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.

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.  In practice, therefore, any paper filed with the court in a bankruptcy case is subject to public inspection unless sealed (see discussion below).

Under the Bankruptcy Code, therefore, public disclosure issues are resolved under §107. 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. 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.

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. 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. 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.

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