11 U.S.C. § 107 — Public access to papers

Page 35 TITLE 11—BANKRUPTCY § 107 mental unit; contrary language in the House report to H.R. 8200 is thereby overruled. SENATE REPORT NO. 95–989 Section 106 provides for a limited waiver of sovereign immunity in bankruptcy cases. Though Congress has the power to waive sovereign immunity for the Federal government completely in bankruptcy cases, the policy followed here is designed to achieve approximately the same result that would prevail outside of bankruptcy. Congress does not, however, have the power to waive sovereign immunity completely with respect to claims of a bankrupt estate against a State, though it may ex- ercise its bankruptcy power through the supremacy clause to prevent or prohibit State action that is con- trary to bankruptcy policy. There is, however, a limited change from the result that would prevail in the absence of bankruptcy; the change is two-fold and is within Congress’ power vis-a- vis both the Federal Government and the States. First, the filing of a proof of claim against the estate by a governmental unit is a waiver by that governmental unit of sovereign immunity with respect to compulsory counterclaims, as defined in the Federal Rules of Civil Procedure [title 28, appendix], that is, counterclaims arising out of the same transaction or occurrence. The governmental unit cannot receive a distribution from the estate without subjecting itself to any liability it has to the estate within the confines of a compulsory counterclaim rule. Any other result would be one-sided. The counterclaim by the estate against the govern- mental unit is without limit. Second, the estate may offset against the allowed claim of a governmental unit, up to the amount of the governmental unit’s claim, any claim that the debtor, and thus the estate, has against the governmental unit, without regard to whether the estate’s claim arose out of the same transaction or occurrence as the govern- ment’s claim. Under this provision, the setoff per- mitted is only to the extent of the governmental unit’s claim. No affirmative recovery is permitted. Sub- section (a) governs affirmative recovery. Though this subsection creates a partial waiver of immunity when the governmental unit files a proof of claim, it does not waive immunity if the debtor or trustee, and not the governmental unit, files proof of a governmental unit’s claim under proposed 11 U.S.C. 501(c). This section does not confer sovereign immunity on any governmental unit that does not already have im- munity. It simply recognizes any immunity that exists and prescribes the proper treatment of claims by and against that sovereign. Editorial Notes REFERENCES IN TEXT The Federal Rules of Bankruptcy Procedure, referred to in subsec. (a)(3), (5), are set out in the Appendix to this title. AMENDMENTS 2010—Subsec. (a)(1). Pub. L. 111–327 struck out ‘‘728,’’ after ‘‘726,’’. 1994—Pub. L. 103–394 amended section generally. Prior to amendment, section read as follows: ‘‘(a) A governmental unit is deemed to have waived sovereign immunity with respect to any claim against such governmental unit that is property of the estate and that arose out of the same transaction or occur- rence out of which such governmental unit’s claim arose. ‘‘(b) There shall be offset against an allowed claim or interest of a governmental unit any claim against such governmental unit that is property of the estate. ‘‘(c) Except as provided in subsections (a) and (b) of this section and notwithstanding any assertion of sov- ereign immunity— ‘‘(1) a provision of this title that contains ‘cred- itor’, ‘entity’, or ‘governmental unit’ applies to gov- ernmental units; and ‘‘(2) a determination by the court of an issue aris- ing under such a provision binds governmental units.’’ Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1994 AMENDMENT Amendment by Pub. L. 103–394 effective Oct. 22, 1994, and applicable with respect to cases commenced under this title before, on, and after Oct. 22, 1994, see section 702(a), (b)(2)(B) of Pub. L. 103–394, set out as a note under section 101 of this title. § 107. Public access to papers (a) Except as provided in subsections (b) and (c) and subject to section 112, a paper filed in a case under this title and the dockets of a bank- ruptcy court are public records and open to ex- amination by an entity at reasonable times without charge. (b) On request of a party in interest, the bank- ruptcy 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 (2) protect a person with respect to scan- dalous or defamatory matter contained in a paper filed in a case under this title. (c)(1) The bankruptcy court, for cause, may protect an individual, with respect to the fol- lowing types of information to the extent the court finds that disclosure of such information would create undue risk of identity theft or other unlawful injury to the individual or the individual’s property: (A) Any means of identification (as defined in section 1028(d) of title 18) contained in a paper filed, or to be filed, in a case under this title. (B) Other information contained in a paper described in subparagraph (A). (2) Upon ex parte application demonstrating cause, the court shall provide access to informa- tion protected pursuant to paragraph (1) to an entity acting pursuant to the police or regu- latory power of a domestic governmental unit. (3) The United States trustee, bankruptcy ad- ministrator, trustee, and any auditor serving under section 586(f) of title 28— (A) shall have full access to all information contained in any paper filed or submitted in a case under this title; and (B) shall not disclose information specifi- cally protected by the court under this title. (Pub. L. 95–598, Nov. 6, 1978, 92 Stat. 2556; Pub. L. 109–8, title II, §§ 233(c), 234(a), (c), Apr. 20, 2005, 119 Stat. 74, 75; Pub. L. 111–327, § 2(a)(5), Dec. 22, 2010, 124 Stat. 3557.) HISTORICAL AND REVISION NOTES SENATE REPORT NO. 95–989 Subsection (a) of this section makes all papers filed in a bankruptcy case and the dockets of the bank- ruptcy court public and open to examination at reason- able times without charge. ‘‘Docket’’ includes the claims docket, the proceedings docket, and all papers filed in a case. Subsection (b) permits the court, on its own motion, and requires the court, on the request of a party in in- Page 36 TITLE 11—BANKRUPTCY § 108 terest, to protect trade secrets, confidential research, development, or commercial information, and to pro- tect persons against scandalous or defamatory matter. Editorial Notes AMENDMENTS 2010—Subsec. (a). Pub. L. 111–327 substituted ‘‘sub- sections (b) and (c)’’ for ‘‘subsection (b) of this sec- tion’’. 2005—Subsec. (a). Pub. L. 109–8, § 234(c), which di- rected the substitution of ‘‘subsections (b) and (c),’’ for ‘‘subsection (b),’’, could not be executed because ‘‘sub- section (b),’’ did not appear in text. Pub. L. 109–8, § 233(c), inserted ‘‘and subject to section 112’’ after ‘‘section’’. Subsec. (c). Pub. L. 109–8, § 234(a), added subsec. (c). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2005 AMENDMENT Amendment by Pub. L. 109–8 effective 180 days after Apr. 20, 2005, and not applicable with respect to cases commenced under this title before such effective date, except as otherwise provided, see section 1501 of Pub. L. 109–8, set out as a note under section 101 of this title. § 108. Extension of time (a) If applicable nonbankruptcy law, an order entered in a nonbankruptcy proceeding, or an agreement fixes a period within which the debt- or may commence an action, and such period has not expired before the date of the filing of the petition, the trustee may commence such action only before the later of— (1) the end of such period, including any sus- pension of such period occurring on or after the commencement of the case; or (2) two years after the order for relief. (b) Except as provided in subsection (a) of this section, if applicable nonbankruptcy law, an order entered in a nonbankruptcy proceeding, or an agreement fixes a period within which the debtor or an individual protected under section 1201 or 1301 of this title may file any pleading, demand, notice, or proof of claim or loss, cure a default, or perform any other similar act, and such period has not expired before the date of the filing of the petition, the trustee may only file, cure, or perform, as the case may be, before the later of— (1) the end of such period, including any sus- pension of such period occurring on or after the commencement of the case; or (2) 60 days after the order for relief. (c) Except as provided in section 524 of this title, if applicable nonbankruptcy law, an order entered in a nonbankruptcy proceeding, or an agreement fixes a period for commencing or con- tinuing a civil action in a court other than a bankruptcy court on a claim against the debtor, or against an individual with respect to which such individual is protected under section 1201 or 1301 of this title, and such period has not ex- pired before the date of the filing of the petition, then such period does not expire until the later of— (1) the end of such period, including any sus- pension of such period occurring on or after the commencement of the case; or (2) 30 days after notice of the termination or expiration of the stay under section 362, 922, 1201, or 1301 of this title, as the case may be, with respect to such claim. (Pub. L. 95–598, Nov. 6, 1978, 92 Stat. 2556; Pub. L. 98–353, title III, § 424, July 10, 1984, 98 Stat. 369; Pub. L. 99–554, title II, § 257(b), Oct. 27, 1986, 100 Stat. 3114; Pub. L. 109–8, title XII, § 1203, Apr. 20, 2005, 119 Stat. 193.) HISTORICAL AND REVISION NOTES LEGISLATIVE STATEMENTS Extension of time: The House amendment adopts sec- tion 108(c)(1) of the Senate amendment which expressly includes any special suspensions of statutes of limita- tion periods on collection outside bankruptcy when as- sets are under the authority of a court. For example, section 6503(b) of the Internal Revenue Code [title 26] suspends collection of tax liabilities while the debtor’s assets are in the control or custody of a court, and for 6 months thereafter. By adopting the language of the Senate amendment, the House amendment insures not only that the period for collection of the taxes outside bankruptcy will not expire during the title 11 pro- ceedings, but also that such period will not expire until at least 6 months thereafter, which is the minimum suspension period provided by the Internal Revenue Code [title 26]. SENATE REPORT NO. 95–989 Subsections (a) and (b), derived from Bankruptcy Act section 11 [section 29 of former title 11], permit the trustee, when he steps into the shoes of the debtor, an extension of time for filing an action or doing some other act that is required to preserve the debtor’s rights. Subsection (a) extends any statute of limitation for commencing or continuing an action by the debtor for two years after the date of the order for relief, un- less it would expire later. Subsection (b) gives the trustee 60 days to take other actions not covered under subsection (a), such as filing a pleading, demand, no- tice, or proof of claim or loss (such as an insurance claim), unless the period for doing the relevant act ex- pires later than 60 days after the date of the order for relief. Subsection (c) extends the statute of limitations for creditors. Thus, if a creditor is stayed from com- mencing or continuing an action against the debtor be- cause of the bankruptcy case, then the creditor is per- mitted an additional 30 days after notice of the event by which the stay is terminated, whether that event be relief from the automatic stay under proposed 11 U.S.C. 362 or 1301, the closing of the bankruptcy case (which terminates the stay), or the exception from discharge of the debts on which the creditor claims. In the case of Federal tax liabilities, the Internal Revenue Code [title 26] suspends the statute of limita- tions on a tax liability of a taxpayer from running while his assets are in the control or custody of a court and for 6 months thereafter (sec. 6503(b) of the Code [title 26]). The amendment applies this rule in a title 11 proceeding. Accordingly, the statute of limitations on collection of a nondischargeable Federal tax liability of a debtor will resume running after 6 months following the end of the period during which the debtor’s assets are in the control or custody of the bankruptcy court. This rule will provide the Internal Revenue Service adequate time to collect nondischargeable taxes fol- lowing the end of the title 11 proceedings. Editorial Notes AMENDMENTS 2005—Subsec. (c)(2). Pub. L. 109–8 substituted ‘‘922, 1201, or’’ for ‘‘922, or’’. 1986—Subsec. (b). Pub. L. 99–554, § 257(b)(1), inserted reference to section 1201 of this title. Subsec. (c). Pub. L. 99–554, § 257(b)(2)(A), inserted ref- erence to section 1201 of this title in provisions pre- ceding par. (1).