Leesburg Today article

Isn’t That Private? Concerns Mount As Court Records Go Online 

Dan  Telvock

Jul 11, 2003

Starting Tuesday, Loudoun County Circuit Court Clerk Gary M. Clemens plans to launch an online land records access service through a subscription-based system.

After dealing with minor glitches in the pilot program, Clemens will move forward with putting deeds, wills, judgments, tax liens and plats online and will charge a hefty $1,200 per year for the service which the clerk believes will be, for the most part, used by attorneys, title examiners and other professionals.

But there are individuals and organizations strongly opposed to such a practice because they say personal information that can be used to steal an identity is included in some of these records. Among the information common to certain public records that Clemens and about 15 other Virginia court clerks are putting online are Social Security numbers.

Depending on what a person has recorded, one’s life can be pieced together like a puzzle. Home addresses, birth dates, signatures, assets, children’s names and maiden names also can be found on public records.

This information was located on some Loudoun records that are recorded online and Leesburg Today has copies of dozens of documents that have Social Security numbers and addresses, including those of one Loudoun elected representative.

It is quite possible, some say, that many people don’t even know about Section 7 of the federal Privacy Act, which provides all U.S. “persons” immunity from disclosing their Social Security number to any federal, state, or local government agency unless there is specific authority from Congress allowing the agency to require disclosure. 

Some think the online database is a treasure chest for an identity thief. Approximately one in five Americans is affected by identity theft, the fastest-growing crime in Virginia, Attorney General Jerry Kilgore has said.

There’s a lot of money involved in providing public records online. Court clerks charge for the access and the productivity in the clerk’s office increases two-fold when all that is needed to record a public record is a few clicks of the computer mouse. Clemens’ office recorded about 13,000 deed records in April alone. It cost Clemens more than $1 million, with about $700,000 in grant money, to develop the system and scan all the documents.

“I anticipate anywhere between 30 to 50 individuals or firms will file applications for a subscription,” Clemens said. “Payments for subscriptions will be collected and receipted as local revenue. The money collected for the subscriptions will be used to pay for annual maintenance costs, upgrades to the computer system, and computer-related equipment. This revenue should lighten the fiscal burden for expenditures related to computer maintenance and upgrades.”

State legislatures are tackling the privacy issues involved with public records and some recent bills to be enacted are being referred to as the “first step” in the process of keeping people’s private information from being viewed by anyone who fills out an application to be a subscriber.

The Debate Over Privacy

"[A]rmed with one’s [Social Security number], an unscrupulous individual could obtain a person’s welfare benefits or Social Security benefits, order new checks at a new address on that person’s checking account, obtain credit cards, or even obtain the person’s paycheck." Greidinger v. Davis, 988 F.2d 1344, 1353 (4th Cir. 1993).

The Virginia Legislature tried to address privacy issues with HB 2426, which prohibits some information already available in the public court records from going online. The prohibited information are Social Security numbers, birth dates, signatures and exact addresses. The law goes into effect Jan. 1, 2004.

But an amendment added late in the legislative process states that records put online through a subscription-based system are not covered by the law, as long as the system is certified by the state’s Department of Technology Planning. Currently, the state does not regulate what clerks put online and won’t until Jan. 1, 2004.

An amendment to the bill that would have required a person to state a purpose for searching the records was struck, Sen. William C. Mims (R 33) said. “The Virginia Press Association led the fight to take that provision out,” he said.

Gov. Mark Warner (D) did not favor the amendment saying, "People who use the Internet shouldn't have to provide their reasons [for wanting the information] when people who walk into a government office don't.”

The patron of HB 2426, Del. Sam Nixon (R-27), said he intended for a moratorium to be put in place until a definitive conclusion could be made on how to mix technology with public records that contain private information, but he was unsuccessful.

“We still have not addressed the core issue and the core issue is to address personal privacy versus convenience and access to public information,” he said. “My contention is government records that contain personal private information should not be public records.”

Nixon said he doesn’t question the motive of Clemens or any other court clerk who is preparing to go online with land records, but he does question the timing.

“It’s very disappointing to see someone moving in this fashion,” he said.

Mims, a lawyer who practices in Leesburg, said that about five years ago the General Assembly recognized the benefit technology could provide to Circuit Court records and “without dissent” began its journey to provide some court records online.

“Only last year did we begin to become aware of a distinct link between the information that is obtainable from such records and identity theft,” he said.

The General Assembly has been debating the issues ever since.

“So, once we realized the Pandora’s box that has been opened when all such records are placed on the Internet, we immediately recognized the need for significant privacy protection,” Mims said. “Right now, we are in some dilemma. On one hand, they have all been public records, although difficult to access. On the other hand, if they are made instantly available worldwide by anyone, then citizens have a cause to be concerned.”

Mims said HB 2426 is one of about a half dozen bills that are being discussed or that have passed to protect a person’s privacy. As vice chairman of a joint subcommittee studying the protection of court records, Mims said the committee will meet this year to hammer out ideas designed to satisfy all parties. Mims also pointed out his legislation SB 979, that allows a court clerk to refuse land records that show a person’s Social Security number. The bill states that to “preserve the rights guaranteed a citizen in a free society, legislation is necessary to establish procedures to govern information systems containing records on individuals.”

“We recognized that our legislative efforts this year are truly stopgap measures,” he said. “ ... The question is if somebody is intending to commit a felony for which they can be imprisoned for many years would you expect that they would sign up to be a subscriber in this manner? That’s the argument behind saying this is a reasonable first step as we figure out in the next couple of years where we go from here. We are just beginning to understand how enormous these issues are.”

Clemens said he plans to refuse public land records that contain Social Security numbers but that does not protect the people who have such records already filed with the private information.

“I don’t know there really is a situation where the Social Security numbers are being put on the deeds,” he said. Clemens does see Social Security numbers on tax liens and judgments, but he said it is rare.

When asked why he doesn’t keep records containing Social Security numbers off the Internet, Clemens said those records impact legal ownership of real property and ability of current owners to sell or transfer the property—all information title examiners and other professionals need.

“That is why it is so vital. They’re not going to be able to effectively do the research they need to do,” he said.

Del. Joe May (R-33), who voted for HB 2426, said the real issue hinges on whether court clerks should be required to redact private information before its goes online. “It really comes down to this: If you are going to post information on the Internet, there is an intended obligation to remove sensitive information,” he said. “You have the right to put that information on there. You likewise have the obligation to remove sensitive material. The clerks said it was too much work and I react rather strongly to that.”

Del. Thomas D. Rust (R-86) said he is concerned with the workload such legislation could add to Circuit Court clerks because without a subscription-based program, more people would need to visit the courthouse to properly view the records. He voted against HB 2426.

“I have privacy concerns, particularly with identity theft,” he said. “I had an individual in my own district who had his identity stolen. That is a real issue. We enacted some legislation and obviously increased the penalties for it.”

Clemens advocates legislation that would require companies that prepare the records to make sure that personal information is withheld from the public record, or that would allow clerks to redact personal information from all public documents. Currently, they can only redact them from marriage licenses. “We can’t alter original documents” without a court order or legislation, Clemens said.

Clemens said he can deny a person’s application to access if he or his office has suspicion over why an individual wants access.

“Particularly if I suspect there is some illegitimate reason for access,” he said. “We still have access here so my response is to anyone who says that’s not fair is, ‘We’re still open Monday through Friday so come look it up.’”

But according to an opinion from Attorney General Kilgore, the clerk of a circuit court has a statutory duty to provide copies of digital databases of all records requested by a citizen, unless sealed by court order or otherwise exempted by law.

“This duty applies to court records as well as to land records,” Kilgore stated.

Del. Jeannemarie Devolites (R-35), who also serves on the joint subcommittee studying the protection of court records, said the group has yet to meet. She said the subcommittee will only meet twice, probably in November and December, which irked Nixon, who believes not much can be done so late in the year.

“It’s just become a huge, huge issue.” Devolites said. “If you completely take them offline and don’t allow for those who do title searches and remote access, the consequences are two-fold. First, you’ll suddenly have an army of people in the courthouses looking all of these up in person and secondly, it will delay the process of settlements significantly. It’s just not simple. It’s not as simple as ‘let’s take it offline.’”

Devolites said that by having a subscription-based system, a person has to “go through the trouble” of identifying themselves on the application and submitting a credit card number and address.

“So if somebody wants to steal identities, and it’s probably someone who does it professionally, they’re going to hack into a system and they are going to take hundreds or thousands or tens of thousands all at the same time,” she said. “I’m not aware there's been an issue of identity theft coming from any courthouse in the nation.”

Loudoun County Sheriff’s Office Investigator Jeff Suess said the five investigators that are usually assigned to probe identity theft crimes have not seen a case where someone stole identities from public records. According to Sheriff’s Office statistics, it has investigated nearly 200 identity theft cases since 2001.

“I personally have never investigated anything like that, but public records, there's a lot of information available there and if people know where to look they are going to find it,” he said. Suess said that there are Web sites similar to private investigator firms that sell public information, and that’s where many people obtain private information to steal identities.

The New Hampshire Supreme Court ruled in February that brokers and private investigators can be held liable for injuries caused by selling personal information, like Social Security numbers. The case, Resmburg v. Docusearch, was filed after a man murdered a woman whom he obsessed over since high school. He was able to locate her through information he received from an online investigative company. He drove to her place of employment, where she was shot to death.

“As you know, many Virginians are entirely unaware that sensitive personal information about their families exists in public records at all, and even fewer would believe that elected government officials would actually post this information on the Internet on purpose, or as part of a money making scheme for government,” stated Fairfax County Privacy Council’s Mike Stollenwerk, in a letter to the General Assembly.

In May, Stollenwerk went to court to argue why he did not put his Social Security number on a concealed handgun permit after he received a show cause from a sheriff’s deputy.

“Apparently, the State Police did not like the fact that a judge approved my permit without Social Security number disclosure and wanted to put it in their computers,” he said. “I argued that Section 7 of the federal Privacy Act gave me immunity from any federal, state, or local agency's solicitation of my Social Security number unless the Congress specifically has passed a law to authorize it.”

Representing himself, Stollenwerk won the case. In Loudoun, Social Security numbers are common on the handgun permits, which are public documents. Many people, Stollenwerk said, may not know they can refuse to put Social Security numbers on those records.

Suess said a person’s Social Security number can provide a lot more information about that person through research. “Once you have someone’s Social Security number, finding a birth date isn’t quite as difficult,” Suess said. Putting public records online that include private information is a concern to Suess, he said, but he was unaware that clerks have been doing it for years.

Forrest M. "Frosty" Landon, executive director of the Virginia Coalition for Open Government, said the trouble is trying to balance privacy rights and rights to public access. He was not against HB 2426 as amended, but was against the original bill.

“The argument was it [the bill] protects a little bit,” he said. “If somebody might abuse access to a record with a Social Security number on it, then at least folks could track down that wrongdoer. As a practical matter, those that they are most worried about, pedophiles and identity thieves, could have lied about the reason they wanted to look at these records.”

Betty "BJ" Ostergren of Hanover County, a crusader for privacy rights who has been “living, eating, and breathing” the issue and leads Virginia Watchdog, said the subsection of HB 2426 gutted the entire bill and made it useless. She said she has attended every hearing on the issue and strongly believes that court clerks are putting people’s lives on the Internet for the world to see with a subscription-based system that does not offer protection. She’s startled lawmakers when she provided them with Attorney General Kilgore’s Social Security number and other private information she obtained from online records and has sent out hundreds of letters to residents in counties where court clerks have online systems. She said that she blacks out the last four digits of the personal identification number when she sends them to lawmakers to prove her point.

“We were able to stop it in Hanover because there was enough public outcry who said ‘are you nuts putting this on the Internet?’” she said.

“Anyone can get them they just have to pay and sign up,” she said “I think its the dumbest thing I’ve ever heard to put these things on the Internet. And if you’ve seen what I have, you’d agree.”

Fairfax County Circuit Court Clerk John T. Frey has a subscription system in place for land records at $25 a month, $75 a month less than what Clemens will charge.

“But it’s a private system,” Frey said. “We’re not putting it out there for the world to see. You let anybody in the world have access to that as easy as it is on the Internet, you’ve got possible problems. I’m not saying people can’t find [private information] other ways, but we shouldn’t be putting it out there for the world to look at. There’s got to be some kind of control.”

A few hours of searching land records on the workstation computer in Loudoun County Circuit Court did turn up Social Security numbers and other private information of Loudoun residents. Some documents were not in the system yet, such as tax liens, which commonly have Social Security numbers on them.

“It really depends on the mortgage companies and I don’t know which ones are doing it,” Clemens said about finding Social Security numbers. “I don’t personally recall seeing a Social Security number on a deed of trust.”

Jefferson Investment Service Corp. and B.F. Saul are some of the institutions that in the 1990s required some private information, such as Social Security numbers.

At least one elected Loudoun County official’s Social Security number, his wife’s, and their address were also discovered.

Ostergren gained access to Clemens’ pilot program citing the Freedom of Information Act and said she also turned up private information. “I have also found minor children's names and dates of birth/ages in Homestead Deeds and name change documents, plus some Social Security numbers on Powers of Attorney—not to mention the tons of Social Security numbers I found on Deeds of Trust,” she said. “This is a real shame to be able to get this stuff.  People could steal everyone of these people's identities and wreak havoc on their lives.  I cannot believe the citizens want this stuff on the Internet.”

Loudoun County Commonwealth’s Attorney Robert D. Anderson said he has concerns, too.

“Identity theft is an issue and it’s a growing issue,” he said. “Anything that facilitates securing personal information that might facilitate additional cases of identity theft is a problem as I see it.”

Landon, like Devolites, said he has not heard of any case where a person has stolen identities by using information from public records. He suggested tougher punishment for people who steal identities as a deterrent.

“I don’t know of anybody other than BJ Ostergren who’s gone online and gotten somebody else’s Social Security number and spread it all over,” he said. “As a practical matter, identity thieves and pedophiles have much easier ways of doing their evil acts, and of course the way to deal with that is to treat it as a serious crime and come down hard on it when somebody does actually steal identities.”

J. Jack Kennedy Jr., Circuit Court clerk for Wise County and the city of Norton, favors putting some court records online. He said there are at least 300 subscribers to his land records Internet system at $395 a year. Kennedy, who chaired the Land Record Modernization Task Force created by the General Assembly in 1997, said the technology is sound and saves taxpayers money. “They are open records. They are public information,” he said.

Communicating with financial institutions that put such sensitive information on the records also would help alleviate any concerns with identity theft, he added. “I think we need to be proactive,” he said.

“We’re responding to panic and fear and the only thing we have to fear is fear itself.”

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