Electronic access to land records moving forward

May 14, 2008

The goal of remote electronic access to circuit court land records goes back more than a decade.

Such access has been a reality in at least limited form for jurisdictions such as Fairfax County for almost that long. Those early efforts were based on a subscription to a system dedicated largely to a specific circuit court clerk’s land records.

The explosion of Internet access made those dedicated systems seem almost quaint, but adoption of the Web as the simplest means of getting access to records has created complications of its own.

Hidden in the land records, and not always well hidden, is personal information that is embarrassing or susceptible to use in identity theft.

Proponents of electronic access have emphasized that the information is protected from those who might be idly trolling for personal information about neighbors or enemies – or for data that they could use for identity theft.

State law requires anyone who wants such access to file an application at the clerk’s office and obtain a user name and password that can be used to track just what information is being accessed. Users of the remote access systems also must pay a fee.

That hasn’t been enough for some privacy advocates, most notably B.J. Ostergren, a Hanover County resident who has obtained the personal information of prominent Virginians, including members of the legislature, and displayed them on her Web site and at public meetings.

Those concerns have led to a technological solution directed at the most sensitive single piece of personal information in the land records, Social Security numbers.

The Supreme Court of Virginia recently awarded a contract to a Florida company, Computing System Innovations (CSI), to scrub the numbers from the electronic documents available to subscribers to the land records databases. The contract will apply to about 70 circuit court clerks who use a system maintained by the Supreme Court for remote access to their land records.

Other clerks, especially those in the largest jurisdictions, have hired private vendors to set up their systems and retained companies to do the redaction.

Some clerks, such as Judy Worthington in Chesterfield County, are more concerned about the privacy issue than others. She has digitized her land records back to 1749 and could have set up remote access long ago but has delayed doing so because the records contain Social security numbers.

“I didn’t want to put anything out there that wasn’t clean,” she said.

Worthington said, “I don’t think there’s any good solution” to the disagreement between privacy advocates who don’t want any private information in public documents available on the Internet and open government advocates who say public documents should be widely available electronically. “Courts are caught smack dab in the middle” of that debate, she said.

Much of the money used to digitize land records comes from a technology trust fund financed by a recordation fee and administered by the State Compensation Board.

Worthington and other clerks expressed frustration that the General Assembly has raided the fund in recent years while refusing to allow court clerks to hire more staff in localities with increasing workloads. “We’re more than lean,” she said. “We’ve got malnutrition.”

She said another aspect of Senate Bill 622, which modified state law on remote access this year, will reduce revenue in her office from land records. She now charges 50 cents for each page or electronic image, but remote access subscribers will have unlimited access to her records for a flat fee of up to $50 per month.

That’s a swap other clerks, such as John T. Frey in Fairfax County, are more than willing to make. At one time, his record room was overwhelmed with title examiners. “I wanted them out of the record room” and remote access has allowed that, he said.

He doesn’t have to buy and maintain computer equipment because title companies use their own equipment at their offices for work that used to be done in the clerk’s office. Moreover, “I’m not paying staff to make copies any more,” he said. His office charges subscribers only $25 a month, and he has no plans to increase the fee.

He acknowledges that Social Security numbers are of little value in most of the land records. They typically show up in mortgage documents and in divorce orders that pertain to the disposition of real estate. State law now allows clerks to refuse to file deeds and related documents that have Social Security numbers or other personal information.

On the other hand, elimination of an all but universal identifier may prove to be a great loss to the John Smiths of the world because lenders and others will have more difficulty in distinguishing customers with the same name, Frey said. It may well have an effect on “the average person’s ability to get credit,” he said.

George Schaefer, the clerk in Norfolk, predicted that privacy issues will continue to be a concern. “Technology is overrunning us,” he said. But “with technology comes these adaptations that the have to make,” such as redaction of Social Security numbers.

In the long run, “the privacy concerns of the generalized public will prevail,” he said. That might mean that clerks eventually will maintain digital records with no redactions at the courthouse and make those same records available online free with personal information redacted, he said.

Another piece of privacy protection legislation, House Bill 633, addressed possible misuse of Social Security numbers by amending Code § 59.1-443.2, which generally restricts the use of such numbers. The law contained an exception for “records required by law to be open to the public,” which HB 633 eliminated.

That change apparently would make illegal Ostergren’s publication of Social Security numbers she has obtained from court records, and the Virginia Chapter of the American Civil Liberties Union is considering a legal challenge to the law.
Kent Willis, executive director of the chapter, said the law created “quite a dilemma here,” because his organization is sensitive to privacy concerns and originally supported the bill.

But he said he ultimately concluded that the “the First Amendment triumphs the privacy issue.” The law is overbroad in grouping advocates such as Ostergren with those who might use the records for data mining for commercial purposes, he said.
Chip Dicks, a lobbyist for the Virginia Court Clerks Association, had the difficult task of representing clerks with views as disparate as those of Wothington and Frey before the General Assembly.

He agreed with Schaefer that it is all but impossible to stop the wave of technology. However legitimate the privacy concerns might be, Dicks said, “Everybody likes the efficiencies and the economies of the electronic stuff.”

Written by Alan Cooper  |  Filed Under Real Estate 

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