The board also requested that Clerk of the Court Gary M. Clemens convene a task force to include staff from the state Attorney General’s Office, the commonwealth’s attorney, General Assembly members, privacy experts and citizens to “gauge the impact of said program and what steps need to be taken to protect the citizens of the County of Loudoun.”

Board Chairman Scott K. York (I-At Large), supporting the resolution, also requested that Clemens hold several public forums to address residents’ concerns.

“I think it is the best approach,” York said.

Supervisor Sally D. Kurtz authored the resolution after hearing Clemens speak about the program for about 15 minutes Monday during the board’s regular meeting.

Leesburg Today published an article July 11 that highlighted the controversy of providing the public records through a subscription-based online system and a week later Kurtz asked Clemens to discuss his project with the board after several of her constituents called with concerns about putting some court records online that contain personal information, such as Social Security numbers.

As a constitutional officer, Clemens said he does not have to agree with the resolution, but he will consider it.

“Since this issue has generated so much interest and also has caused so much concern I think it would be prudent for me to educate the board and the citizens further. And so, without having read the resolution in detail my first reaction would be I want to cooperate with our other locally elected officials just like I want to cooperate with the members of the General Assembly and if this board needs more information or guidance then I best I better do that. But I’m not obligated to do anything that they ask me to do.”

Clemens also said he is willing to hire a security consultant to test his system and have other state court clerks who have implemented similar programs address the board about the successes.

Clemens, using $410,000 in county funds and $700,000 in state grant money, was able to computerize many public court records and offer a subscription-based system for $1,200 a year to applicants wanting to view the records from home or their office. Included on many of these public documents, such as deeds of trust, tax liens, and judgments, is personal information about Loudoun residents, from Social Security numbers to maiden names and birth dates. Clemens expects title examiners, attorneys and other professionals to use the system and has received “glowing” comments of support from those frequent customers at his office. Because the records are public documents, he cannot refuse access to anyone, which raises eyebrows of residents and some organizations concerned about the rapidly growing crime of identity theft.

The General Assembly became aware last year that public records contain this personal information and have been wrestling with the issue ever since. Some legislators and privacy experts questioned Clemens’ timing of providing these records through remote access considering the heated debate over privacy issues.

Clemens told the Board of Supervisors that he is not putting public court records that contain Loudoun residents’ personal information on the Internet for the world to see. Instead, he is offering remote access to certain professionals via a subscription-based, password-protected system that uses the Internet as a tool for access. The same records are freely available to anyone who comes to the courthouse during business hours, he said.

With identity theft being the fastest-growing crime in the nation, concerns have mounted against clerks who are either planning or are providing this information through an Internet-based system. Supervisor James G. Burton (I-Mercer) questioned why Clemens is “pushing” his program when he is well aware of the controversy.

“Some people may have the impression that clerks, not only in Loudoun but across the commonwealth, are putting Social Security numbers on the Internet. That simply is not the case and I appreciate the opportunity to clarify the issue,” Clemens said.

According to Clemens, clerks are required to retain court records indefinitely. Before technology was created that allowed clerks to computerize public records, people had to go to a courthouse to view them. By implementing a remote access system, Clemens said county departments, professionals in the community and clerks could work more efficiently and save taxpayers’ money because they would not have to trot down to the courthouse every time they wanted to check a public record.

Because of a “lack of understanding” of a clerk’s role, Clemens said some people may think that clerks require Social Security numbers and other personal information, which is not true. Some mortgage and banking institutes, for some unknown reason, require the information, he said, and once a document containing personal information is officially filed at the courthouse a clerk cannot refuse it or redact the information. Only recently did the General Assembly pass legislation that allows clerks to refuse or redact marriage licenses that have Social Security numbers on them and to deny any deed containing a Social Security number.

“Those are two steps in the right direction,” Clemens said.

In order to fully protect peoples’ privacy, Clemens said more legislation is needed to allow clerks to redact any personal information from public documents as well as prohibiting mortgage and banking institutions from requesting the information on public records. He suggested that residents talk with their attorneys before filing such documents because they may not know that they do not have to legally provide the personal information.

Clemens (R) pledged to work with Del. Joe T. May (R-33) and Sen. William C. Mims (R-33), who have offered to help pass legislation addressing the privacy concerns. However, those efforts could take years, and denying people remote access would upset many professionals in the community, Clemens added.

“It’s amazing to me that the commonwealth takes folks’ privacy, as this is an example of, so lightly,” said Supervisor Chuck Harris (D-Broad Run), referring to the failure of the state to pass legislation that would protect citizens’ privacy.

Clemens said the court records he is providing to subscribers have always been freely available in the courthouse. He said that so far he has 37 applicants for his remote access system and they are predominately attorneys and title examiners.

But Clemens acknowledged that he does not have the authority to deny access to anyone who fills out his application—an application that Gov. Mark Warner’s office has deemed illegal because it requests the applicants to state a purpose for requesting the remote access. An amendment to legislation which would have required a person to state why they wanted access to a remote access system that contains public records was struck by Gov. Warner.

“Yes, it is illegal,” Warner’s Press Secretary Ellen Qualls said of the application which was faxed to her last week. She said that the clerk would not have to take out the question but he could not require an answer. If a clerk did, he could be sued.

“It’s certainly not in keeping with the spirit of the law and it’s troubling to the governor that such a question would be asked on the form,” Qualls said. “Obviously, requiring the answer to the question is against the law.”

Burton said he did not agree with Clemens and questioned the timing of implementing the project.

“I realize that you cannot say ‘no’ but I believe you should not be pushing the information out there, which I have the impression that you are,” Burton said.

“Let me clarify: we’re not pushing it,” Clemens replied. “ ... I can assure you Supervisor Burton if I know, for example, a convicted felon of computer fraud has applied, I will contact the AG’s office and the Commonwealth’s Attorney’s Office and pursue whatever action necessary to restrict that [person].” Clemens said if he had suspicion that someone wanted to use the remote access for illegitimate purposes he would refuse them access and risk a lawsuit in favor of protecting residents’ privacy.

Supervisor Eugene Delgaudio (R-Sterling) also questioned the timing of Clemens’ project earlier in the meeting, but later voted against the resolution.

“Are you doing something fishy? Why are you acting today and not waiting for Sen. Mims and Del. May and the legislature to have this legislation ironed out so that you can appear better?” Delgaudio said.

Clemens replied that it will take more than one legislative session to fully address the privacy concerns and that, looking at the track record of similar systems across the state, they have been successful.

“It is my feeling that by providing remote access to these individuals will result in a cost savings to consumers as these companies embrace the technology that saves them money and time and hopefully pass those savings onto the consumer,” Clemens said.

Delgaudio said before the vote on the resolution that Clemens'’ system appears to comply with state laws or he’d be prosecuted.

“The man has come before us at several budget sessions. He says what he’s going to do. He’s doing it,” Delgaudio said. “Yes, I respect the privacy of people. Yes, I’m looking at all of the material that’s available that’s been printed rather extensively on the subject. ... If there was something wrong in Richmond or anywhere, I’m sure Commonwealth’s Attorney Bob Anderson would be prosecuting Gary Clemens right now. I’m sure the Attorney General of the state of Virginia would be prosecuting Gary Clemens right now and there would be a letter from Sen. Mims and Delegate May [saying]: ‘Don’t do this.’”

Kurtz said the board did not realize how controversial the issue was when it approved $410,000 for the project. She also asked why Clemens could not wait until legislation is passed to protect Loudoun residents’ privacy.