HD24 - Report of the Joint Subcommittee to Study the Protection of Information in the Records, Documents and Cases Filed in the Courts of the Commonwealth


    Executive Summary:
    Joint Subcommittee to Study the Protection of Information in the Records, Documents and Cases Filed in the Courts of the Commonwealth] [pursuant to HJR 631, 2003.

    Virginia Code Section 17.1-279(B) requires that Clerk's Offices have plans of proposed technology improvements which will be compatible with a system to provide statewide remote access to land records in accordance with the recommendations of JLARC and the Task Force on Land Records Management established by the Department of Technology Planning.

    In a letter from Frank Hargrove, Jr., Clerk of Hanover Circuit Court, date September 17, 2002, he shared concerns raised by citizens over the potential security risks of offering remote access to land records.

    The joint subcommittee heard testimony, from a Lexis Nexis representative describing some of the appropriate ways in which commercial database services are used to help people, protect consumers and assist law enforcement efforts. These databases are effectively used to prevent and investigate terrorist activities; locate and recover missing children; identify and prevent fraud; locate witnesses to crimes and help make arrests; prevent and investigate financial crime; and enforce child support obligations and government assistance programs. This testimony was supported with letters from various government agencies and non-profit public safety organizations.

    The joint subcommittee reviewed a report from the Maryland Committee on Access to Court Records. That Committee was appointed by Maryland Court of Appeals Chief Judge Robert M. Bell, in March 2001. The committee's mission was "to study these matters and to recommend whether to make changes in the courts' current system of public access to court records, and in particular, to electronic court records. The Committee's recommendations included a general policy that court records are generally open to the public should be continued; access should be the same whether the record is in paper or electronic form; and that access should be the same for all members of the public, regardless of the reasons for their requests and their intended use of the records. The Committee did not in the exceptions to public access to court records: "(c) At present, case files are not available in electronic form...In the future, as case files become computerized, there will be more information available via remote access, including for example complaints, answers, motions and affidavits - which currently are publicly available in paper court files unless closed by statute or seated by court order. The nature of some information in case files (e.g. bank account number, credit card numbers, medical records) is such that remote electronic public access may possible lead to potential harm to individuals or businesses. If, in the future, this type of information becomes available in electronic court records, the Court may wish to consider whether the existing mechanisms of statutory closure and case sealing order are adequate." The Committee also recommends that the computerization of court records (including case docket sheets and case files), and public access to them, should be encouraged.

    The joint subcommittee received testimony from several citizens concerned with personal information being used for internet crime, specifically identity theft.

    The Virginia Press Association and the open government advocates have expressed their concern about prohibiting records from being remotely accessible, arguing that such an action would result in the onset of a reversal of the progress in open government.

    The business community, those who perform title searches, in particular, have testified that remote access to land records is critical in allowing real estate closings to convene in a timely manner. Clerks of the court have testified that eliminating remote access to land records would result in overcrowded courthouses and delays in obtaining information.

    The private investigators shared their concern, with the subcommittee, of denying access to court records, which they depend on to do their investigative work.

    Subcommittee member Albert Teich, retired Clerk of the Fourth Judicial Circuit Court informed the committee that there are about 101 statutes requiring the use of the Social Security Number of one or more parties in various court actions. The Subcommittee made a determination that an inventory of the statutes that require the use of personal information, as well as state government regulations was critical. Subcommittee member Rob Baldwin, Secretary of the Supreme Court of Virginia, has obtained grant money and has employed an individual to inventory the statute and the regulations.

    Various pieces of legislation have been introduced, as a result of the subcommittee's work. The most comprehensive bill is HB 2426, patroned by Delegate Sam Nixon during the 2002 session. This bill restricts remote access to those with paid subscriptions and provides that the clerk register individuals before granting them access. This approach permits clerks of the court to maintain control over granting access to those who can show that they have legitimate reasons for obtaining the information. The bill also requires VITA to certify that each clerk's system is secure. Senator Jeannemarie Devolites Davis patroned legislation that requires the Department of Vital Statistics to record personal information for name change orders in a separate document which is not accessible to the public.

    Other suggestions for legislation have included: allowing the clerk to refuse to record any land record which as a social security number on it; increasing penalties for inappropriate dissemination of records/information; prohibit transmission of bulk records; use a cover order with all the required information on it and hold the files confidential in divorce cases.

    For introduction to the 2005 Session of the General Assembly, the joint subcommittee has recommended several measures. One to provide immunity for acts or omissions related to remote access. This bill also extends the sunset two years to July 1, 2007. A second recommendation requires a summary order in divorce cases which would exclude sensitive information and be available for the public as opposed to the actual court orders. The third recommendation: (i) clarifies that secure remote access is to documents filed in the land records; (ii) land records are defined as required or allowed by law to be filed in the land records and included some examples (not an exhaustive list) of some of the more common filings; (iii) specifies that persons may not post the enumerated identifying information on any website no matter how such information was obtained; (vi) includes the exception for remote access to parties and their counsel; (v) a statement that this section doesn't prevent the Supreme Court from using the on-lien case management system available now to the public (court dockets and abstracts). Finally, the sunset is extended to July 1, 2007.