The joint subcommittee to study the protection of information contained in court records ended its second year not with a bang, not with a whimper, but with a wait-and-see.
Sen.-elect Jeannemarie Devolites, R-Vienna, who chairs the subcommittee, adjourned the Dec. 15 meeting, the second of the fall, without a legislative agenda for the 2004 term. Last year, the subcommittee headed into session armed with five legislative proposals, but the most notable related proposal was one carried by Del. Sam Nixon, R-Chesterfield, a member of the subcommittee. As amended, it created a subscription-only service for access to online databases containing certain sensitive personal information.
The subcommittee decided to hold off on further legislative proposals until completion of research conducted under a grant from the Virginia Law Foundation, secured by Executive Secretary of the Supreme Court of Virginia Rob Baldwin. He is also a member of the subcommittee. The subcommittee earlier said it wanted someone to do an accounting of the records held by circuit clerks of court — both judicial records and records required to be kept by the clerk — to determine what kinds of information reside on each one. For instance, the subcommittee wants to know how many and what types of forms require a Social Security number, and whether that requirement is mandated by a state or federal law, or whether it has been added to the form for the mere convenience of government and non-government entities.
The VLF money will also go towards a study of the proposed rules for electronic access issued by the National Center for State Courts.
No one has yet been hired to conduct any of the studies or research.
The court records subcommittee heard about two proposals put forth by the Joint Commission on Technology and Science that would limit the use of Social Security numbers on any public record (using the last four digits of the number only, if necessary) and would assign unique identifying numbers for different situations, such as the unique number used on driver’s licenses.
The subcommittee did not endorse the JCOTS proposals. Sen. Bill Mims, R-Loudoun, didn’t think even the last four digits of the SSN should be publicly available, while private-practice lawyer Mark Barondess felt that the definition of public record was overly broad, and could be read to prohibit police officers from writing down a person’s SSN while investigating a crime.
Nor did the subcommittee endorse any action to be taken in response to an unanticipated loophole in the online subscription service.
King George County Clerk of Court Vic Mason told the subcommittee at its Oct. 20 meeting that there was nothing prohibiting someone from obtaining an entire database from the clerk’s office and then repackaging and using it for commercial purposes. Devolites called the practice a “misuse” of information, but Barondess reminded the panel that First Amendment implications of punishing the use of information “are enormous.”
The concerns of the clerks of court continue to dominate most meetings. The clerks association is now being represented by Chip Dicks, who testified at the December meeting that clerks around the state are in varying degrees of preparedness to go online. Some, like Fairfax County, have been online and offering subscriptions for some time. Others have the capability, but are reluctant to go online until the legislative process shakes out.
At bottom, Dicks said, the clerks want responsibility placed on the record filer to see that records do not contain sensitive personal information. Clerks have neither the time nor the resources to comb through every document to make sure it is free from SSNs or credit card information, for example.
Departing Sen. Leslie Byrne, D-Falls Church, has repeatedly complained that the subcommittee was still not addressing the basic question of what information belongs on the Internet. Though the subcommittee has never taken a vote on such an action, it has proceeded on the assumption that paper records and electronic records should be treated the same.
Cindy Southworth of the National Network to End Domestic Violence has gone on record as saying she has “absolute faith that stalkers and batterers will find their victims because of these records and they will kill them.” Others claim online public records will lead to rampant identity theft.
“The reality is that it is easier and safer for the criminal to steal someone’s credit card information at a restaurant rather than to go to the courthouse, look in multiple indexes and look at multiple documents in hope of finding enough information to steal someone’s identity,” said Fairfax County Clerk of Court John Frey in comments taken during the drafting of the JCOTS proposals.
A replacement for Byrne will have to be named as the subcommittee heads into its third and fourth years. New members will also be needed to replace retiring Del. Chip Woodrum, D-Roanoke; Norfolk Clerk of Court Al Teich, who is also retiring; and Rosanna Bencoach, who had been the Freedom of Information Advisory Council representative, but whose term on that board expired.