Betty “BJ” Ostergren is on a crusade. Like many citizens, she wants to keep personal information, found in public records, off the Internet. But unlike most citizens, she is doing something about it.
Her crusade began last year, when she heard the court clerk in Loudoun County, Va., was planning to post deeds online. The records contained Social Security numbers and other sensitive information, and Ostergren saw this move as an invitation to identity thieves and others who might misuse the information.
In a grass-roots direct-mail campaign that spanned three counties, the self-named “Virginia Watchdog” collected personal information about individuals from government Web sites. She then sent residents copies of their personal information – including Social Security numbers – along with a letter encouraging the recipient to get involved with her effort to shut down remote access systems around the commonwealth.
Her campaign stirred up opposition and illustrates the controversy of posting public records online. While standards for online disclosure have been more firmly established at the federal level, state and local policies form a patchwork of rules that vary widely across jurisdictions. In the Virginia case, the clerks had no authority to redact information such as Social Security numbers from the documents. Even if they could, going back through millions of old records to remove sensitive information would be a near impossibility.
As more public records make their way onto the Internet, judicial and legislative policymakers are grappling with complex issues related to public records, access and privacy. With the emergence of electronic filing, document-scanning programs and affordable high-speed data lines, the public has easier and wider access to public records than ever before. Remote access is a valuable timesaver for attorneys, realtors and others who routinely access public records. It also saves time and labor for records custodians who spend less time filling individual requests.
But the emerging practice of online access is also raising serious concerns about the nature of public records in the information age. As states form committees to look at the issue, major decisions shaping the future of open government are just around the corner.
ONLINE VS. PAPER
By far, the leading area of contention between access advocates and privacy groups exists in determining what public information should go online.
“There is a big difference between access to records on the Internet and access to records in the courthouse,” said Beth Givens, director of the Privacy Rights Clearinghouse in San Diego. “Court records have a lot of sensitive information about children, finances, and there are a lot of accusations held in court records that are inaccurate,” she said.
This idea that public records take on a different life when computerized is a common theme that runs strong with privacy advocates. The access community has generally opposed this distinction, pointing out that the courts have traditionally carried a presumption of openness under the common law. They also say online distribution will give the public greater access to observe and evaluate the official actions of government.
Givens’ concern centers on the belief that putting records online disrupts a balance between access and privacy that exists in the paper world. This concept surfaced most notably in the 1989 Supreme Court ruling in The United States Department of Justice vs. Reporters Committee for Freedom of the Press. In its decision, the court held that paper records in the courthouse enjoy “practical obscurity” that is lost when they become easily accessible from remote locations. Media lawyers argue that practical obscurity should not apply to court records.
Alan Carlson, president of the Justice Management Institute, a research group that works with state courts, says the ubiquitous nature of the Internet heightens privacy concerns. Putting aside systems that require a username and password, the idea that anyone anywhere could access highly personal and potentially embarrassing information in public records is frightening to some.
The prospect of “jammie” surfing – or the act of using a personal computer at home to sort through a neighbor’s messy divorce case or bankruptcy filings – is enough to turn some minds away from remote access. They see online public records as a gossipmonger’s ultimate tool, or even a barrier to employment.
“Imagine a bunch of teenage kids sitting around at their house on Saturday night. They go into the courthouse Web site and start reading the declarations of their parents’ divorce. Now imagine one of the kids happens to be in Germany,” said Carlson, highlighting the placeless nature of the Internet.
Givens said only the bare bones of most cases should be accessible online. “If you ask anyone if they would want the full record on their divorce case on the Internet, they would say no,” she said.
Such privacy concerns prompted California’s state courts to limit online access in December 2001 so that only registers, calendars and indexes for certain types of cases are available. The case types are family law, juvenile, guardianship or conservatorships, mental health, criminal and civil harassment.
Rose Ciotta, staff writer and assistant director of computer-assisted reporting at the Philadelphia Inquirer, said arguments against casual or curious browsing are tenuous. She said people who use the courts to settle disputes give up a measure of privacy. “That’s the price of having an open society,” she said. “The biggest danger here is to give a lot of credence to the argument that because someone someplace can find information somewhere that will make someone uncomfortable, records should not go online.”
Arthur M. Ahalt, a retired circuit court judge from Maryland who is now an adviser to LexisNexis Courtlink, said courts already shield cases where people have the greatest expectation of privacy such as medical records and juvenile arrest records.
“There’s this paranoia that exists that Johnny’s psychological report is going to be viewed by his classmate Sally, but those reports are sealed in the paper and in the electronic world,” he said.
But barring records from going online simply because they are embarrassing does nothing to help the public interest, according to Ahalt. In fact, he said the routine sealing of cases puts us on the slippery slope to government secrecy.
A CONSENSUS FOR THE FUTURE
Those formulating policy recommendations for online access wrestle with an assortment of tricky issues that carry important implications. From the practical obscurity impasse to preventing the online release of addresses of domestic violence victims, theoretical and tangible matters are all rolled into one tangled ball of policy questions.
“It’s intellectually fascinating, but it’s practically compelling,” said Martha Steketee, a court researcher with the National Center for State Courts, a nonprofit research group in Williamsburg, Va. The center worked with the Justice Management Institute last October to create a 110-page report examining online access.
The report, “Guidelines for Public Access to Court Records: A National Project to Assist State Courts,” was originally slated to be a model policy. But given the idiosyncrasies of the state court systems, it was quickly determined that the report would do better as a framework – rather than a set of rules – for state courts developing public access policies.
The Conference of Chief Justices and the Conference of State Court Administrators endorsed the final version and recommended it to the state courts. Steketee said several states are using the report as they come up with their own rules for remote access.
The 18-month project included a broad-based committee of people who work in and out of the courts. Representatives from the media, privacy groups, law enforcement and the data industry served with judges, court administrators and attorneys. The panel’s diversity was a key component to its success, according to Steketee, noting earlier attempts to shape access policy failed to take a wide range of issues into perspective.
For instance, Maryland faced strong opposition when it attempted to close off electronic access to criminal records out of privacy concerns in 2000. The Judiciary’s failure to include voices outside the courtroom is blamed for the public’s distaste for the proposal. People who couldn’t perform background checks on their babysitters and others felt they were being blocked from their daily activities.
The state has since revisited the issue, taking more voices into consideration.
“They came up with a policy too quickly from a committee that didn’t hear a great deal of public testimony,” said Gregg Leslie, legal defense director at the Reporters Committee for Freedom of the Press. Leslie, who attended some of the National Center meetings, said because of the panel’s diversity, the final report ended up better than how it started out.
“What were initially categories of exemption moved to become discussion points,” he said. “It became a meaningful document because it showed that so many things need to be discussed before making policies,” he said.
Diversity can make for strange bedfellows on these panels. In Florida, a peculiar pair was appointed by Gov. Jeb Bush to head a 22-member committee to study online access to court records. The chair, Thom Rumberger, is best known as the lawyer who fought to keep Dale Earnhardt’s autopsy photos from being reviewed by the Orlando Sentinel in 2001. The vice-chair, Jonathan Kaney, has fought on the other side of access battles; most recently, he succeeded at keeping the drug court proceedings of Gov. Bush’s daughter open to the press.
The panel also included interests ranging from victim’s rights groups to lending officers. Kaney, an attorney with Cobb & Cole in Daytona, Fla., and the general counsel for the First Amendment Foundation, said the caliber of the committee’s discussion was high.
“We all learned a lot of things outside of our bailiwicks that contributed to our understanding,” he said. In time, Kaney predicts wider Internet access to public records. In the meantime, he said, there is still a lot of work to do.
These exchanges do widen dialogue, though fissures still surface over how much weight should be given to access or privacy.
To strike a balance between the two, some suggest placing different standards for online and paper records. But that would create a logistical nightmare for already burdened clerks who would then be expected to keep two different sets of records. Instead, state committees are considering shielding sensitive information, such as bank account numbers, from public records in the first place.
“There shouldn’t be a distinction based on technology,” said Carlson of JMI. “If you think it ought to be private, you should revisit the paper record itself.”
Doug Clifton, American Society of Newspaper Editors FOI chair and editor of the Cleveland Plain Dealer, sits on a remote access advisory committee of the Ohio Supreme Court. He is concerned that backdoor closures to public records will be pushed through by those trying to beef up privacy protections.
While he said the panel generally favors openness, he is constantly struggling against an entrenched mind-set that places too much emphasis on personal privacy.
“The biggest fight I’m facing is the desire to close records that are now public because putting them online electronically would end the practical obscurity that they now enjoy,” he said.
DECISIONS FOR THE HERE AND NOW
While committees debate long-term policies for online records, states still have to decide what to do about controversial online documents in the immediate future.
This year, Florida is poised to slap a two-year moratorium on remote access to court records until procedures for preventing the release of exempt information are established.
“There is great potential for careless administration of the Web sites that could allow information that is, by law, exempt and confidential (to enter the public domain),” said Kaney, who supports a moratorium.
The big fight in the Florida courts is “separating the exempt wheat from the nonexempt chaff,” he said.
But privacy concerns stemming from the online release of legally public information is also prompting public bodies to unplug remote access systems.
On July 1, a judicial order in Butler County, Ohio, removed domestic relations court cases from the county’s Web site. The order allows parties to determine whether their cases should be available on the Internet, but it still permits unrestricted access at the courthouse.
Gary Clemens, the clerk in Loudoun County, Va., had his initiative to offer land records online quashed after it became the target of public outrage. Like other clerks in the state, he said he was simply enhancing access to records that are legally open to the public.
He agrees that identity theft is a legitimate concern, but said clerks should not be blamed for the release of sensitive, yet nonexempt information.
“Agencies are just trying to find more cost-effective and efficient ways to provide things that are available at the courthouse,” he said.
In the case of land records, title companies often include Social Security numbers on documents for internal purposes. Once they become public records, the documents can’t be altered.
Even if they could redact information, custodians of public records say it’s not feasible to scour every requested record. They say businesses and courts should take more responsibility to prevent the information from making it into a public record in the first place.
“It’s basically impossible for the clerk’s office to be the human screener,” said John Frey clerk of the Fairfax, Va. circuit court.
Frey said remote access to land records not only eases a burden on clerks, but it also has become a driving force in the economy. Without fast access to information such as tax liens or judgments, Frey said, proving creditworthiness would take much longer than it does now.
Last year, his office processed 420,000 records, including millions of pages of information. Land records alone average about 18 pages each, he said. Fairfax was an early adopter of remote access, beginning with land records delivered through T1 lines back in 1988. To date it offers more than 20 million records online.
“People would have been waiting for weeks to get the title work for their transactions under the old system,” he said.
David Chircop was a summer Pulliam/Kilgore intern at SPJ’s national headquarters. He now covers local government for the Merced (Calif.) Sun-Star.
