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March|April 2003
Http In Cincinnati By Amy Benfer
One Country, One System? By Doreen Weisenhaus
Reds, Whites, And Blue Laws By Max Garrone

Http In Cincinnati

An Ohio county has put its public records on the web. Amy Benfer on whether the records are now too public.

By Amy Benfer

RECENTLY, I VISITED A WEBSITE that offered the digital equivalent of peering into a lit bedroom window at night. With perfect anonymity, I paged through the most intimate details of other people's lives. One woman had left her husband and had requested a restraining order against him because he was always calling her a "nigger." Another couple's divorce records revealed that the husband had fathered a child with another woman 22 years into his 38-year marriage.

All of this information is available online in an electronic database maintained by the courthouse in Cincinnati's Hamilton County. The database contains virtually all cases filed there since it went online in February 1999 and some cases going back more than a decade. In 1992, Jim Cissell, the county clerk, began to scan the county's records into electronic files to make them easier to store and retrieve. In 1994, he set up 29 computer terminals in the courthouse to allow public access to the collated database. The system proved so popular—at busy times, there could be more than 70 people waiting in line to use the terminals—that Cissell decided to move the database onto the web. (He estimates that the entire project cost about $20,000, plus staff time.)

The site requires no password or user fee and the database is ridiculously user-friendly. To find all of the available records on someone, you simply search by name. Any user can browse through records, as I did. Each file displays all of the publicly held information about a case—Social Security numbers, addresses, family finances, and, in rare instances, transcripts of psychiatric testimony.

Every document available on the site is, and has always been, a public record. But the site has made public records more public: It logged its millionth hit in December 1999 after being open less than a year and now receives an average of more than 30 million hits per month. It has also made access to public records more democratic: In the past, finding a record was so time consuming that most searches were done by legal professionals, private companies, or people who could afford to hire someone to search for them.

Many Cincinnati citizens, as well as legal scholars, praise the site's transparency and consider it a hallmark of an increasingly open age. Small-business owners have reported that they use the site to run checks on prospective employees to make sure they don't have criminal records. Parents check up on schoolteachers, baby-sitters, even gardeners. Homeowners compare their property taxes to those of the people next door to see if their neighbors are being treated better or worse. One woman discovered that the "single" guy she was dating was married.

So far, there has been only a single instance of identity theft traced back to the site, and the victim doesn't bear a grudge: He uses the site frequently to screen job applicants. But it's easy to imagine how the new policy can be abused, and the citizens of Hamilton County have been exercising their imaginations. They say that records could be used to stalk somebody, and plenty of people don't like to have their neighbors poring over public records looking for embarrassing information that can become juicy gossip.

At national conferences of county clerks, Cissell is known as "the open records guy" and, to some degree, the label is accurate. His view is that public is public: "Every advancement in technology leads to a reduction in privacy. Even the automobile reduced privacy. If you lived 10 miles away from me, suddenly I could drive down the road and look in your window."

But Cissell is really only a semi-open-records guy. Eight years ago, he testified before the Ohio legislature against an open records bill, pointing out that open records would make the architectural plans of prisons available to inmates and the home address of a battered woman accessible to her violent ex-husband. On the Hamilton County site, visitors are greeted with a pop-up window that leads directly to a policy proposal, authored by Cissell and presented to the Ohio legislature last year, in which he suggests that it would be possible to keep some documents sealed and unavailable to the public—including transcripts from family and juvenile court, psychiatric reports, and some financial reports.

Like many privacy advocates, Cissell believes that the legal definition of a public record must be revised to achieve a balance between transparency and privacy appropriate for the Internet age. The ease of access made possible by new technology poses new questions about the legal reasoning behind the decision to make certain records public in the first place. What's "fair use" of a public record? What's the best way to balance the public's right to know with a person's right to privacy?

UNTIL THE MID-19TH CENTURY, the government maintained few records on individuals, and those were kept mostly by cities and towns. At the end of the 19th and the beginning of the 20th centuries, as governments began to keep more records, access to them was limited by practice as well as geography. To obtain a public record, you had to present yourself at a local courthouse and provide a clear reason for getting a record. You were likely to gain access if you were a journalist and a record was relevant to a story you were working on, or if you were a historian and a record was important to your research. You could usually gain access if you were involved in a lawsuit and a record was pertinent. If you just wanted to satisfy idle curiosity, though, you would probably be turned away.

All sorts of activities require interaction with a government agency and create a public record. Over the course of a lifetime, a person may accumulate dozens of records, beginning with a birth certificate and a Social Security number, but also including a driver's license, registration as a voter and a juror, employment history, military records, professional licenses, records of welfare and disability payments, traffic tickets, marriage and divorce certificates, records of any civil lawsuits or criminal charges, and, finally, a death certificate.

Throughout the last century and increasingly in the last generation, public policy has led two of the most cherished principles of liberty to collide: the right of citizens to demand transparency from their government and the right to expect their private lives to remain private. The open records movement flowed from the recognition that transparency was essential for monitoring the government. In 1966, Congress passed the Freedom of Information Act, which allowed "any person" the right to access nonclassified government documents without stating the purpose for which this information was to be used. And in 1978, in Nixon v. Warner Communications, the Supreme Court upheld the right of public citizens "to inspect and copy public records and documents, including judicial records and documents." In 1996, the FOIA was amended to require federal agencies to provide an electronic index to their records and to establish an electronic "reading room" for the purposes of accessing public documents online.

States have reacted by passing their own open records laws modeled on the federal versions. All 50 states have some version of these "sunshine" laws, which vary widely in the degree of transparency they require. These laws have made it easier for citizens to monitor the government. They have also made it easier for citizens to be monitored by the government, corporations, and each other. The laws have put personal information within reach of anyone with the money to hire a private investigator or pay for a records search or the time and means to hunt information down on their own.

Although easy access to public records is a relatively new development for the average person, private companies have been stockpiling this information for decades. They sell it back to the government (the IRS, the FBI, and other law enforcement agencies) or to other companies that combine it with consumer records (from credit cards, for example) for marketing purposes. "Open records policies were created for a specific social purpose: so that the people could ensure that the government functioned fairly," said Chris Hoofnagle of the Electronic Privacy Information Center. "They were meant to empower the individual against the state. But now they are being used for secondary purposes—for commerce, profiling, and assembling dossiers on people."

THE FEDERAL PRIVACY ACT OF 1974 sought to limit the amount of information that could be released to a third party without the subjects' consent and to allow people to correct inaccurate information about themselves. It could have stopped private companies from mining public records for commercial purposes and could have ensured that any information gleaned from a public records search was accurate, but its many loopholes make it relatively ineffectual. The law doesn't prevent the release of information to Congress, law enforcement, census bureaus, or consumer reporting agencies. And it applies only to records held by federal agencies, not to those held by state and local agencies, often the repositories for the most personal, and potentially damaging, records.

By now, a consensus has developed about what the public needs to know about the functioning of its government and of corporations: how much pollution a factory is releasing, for example, or how much money a publicly held company and its executives make. But there is no consensus yet about what citizens should be able to know about each other.

Some critics have tried to turn the debate about access to information into one about technology. Before the Internet was widely used, the argument goes, documents that were publicly available were protected through "practical obscurity." They were made obscure by the time, effort, and expense it took to find the local courthouse where records were held, to visit the courthouse during normal business hours (or engage in a lengthy correspondence with the county clerk), and to pay for the cost of photocopying the documents (cheap for a single case, but expensive if you were collecting records in bulk).

These barriers limited access to everyone but people who had a driving interest in obtaining a document. A single mother who couldn't afford a lawyer might skip a day of work to go down to the court before a custody hearing and look for the criminal record of a violent ex-husband. But she was less likely to miss work to look through her neighbors' divorce records.

The term "practical obscurity" comes from a 1989 U.S. Supreme Court case, Reporters Committee for the Freedom of the Press v. the Department of Justice, in which the court held that an FBI rap sheet, which was comprised of collated public records, was not a public record, because the effort involved in collecting and compiling records from different agencies made it a new product that could be guarded as a proprietary document. The court saw a "vast difference" between a record obtained after a "diligent search" and one obtained from a "computerized summary located in a single clearinghouse of information," declaring that it was fine to deny journalists free access to the computerized summary. This is the same logic that has led companies to charge a fee to access their collections of public records; by last count, more than 165 of these companies were operating online. By contrast, sites like the one maintained by Hamilton County allow users to leapfrog over the practical barriers (the process of conducting a diligent search) and the financial barriers (paying a private company to do a search) and go straight to the computerized summary.

The Supreme Court ruling has been interpreted to mean that a document published online becomes "too public." A convenience of this theory is that you can create a two-tiered system—keeping certain information off the web, while allowing the same information to be accessible at the courthouse.

Ray Vasvari of the Ohio ACLU agrees that online public records become too public, and he endorses the two-tiered system. "It's one thing to root through records in the basement of the county courthouse," he said, "but once you gather them in a database, they become searchable, compilable, resellable, distributable. You have essentially changed their character. You have taken discrete public records [and] linked them through the golden thread of the Social Security number. You have essentially taken a host of disparate public records and turned them into a commodity."

But others argue that maintaining the "practical obscurity" of public records means keeping them in the hands of specialists. Charles Davis of the Freedom of Information Center at the Missouri School of Journalism scoffs at the Supreme Court ruling, saying that the decision betrays two anxieties. The first is "a great fear of technology." The second is "the fear people in power have about letting others have the right to access information."

To Jim Cissell, both sides are partly right. The central challenge is to keep documents that should be available as available as possible and to protect the others: "It is essential that we decide what needs to be private and then make it private everywhere."

THE LARGEST HOLDERS OF PUBLIC RECORDS are no longer government agencies, but rather commercial databases—called "data-miners"—like ChoicePoint, a private Atlanta-based firm with offices in 28 states. The company, which claims to have over 16 billion records, collects records from public sources and resells data to employers and others for criminal background checks and to government agencies like the IRS, the FBI, and other law-enforcement divisions. Data-mining is a good business: In 2000, the Justice Department signed an $8 million contract with ChoicePoint, and the IRS reached a deal with the company for between $8 and $12 million. And while other companies have faltered during the current recession, ChoicePoint reported record revenue in-creases for each quarter in 2002, thanks in part to the increased demand for employment and identity information services from businesses and government agencies.

Data-mining companies are obligated to uphold certain standards under federal law. According to the 1970 Fair Credit Reporting Act, an employer must obtain a job applicant's written consent before doing a criminal background check, and it must notify the person if anything that turns up in the record persuades the company not to hire the person.

Yet according to Jonathan Zittrain of the Berkman Center for Internet and Society at Harvard Law School, the proliferation of data-mining organizations means that "you can't solve the problem by just taking everything offline. . . . People with money will still be able to view these records from the privacy of their offices." Chris Hoofnagle agrees. "Any legislation to limit public records to offline access will only get the little person."

But putting information in the hands of the little guy can backfire as well, especially in the case of criminal records, which are arguably the most intriguing and useful records to the general public and the ones whose release is most likely to have permanent consequences for a person's life and livelihood. The owner of a corner grocery store might not pay the high fee to hire an outside firm to do a criminal check on a possible bag boy, but he might go to a local website to look for a shoplifting record if he can do it from his computer. There are no requirements that an employer ask an applicant's permission to do a search through a free site maintained by the local courthouse or let the applicant know what the search turns up.

There is nothing to stop the president of a country club or a co-op apartment building from using a free site to do a search on an applicant—or to stop the searcher from blackballing the applicant based on, say, his voting record. An employer could decide that a bankruptcy in an applicant's past reflects badly on her character, even if she is otherwise well-suited to the job and even if the job description doesn't include any financial responsibilities.

THE HAMILTON COUNTY SITE and others like it across the country aren't the result of new legislation. The National Center for State Courts is drafting a model policy to guide states in shaping their policies toward online records, but so far no uniform national policy regarding such records has been adopted. If it were, what would the "fair use" policy for open records look like? Most important, would it decide what records should be public?

For civil cases, the Electronic Privacy Information Center recommends that two files be maintained: one accessible to the involved parties and to court officers, with complete information, and a second, with personal information such as Social Security numbers and addresses omitted, available to everyone else. For bankruptcy cases, the foundation advises that sensitive information (Social Security numbers and account numbers) be stored on a separate sheet and not released to the public.

For criminal cases, the foundation proposes that the public file be purged of preindictment reports, presentence reports, plea agreements, and unexecuted warrants, all of which may contain detailed information about a defendant's past or incriminate others. Many public records include information on arrests without the full stories of what happened in the cases. The Colorado Bureau of Investigation put all of its arrest records online, even for individuals who were arrested but were never charged with a crime or were acquitted.

A "fair use" policy would also include a means for people to review the accuracy of information contained in case files about them. Some people find that their own records get mixed up with those of others with similar names. Richard Smith, a former researcher for the Privacy Foundation, discovered that his ChoicePoint file reported a nonexistent previous marriage and a nonexistent child supposedly belonging to his present wife.

Even when online records are accurate, they can cause disproportionate harm, with information about a crime committed decades ago sometimes creating a lifelong barrier to employment. Currently, relatively few companies bother to run criminal background checks on prospective employees unless they have special security issues or a reason to suspect an individual applicant. But as access to public records continues to grow, job applicants could be forced to explain everything from streaking at a football game in college to possessing a recreational amount of marijuana. "We could be creating a permanent blacklist of people who will never be able to get jobs," said Hoofnagle.

Hoofnagle suggests that one way to balance transparency with fairness would be to demand "rigorous accuracy" in all databases of public records and to give people full access to all records about themselves and "the right to correction." He also suggests that liability be imposed on a company or a private individual who causes harm. "There is no way what is out there already will be redacted," he concedes. "There are way too many records and not enough clerks." But while someone might lose a job offer because an employer learned on the web that a candidate once declared bankruptcy, it would be worse if that fact were accessible only to people with means. In this case, a price of democracy may be settling for the lesser of two evils.

Amy Benfer is the New York editor of Legal Affairs. She last wrote for the magazine about mandatory reporting laws.

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