Special committee of court to weigh access and privacy
By Alan Cooper
Va. Lawyers Weekly
Virginia Chief Justice Leroy R. Hassell Sr. wants to at least start finding a balance between public access to court records and the protection of private information in those records.
The openness of court records is “a great guarantee against governmental tyranny and abuse,” he said on Nov. 17 at the first meeting of a committee he has appointed to prepare rules of court defining public access to court records.
On the other hand, Hassell said, “There is a lot of information in our court records that in my judgment should not be readily available. . . . The balance will not be a perfect balance,” he predicted of the committee’s work, “but it will be a beginning. It is a significant endeavor.”
The committee of almost 30 members includes judges, clerks of three levels of state courts, law professors, attorneys with varying types of practice and a police detective.
He appointed a subcommittee with Fairfax Circuit Judge Leslie M. Alden as chairman to develop a proposal to present at a meeting on Feb. 16. He said he anticipates only one further meeting of the full committee, on May 25.
Other subcommittee members are Virginia Court of Appeals Judges Robert J. Humphreys and D. Arthur Kelsey, University of Richmond law professor Kent Sinclair, Supreme Court Clerk Patricia L. Harrington, Arlington Court Clerk of Court David Bell, legal aid lawyer Henry W. McLaughlin III, Senior Assistant Richmond City Attorney Beverly Burton, Richmond criminal defense attorney Vaughan Jones, and Sandy Jack, attorney executive assistant to Hassell.
The availability of some records on the Internet has been an impetus for looking at how much private information is available in court records at the courthouse.
Before the Internet, the concept of “practical obscurity” prevailed because the court records were available only to those who went to the courthouse to look at them, and the visitors usually had some practical or business purpose in mind.
But the amount of information susceptible to identity theft became apparent with the mandate of the General Assembly for circuit court clerks to make land records available online. The idea was that title search and other land record companies would have access to the information without clogging court record rooms or requiring clerks to buy computers and other equipment for courthouse use.
The amount of private information in those files soon became apparent, however. Some mortgage companies routinely required Social Security numbers, and divorce decrees and probate records with names of family members and financial account numbers also were often part of the chain of title that searchers needed to check.
State law now requires registration, and usually the payment of a fee, before such information can be read over the Internet. Opinions vary as to whether registration and fees are a form of
“practical obscurity” similar to having the same information available only at the courthouse.
Moreover, the possibility of personal information being available online has heightened awareness of the amount of it in records at the courthouse and raised questions about just how much of it is necessary.
At the Nov. 17 meeting, court officials outlined the docket information that is available online without registration or any check on who is accessing that information. For example, arrest records and dispositions of criminal cases with some identifying information, such as Social Security numbers and full dates of birth, redacted can be checked in most general district courts in the state. The same information is available from 89 of the 120 circuit courts.
Cynthia L. McCoy, clerk of the court of appeals, said she now gets calls from persons mentioned in court of appeals opinions who are upset that the circumstances of their cases can be found through Google or some other search engine.
Fairfax Detective Tyler Armel said he has concerns that information about informants can be found in online dockets or from visits to a courthouse.
Among the approaches the committee will consider is that of the federal court system, which is moving toward making the case files in both civil and criminal cases available online. However, model court rules would generally prohibit including Social Security numbers, names of minors, dates of birth, financial account numbers and home addresses in pleadings and other filings.
If the numbers are relevant and important for clarity or identification, only the last four digits or the calendar year in a date of birth would be used.
The state effort is further complicated by the existence of laws that require inclusion of personal information in such documents as divorce decrees. A law enacted in the last session of the General Assembly now requires such information in divorce decrees to be included in an addendum not available to the public.
Frosty Landon, executive director of the Virginia Coalition for Open Government, said he was pleased that Hassell had emphasized the constitutional right to access to court documents. “We’ll try to monitor it and learn more,” he said of the committee’s work.
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