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Redaction is the editing of a document to remove, mask, or delete privileged or confidential information. It is a common practice to use redaction in legal documents. It can be accomplished in different ways, such covering passages with indelible marker and photocopying the document, or using computer software available for the process. The amount and nature of deleted information can vary greatly.
The decision regarding whether to redact information in a document is made by the trial court. This decision is usually at the request of a party arguing that certain information should not be disclosed. In the US and some common law countries, the judge does not see “discovery” documents — written information requested and exchanged between the parties in preparation for trial — prior to the trial. These requests are particularly important in jury trials, where there is a possibility that irrelevant, private information in an otherwise admissible document may prejudice a jury.
Redaction is used frequently with medical records, even when the issues in the case are medical ones. Medical records and histories often contain information of a personal nature or a course of treatment unrelated to the injury or condition involved in the case. They may also contain treatment concerns about things like depression or use of illegal substances. If the case involves establishing a particular psychiatric condition, the doctor’s notes about specific conversations or other unrelated conditions can be redacted.
An attorney may ask the court to redact certain information solely to protect her client’s privacy during the discovery process. Some documents may contain private information that is appropriate for the opposing party to see, but which she is bound to give to the opposing attorney under the rules of discovery. Sometimes the attorneys agree to redaction under these circumstances without judicial intervention.
When the parties cannot agree about whether certain information requested in discovery should be redacted, the court examines the documents “in camera.” The judge reads the documents in chambers and decides if the requested information should be redacted. In the US and most common law countries, a trial judge is presumed to be immune from prejudice and to disregard irrelevant facts.
In camera proceedings are often used in criminal cases. This is usually at the request of the state on behalf of law enforcement agencies in drug cases. If the defendant has been the subject of an ongoing undercover operation involving numerous suspects, the state may make a request for redaction of any documents police documents involved. This is to protect the identities of undercover officers and confidential informants. In these circumstances, the court has to examine the documents requested by defense counsel and weigh the interests of the state against the defendant’s right to a fair trial.
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