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Immediately after the opinion was issued, legislative leaders contacted this office with serious concerns about logistical implications surrounding the rapid implementation of statutorily-mandated SSN confidentiality. Complex problems were faced by county
clerks responsible for decades-old documents that are frequently laden with SSNs. Some clerks were left grappling with transitioning to a law that ensures SSNs are always kept confidential. The real-world consequence was a virtual halt to a tremendous amount of business and commerce in Texas. In response to these problems, a number of legislators have stated their intention to take immediate action to address the issues and conclusions discussed in Opinion No. GA-0519.

In light of these developments, I hereby abate Opinion No. GA-0519 for a period of 60 days in order to allow the Legislature ample time for thorough deliberation and action. During the time of this abeyance, Opinion No. GA-0519 will have no force or effect.

As you know by now, the Texas Attorney General issued an Opinion (GA-0519) last week (2/21/07) that basically said it is a crime (that could subject a County Clerk to fines, jail time or both) to disclose SSNs in public records (land records and other courthouse records may be public, but people have a right for personal identification in them, such as SSNs, to remain confidential). The AG opinion cited both state (Sec. 552.147 of the Texas Government Code) and federal (Public Information Act) laws.

So, most County Clerks overreacted, by preventing abstractors, surveyors, etc. from searching public records, either entirely or at least until county personnel could review the documents first.

Now, the Texas state House of Representatives will be voting on emergency legislation soon, probably tomorrow (Wed 2/28/07), that may remove the portion of state law that caused the AG to limit access to public records.

Recent efforts to solve this problem before it got this far have been incomplete, centering around redaction, which is usually done by an expensive computer program that crawls through documents and blacks out SSNs it finds. Such programs have been consistently shown to miss lots of SSNs. And removing SSNs one by one, by county personnel, is an overwhelming task that will take years to get right.

We need to get records back in the courthouse. Before the Internet, access to personal information has always been limited by requiring a personal visit to a courthouse. And most of the people who search them are professionals who keep this information protected.

For example, laws that regulate licensing of Texas Registered Professional Land Surveyors, also require that they perform their duties to a higher standard of moral and ethical responsibility that already requires the protection of such personal information. And, title abstractors are bound by their contracts with mortgage lenders to keep non-public personal information (NPPI) secret during a job, and destroy it once the job is done, under previous Federal law (the Gramm-Leach-Bliley Act of 1999).

It is possible that by asking our legislators for a specific solution, we may get somewhere.

Any change to state law will still leave County Clerks open to violating Federal law, because once documents are out on a county clerk's website, or they are sold in bulk to a website that resells them (CourthouseDirect, etc.) for anyone in the world to download, the SSNs are out of the county's control.

We should ask legislators to be specific in reopening access to records, but ONLY at the local level, in person, at the courthouse. They should require removal of documents from all county websites, and put a moratorium on further bulk sales to 3rd parties.

Please contact, by fax or email, your legislators with some version of the following message.

Follow the link below and just enter your address to find out who your elected officials are:

http://www.fyi.legis.state.tx.us/

Dear Senator (name) or Dear Representative (name) ,

The February 21, 2007 ruling (GA-0519) by the Attorney General of Texas relative to the duties of a County Clerk, under Section 552.147 of the Texas Government Code as enacted by the 79th Legislative session, has had unintended consequences in the access to the public records of all counties of Texas. As I am sure you are aware, the initial reaction of some County Clerks, based on advice from their County Attorney, has been to close both physical and Internet-based access to the public records in light of the potential for criminal offense liability if access is allowed to information restricted by the Public Information Act (PIA).

This denial of access has had immediate detrimental and/or devastating affect on the ability of abstractors, surveyors, and private investigators to perform the necessary research in the transaction of real property rights and the issuance of title insurance. You can easily project the delay and cost for all parties, when researchers are faced with having to request a large number of public record copies, only to wait for the County Clerk to have to review each document on an individual basis.

The state legislature will be taking up the issue soon in an attempt to give relief to County Clerks.

But, any change to state law will still leave County Clerks open to violating Federal law, because once images of documents are put on a county clerk's website, or they are sold in bulk to a website that resells them, for anyone in the world to download, SSNs and other confidential personal data are totally out of the county's control.

I ask you to be specific in rewriting the law to reopen access to records, but ONLY at the local level, in person, at the courthouse. And at the same time, make the law require removal of document images from all county websites, and put a moratorium on further bulk sales to 3rd parties. This way, County Clerks, and only those professionals they know by name and see on a daily basis, can once more be the gatekeepers and safeguarders of this restricted personal information.

As your constituent and a research professional of the State of Texas, I am respectfully requesting your personal involvement in an immediate response to this crisis resulting from unintended consequences of state law.

Sincerely,
(your name, address, phone etc.)

1. Require those with access to the public records to sign-in; people are less likely to abuse the right to access the public records if they know that their visit to the records room was logged.



2. Have visitors sign an agreement stating that their use of the public records will not be used for illegal or unethical purposes.



3. Have visitors sign an indemnity to hold the clerk harmless of any liability caused by their illegal or unethical use of the public records.



4. Don't allow visitors to make their own copies. Have them request necessary copies from the clerk, who can then scan them for offending SSNs. Rather than reviewing all of the documents that need to be "viewed" by a visitor, they would only be required to check those that are being copied.