Court files in guardianship and conservatorship cases are necessarily filled with medical, psychological, financial and other kinds of personal information. The subjects of those court proceedings have a powerful and important right to privacy. The courts and participants need to recognize that privacy right, and protect it. At the same time, however, the public has a right to know what its government (the court) is doing, and other parties to the proceeding — family members, for instance — have a right to know what is happening. How can the courts balance those interests?

That is the question facing the Arizona Supreme Court right now, and in a very mundane way. Rather than deciding an individual case where the privacy rights of one ward have been compromised or even called into question, the Court is considering a revision to statewide probate court rules that would (for the first time) provide a mechanism to safeguard those rights — at least to some extent.

Proposed rules that would apply in every probate court (where guardianship and conservatorship proceedings take place) in Arizona include a specific provision directing that certain kinds of confidential information be kept off-limits in court files. Social Security numbers, bank account numbers, medical records, account balances, and a host of other types of information would be expressly subjected to the new rule, and each probate judge would have the power to seal additional information in individual cases.

In recent years Arizona probate courts — like courts of all kinds in every jurisdiction in the country — have tried to move away from paper files and toward electronic receipt, maintenance and promulgation of files. That creates a special problem for confidentiality. The proposed rule’s solution would be to require that all confidential documents must be physically filed (no electronic filing for these sensitive documents), and must be placed in a separate envelope marked “confidential.” No one will be permitted to open, or even see, those envelopes unless they are involved in the case in some way.

Is this a good solution? Probably not. Court clerks are opposed, because they want to be able to move forward with plans to develop electronic filing systems. Attorneys doubt whether unrepresented parties will properly mark documents they file, and we also worry about being given all the responsibility to determine what is “confidential.” Both judges and clerks operate in an environment where resources are insufficient and shrinking, so a comprehensive solution seems challenging. Somehow, though, we all need to come together to protect the privacy of guardianship and conservatorship wards.

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