose for which

recipients may use the information, as discussed in the next section. Even where a law does not impose

an explicit purpose limitation on the recipients, there may be an implicit limitation on how they use the

information, based on other laws that govern their conduct.65

Limits on Access to Information Based on a Recipient’s Use of the Information

Another method for protecting the debtor’s privacy interests in personal information is to restrict

the purposes for which the information may be disclosed to another entity and/or the purposes for which

the information may be re-used and re-disclosed by recipients. There are several federal laws

governing the use, collection, or disclosure of personal information that reflect this approach to some

degree. These include:

· The Privacy Act of 1974, which generally permits a federal agency to collect, use, and

 

62 See Pub. L. 105-277, div. C, title XIII, 112 Stat. 2681-728 (Oct. 21, 1998).

63 See 18 U.S.C. 2721(a), (b) (as amended by Pub. L. No 106-346, sec. 309 ___Stat. ___ (Oct. 23, 2000)).

64 See GLBA secs. 502, 503 (15 U.S.C. §§ 6802, 6803).

65 For example, where the recipient of personal information about an individual is a fiduciary to the individual, the

recipient likely is subject to a legal duty to refrain from appropriating the information for its own benefit.
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disseminate only such information about an individual as is relevant and necessary to

accomplish a purpose of the agency set forth in a statute or Executive Order.66

· The GLBA, which specifies certain purposes for which financial institutions may disclose

consumer’s personal financial information to non-affiliates without a

 

66 See 5 U.S.C. § 552a(e)(1).

consumer’s permission, and the purposes for which such information may be
-29-

re-disclosed.67

· The Right to Financial Privacy Act, which identifies the purposes for which a federal

agency may obtain an individual’s financial records from a financial institution without

following certain procedures specified in the statute.68

· The DPPA, which specifies the permissible purposes for which state departments of motor

vehicles may disclose information about individuals in motor vehicle records to any person

or entity, as well as the permissible purposes of any resale or re-disclosure of the

information.69

· The FCRA, which specifies the permissible purposes for which consumer reporting

 agencies may sell individual’s credit reports to other entities.70

Although these laws address bodies of information created for a variety of different purposes,

they all generally allow the use or disclosure of information for one or more of the following purposes:

71

· law enforcement/legal compliance

· use in judicial proceedings

· fraud prevention

 

67 See 15 U.S.C. § 6802(b)(2), (e); see, e.g., 65 Fed. Reg. 35203, 35204 (June 1, 2000) (to be codified at 12 C.F.R. §§

40.11, 40.13).

68 See 12 U.S.C. §§ 3402-3413.

69 See 18 U.S.C. § 2721(a)-(c) (as amended by Pub. L. No 106-346, sec. 309 ___Stat. ___ (Oct. 23, 2000)).

70 See 15 U.S.C. § 1681b(a).

71 See 5 U.S.C. § 552a(b) (Privacy Act of 1974); 12 U.S.C. 3413 (Right to Financial Privacy Act); GLBA sec. 502(e) (to

be codified at 15 U.S.C. § 6802(e)); § 18 U.S.C. 2721(a), (b) (as amended by Pub. L. No 106-346, sec. 309 ___Stat. ___

(Oct. 23, 2000))(DPPA); 15 U.S.C. §§ 1681b, 1681u (FCRA).
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· protection of public or individual safety

· research

In sum, statutes based on the purpose limitation model establish a general rule

prohibiting or placing conditions on the collection, use, or disclosure of personal information, except

where those activities are done for one or more purposes specified in the statute.

5(c) Fair Information Principles

As noted above, “fair information principles” (FIPs) do not provide a rationale for the

dissemination of particular types of information to particular groups. However, once policymakers have

decided which entities have a right to receive which information, FIPs provide important guidance for

implementing privacy policies in a manner that is consistent and transparent. FIPs first were articulated

in a Health, Education, and Welfare Commission report on privacy in 1973. In 1980, the Organization

for Economic Cooperation and Development also established requirements for protecting privacy built

around a comprehensive set of FIPs. As discussed in the next section, several existing statutory

schemes governing repositories of personal information incorporate one or more of these principles,

which are:

· Notice - Entities collecting personal data from individuals should provide them notice about

what uses will be made of that information and/or for what purpose.

· Limitation on Collection - Entities should limit the data they collect to what is necessary to their

purpose.

· Limitation on Use - Entities should not disclose data for purposes other than those specified, except

as authorized by law.

· Choice - Entities should provide, where appropriate, choice as to how their information will be

used and/or disclosed, particularly when the information is being used or disclosed beyond the

stated purpose of the information collection.

· Access - Individuals should have reasonable access to the information that entities hold about them.

 They also should have the right to request correction or deletion of incorrect information.

· Security - Entities should ensure that the personal data they collect is secure from unauthorized

access and disclosure. This includes not only network security, but also physical security of data

(e.g., locked cabinets where appropriate) and personnel security (e.g., limiting access to personnel

whose functions require such access). 
-31-

· Accountability - There should be an enforcement or other mechanism to ensure that entities are

held accountable for complying with these principles. 

5(d) Hybrid Models

Existing federal laws that govern collection, maintenance, and disclosure of databases of

personal information usually are hybrids of the various models discussed above. As a starting point,

these laws often specify a category of information to which special requirements – such as access

limitations and security standards – will apply. The limitations on private entities’ access to the

information may include one or more of the FIPs, such as requiring notice and choice for an individual

before his personal information is disclosed, as well as limitations on the use of the information, once

disclosed. Existing laws also may incorporate other FIPs, such as the right for consumers to review

their information and have errors corrected. In addition, existing federal laws governing collection, use,

and disclosure of personal information usually include mechanisms for ensuring the accountability of

those who maintain the databases at issue, through regulatory enforcement and/or private rights of

action. 

For example, the GLBA and the FCRA each reflect a combination of these approaches: as

with many other statutes governing privacy, GLBA includes an exception to access and re-use

restrictions to allow information to be shared for law enforcement and other governmental purposes,

when statutory standards have been met;72 and FCRA similarly allows the protected information to be

shared for law enforcement and governmental purposes.

GLBA

Type of Information Covered:

_ Personally identifiable financial information about a consumer, other than publicly available

information, held by the consumer's financial institution

_ Any list, description, or other grouping of consumers (and the publicly available information

pertaining to them, such as their addresses) that is derived using any personally identifiable financial

information that is not publicly available, such as account numbers

Eligible Recipients/Notice & Choice:

_ A financial institution may disclose a consumer's information to:

· any affiliated company

· any non-affiliated company, provided the consumer receives notice of the

 

72

 See GLBA sec. 502(e)(5) (15 U.S.C. § 6802(e)(5)).
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 disclosure and does not opt out

· Non-affiliated companies may re-disclose the information to other non-affiliated

companies described in the notice given to the consumer

Purpose Limitations:

· A financial institution may disclose a consumer's information to non-affiliated companies

without the consumer's permission for purposes such as:

ÿ to

effect,

administer, or

enforce a

transaction

authorized by

a consumer

ÿ to protect the confidentiality or security of the financial institution's records 

ÿ to protect against or prevent actual or potential fraud, unauthorized transactions,

 claims, or other liability

_ Entities that receive information for one of the permissible purposes specified above

generally may re-disclose or re-use the information only to carry out the activity for which the

disclosure initially was made

Security:

_ Financial institutions are required to ensure the security, integrity, and confidentiality of

customer records

Accountability:

_ Federal financial regulators may take a range of enforcement actions, including cease-and-desist

orders, restitution orders, and civil money penalties, against institutions that fail to comply with the

consumer financial privacy requirements of the GLBA

FCRA

Type of Information Covered:

_ Consumer report information -- i.e., personal data bearing on an individual’s credit worthiness,

credit standing, credit capacity, character, general reputation, personal characteristics, or mode of

living, where the information is collected or communicated to be used to make determinations
-33-

about the individual, such as eligibility for credit, insurance, employment, or for other purposes

permitted by the FCRA

Eligible Recipients:

_ Consumer reporting agencies may provide consumer reports to entities that intend to use the

information for a permissible purpose

Purpose Limitations:

Permissible purposes for the disclosure of consumer reports include:

_ In response to a court order or grand jury subpoena

_ In accordance with the written instructions of the consumer who is the subject of the report

_ For child support collection purposes, if requested by an appropriate state or local agency

_ For specified business purposes, such as:

ÿ in connection with a credit transaction or insurance underwriting involving the individual

ÿ to determine the individual’s eligibility for a license or other government benefit

ÿ in connection with an offer of credit or insurance to individuals meeting specified criteria

ÿ in other specified circumstances involving a legitimate business need in connection with a

transaction initiated by the consumer

Individuals’ Access and Correction Rights:

_ An individual may obtain a copy of the information in his or her file at a consumer reporting agency

and may dispute the accuracy and completeness of the information

Security:

_ Consumer reporting agencies must have procedures to verify the identities of recipients of

consumer reports and the permissible purposes for which the reports will be used

Accountability:

_ The FCRA provides for enforcement by federal agencies and the States, and permits private rights

of action by consumers

The relative complexity of the various requirements of the GLBA and the FCRA

demonstrates the challenge of accommodating the interests of all parties that may have a stake

in how various types of personal information are collected, maintained, and disseminated.

These laws also make clear that different approaches and combinations of approaches may be

appropriate in different contexts. This is particularly the case where a database contains a

number of different types of information, some of which may be more sensitive than others. 
-34-

The personal information about a debtor collected and aggregated in the course of a

consumer bankruptcy proceeding may be one of the most comprehensive databases of

information ever created about the debtor. Moreover, as discussed above, there may be a large

number of competing individual and institutional interests in access to and security for that

database. Consequently, it seems clear that some combination of the models discussed above,

as well as other new approaches tailored to the needs of the bankruptcy process, will be needed

in balancing individual privacy interests and rights of access to information in the bankruptcy

context.

6. CONCLUSIONS

This chapter details a series of findings and recommendations regarding the privacyaccess balance for the bankruptcy process.

(a) Findings

6(a)(i) Access to Information is Necessary for Case Administration

The rights of parties in interest and the fair and efficient administration of cases require that

certain personal information be available to the courts, parties in interest, and governmental entities. 

Creditors, trustees, creditors’ and debtors’ attorneys, other parties in interest, and governmental

entities often need detailed financial information about debtors in order to efficiently carry out their

respective functions. 

6(a)(ii) Access to Information is Necessary to Ensure Accountability

Ensuring public accountability and preventing abuses of the bankruptcy system require that

some personal information filed in bankruptcy cases be available to the general public. In the

bankruptcy context, accountability includes the public’s policing of debtors’ use of the system, as well

as evaluating how the system is working overall. As with the administration of justice more generally,

public access to some personal information is necessary so that the press, oversight organizations, and

others can assure accountability.

6(a)(iii) Debtors Have A Privacy Interest in Certain Highly Sensitive Information

Certain personal information collected in bankruptcy proceedings is highly sensitive and is

protected from access by the general public in other contexts by financial privacy laws. Individual

debtors have a privacy interest in such information that is not expressly recognized in the current

bankruptcy system. The increasing ease of electronic access to this information is heightening debtors’

interests in ensuring that this information is protected.
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6(a)(iv) Storage of Personal Information in Government Electronic Systems Poses

New Privacy Concerns

Information held by government, including the judicial branch, increasingly is being collected,

stored, and transmitted electronically. While the use of electronic systems by the government provides

better service to users, more efficient processing of transactions, and a host of other benefits for the

American people, there is a corresponding need to safeguard the privacy of personal information that is

electronically compiled and transmitted to private entities. Because electronic systems create the

capability to release greater amounts of personal information to more remote and anonymous users, the

shift to electronic systems will sometimes require additional protections in order to avoid a large

increase in the actual level of disclosure of personal information.

6(b) Recommendations 73

6(b)(i) Balance Interests in Efficiency, Government Accountability, and Privacy

The Study Agencies recommend that the goal of protecting personal financial

information be given increased emphasis in the bankruptcy system. Bankruptcy

information policy should better balance society’s interests in fair and efficient case

administration, bankruptcy system integrity, government accountability, and the

debtor’s privacy. As electronic tools for accessing case information develop and

improve, there is an increased need for analysis of access issues to ensure the

integrity and proper administration of the system. 

 

73 The following recommendations are proposed to address issues of access and re-use of personal financial

information in bankruptcy cases by private entities. They are not to be read to apply to access and use by

governmental entities, including law enforcement or regulatory agencies, or the communication of this information by

or to these governmental entities. Governmental use and access is outside the scope of this Study.

Upon filing for bankruptcy, a debtor gets the immediate relief of the automatic stay that

precludes virtually all collection actions against him or her, and the prospect of a discharge of any

further obligation to repay his or her debts. In order to obtain such relief, however, the debtor must

make detailed disclosures of his or her personal financial information at the commencement of the case,

or soon thereafter. The bankruptcy system currently treats the debtor’s personal financial information

as “open record” information that is generally available to the public. While this approach well serves

the important functions of fair and efficient case administration and accountability in government, it may

not provide adequate protection of personal financial information.
-36-

The growing use of computer technology and electronic communications will have an

impact on debtors’ privacy interests in the personal information they provide in the bankruptcy

process. Prior to recent technological advances, information provided by individuals in bankruptcy

was accessible only by requesting a copy of the debtor’s schedules from the court, or by reviewing the

bankruptcy file at the court. However, the proliferation of electronic technology now allows, or will

soon allow, myriad private entities or individuals to obtain unmediated and widespread access to an

individual’s most sensitive information. With the widespread use of the Internet, almost anyone can

anonymously obtain the most personal details of an individual’s life without limitation on how the

information is used.

The Study Agencies believe that debtors should not be required to forego reasonable personal

privacy protections and expose themselves unnecessarily to risk in order to obtain the protections of

bankruptcy. Rather, there should be a balance between debtors’ interests and other needs of the

bankruptcy system. 

The recommendation for balancing of interests in the bankruptcy process is supported

by the following public comments:

· Mary Jo Obee, Chief Deputy Clerk of the U.S. Bankruptcy Court of the Western District of

Oklahoma, commented that unlimited access to bankruptcy information: (1) harms privacy rights

by providing greater access than necessary to achieve the public benefit; (2) limits the fresh start

by placing a stigma on debtors; (3) contributes unnecessarily to threats of physical harm to parties;

(4) contributes unnecessarily to identity theft, credit fraud and lender redlining; and (5) under new

technology, may hinder individuals from seeking redress under the bankruptcy laws.

· The Federal Trade Commission commented that concern regarding the availability of sensitive

information is heightened with the increasing availability on the Internet of courts’ public record

data.

· The Privacy Rights Clearing House commented that with the widespread use of the Internet,

almost anyone can anonymously obtain access to the most personal details of an individual’s life

without limitation on how the information is used.

· The Center for Democracy and Technology commented that if computerized systems are

designed without an eye towards protecting privacy, they can enlarge existing privacy loopholes

and present unique challenges to protecting privacy.

· The New Jersey League - Community and Savings Bankers commented that it supports efforts

that properly balance the legitimate information sharing needs of a creditor with the obligations to

protect consumer privacy. 
-37-

6(b)(ii) The General Public Should Have Access to Core Information 

The Study Agencies recommend that the general public continue to have access to

some general information so that the public can hold the bankruptcy system

accountable. This information includes the fact that an individual has filed for

bankruptcy, the type of bankruptcy proceeding, the identities of parties in interest,

and other core information. 

At the same time, the Study Agencies recommend that the general public not have

access to certain highly sensitive information that poses substantial privacy risks to

the debtor. This information may include, among other items: Social Security

numbers, credit card numbers, loan accounts, dates of birth, and bank account

numbers. Similarly, the Study Agencies recommend that schedules that show detailed

profiles of personal spending habits and debtors’ medical information be removed

from the public record.

Finally, the Study Agencies recommend that special attention be given to protecting

information regarding entities or individuals who are not parties to the bankruptcy

proceeding. This includes detailed personal and financial information regarding nonfiling spouses, relatives, or business partners.

Bankruptcy cases are different from other civil litigation.74 For example, the schedules that are

required to be filed early in a bankruptcy case include information that far surpasses the notice standard

of traditional civil litigation. Bankruptcy cases try to anticipate all financial information that a creditor

would need to evaluate its rights against the debtor, and requires the debtor to provide that information.

Certain general information in the bankruptcy system should remain available to the general

public in order to allow members of the press, oversight organizations, and others to monitor the

functioning of the executive branch (e.g., United States Trustee Program), private trustees, and the

courts in bankruptcy cases. General information that falls into this category includes, among other data

items: the fact that an individual has filed for bankruptcy; the type of bankruptcy proceeding; the

identities of parties in interest; and other core information necessary to serve the accountability function.

The Study Agencies believe that an appropriate balance can be achieved if the process

provides general public access to the core information while limiting access and use of sensitive

information to parties in interest and for governmental purposes. The Study Agencies believe in

promoting public accountability, but are concerned that unlimited general public access to

 

74 11 U.S.C. § 301; H. R. Rep. 95-595, 95th Cong., 1st Sess. 321 (1977); S. Rep. 95-989, 95th Cong., 2nd Sess. 31 (1978).

bankruptcy information may harm debtor privacy rights by providing greater access to private entities
-38-

than necessary to achieve a public benefit while contributing unnecessarily to identity theft, threats of

physical harm, credit fraud, and lender redlining and individual profiling. That concern is heightened

with the increasing availability on the Internet of Social Security numbers, credit card numbers, bank

account numbers, loan account numbers, dates of birth, and other sensitive personal information. 

The risk of identity theft and predatory lending practices may be increased by the disclosure of

schedules that show the profiles of personal spending habits, medical information, Social Security

numbers, credit card numbers, loan account numbers, dates of birth, and bank account numbers. The

FTC identified common forms of identity theft as: taking over an existing credit card account; taking

out loans in another person’s name; writing fraudulent checks using another person’s name and/or

account number; and opening a telephone or wireless service account in another person’s name. In

extreme cases, an identity thief may completely take over a victim’s identity, including being arrested in

the victim’s name. 

Several credit card companies commented that such personal identifiers must continue to be

publicly available so that all entities can determine whether a particular bankruptcy relates to a specific

individual. However, the bulk of the public comments supported restricting access by the general

public to highly sensitive information. The needs of the credit card industry and other parties in interest

are accommodated in Recommendation 6(b)(iii) below. The following public comments supported

these recommendations:

· Mary Jo Obee, Chief Deputy Clerk of the U.S. Bankruptcy Court of the Western District of

Oklahoma, and others commented that §107 of the Bankruptcy Code may need to be

revisited, and that consideration should be given to defining public data and non- public data

clearly. Only limited general case information should remain public, although access for parties

in interest would remain unchanged.

· The Center for Democracy and Technology commented that an effective information policy

should protect the rights of the individuals who participate in the bankruptcy system by limiting

the use and disclosure of their personal information to that necessary to support the bankruptcy

process. General information about the debtor may need to be available to the public to

ensure that all those with a stake in the outcome may participate. However, detailed

information, currently considered public records under § 107 of the Bankruptcy Code, such as

bank account numbers, credit card account numbers, Social Security numbers, and bank

balances are not necessary to ensure that parties with an interest are notified of a debtor’s

filing. Also, public disclosure of such information breaches personal privacy and places

individuals at risk of additional financial harm.

· The Federal Trade Commission, an agency mandated to establish the federal government’s

centralized depository for identity theft complaints, commented that disclosure of non-public

data, as with public data, may facilitate identity theft and other illegal conduct. The FTC also
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commented that finance-related fraud constitutes 80 percent of the identity theft crimes

reported to it.

· The Privacy Rights Clearinghouse commented that if bankruptcy and trustee files are available

online to the general public, they should be available in the form of a “digest” of the key data

elements. Personal identifiers, such as Social Security numbers, represent a gold mine to

dishonest individuals as well as to the rising number of organized criminal enterprises that

specialize in systematic identity theft. Such scams not only victimize the debtor, but the

bankruptcy courts as well by clogging the system with fraudulent filings.

· The National Association of Consumer Bankruptcy Attorneys commented that given the broad

dissemination of public record information, debtors are entitled to have their information

protected from unnecessary disclosure.

· Several financial associations and information service providers commented that certain

personal information should be available in bankruptcy cases to protect the rights of parties in

interest and debtors, but that the information made available to the public should be limited to

general information that promotes public accountability.

· The New Jersey Credit Union League commented that making sensitive information available

on the Internet would expose debtors, who are already in precarious financial positions, to an

enhanced risk of identity theft, and that this unintended result outweighs any possible benefits.

6(b)(iii) Parties in Interest Should Continue to Have Access to a Broad Range of NonPublic Information, Subject to Re-use and Re-disclosure Limitations.

The Study Agencies recommend that parties in interest and potential parties in

interest have access to a broad range of information collected in bankruptcy

proceedings in order to exercise their rights and responsibilities. 

However, when private entities have such access, they should generally be prohibited

from reusing or re-disclosing the information for purposes unrelated to administering

bankruptcy cases. These re-use and re-disclosure limitations should not be

construed as restricting private entities from sharing information with governmental

entities.

The Study Agencies also recommend that the detailed information that appears in a

bankruptcy filing should be available to researchers in a manner that would not

identify individuals.

The report’s recommendations are not intended to address the access or use of

bankruptcy information by governmental entities in connection with their important
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public responsibilities, or the communication of personal financial information by or to

governmental entities for functions they serve.

Creditors, parties in interest and their agents, law enforcement, or other governmental entities –

 but not the general public – should continue to have access to the full range of information necessary

to administer cases, subject to re-use and re-disclosure limitations. It is essential for parties in interest

to have broad access to comprehensive debtor information in order to: (a) determine whether entities

are entitled to recovery before their contractual rights are forever terminated; (b) participate effectively

in the bankruptcy process; (c) ascertain the accuracy of debtors’ claims; and (d) communicate

efficiently with trustees about bankruptcy cases. When private entities have such access, however, the

Study Agencies propose that they generally be prohibited from reusing or re-disclosing the information

for purposes unrelated to administering bankruptcy cases. However, these prohibitions do not include

re-disclosing information to law enforcement or for other governmental purposes.

Court officials, including private trustees, who have responsibility for administering bankruptcy

cases, need full access to comprehensive debtor information for all cases coming under their purview,

subject to appropriate re-use and re-disclosure restrictions.

As for the creditor community, an entity that believes that it is a party in interest in a bankruptcy

case should, perhaps upon adequate showing, have access to information sufficient to determine

whether it has an interest in the case. However, under the Study Agencies’ recommended use and

disclosure limitations, if the private party determined not to file a claim in that case, it would be

prohibited from using or disclosing the data for any purpose, with exceptions for disclosure to law

enforcement or other governmental entities.

Agents of parties in interest necessarily will need to collect and make available in an efficient

manner a wide range of information from many cases. It is important that these activities also be

subject to re-use and re-disclosure restrictions that protect debtors’ privacy interests. As noted, one

of the recognized “fair information practices” provides that data only

be used and disclosed to advance the purpose for which it was collected. As described above, several

existing systems outside of bankruptcy adopt this principle and impose re-use and re-disclosure

limitations.

Limitations on re-disclosure of bankruptcy information by private entities will supplement

existing statutes governing financial privacy, such as the FCRA, which may not reach all entities

involved in the collection and redistribution of this information. The protections of the FCRA are

limited to “consumer reporting agencies” and those of GLBA are limited to “financial institutions.” 

However, entities may become involved in the collection and dissemination of financial information

without falling within either of these categories. The recommended limitations on re-disclosure of

sensitive bankruptcy information by private entities will help close any statutory gap. 

The Study Agencies separately recommend that detailed information that appears in a
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bankruptcy filing be available to researchers on a de-identified basis. This approach protects the

debtor’s privacy while assisting public and private entities in understanding various aspects of the

bankruptcy system and in making or considering policy decisions about the bankruptcy system. 

Notably, the lack of such information was pointed out during the recent debate on bankruptcy reform

in the 106th Congress.

An additional recommendation concerns the special needs of law enforcement. Law

enforcement officials throughout the country often use public record information – including

bankruptcy information – to assist in their investigations. Public records can help to locate individuals,

identify assets, verify personal relationships, and otherwise further enforcement efforts. The Study

Agencies recommend that as decision makers craft information policy on non-public information, they

do so in a way that does not infringe upon the current ability of governmental entities to gain access and

use of this information.

Although a few public commenters supported allowing bankruptcy data to be collected and

distributed by third parties, most of the comments were opposed to the commercial use

and/or non-bankruptcy related use of private debtor information. The following public comments

supported these recommendations:

· The FTC suggested that commercial use of highly personal and sensitive data should be prohibited

for several reasons. First, such disclosure may facilitate identity theft or other illegal conduct. 

Second, trustees receive sensitive private information as a result of governmental action, and the

use of non-public information for commercial purposes appears to be outside the scope of their

responsibilities. Third, the commercial use of debtor information conflicts with the trustees’

fiduciary duties and responsibilities, and the Department of Justice’s policy prohibiting trustee’s

from using estate funds for their personal benefit. Finally, the commercial sale of debtor

information may implicate concerns under the FCRA.

· The National Association of Attorneys General commented that due to the protections afforded in

bankruptcy, it is important that information be widely available to parties in interest. However,

measures should be established regarding the appropriate uses of bankruptcy information, and

there should be restrictions on the release of data that is particularly susceptible to abuse, with

penalties for any misuse of information.

· The National Association of Consumer Bankruptcy Attorneys commented that debtors should not

be required to forego any expectation of privacy, except to the extent that their information is

necessary to the administration of the bankruptcy process. All possible precautions and

protections should be implemented to preclude any unwarranted disclosure of personal

information.
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· The Ohio Credit Union League commented that bankruptcy information should be categorized as

public or non-public and as to who may have access. There should be restrictions on and penalties

for the use and disclosure of non-public information.

· The Center for Democracy and Technology commented that there may be legitimate public interest

considerations for providing aggregate reports, stripped of information that may identify specific

individuals, on debtors’ interactions with the bankruptcy system and creditors.

6(b)(iv) Incorporate Fair Information Principles.

The Study Agencies recommend that the bankruptcy system incorporate fair

information principles of notice, consent, access, security and accountability.

Notice: The Study Agencies recommend that debtors who file for bankruptcy be

informed in writing that certain information that they disclose in their petitions and

schedules may be disclosed to the general public and that, consistent with current law,

all information may be disclosed to parties in interest, law enforcement and other

governmental entities. 

Current bankruptcy laws and rules do not make explicit provision for a debtor to receive notice

of the potential use and distribution of the personal information he must submit to the court in the course

of a bankruptcy case. The Study Agencies believe that many individuals may not be aware that their

personal information will be made widely available to the general public.

Debtors could be provided with adequate notice regarding the collection and dissemination of

their information by several methods. For example, notice could be provided directly on the petition

and schedules that a debtor must file. Notice also could be provided through counseling with a debtor’s

attorney.

Several public commenters stated that debtors should relinquish their right to privacy in

exchange for the protections afforded by the bankruptcy process. However, most of the comments

supported the concept that bankruptcy incorporate fair information principles, including providing

debtors with adequate notification. The following public comments supported these recommendations:

· Many of the public comments noted that debtors are generally fearful of and unfamiliar with

the bankruptcy process, and do not envision that their files may be available for review by

any member of the public.

· Mary Jo Obee, Chief Deputy Clerk of the U.S. Bankruptcy Court of the Western District of

Oklahoma, commented that generally individuals have no idea that anyone other than those listed on

their schedules, the trustee, and the courts will ever see their information.
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· The FTC commented that because certain information necessarily must be put on the public record

during a bankruptcy case, consideration should be given to ensuring that debtors are given

notification as soon as possible in the bankruptcy process as to how their information will be used

and whether and how it will be disclosed. Individuals cannot fully understand the consequences of

pursuing relief from their debts unless they are informed of the consequences and the extent and

means by which their personal and financial information will be divulged to parties in interest and the

general public.

· Several commenters suggested that debtors’ attorneys should be required to explain the potential

loss of privacy when advising their clients as to whether bankruptcy is an appropriate course of

action.

Consent: The Study Agencies recommend that debtors’ affirmative voluntary consent

be required in order for creditors, trustees, other parties in interest, and their agents to

re-use or re-disclose information reported in the bankruptcy process for purposes

unrelated to administering a particular case, except for re-use and re-disclosure of

information to law enforcement or other governmental entities.

This recommendation is based on the assumption that consent is implied for uses of data by

private entities related to the bankruptcy process and that explicit consent is required for unrelated uses

by private entities. The voluntariness of consent is quite important – individuals should not be coerced

into providing their consent for such transfers. This recommendation was supported by most of the

public commenters.

Several federal laws provide relevant frameworks for consent requirements for the re-use and

re-disclosure of non-public information by private entities. For example, the GLBA provides for certain

allowable uses and disclosures of financial information. Beyond those uses, consumers must be

provided an opportunity to object to the disclosure of their personal information to non-affiliated entities.

The FCRA also allows disclosure for certain “permissible purposes.” Beyond those, disclosure may

occur only with the consent of the consumer. These re-use and re-disclosure limitations, however,

should not restrict private entities fromsharing information with governmental entities. 

Access: The Study Agencies recommend that individual debtors have the right to

reasonable access of their file, and the right to challenge the accuracy of information it

contains.

 Fair information principles provide that individuals should have reasonable access to the

information about them maintained by private entities. Further, in instances where their information is

used to facilitate decisions about them, individuals should have the right to request correction of that

information.
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In a related context, the FCRA assures the accuracy of personal information by providing

consumers with the ability to discover whether adverse information is in their files, inspect that

information, and demand that all inaccuracies be corrected in a timely manner.

Security: The Study Agencies recommend that adequate security standards be in

place for private entity access to all information flows in the bankruptcy system. 

The Study Agencies believe that there should be mechanisms to minimize the risk that

unauthorized entities gain access to information that could compromise the personal financial information

of the debtor, or the integrity of the data. Accordingly, measures should be established and

implemented to ensure that only authorized users have access to non-public information and that redisclosure limitations are followed. The development and implementation of security standards are

particularly important in the new networked environment. Therefore, if a new privacy protection

structure is established, special emphasis

should be placed on limiting access by private entities, through proper security standards, to certain

sensitive data, such as Social Security numbers and other personal identifiers.
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This recommendation was supported by several public comments, including:

· The Center for Democracy and Technology recommends that the entity collecting the data be

required to secure the information it maintains. Not only does the emergence of advanced

information systems promote access to government records, but also highlights the weaknesses in

the handling of personal information contained in bankruptcy records.

· The Credit Union National Association commented that if bankruptcy information is made available

electronically, it may be acceptable to secure the information by use of passwords.

Accountability: The Study Agencies recommend the development of mechanisms to

ensure that private entities engaging in improper use or re-use of a debtor’s personal

financial information are held accountable for their actions.

Fair information principles provide that there should be an enforcement or other mechanism to

ensure that private entities are held accountable for noncompliance with the standards regarding

notification, use and disclosure, consent, access, and security of information. The accountability

mechanism for bankruptcy records should be designed to ensure that private entities that violate the fair

information principles are held accountable by legal remedies, disciplinary action, or other effective

mechanisms.

The principle of accountability was supported by most of the public commenters,

including:

· The Ohio Credit Union League commented that there should be disclosure restrictions on, and

penalties for the misuse of, information deemed to be non-public information in the bankruptcy

process.

APPENDIX I

Public Comments on Financial Privacy and Bankruptcy

In the July 31, 2000, publication of the Federal Register, the Department of Justice, Department of

Treasury and Office of Management and Budget (the Study Agencies) announced their intent to conduct

a study on how the filing of a bankruptcy affects the privacy of individual consumer information that

becomes part of a bankruptcy case. The Study Agencies also requested public comments and

supporting documentation from all sources on any aspect of the subject, and provided a series of

questions grouped according to the 7 basic elements of the study. Due to requests for additional time
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for submission of public views, the comment deadline was extended by two weeks in the August 31,

2000, publication of the Federal Register. 

In response to the publication of the study, the Study Agencies received 41 public comments. The

comments came from a wide variety of correspondents, including financial institutions and associations,

credit card companies, bankruptcy attorney associations, courts, state and federal government agencies,

privacy rights groups, a bankruptcy trustee organization, information service providers, investigative and

private enforcement organizations, academia, and private individuals. The Study Agencies reviewed

each letter submitted and grouped the public comments according to the specified elements of the study.

 The comments are also grouped as to whether they addressed the advantages and disadvantages of the

flows of personal information.

Following are summaries of the comments in the order in which the elements of the study appeared in

the July 2000 Federal Register.

Element 1 - Collection, Analysis, and Dissemination of Debtor Information in

 Bankruptcy

Questions:

(1.0) What types of information are collected from and about individual debtors, analyzed and 

disseminated in personal bankruptcy cases?

(1.1) What types of information are collected, maintained and disseminated in bankruptcy?

(1.2) Which of these data elements are public record data?

(1.3) Which are non-public record data held by bankruptcy trustees?

(1.4) How much data is at issue?

(1.5) Are certain types of data more sensitive than others; that is, are there types of data in which

debtors would have a stronger privacy interest? If so, which ones?

(1.6) How valuable is the information in the marketplace? 

Comments - General:

Overall, the commenters were aware of the specific types of information collected from and about

individual debtors in bankruptcy. Most commenters noted that the public record contains financial

information as part of schedules attached to bankruptcy petitions and related motions, including items

such as debtor name and address; bank accounts, balances, and identifying numbers; credit card

accounts and account numbers; social security numbers; income; detailed listings of assets and liabilities;

and budgets showing the individual’s regular expenses. 

Several commenters also noted that non-public information which is held by the trustee in administering

the case is included in additional schedules, tax returns, supporting information concerning the value of

property, depositions taken to ascertain the propriety of certain filings, and information relative to

investigative reports. Overall, the commenters found it difficult to quantify the value of the information
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collected in bankruptcy. 

Comments - Advantages of Flows of Personal Information:

Credit card companies commented that the disclosure of personal identifiers, such as Social Security

numbers and financial account numbers, must continue to be available so that all entities can determine

whether a particular bankruptcy case relates to a specific individual. They also commented that these

disclosures are necessary as other more basic identifiers, such as name and address, are not reliable

enough by themselves. 

Some of the credit union associations commented that the types and amounts of information they collect

from individual debtors are minimal, and that they rely on credit reports to a great extent for their

bankruptcy information.

A financial association commented that it does not perceive any greater sensitivity of any particular class

of data that would justify excluding it from the public record or limit its availability.

Comments - Disadvantage of Flows of Personal Information:

A majority of the commenter’s agreed on several data elements that they considered to be sensitive

data, including debtor’s name and address, Social Security number, bank and credit card accounts,

financial account numbers, and other identifying numbers.

Several commenters also believed that additional types of information should be considered as sensitive

data, including employer’s name and address; descriptions of security with regard to debts which will

survive bankruptcy, names and addresses of non-filing co-debtors; names and ages of non-filing support

payees; job title, employer and income of non-filing spouse; names and ages of dependents; and

sensitive budget items such as religious donations, fines, and specialized school expenses. One

commenter suggested that an individual’s medical services, financial condition, religious or other

affiliations, and any information concerning children should be considered sensitive.

A clerk of the U.S. Courts commented that personal identifiers such as name, physical and e-mail

addresses, telephone numbers, Social Security and tax identification numbers, photographs, and any

account numbers, have been found to have the strongest sensitivity and are protected by the strongest

privacy interest. The commenter also believes that public money should not be spent for private

purposes, and that questions regarding the collection and uses of data should not be influenced by how

valuable access to the information may be for other uses, commercial or academic. 

A consumer privacy organization commented that due to the fact that certain types of debtor 

information, such as Social Security numbers and financial account numbers, can place individuals at risk

for harm, they should receive special consideration from disclosure. 

A privacy rights group commented that Social Security numbers, credit card numbers, loan accounts,
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dates of birth, and bank account numbers represent a gold mine to dishonest individuals as well as the

rising number of organized criminal enterprises that specialize in systematic identity theft.

One commenter stated that the principles found in the Code of Fair Information Practices, not the

sensitivity of the data, should be the basis for determining whether information provided during a

bankruptcy process is available for other purposes.

An attorney association commented that Social Security numbers are the most common form of

personal information associated with identity theft, and can be used to obtain a driver’s license, open a

new credit account, apply for a loan, and obtain a copy of the victim’s credit report. This sensitive

information should be redacted, as such scams not only victimize the debtor, but the bankruptcy courts

as well by clogging the system with fraudulent filings.

An academia commenter suggested that 11 U.S.C. § 107 needs to be revisited and consideration

should be given to: (a) what is and should be meant by “public” data; (b) whether the exceptions to

publicness are sufficient; and (c) whether the burden of proof needs to be shifted. The commenter

believed that the exceptions to “publicness” need to be broadened and the burden of proof should not

be on the individual seeking to invoke privacy. The commenter believed that there should be a

reassessment regarding what data is collected, and the format in which that data can and will be made

available to the different audiences.

Element 2 - Current and Envisioned Practices for the Collection, Analysis, and

Dissemination of Debtor Information in Bankruptcy

Questions:

(2.0) What are the current practices, and practices envisioned for the future, for the collection,

analysis, and dissemination of information in personal bankruptcy proceedings?

(2.1) What methods of data collection and aggregation are now used by the courts, creditors,

trustees, and other private actors to collect analyze, and disseminate public record data and

non-public record data?

(2.2) What methods are being contemplated for the future?

Comments - Current Practices:

A clerk of the United States Courts commented that there are currently two methods used to collect

data, in paper documents or in electronically filed documents. Of the information collected from the

petition, adversary cover sheets, proofs of claim, and titles of pleadings, some is aggregated in a

database and are available for viewing. It is possible to search the database for specific names, debtor,

judge, trustee, and attorney as well as for Social Security and tax identification numbers.

A financial association commented that various commercial companies regularly collect basic public data
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regarding new bankruptcy filings, check it against the debtor’s credit histories, and provide notices to

listed creditors subscribing to such a service that a borrower has filed for bankruptcy.

Several information services providers commented on the different approaches they use to access

debtor information. One provider stated that their primary source for debtor information is the U.S.

Court’s computer system. The information gathered from the court’s computer system is then used by

the providers to alert creditors of a consumer’s bankruptcy. Another information provider commented

that it is typical to obtain public record information from a private supplier who has collected and

compiled it, and the information is in turn used to create individual reference service products for

distribution.

A credit union association commented that it obtains access to financial information from the court by

either requesting a copy of the debtor’s schedules, reviewing the bankruptcy file at the court, using

direct, free Internet access via passwords administered by trustees, or accessing commercial databases

on a fee-per-use basis.

Comments - Envisioned Future Practices:

A clerk of the U.S. Courts commented that the courts are considering several changes regarding the

collection and dissemination of debtor information. First, all filings will slowly become electronic and

paper will become a smaller portion of the source of information collection. The second change

contemplated involves charging fees to file electronically and for access to all electronic court records.

A bankruptcy trustee organization commented that, in the near future, the National Data Center (NDC)

will make status information, entered directly by trustees, available over the Internet to parties in interest.

In doing so, the NDC will contract with trustees regarding the following: (a) the trustee will agree to

transmit selected status information to the NDC on a regular basis; (b) the trustee will provide debtors

notice of the fact that their status information will be available on the Internet by parties in interest; (c)

the trustee will agree to investigate immediately and, if necessary, rectify alleged errors in the data

reported by the debtor; and 4) the trustee will work towards a unified method of identifying national

creditors among all trustees. The NDC, in turn, will contract with creditors who subscribe to its Internet

site to ensure that creditors agree to: (a) only use this information for their collection of a claim against

the bankruptcy estate; (b) not sell this information to third parties or to use such information for the

purpose of marketing, advertising, extending credit, etc.; (c) move towards using a single identifying

number and/or address when participating in bankruptcy cases; and (d) submit to an internal or external

audit. Finally, the NDC will establish and maintain a secure electronic database to prevent unauthorized

access and will limit displayed information, and particularly personal identifiers (e.g., Social Security

number) to the minimum amount to allow creditors to monitor and assert their claims. 

A financial association commented that some jurisdictions are experimenting with electronic filing of all

aspects of the court system, including bankruptcy. They also noted that although the

principal opposition to electronic filing has been the cost to convert from a paper system, the privacy
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issue may become a prominent issue.

Comments - Advantage of Flows of Personal Information:

Most of the financial associations commented that the collection and dissemination of data benefits all in

the process, and the use of available and future information technology should be utilized to improve

data flows. One association commented that the rapid availability of information assists creditors in their

timely assertion of their rights.

Information services providers commented that bankruptcy records are used by individuals and

businesses to protect their financial interests by monitoring dockets, access filings, and preparing for

cases. The information is used to alert creditors to a consumer’s bankruptcy and thereby, allow

creditors to quickly remove bankrupt consumers from their call queues and collection letter mailings.

They also believe that unrestricted access to this information will allow for continued efficient and costeffective service to creditors and debtors.

A consumer privacy organization commented that the government and private sector are undergoing

major changes in how they collect, analyze and distribute information. It noted that not only all facets of

information collection and processing are becoming more automated, but also that government entities

are integrating or linking their information systems to enhance efficiency and reduce fraud.

Comments - Disadvantage of Flows of Personal Information:

The FTC commented that the commercial use of highly personal and sensitive non-public information

may implicate concerns under the Fair Credit Reporting Act, and should be prohibited. Disclosure of

non-public data, as with public data, may facilitate identity theft and other illegal conduct. 

A clerk of the U.S. Courts commented that although the envisioned practice of charging for data will

diminish the accessing of bankruptcy records by the general public, the transformation from paper to

electronic records will make hiding the personal identity of a debtor or creditor more difficult. The

commenter also noted that the transformation from paper to electronic records will provide the ability to

conduct full text searches of every document in the database and, therefore, make hiding the personal

identity of a debtor or creditor more difficult. This upcoming change in search abilities should narrow

the choice between merely stripping personal identifiers from data and making all data available to the

general public to a determination of whether access by the general public to documents with sensitive

information should only be allowed on a showing of a particularized need.

Element 3 - Need for Access to Financial Information in Bankruptcy Cases

Questions:

(3.0) What access do various parties need to financial information in personal bankruptcy cases? 

Which individuals or entities require access to which particular types of information, for what

purposes, and under what circumstances?
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(3.1) What entities currently access public record data? 

(3.2) What entities currently access non-public data from trustees?

(3.3) What specific data elements do they need, and for what purposes? 

(3.4) Are the purposes for which the information is sought consistent with the public interest?

 Public Data. 

(3.5) What data elements in public record data should remain public for purposes of accountability in

the bankruptcy system? For other purposes?

(3.6) Is there certain information that need not be made available to the general public, but could be

made available to a limited class of persons? 

(3.7) If so, what are these data elements, to whom should they be made available, and for what

purpose?

(3.8) Is there a need to make the following data elements publicly available: (a) Social Security

numbers, (b) bank account numbers, (c) other account numbers?

B. Non-Public Data

(3.9) What issues, if any, are raised by existing limitations on trustees’ handling of personal

information?

(3.10) Are all of the data elements held by bankruptcy trustees necessary for case administration

purposes? If not, which data elements are not?

(3.11) What interests would be served by private or commercial enterprises collecting, compiling

electronically, and redistributing information from bankruptcy cases? 

Comments - Advantages of Flows of Personal Information:

Credit card companies commented that there are at least three categories of private sector parties who

must have the right to access bankruptcy information: (a) creditors and others whose interests are

affected by the debtor’s bankruptcy case; (b) creditors and other businesses who may consider doing

business with the debtor; and (c) the general public and its representatives. They also believe that

information provided by debtors to justify obtaining bankruptcy relief, including account numbers and

Social Security numbers, must be made available to the public, and that restrictions on this information

will harm consumers. They also stated that public record retrieval companies gather and make available

informationmore efficiently than other mechanisms, such as the bankruptcy courts that lack the

necessary resources to respond to requests from parties who are interested in reviewing bankruptcy

cases.

Most of the financial associations commented that they support the disclosure of public and non-public

information to all parties in interest. Most associations commented that the disclosure of this information

permits creditors and other parties in interest to participate effectively, 

encourages creditors and other interested parties to detect improper or fraudulent use of the bankruptcy

process, and assures public oversight and confidence in the bankruptcy system. 
-52-

One financial association commented that public policy should aim to maximize bankruptcy case data

flows to all parties in interest, and that creditors need detailed bankruptcy information and electronic

information exchange to: (a) determine whether they are a party in interest; (b) ascertain the accuracy of

a borrower’s claim; and (c) communicate efficiently with trustees and obtain information about the case

status.

Another financial association commented that because the increase in bankruptcy filings has resulted in

dramatically increased costs for creditors’ to monitor and participate in bankruptcy proceedings, there

should be efficient and low-cost access to accurate and complete information regarding who has filed

bankruptcy, their financial information, and the trustee’s administration of the case. Further, the interests

of all parties in bankruptcy would be well served if enterprises could collect, compile, and electronically

disseminate information about bankruptcy cases. 

A credit bureau association commented that it is important for its industry to know the facts of the

bankruptcy case as well as to have access to full identifying information. The association also

commented that without identifying information it would be difficult to meet the Fair Credit Reporting

Act accuracy standards. These standards are already difficult to meet as approximately 3 million last

names change each year due to marriages and divorces.

An information services provider commented that it is important to be mindful of the long-standing

American tradition of open access to public record information. Individual reference service companies

should have access to full identifying information of debtors. They also commented on the need to

ascertain accurate information as, for example, there are currently over 2,700 Robert Smiths in New

York; without identifying information it would be difficult to distinguish which Robert Smith is in

bankruptcy.

All of the credit union associations commented that public and non-public financial information should be

made available to parties in interest. One commenter suggested that if full information on personal

bankruptcy were made freely available, he could more effectively administer his bankruptcy program. 

Another association commented that limiting access to specific groups would prove costly, be difficult to

administer, and would curtail the availability of needed information. Most associations believe that

greater access to debtor information would ensure more effective checks and balances in the system,

and make it more difficult to conceal inaccurate, incomplete, and fraudulent information.

A consumer privacy organization commented that there may be legitimate public interest considerations

for providing aggregate reports, stripped of information that may identify specific individuals, on

debtors’ interactions with the bankruptcy system and creditors.

Comments - Disadvantages of Flows of Personal Information:

A clerk of the U.S. Courts commented that the primary entities who access and use bankruptcy

information are not using the information for purposes consistent with the public interest, but rather for

commercial purposes. Only limited information, such as case number, location of filing, chapter,
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information regarding debtor’s attorney, the trustee, the judge, all hearings and meetings, case status

information, and possibly some descriptions of real property should remain “public”. However, unless a

debtor has been determined to have engaged in credit fraud, his/her Social Security number, bank

account numbers, or other account numbers, should not be made available to the general public. 

Most financial associations commented that parties in interest, as well as those entities that may be a

party in interest, need access to all available information in both the public and non-public file. 

However, several associations commented that there should be restrictions on the public accessibility of

non-public information. One association commented that it supports efforts to protect the non-public,

personal information of consumers financial services, as well public policies that properly balance the

legitimate information sharing needs of a financial institution with the obligations to protect consumer

privacy.

A privacy rights group commented that while recognizing the long-standing principle that the public

interest is served by open court proceedings, it does not believe that the public interest is served by

subjecting individuals in bankruptcy to identity thieves and unscrupulous marketing. Although

bankruptcy court personnel and trustees require information from debtors to perform their duties,

access to sensitive personal information on the Internet would seem to invite abuse. The privacy rights

group was also concerned that sharing and selling of information derived from the bankruptcy process

on the Internet will allow for more extensive profiling of individuals.

Credit union associations provided varying comments as to whether personal information should be

made available to the general public. Several credit union associations supported restrictions on access

to personal financial information, and noted that these restrictions should not only limit who can access

this information, but how it is accessed and for what purpose. Most of the associations commented that

only the trustee should have access to non-public information.

Although one credit union believed that the aggregation and dissemination of debtor information by

commercial firms could reduce the cost of bankruptcy and enhance the availability of information, it also

could support a general prohibition on the sale or other distribution of this information to those with no

legitimate need for it. 

Several commenters suggested that some consideration should be given to protect the privacy of those

individuals who have to file for bankruptcy protection for medical or other catastrophic reasons.

Element 4 - Privacy Issues

Questions:

(4.0) What are the privacy issues raised by the collection and use of personal financial and
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other information in personal bankruptcy proceedings?

A. Public Record Data

(4.1) Do debtors have privacy interests in information contained in public record data made

available through the bankruptcy courts? If so, what are those interests? Do they vary by data

element? If so, how?

(4.2) What are the benefits of a public record system for court records in bankruptcy cases?

(4.3) What are the costs of collecting and retaining data in bankruptcy cases?

(4.4) To what extent do individuals who file for bankruptcy understand that all of the

information contained in the public bankruptcy file is available to the public?

(4.5) Should debtors in bankruptcy be required to forego some expectation of privacy that other

consumers have under other circumstances?

(4.6) Are there characteristics about debtors in bankruptcy that raise special concerns about wide

public dissemination of their personal financial information?

B. Non-Public Data

(4.7) What are debtors’ expectations about what uses and disclosures of information will be made by

bankruptcy trustees?

(4.8) What, if any, privacy interests lie in non-public bankruptcy data held by bankruptcy trustees?

(4.9) If non-public data were made widely available to the public or to creditors for other nonbankruptcy purposes, what might be the consequences?

(4.10) Are privacy interests affected if the distribution of non-public data bankruptcy information is

for profit? 

Comments - General:

The majority of the discussions focused on balancing debtor rights to privacy and the needs of creditors

and the public to have accessibility to public and/or non-public information.

A clerk of the United States Courts commented on the costs of collecting and retaining data, stating 

that approximately 80 - 90% of the clerk’s office annual staff expenses are associated with collecting,

indexing, and filing information brought to the court, including expenses related directly to providing

public access, costs of keeping records at the Federal Records Centers, and the costs of collecting,

retaining and providing access to bankruptcy records. However, because

these duties also must be performed regardless to support the judges, they are arguably a sunk cost. 

Comments - Advantages of Flows of Personal Information:

A clerk of the U.S. Courts commented on both the advantages and disadvantages of the public record

system. The commenter noted that there are 5 basic advantages of a public record system for court

records. Public scrutiny of information: 1) forces integrity in the bankruptcy system; 2) helps maintain

public confidence; 3) allows accurate and reliable data to be collected; 4) helps lenders to make more
-55-

informed decisions on extending new credit which contributes to efficiencies in credit markets; and 5)

allows creditors, as the new interest holders in the estate, to know everything about the debtor and the

estate.

Several financial institutions commented that they strongly advocate continued electronic access to

information regarding bankruptcy filings. One institution believed that access to complete financial

information is essential to a creditor’s ability to participate meaningfully in the bankruptcy case and

ensure the protection of valuable legal rights. Some financial associations commented that when an

individual elects to use a public judicial process to eradicate or modify their financial obligations, he must

expect that the fact of the filing as well as detailed personal financial information will become part of the

public record.

Several financial associations commented that, in most circumstances, the information filed by debtors

provides creditors with the only basis for concluding whether they are entitled to recovery before their

contractual rights are forever terminated and, therefore, it is imperative that they continue to have access

to all bankruptcy information, with no restrictions, when they may be a party in interest. They also

believe that the lack of accessibility to reliable identifiers (e.g., Social Security numbers, account

numbers, addresses) will severely hamper creditors’ ability to conduct business, and also harm

consumers in that one consumer’s information could be erroneously associated with a consumer with a

similar name or address. They also commented that the potential adverse effects of third party access

to detailed financial information are inherently less in bankruptcy situations because the debtor’s credit

lines will have been canceled or frozen, while his liquid assets are likely to be insubstantial or

nonexistent.

Credit card companies, like the financial associations, commented that once individuals choose to

involve the public sector by filing for bankruptcy protection, they should expect the facts of this public

judicial process to become part of the public record. They also commented that there should be no

interference with the ability of bankruptcy courts, trustees and others to compile and disseminate the

debtor’s public record data and appropriate non-public data electronically or by other means. In

regard to privacy, the credit card companies suggested that any potential adverse effect to individuals is

less in the bankruptcy context than when an individual is solvent. 

The information service providers commented that personal identifiers are critically important in ensuring

that reputable, reliable and accurate information is delivered for sensitive decisions, and is also used to

combat identification fraud. They also commented that consumers who enter bankruptcy avail

themselves of certain specific government protections, including additional privacy protection, that are

not available to the citizenry at large.

Credit union association comments were generally divided regarding the public availability of debtor

information. Several associations commented that if debtors are unable or unwilling to meet their

financial obligations, they should expect to have their financial information scrutinized by any creditor
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that may suffer a financial loss. They also suggested that debtors’ attorneys should explain this potential

loss of privacy when advising their clients as to whether bankruptcy is an appropriate course of action. 

Several commenters stated that Social Security and account numbers should continue to be made

publicly available, with one association commenting that these identifying numbers are essential to all

involved in the administration of bankruptcy and that instances of fraud are not increased because of

their public availability.

Investigative organizations and private enforcement organizations provided the same letter under

separate cover. These commenters oppose restrictions on the public’s access to information held in

bankruptcy filings. They also believe that those who petition the bankruptcy courts for protection from

creditors cannot enjoy the same expectation of privacy in their financial affairs as those who honor their

legal and financial responsibilities.

Several private individuals commented that court documents should be public record except when a

compelling need is otherwise documented. One individual commented that when a debtor files for

bankruptcy, he/she waives any and all rights of privacy. Another individual suggested that too much

protection is given to the debtor and that bankruptcy is a public issue and information should therefore

be publicly available.

A consumer privacy organization commented that although it believes that specific sensitive information

about the debtor should not be disclosed, it realizes that there may be legitimate public interest benefits

to providing reports stripped of information that may identify specific individuals, on debtors’

interactions with the bankruptcy system.

Comments - Disadvantages of Flows of Personal Information:

The Federal Trade Commission (FTC) commented that the Study Agencies may wish to consider to

what extent highly sensitive information, such as a consumer’s Social Security number, must be included

in the public record data in light of the increased risk of identity theft and other illegal conduct. Common

forms of identity theft include taking over an existing credit card account, taking out loans in another

person’s name, writing fraudulent checks using another person’s name and/or account number, and

opening a telephone or wireless service account in another person’s name. Finance-related fraud

constitutes 80% of the identity theft filed with the FTC. 

The FTC also commented that because certain information necessarily must be put on the public record

during a bankruptcy case, consideration should be given to ensuring that debtors are given notice as

soon as possible in the bankruptcy process as to how their information will be used and whether and

how it will be disclosed. The FTC also commented that consideration be given to prohibiting the

commercial use by trustees of debtors’ non-public data for purposes other than that for which the

information was collected. Finally, the FTC suggested evaluating the interplay between consumers’

privacy interests and the Bankruptcy Code (e.g., where private customer information is protected by a

company’s privacy statement).
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A clerk of the U.S. Courts commented that the cost associated with lost privacy rights of debtors,

creditors and others is hard to quantify. The commenter also suggested that unlimited access to

bankruptcy information: (a) harms privacy rights by providing greater access than necessary to achieve

the public benefit; (b) limits the fresh start by placing a stigma on debtors, (c) contributes unnecessarily

to threats of physical harm to parties; (d) contributes unnecessarily to identity theft, credit fraud and

lender redlining; and (e) with new technology, may hinder individuals from seeking redress under the

bankruptcy laws.

An academia commenter suggested that because there is little privacy protection directly within the

bankruptcy laws, there needs to be a detailed assessment of the privacy protections afforded by nonbankruptcy law and how those protections are, if at all, impaired by wide access to

bankruptcy files. Also, the commenter recommended that consideration be given to identifying

particular information that requires greater privacy protection.

A state attorney general commented that the state has a duty to protect debtors and to ensure that the

debtors should not be required to surrender any privacy rights beyond what is required for the

administration of their cases. 

A national bankruptcy attorneys association commented that given the broad dissemination of public

record data which exists, debtors are entitled to have their information protected from unnecessary

disclosure. The association also believes that debtors are generally fearful of and unfamiliar with the

bankruptcy process and do not envision that their files may be available for review by any member of

the public. Disclosure should be limited to only what is necessary for: (a) creditors to identify the debtor

in order to file a claim; 2) trustees to review the debtor’s assets, their values, and the debtor’s right to

the claimed exemption; and 3) trustees to review the debtor’s ability to repay his/her debts.

The attorney association also commented that special protections should be afforded to single parents

with children, who are particularly likely to be victims of abuse or involved in acrimonious relationships,

and to the elderly, who may be more vulnerable to scams and could be targeted through the use of

information from bankruptcy files. Investigative files made by the trustee in the administration of cases

might disclose the names of people interviewed and thereby, infringe on the privacy interests of people

other than the debtor. 

A consumer privacy organization commented that in the context of bankruptcy, “general” information

about the individual filing for bankruptcy may need to be available to the public to ensure that all those

with a stake in the outcome may participate. However, “detailed” information, currently considered

public records under 11 U.S.C. §107(a), such as bank account numbers, credit card account numbers,

Social Security numbers, and bank balances are not necessary to ensure that parties with an interest are

notified. Public disclosure of such information breaches personal privacy and places individuals at risk

of additional financial harm. In sum, the exposure of the individual’s personal information should be no
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greater than necessary to serve the purpose of the bankruptcy process fairly.

As previously noted, credit union association comments were generally divided regarding the public

availability of debtor information. One credit union association commented that bankruptcy information

should be categorized as to public and non-public, who may have access, such as creditors, and the

factors to be used to determine accountability. It also recommended that there should be restrictions

and penalties on the use and disclosure of non-public information that is collected by the trustee. One

association recommended that this information should only be available to creditors, or others who

would qualify as “affected or interested parties” that are involved in the case, but its use should be

restricted and not disseminated to the general public by anyone who has access, including the creditors.

Most private individuals commented that an individual’s personal and financial information should be

limited to those who need to know, and then only with the individual’s written permission. One

individual commented that Social Security numbers should never be public information and a separate

personal identification number should be used instead. Another individual commented that only parties

in interest should be able to access personal information

but only for the purpose specifically associated with the evaluation of the bankruptcy, and that all

personal information should be destroyed after the bankruptcy is finalized.

Element 5 - Effect of Technology

Questions:

(5.0) What is the effect of technology on access to and privacy of personal information?

(5.1) Do privacy issues related to public record data in bankruptcy cases change when such

data are made available electronically? On the Internet? If so, how?

(5.2) Do privacy interests in non-public data change when such data are compiled electronically for

ease of administration of bankruptcy cases? For commercial use? For other use?

(5.3) Are new technologies being used to improve access to court records? Non-public bankruptcy

data? Should they be? Why or why not? 

Comments - Advantages of Flows of Personal Information:

A financial association commented that the most appropriate method for handling the accessibility of

information derived from bankruptcy cases would be on a technology neutral basis. Thus, the rules

would be the same regardless of the medium used to disclose the information. 

Another association commented that the rapid availability of public data through technology assists

creditors in their timely assertion of their rights in the bankruptcy process as well as in avoiding adverse

actions against the debtor, such as repossessions, garnishments, and collection calls.

A credit union association commented that the ability to obtain information electronically will reduce the
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credit union’s costs associated with traveling to the courthouse and of copying the necessary

information.

An information services group commented that public record information is already readily available at

government offices, and that the computerization of this information has simply made access less costly

and more convenient. 

One individual commented that the use of electronic filing of information and access to debtor

data by the Internet is an absolute necessity to modernize the entire system. The commenter also

suggested that those that abuse the use of the information should be dealt with under other laws.

Comments - Disadvantages of Flows of Personal Information:

The Federal Trade Commission commented that the concern of the availability of Social Security

numbers and other sensitive personal information is heightened with the increasing availability on the

Internet of courts’ public record data. They suggested that if the Study Agencies determine that certain

personal information should be kept on the public record, they may wish to consider the feasibility of

restricting, in an appropriate manner, the commercial use of such public record data for purposes other

than the bankruptcy.

A consumer privacy organization commented that the privacy of debtors is not protected under existing

bankruptcy rules - with or without the automation of information. If computerized systems are designed

without an eye towards protecting privacy, they can exacerbate existing privacy loopholes and present

unique challenges to protecting privacy. To gain the protection afforded by the bankruptcy system,

individuals must provide information that is necessary for the bankruptcy system to structure relief for

debtors and secure payments for creditors fairly, but it is hard to imagine how such unmediated access

serves the interest of society, the debtor, the creditor, or the bankruptcy system.

A privacy rights group commented that with the widespread use of the Internet, almost anyone can

anonymously obtain the most personal details of an individual’s life without limitation on how the

information is used. If bankruptcy and trustee files are available online to the general public, there

should be some limitations on the types of information that can be accessed. Access to sensitive

information should be limited to trustees and court personnel who are directly engaged in the

administration of bankruptcy cases by the use of passwords, or other means. The commenter

recommended that for public access, the bankruptcy record should be limited to a “digest” of the key

data elements and that the full text document should not be available via the Internet to the general

public.

A financial association commented that it is critical for parties in interest to continue to receive timely

notice of Social Security numbers. However, because information technology can make such

information readily available to the general public and increase the potential for identity theft, the

commenter supports limiting public display of these identifying numbers.
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A credit union association commented that it is unlikely that public access to debtors personal

information at the local bankruptcy court would affect a debtor’s choice to file bankruptcy, but making

this information available on the Internet would expose debtors, who are already in precarious financial

positions, to an enhanced risk of identity theft. This unintended result outweighs any possible benefits

and that there is no substantial reason to make this information available to parties who do not have an

interest in the bankruptcy case.

Another credit union association recognized that consumer privacy has been compromised to some

extent and therefore, it could possibly support some modest restrictions on the access of information

that is submitted in the bankruptcy process. However, these restrictions would only be acceptable as

long as they in no way impacted a credit union’s ability to have unfettered access to the information it

needs.

An academia commenter noted that the possibility of electronic access to personal information changes

the cost in a dynamic way. Another dimension to this issue is the selling of data for which clear policy

positions on data ownership need to be developed, and policies concerning both data access and data

dissemination determined. 

Element 6 - Current Models for Protecting Privacy & Ensuring Appropriate Access

to Information

Questions:

(6.0) What are current business or governmental models for protecting privacy and ensuring

appropriate access in bankruptcy records?

(6.1) What statutes, rules, or policies can serve as models for maintaining appropriate levels of access

and privacy protection for public bankruptcy records? For non-public bankruptcy

information held by trustees?

(6.2) What statutes, rules, or policies are ineffective in providing appropriate access and privacy

interests?

(6.3) What statutes, rules, or policies, are otherwise relevant to this Study?

Comments - General:

A credit union association and a credit bureau organization both commented that the Fair Credit

Reporting Act governs consumer information companies that provide credit and mortgage reports, fraud

prevention and risk management products, tenant and employment screening services, check fraud and

verification services, and collection services. It was also suggested that, similar to the Fair Credit

Reporting Act, the Bankruptcy Code should include permissible and restricted uses of consumer

information.

Comments - Advantages of Flows of Personal Information:

Comments from financial associations focused on the government model mandated in 11 U.S.C.
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§107(a) of the Bankruptcy Code which requires that “a paper filed in a case under the Bankruptcy

Code and the dockets of the bankruptcy court are public records and open to examination by an entity

at reasonable times without charge”. The commenters noted that pursuant to §107 the only instances

when the court may decline to make information publicly available are: (a) if the information is a trade

secret or confidential research, development, or commercial information, or (b) to protect a person with

respect to scandalous or defamatory matter. Thus, the law requires all information filed in connection

with a bankruptcy proceeding, such as a debtor’s name, address, and account numbers, to be made

publicly available. 

A credit card company commented that Congress, which recognized the importance of making

bankruptcy information publicly available when it enacted the Bankruptcy Code of 1978, has

consistently supported the need for creditors to have access to data related to bankruptcy as part of fair

and accurate risk assessment. The companies also believe that the need of the public to

know of the filing of the bankruptcy cases outweighs the debtors’ desire to avoid the embarrassment

and difficulties attendant to the filing of the bankruptcy.

A financial services association noted that the Constitution significantly limits any attempt to make

bankruptcy information inaccessible to creditors, other interested parties or the public, and that it does

not require creditors and others to comply with restrictions, such as the automatic stay and postdischarge injunction, without giving them adequate information from the court. Thus, they believe that

no new regulation restricting access appears to be appropriate in light of the substantial benefits debtors

receive from bankruptcy and the needs of the bankruptcy system, those affected by it, and the public for

access to the information that the debtor provides.

Comments - Disadvantages of Flows of Personal Information:

A consumer privacy organization commented that the 1973 Code of Fair Information Practices (FIPs)

developed by the Department of Health Education and Welfare is a useful starting point for

reconsidering the information policy of the bankruptcy system. In general, the Code of FIPs requires

that: (a) data be collected for legitimate and articulated purpose; (b) only data necessary to support the

purpose be collected; (c) data only be used and disclosed to advance the purpose; (d) the individual be

able to access and correct personal information; and (e) the collecting entity secure the information it

maintains.

A privacy rights group commented that its prefers the FIPs developed by the Canadian Standards

Association (CSA) as they more closely parallel the Organization for Economic Cooperation and

Development (OECD) and the European Union Data Protection directive. Specifically, the CSA code

contains important principles such as accountability, identifying purposes, consent, limiting collection,

limiting use-disclosure-retention, accuracy, security safeguards, openness, individual access, and

challenging compliance. The commenter also noted that the Federal Trade

Commission has developed an abridged version of five FIPs: notice, choice, access, security, and
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enforcement. 

Element 7 - Recommendations on Handling Bankruptcy Data

Questions:

(7.0) What principles should govern the responsible handling of bankruptcy data? What are

some recommendations for policy, regulatory or statutory changes?

A. Public Record Data

(7.1) To what extent are privacy safeguards appropriate for public record data? If safeguards are

appropriate, what should they be? How should they be crafted to ensure that they do not

interfere with legitimate public needs to access certain bankruptcy data?

(7.2) Should notice about the public nature of bankruptcy filings be provided to individuals who file

for bankruptcy? What form should such notice take?

(7.3) Should there be any restrictions on the degree of accessibility of such information, such as rules

that vary if information is made available electronically? via the Internet? If so, what should they

be? Should policies on the handling of information in bankruptcy cases be technology neutral,

so that the rules for dealing with information are the same regardless of what medium is used

to disclose such information? Why or why not?

(7.4) Are there any data elements in public record data that should be removed from the public

record and held instead as non-public data by bankruptcy trustees or courts?

(7.5) Is there some experience with other public records that is relevant to the privacy and access

issues in bankruptcy cases? Do any records or filing systems, for example in the courts, provide

instruction in this regard?

B. Non-Public Data

(7.6) To what extent are privacy safeguards appropriate for non-public data held by bankruptcy

trustees in bankruptcy cases? If some safeguards are appropriate, how should they be

structured? How should they be crafted to ensure that they not interfere with the needs of

bankruptcy trustees to administer their cases?

(7.7) Should debtors receive notice of what uses and disclosures will be made of their information

in the hands of bankruptcy trustees? What would be the effects of such disclosures?

(7.8) Should restrictions be imposed on the use and disclosure of information held by bankruptcy

trustees? If so, what types of restrictions? What would be the effects of such restrictions?

(7.9) Should debtors be permitted to access the information held about them by bankruptcy trustees?

If so, under what circumstances? What would be the effects of such access?

(7.10) If bankruptcy data are compiled and made easily and widely available to users outside of the

bankruptcy system, should these users be charged for the collection and distribution process?

How would the amount of the charge be set? 

Comments - Advantages of Flows of Personal Information:
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A financial association commented that the utilization of technologies that enhance the dissemination of

public information should be viewed as a positive development. The commenter opposes any attempts

to eliminate or restrict the currently available public information, as well as any attempt to restrict the

electronic access to this public information. Any such attempt would likely impose substantial and

unnecessary burdens on the court and trustee system. The commenter also supports allowing

bankruptcy data to be aggregated and distributed by third parties for a reasonable fee. 

Comments - Disadvantages of Flows of Personal Information:

A national bankruptcy attorney association commented that bankruptcy data should be protected in the

several ways. First, sensitive data about the debtor and non-filing parties which are necessary for the

creditors and the trustee should be compiled on separate documents which are available to them, but

not available to the public. Second, serious penalties should be imposed on creditors that use any

information received in connection with the bankruptcy filing for any purpose other than to collect a nondischargeable debt directly from the debtor. Third, trustees should be held liable for disseminating or

allowing dissemination of sensitive information to anyone other than the debtor or the debtor’s attorney.

 Fourth, trustees should be prohibited from releasing case administration and disbursement data to

anyone except the debtor, the debtor’s attorney, and a listed creditor in the case. Finally, the

association recommended that any entity which owns the hardware upon which any information

described as protected is stored, or who operates an Internet-site containing such information, should

be held liable and subject to serious penalties if it accesses or used such stored data in any way.

Several individual attorneys commented on the issue of protecting the identity of debtors. One attorney

commented that there is a particular and pressing need to protecting the privacy of victims of domestic

abuse, and that for these victims, the bankruptcy system should provide protection and confidentiality,

particularly regarding the whereabouts of the victim. Another attorney commented that it is important to

make general debtor data available without identifying the debtors, possibly by assigning confidential

numbers to files. The attorney also recommended that access to the actual case file information should

be restricted to the trustees, attorneys of record and people who show adequate cause. Another

attorney commented that it is a convenience to have bankruptcy information available on the Internet,

and if there are concerns about privacy, some of the information could be password-protected and its

access could be tracked to identify misuse of the information. 

A consumer privacy organization commented that information policy should not be taken to suggest that,

unless there is a compelling privacy interest, personal information collected through the bankruptcy

process should be publicly accessible. An information policy should be in favor of protecting the rights

of the individual citizens who interact with the bankruptcy system by limiting the use and disclosure of

personal information to those necessary to support the bankruptcy process.
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A credit union association is concerned about organizations in bankruptcy being able to sell consumer

information regarding former customers, and recommends that appropriate actions be taken to ensure

that consumers’ rights are adequately protected. 

APPENDIX II

INFORMATION REQUIRED TO PROVIDED IN A

BANKRUPTCY PETITION, THE RELATED SCHEDULES,

 AND THE STATEMENT OF FINANCIAL AFFAIRS

At the time of filing for bankruptcy, debtors are required to provide the following information on

the bankruptcy petition, schedules, and statement of financial affairs:

BANKRUPTCY PETITION

ÿ debtor name

ÿ other names used by debtor in the last 6 years

ÿ debtor address

ÿ social security number / tax identification number

ÿ name and address of law firm or attorney

ÿ prior bankruptcies filed within the last 6 years

ÿ type of debtor (e.g., individual, corporation, partnership, other)

ÿ nature of the debt (e.g., consumer/non-business, business)

ÿ chapter under which petition is filed

ÿ estimates of number of creditors

ÿ estimates of assets and liabilities 

SCHEDULE A - REAL PROPERTY

ÿ description and location of property

ÿ nature of debtor’s interest in property (e.g., sole owner)

ÿ market value of debtor’s interest

ÿ if debtor is married, specify who owns the property (e.g., husband, wife, joint community)

ÿ dollar amount of secured claim

SCHEDULE B - PERSONAL PROPERTY

ÿ type of property

ÿ description and location of property

ÿ if the debtor is married, specify who owns the property (e.g., husband, wife, debtor 1, debtor

2, joint community)
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ÿ current market value of debtor’s interest in the property without deducting any secured claim

or exemption

 The following types of property are applicable:

· cash on hand

· checking, savings, or other financial accounts; certificates of deposit or shares in banks,

savings, thrift, building and loan, and homestead associations; or credit unions, brokerage

houses, or cooperatives (includes account numbers)

· security deposits with public utilities, telephone companies, landlords, and others

· household goods and furnishings, including audio, video and computer equipment

· books; pictures and other art objects; antiques; stamp, coin, record, tape, compact disc,

and other collections and collectibles

· wearing apparel

· furs and jewelry

· firearms and sports, photographic, and other hobby equipment

· interests in insurance policies

· annuities

· interests in IRA, ERISA, Keough, or other pension or profit sharing plans

· stocks and interests in incorporated or unincorporated businesses

· interests in partnerships or joint ventures

· government and corporate bonds and other negotiable or non-negotiable instruments

· accounts receivable

· alimony, maintenance, support, property settlements, to which the debtor is or may be

entitled

· other liquidated debts owing debtor

· equipment and future interests, life estates, and rights of power exercisable for the benefit

of the debtor other than those listed in Schedule A - Real Property

· contingent and non-contingent interests in estate of a decedent, death benefit plan, life

insurance policy, or trust

· other contingent and unliquidated claims, including tax refunds, counter claims of the

debtor, and rights to setoff claims

· patents, copyrights, and other intellectual property

· licenses, franchises, and other general intangibles

· automobiles, trucks, or other vehicles, and accessories

· boats, motors, and accessories

· aircraft and accessories

· office equipment, furnishings, and supplies

· machinery, fixtures, equipment, and supplies used in business

· inventory

· animals

· crops - growing or harvested
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· farming equipment and supplies

· other personal property not already listed

SCHEDULE C - PROPERTY CLAIMED EXEMPT (debtor elects the exemptions entitled

under 11 U.S.C. § 522(b)(2)

ÿ description of the property

ÿ specify law providing each exemption (e.g., applicable non-bankruptcy federal laws, and state

or local laws)

ÿ value of claimed exemption

ÿ current market value of property without deducting exemptions

SCHEDULE D - CREDITORS HOLDING SECURED CLAIMS

ÿ creditor name and address

ÿ specify if co-debtor may be jointly liable on claim

ÿ if joint petition is filed, specify who own the property (e.g., husband, wife, debtor 1, debtor 2,

joint community)

ÿ date claim was incurred, nature of lien, description and market value of property subject to lien

ÿ specify if claim is contingent, unliquidated, or disputed

ÿ amount of claim without deducting value of collateral

ÿ unsecured portion, if any

SCHEDULE E - CREDITORS HOLDING UNSECURED PRIORITY CLAIMS

ÿ specify if the debtor has no creditors holding unsecured priority claims to report

ÿ if there are priority claims to report, specify the type(s) of claim, as follows:

 · extensions of credit in an involuntary case as allowed under 11 U.S.C. §507(a)(2) and 11

U.S.C. § 502(f)

 · wages, salaries and commissions (including vacation, severance, sick leave pay and

commissions owing to employees) as allowed under 11 U.S.C. §507(a)(3) 

 · contributions to employee benefit plans as allowed under 11 U.S.C. § 507(a)(4)

 · certain farmers and fisherman as allowed under 11 U.S.C. § 507(a)(5)

· deposits by individuals as allowed under 11 U.S.C. § 507(a)(6)

 · debts to a spouse, former spouse, or child of the debtor for alimony, maintenance, or

support as allowed under 11 U.S.C. § 507(a)(7)

 · taxes and certain other debts owed to governmental units as allowed under 11 U.S.C. §

507(a)(8)

 · commitments by a debtor to a federal depository institutions regulatory agency (or

predecessor to such agency) to maintain the capital of an insured depository institution as

allowed under 11 U.S.C. § 507(a)(9)

SCHEDULE F - CREDITORS HOLDING UNSECURED NONPRIORITY CLAIMS

ÿ creditor name and address
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ÿ specify if co-debtor may be jointly liable on claim

ÿ if joint petition is filed, specify who owns the property (e.g., husband, wife, debtor 1, debtor 2,

joint community)

ÿ date claim was incurred; and consideration for the claim (e.g., loan, credit card purchase)

ÿ specify if claim is contingent, unliquidated, or disputed

ÿ amount of the claim

SCHEDULE G - EXECUTORY CONTRACTS & EXPIRED LEASES

ÿ name and address of other parties to instrument

ÿ notes of contract or lease and the debtor’s interest

SCHEDULE H - CO-DEBTORS

ÿ name and address of co-debtor(s)

ÿ name and address of creditor(s)

SCHEDULE I - CURRENT INCOME OF INDIVIDUAL DEBTOR(S)

ÿ debtor’s marital status

ÿ name, age and relationship of dependents of the debtor and spouse

ÿ amount of monthly support to each dependent

ÿ employment information of debtor and spouse (even if spouse is non-filing), including

occupation, name and address of employer, and how long employed

ÿ monthly income information for debtor and spouse (information regarding the spouse must be

provided if they are joint debtors in a chapter 7, and by a married debtor in chapter 12 or 13

whether or not a joint petition is filed), including

 · current gross wages, salary and commissions

 · estimated overtime

 · payroll deductions, including payroll taxes, social security, insurance, and professional

dues

 · other income such as interest and dividends, alimony or support payments, and pension or

retirement income

 · total monthly income

SCHEDULE J - CURRENT EXPENDITURES OF INDIVIDUAL DEBTOR(S)

Provide the average monthly expenditures of debtor and the debtor’s family, including:

ÿ monthly rent or home mortgage payments

ÿ utilities

ÿ home maintenance

ÿ food and home supplies

ÿ clothing

ÿ laundry and dry cleaning

ÿ medical and dental
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ÿ transportation (not including car payment)

ÿ recreation, clubs, and entertainment

ÿ charitable contributions

ÿ insurance that is not deducted from wages or included in home mortgage payments (e.g.,

homeowner’s, life, auto)

ÿ taxes that are not deducted from wages or included elsewhere in Schedule J

ÿ installment payments (e.g., auto payments, past due income taxes)

ÿ alimony, maintenance or support payments to others

ÿ other support payments (e.g., support of additional dependents not living at the debtor’s home)

ÿ regular expenses from the operation of business, profession or farm

ÿ other expenses (e.g., daycare, union or association dues)

ÿ total monthly expenses

ÿ for chapter 12 and 13 cases, debtor must also provide projected monthly income, monthly

expenses, and total plan payments per month

SUMMARY OF SCHEDULES

ÿ debtor(s) name

ÿ chapter filed

ÿ case number

ÿ provide the name of each Schedule and whether the Schedule is attached to the petition

ÿ total assets, liabilities, and other amounts for each schedule

ÿ total assets and liabilities of the debtor(s)

CHAPTER 7 INDIVIDUAL DEBTOR’S STATEMENT OF INTENTION

ÿ debtor’s assertion of filing a schedule of assets and liabilities which includes consumer debts

secured by property of the estate

ÿ debtor’s intention with respect to the property of the estate which secures the consumer debts,

including

· description of property to be surrendered and creditor’s name

· description of property to be retained and creditor’s name

· description of property to be retained (claimed exempt) and to be redeemed pursuant to

11 U.S.C. § 722

· description of property to be retained (claimed exempt) and lien to be avoided pursuant

to 11 U.S.C. § 522(f)

· description of property to be retained and debt to be reaffirmed

STATEMENT OF FINANCIAL AFFAIRS

 ÿ gross income of debtor and spouse from employment or operation of business for the year-todate of the filing and the two preceding years. Specify source(s) of the income.

 ÿ gross income of debtor and spouse other than from employment or operation of business for

the year-to-date of the filing and the two preceding years. Specify source(s) of the income
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 ÿ for (a) all payments on loans, installments, purchases of goods or services, and other debts,

aggregating more than $600 to any creditor, made within 90 days immediately preceding the filing of

the bankruptcy case; and (b) all payments made within one year immediately preceding the filing of

the bankruptcy case to or for the benefit of creditors who are or were relatives or relatives; provide

the following information:

 · name and address of creditor

 · amount paid

 · payment dates

 · amount owing to the creditor

 ÿ list all suits and administrative proceedings to which the debtor is or was a party within one

year immediately preceding the filing of the bankruptcy case

 

 ÿ describe all property that has been attached, garnished or seized under any legal or equitable

process within one year immediately preceding the filing of the bankruptcy case

 ÿ list all property that has been repossessed by a creditor, sold at a foreclosure sale, transferred

through a deed in lieu of foreclosure or returned to the seller, within one year immediately preceding

the filing of the bankruptcy case

 ÿ describe any assignment of property for the benefit of creditors made within 120 days

immediately preceding the filing of the bankruptcy case

 ÿ list all property which has been in the hands of a custodian, receiver, or court-appointed official

within one year immediately preceding the filing of the bankruptcy case 

 ÿ list all gifts or charitable contributions made within one year immediately preceding the filing of

the bankruptcy case, except ordinary and usual gifts to family members aggregating less than $200

in value per individual family member and charitable contributions aggregating less than $100 per

recipient

 ÿ list all losses from fire, theft, other casualty or gambling within one year immediately preceding

the filing of the bankruptcy case or since the commencement of the case

 ÿ list all payments made or property transferred by or on behalf of the debtor to any persons,

including attorneys, for consultation concerning debt consolidation, relief under bankruptcy law or

preparation of the petition within one year immediately preceding the filing of the bankruptcy case

 ÿ list all other property, other than property transfers in the ordinary course of the business or

financial affairs of the debtor, transferred either absolutely or as a security within one year

immediately preceding the filing of the bankruptcy case

 ÿ list all financial accounts and instruments held in the name of the debtor or for the benefit of the

debtor which were closed, sold, or otherwise transferred within one year immediately preceding the

filing of the bankruptcy case. Includes checking, savings, or other financial accounts, certificates of

deposits, shares held in banks, credit unions, pension funds, cooperatives, associations, brokerage

houses and other financial institutions. Information to be provided includes:

 · name and address of institution

 · account type
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 · account number

 · amount of final balance

 · date of sale or closing

 ÿ list all safe deposit or other box or depository in which the debtor has securities, cash, or other

valuables within one year immediately preceding the filing of the bankruptcy case (include names

and addresses of signatories and contents in the depository)

 ÿ list all set-offs made by the creditor, including a bank, against a debt or deposit of the debtor

within 90 days preceding the filing of the bankruptcy case

 ÿ list all property owned by another person that the debtor holds or controls

 ÿ any prior address of the debtor within two years immediately preceding the filing of the

bankruptcy case
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 ÿ if the debtor is an individual, list the names and addresses of all businesses in which the debtor

was an officer, director, partner or managing executive of a corporation, partnership, sole

proprietorship, or was self-employed professional within two years immediately preceding the filing

of the bankruptcy case

 ÿ if the debtor is a partnership or a corporation, list the names and addresses of all businesses in

which the debtor was a partner or owned 5% or more of the voting securities, within two years

immediately preceding the filing of the bankruptcy case

 ÿ list all bookkeepers and accountants who within 6 years immediately preceding the filing of the

bankruptcy case kept or supervised keeping of books of account and records of the debtor

 ÿ list all firms or individuals who within the two years immediately preceding the filing of the

bankruptcy case have audited the books of account and records, or prepared a financial statement

of the debtor

 ÿ list all firms or individuals who at the time of the filing of the bankruptcy case were in

possession of the books of account and records of the debtor

 ÿ list all financial institutions, creditors and other parties, including mercantile and trade agencies,

to whom a financial statement was issued within two years immediately preceding the filing of the

bankruptcy case by the debtor

 ÿ list the dates of the last two inventories taken of property, the name of the person who

supervised the taking of the inventory, and the dollar amount and basis of each inventory

 ÿ list the name and address of the person having possession of the records of the last two

inventories

 ÿ if the debtor is a partnership, list the nature and percentage of partnership interest of each

member of the partnership 

 ÿ if the debtor is a corporation, list all officers, or directors whose relationship with the

corporation terminated within one year immediately preceding the filing of the bankruptcy case

 ÿ if the debtor is a partnership or corporation, list all withdrawals or distributions credited or

given to an insider, including compensation in any form, bonuses, loans, stock redemptions, options

exercised and any other perquisite during one year immediately preceding the filing of the

bankruptcy case

 

 

APPENDIX III
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Bibliography of Recent Writing on Public Record Privacy Issues

This list is presented in two parts. The first part includes articles that address the particular issue

of privacy and access to public records, including court case files. The second part includes more

general writings on privacy and the Internet. The lists are not intended to be exhaustive, but rather to

provide an introduction to the growing literature on these issues.

Access to Public Records

Lillian R. Bevier, "Information About Individuals in the Hands of Government: Some Reflections on

Mechanisms for Privacy Protection," 4 William & Mary Bill of Rights J. 455 (1995).

William Bodoh and Michelle Morgan, "Protective Orders in the Bankruptcy Court: The Congressional

Mandate of Bankruptcy Code Section 107 and its Constitutional Implications," 24 Hastings Const.

L.Q. 67 (1996).

Louis Hubener, "Rights of Privacy in Open Courts: Do They Exist?" 2 Emerging Issues in State

Const. L. 189 (1989).

Helen Nissenbaum, "Protecting Privacy in an Information Age: The Problem of Privacy in Public," 17

Law and Philosophy 559 (1998). 

Mary Jo Obee and William C. Plouffe, "Privacy in the Federal Bankruptcy Courts," 14 Notre Dame

Journal of Law, Ethics & Public Policy 1011 (2000).

"Should You Be Able to Access Bankruptcy Files from the Internet?" Bankruptcy Court Decisions

(Aug. 4, 1998); and "Why the Public Should (and Should Not) Have Full Access to Bankruptcy

Records on the Internet," Bankruptcy Court Decisions ( July 4, 2000).

The Administrative Office of the United States Courts has developed two helpful staff papers. The first

reviews policy and legal issues relating to electronic case files: “Electronic Case Files In The Federal

Courts: A Preliminary Examination of Goals, Issues, and the Road Ahead,” available on the courts’

website at http://www.uscourts.gov/casefiles/ecfmar97.pdf The second paper is a summary analysis of

public access and privacy issues related to electronic case files: “Privacy and Access to Electronic Case

Files in the Federal Courts,” available at http://www.uscourts.gov/privacyn.htm
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General Literature on Privacy

Samuel Warren & Louis Brandeis, "The Right to Privacy," 4 Harv. L. Rev. 193 (1890).

Mark E. Budnitz, “Consumer Privacy in Electronic Commerce: As the Millennium Approached,

Minnesota Attacked, Regulators Refrained, and Congress Compromised,” 14 Notre Dame Journal of

Law, Ethics & Public Policy 821 (2000).

Esther Dyson, Release 2.0: A Design for Living in the Digital Age (see especially the chapter

entitled "Privacy") (1998).

Jerry Kang, “Information Privacy in Cyberspace Transactions,” 50 Stanford L. Rev. 1193 (1998).

Lawrence Lessig, "The Law of the Horse: What Cyberlaw Might Teach," 113 Harv. L. Rev. 501

(1999).

Marc Rotenberg, "What Larry Doesn't Get: Fair Information Practices and the Architecture of Privacy,"

Stanford Technology Law Review Working Papers

,http://stlr.stanford.edu/STLR/Working_Papers/index.htm (Feb. 2000).

Kent Walker, "Where Everybody Knows Your Name: Balancing Community, Commerce, and

Freedom in Information Exchange," Stanford Technology Law Review Working Papers, 

http://stlr.stanford.edu /STLR/Working_Papers/index.htm , (Feb. 2000).