To answer your questions, in my lay opinion:

(1) In your review of the AG opinion does it specifically state records on the Internet or records in general  or both?  Section 552.147 restricts access to the SSNs in the clerk's records that are subject to the Public Information Act.  Presumably that would mean both on-line and in the courthouse.  The AG opinion specifically addresses the issue of on-line records by saying that SSNs of living persons must be redacted before making the information available on the Internet.  However, more generally, the opinion states that the PIA limits the voluntary disclosure of information to the public.

(2)  In terms of protecting the public - what's your opinion re:  availability of documents if I travel to the courthouse?  Information at the courthouse level is also protected and there does need to be some control under the current law as interpreted by the attorney general.  After reading his opinion, I agree with his conclusions.  He went through all of the proper steps in analyzing the law and his application is sound.

However, I think indirectly he mentions that the purpose of the legislation is to prevent the "uncontrolled release of SSNs to a member of the public."  I believe that by restricting access to the county level, there IS some control.  Those who visit the courthouse in person are seen by the clerks, as well as other responsible title professionals, who are more apt to notice someone searching for SSNs, or otherwise gathering information in an unethical manner.  There is some accountability that is inherent in appearing in person.

The concern of the clerk's is certainly warranted.  I think that there would be potential for them to be held responsible, under this legislation, if someone were to appear in person and leave the office with SSNs gathered from the public records.  But, I think that the steps they have taken are over-kill. If I were a county clerk, I would begin by having all of those who require access to the public records sign-in.  I would also look into the possibility of having them sign a agreement that they would not gather any SSNs, or otherwise do anything that would subject the office to penalties under Section 552.147, and an indemnity if they do.  Furthermore, I would not allow them to make any copies, rather, the clerks should make any necessary copies taking careful steps to redact any SSNs before the copies are made. 

This is not a perfect solution, but it does help provide some protection for the clerks and nobody could argue that they didn't take reasonable precautions against the "uncontrolled release of SSNs."  I'm not sure if there is any element of "intent," or some specific "standard of care," required in the legislation, but perhaps that would be the best way to resolve the problems.  No law, other than one that prevents all access, can completely prevent the "unintentional" disclosure of an SSN; even if every document is reviewed, someone is going to miss one sooner or later.  Taking reasonable precautions at the courthouse would enable business to continue as normal, while the mass publication on the Internet would certainly be reckless. 

Finally, I would just like to mention that I am awful sorry to hear about the problems this has created in some of the Texas counties.  I still think that Texas is moving in the right direction, but obviously, the very literal reading of the opinion has been taken to extremes.  I hope that the legislators can address the problem without making Section 552.147 meaningless for the millions of citizens it is designed to protect.

Best,
Robert A. Franco
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