Protecting your confidential information should always be a primary concern in life, but especially so in divorce and family law cases. When you are engaged in a pending divorce or paternity pre- or post-judgment case, you will likely be called upon to provide what will seem like an endless list of financial documents. You will need to provide your attorney, opposing party, opposing attorney and the court with wage stubs, tax returns, bank statements, credit card statements, retirement and investment statements, social security reports, and many, many other documents. You may even need to provide medical records and other personal information. Who would want these documents circulating without protection? The answer is: no one!

Wisconsin Statutes require that certain documents which confidential information must be redacted before filing with the court. This means that identifiable information such as social security numbers, account numbers, etc. must be removed before a document can be filed with the court. If you are going to file such a document with this information, you need to ensure that you, your attorney, and the opposing attorney removes this information before filing or penalties can result.

Not only do you have a duty to protect your own confidential information, but you also have to be careful to protect the other party’s confidential information. In a recent Wisconsin Court of Appeals decision, Heidi Black v. Jeffrey Allen Kelly and MidWest Mgmt., Inc., No. 2021AP1239 (Wis. Ct. App. Sept.1, 2022), the court was called upon to decide a unique situation in which protected financial information was inadvertently made public through an opposing party’s employer’s computer system.

In Black v. Kelly and MidWest Mgmt., Inc., Heidi Black’s Financial Disclosure Statement from her divorce case was made available online through her former spouse’s employer’s computer server. Black’s friend discovered that her Financial Disclosure Statement was available online to the public after completing an internet search of Black’s name. Black sued her former spouse, Jeffrey Allen Kelley, and his employer, Mid-West Management, Inc., for making public her Financial Disclosure Statement from her divorce action.

The court in Black v. Kelly and MidWest Mgmt., Inc. found in Kelley’s and Mid-West Management, Inc.’s favor and dismissed Black’s civil case for damages only because there was no evidence that Black’s Financial Disclosure Statement was viewed by anyone besides Black’s friend, Kelley, and Mid-West Management, Inc. when removing the document from public access. Wisconsin law requires a finding of “publicity” of the protected information which is “the matter is made public by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge” in order to award damages. See Black v. Kelly and MidWest Mgmt., Inc. Publicity was not proven in this case. The court distinguished “publicity” from “publication” which includes an element “in connection with liability for defamation” when evaluating if damages should be awarded. See Black v. Kelly and MidWest Mgmt., Inc. The Defendants-Respondents in this case hired experts to show that Black’s Financial Disclosure Statement was viewed by limited persons and was not made public communication.

The importance of Black v. Kelly and MidWest Mgmt., Inc. suggests that there could, however, be a civil tort basis should a party’s financial, confidential and/or protected information be made public communication. The Black case and the applicable case law does not require a finding of malice or intention in making the information public in order for damages to be awarded it only needs to be proven that the information was made a communication to the public at large.

What does that mean for you? The answer is clear, you need to be a vault! Protect your soon-to-be ex’s information the same way that you protect your own: with the tightest security and highest level of protection.

If you have questions about a family law action and how to best protect yourself, please contact Nelson, Krueger & Millenbach, LLC at (414) 258-1644 to schedule a free initial consultation to discuss your case.