                                           GREG       ABBOTT




                                             August 27,2007


The Honorable Tracy King                               Opinion No. GA-0566
Chair, Committee on Border and
   International Affairs                               Re: Authority of the El Paso County District or
Texas House of Representatives                         County Clerk to establish an online electronic
Post Office Box 29 10                                  database accessible to the public (RQ-0498-GA)
Austin, Texas 78768-29 10

Dear Representative King:

        Your predecessor as Chair of the Committee on Border and International Affairs inquired
whether the El Paso County District Clerk or County Clerk may store court documents on an
electronic database and make them accessible to the public via the Internet.' She asked the following
questions:

                Under current state law, may the El Paso [County] District Clerk or
                County Clerk create an electronic database accessible online to
                display civil, family and criminal case docket information in its
                entirety and all document images pertaining to all cases filed
                regardless of case disposition or status?

                If such a database can be created, should access to the electronic
                database be limited to certain parties?

                Furthermore, should personal identifiers on the documents to be
                displayed, such as Social Security numbers and/or bank account[]
                [numbers], be redacted?

                Lastly, could the El Paso [County] District Clerk or County Clerk
                assess a reasonable fee to the public in order to retrieve information?

Request Letter, supra note 1, at 1.


         'Letter from Honorable Norma Chavez, Chair, House Committee on Border and International Affairs, to
Honorable Greg Abbott, Attorney General of Texas, at 1 (June 5, 2006) (on file with the Opinion Committee, also
available at http://www.oag.state.tx.us) [hereinafter Request Letter].
The Honorable Tracy King - Page 2                    (GA-0566)



       Your predecessor inquired about court case documents held by the district and county clerks.
Accordingly, we do not address other kinds of documents filed with the county clerk in his capacity
as county recorder. See TEX.CONST.art. V, tj 20; TEX.LOC.GOV'TCODEANN.tj 192.001 (Vernon
1999) (county clerk shall record each deed, mortgage, or other instrument that is required or
permitted by law to be recorded).

I.      Authority of El Paso County District or County Clerk to Maintain Online Database of
        Court Records

       Pursuant to Local Government Code section 191.008, the El Paso County Commissioners
Court may provide for online access to case information maintained by the district and county clerks.
Section 191.008(a) provides as follows:

                 The commissioners court of a county by order may provide for the
                 establishment and operation of a computerized electronic information
                 system through which it may provide on a contractual basis direct
                 access to information that relates to all or some county and precinct
                 records and records of the district courts and courts of appeals having
                 jurisdiction in the county, that ispublic information, and that is stored
                 or processed in the system. The commissioners court may make
                 records available through the system only if the custodian of the
                 records agrees in writing to allow public access under this section to
                 the records.

TEX.LOC.GOV'TCODEANN.tj 191.008(a) (Vernon 1999) (emphasis added). Under this provision,
the El Paso County Commissioners Court may establish an electronic database that includes court
case records maintained by the district and county clerks. Subject to the clerk's written agreement
and the other requirements of section 191.008, a commissioners court may provide access to the
clerk's records from a computer terminal in the clerk's office or in a remote location.

         Only information "that is public information" may be made available online. See id. The
"El Paso County Local Rules of the District and County Courts concerning the Electronic Filing of
Court Documents" include a similar limitation, providing that "the district clerk shall ensure that all
the records of the court, except those made confidential or privileged by law or statute, may be
viewed in some format by all persons for free." EL PASOCOUNTY,       LOCALRULESOF THE DISTRICT
AND COUNTY     COURTS,ELECTRONIC      FILINGOF COURTDOCUMENTS          R. 6.2(a) (2003), available at
http://www.co.el-paso.tx.us/districtclere-file-info.pdf (adopted pursuant to TEX.GOV'TCODEANN.
tj 51.807) (last visited Aug. 14, 2007) (hereinafter EL PASOCOUNTY     E- FILING).^ Section 191.006
of the Local Government Code also provides that "[all1 records belonging to the office of the county
clerk to which access is not otherwise restricted by law or by court order shall be open to the public
at all reasonable times." TEX.LOC.GOV'TCODEANN. tj 191.006 (Vernon 1999).


          'Government Code sections 5 1.801 through 5 1.807 apply to the electronic filing of court documents with a
district or county court clerk. See TEX.GOV'TCODEANN.$ 5 5 1.801-,807 (Vernon 2005).
The Honorable Tracy King - Page 3                (GA-0566)



        We conclude in answer to the first question that the Commissioners Court may adopt an
order pursuant to Local Government Code section 191.008 authorizing the El Paso County District
Clerk and County Clerk to create electronic databases that may be accessible online to display
information in civil, family, and criminal cases, as long as the information is public information. See
id. 5s 191.006, .008(a); see also ELPASOCOUNTY        E-FILINGR.6.2(b). The District or County Clerk
must agree in writing to allow public access to records under this section, and the Commissioners
Court and the Clerks must comply with other requirements of this provision. See TEX.LOC.GOV'T
CODEANN. 5 191.008(a) (Vernon 1999).

11.    Whether the District or County Clerk May Make Criminal Case Information
       Accessible Online

        A brief from the El Paso County Attorney raises a concern that confidential criminal history
record information may be accessible from the clerks' Internet sites.3 It states that the El Paso
County District and County Clerk have Internet websites that allow members of the public to access,
without charge, certain information from criminal and civil cases. Rodriguez Brief, supra note 3,
at 1. A search on the public website using an individual defendant's name will bring up a list of all
open and closed cases involving that defendant, including the indictment number, indictment date,
court, charge, and disposition. See id. The brief also states that El Paso County has established a
password-protected website accessible only by certain government agencies, such as the Federal
Bureau of Investigation (the "FBI"). See id. A search of the password-protected website, in addition
to yielding the same basic information available from the public website, allows the user to view and
print any documents filed in a case. See id. at 1-2. The brief raises the possibility that allowing
members of the public to access a list of all El Paso County criminal cases involving a particular
defendant would be a release of a compiled criminal history in violation of a common-law privacy
right. See id. at 2 (citing United States Dep 't of Justice v. Reporters Comm. for Freedom of the
Press, 489 U.S. 749 (1989); Houston Chronicle Publ'g Co. v. City of Houston, 531 S.W.2d 177
(Tex. Civ. App.-Houston [14th Dist.] 1975), writ ref'd n.r.e., 536 S.W.2d 559 (Tex. 1976)).

         The court in Houston Chronicle Publishing Co. considered whether a Personal History and
Arrest Record, or "rap sheet," maintained by the City of Houston Police Department was available
under the Texas Open Records Act, now the Public Information Act (the " P I P ) . See Houston
Chronicle Publ 'g Co., 531 S.W.2d 177; see also TEX.GOV'TCODEANN.ch. 552 (Vernon 2004 &
Supp. 2006) (Public Information Act); Act of May 19,1973,63d Leg., R.S., ch. 424,1973 Tex. Gen.
Laws 1112 (adopting Open Records Act). The rap sheet showed each previous arrest and other data
relating to individuals and included crimes that they had been suspected of committing, and the court
determined that individual privacy rights prevented the disclosure of this information. See Houston
Chronicle Publ 'g Co., 53 1 S.W.2d at 181,186. The rap sheet in Houston Chronicle Publishing Co.
included criminal history information, including unverified suspicions, that is not available from a
district or county clerk's files on court cases.



        3Brief from Honorable Jose R. Rodriguez, El Paso County Attorney, to Honorable Greg Abbott, Attorney
General of Texas, at 1 (July 14, 2006) (on file with the Opinion Committee) [hereinafter Rodriguez Brief].
The Honorable Tracy King - Page 4               (GA-0566)



         The United States Supreme Court, in United States Department of Justice v. Reporters
Committee for Freedom of the Press, addressed an issue similar to that in Houston Chronicle
Publishing Co. v. City of Houston. See Reporters Comm., 489 U.S. 749. The Reporters Committee
case arose from a request under the Federal Freedom of Information Act ("FOIA") for criminal
identification records, or "rap sheets," stored electronically by the FBI. See id. at 75 1; see also 5
U.S.C.A. 5 552 (2007) (Freedom of Information Act). The rap sheets, primarily used to aid in
detecting and prosecuting offenders, contained information describing individuals, such as birth date
and physical characteristics, as well as a history of arrests, charges, convictions, and incarcerations.
See Reporters Comm., 489 U.S. at 752. Because of the large number of rap sheets collected, they
were sometimes incorrect or incomplete. See id. The Court addressed the FOIA provision that
excepts from disclosure to the public "records or information compiled for law enforcement
purposes, but only to the extent that the production of such law enforcement records or information
. . . could reasonably be expected to constitute an unwarranted invasion of personal privacy," or to
harm various other specific interests. 5 U.S.C.A. 5 552(b)(7)(C) (2007). The Court found a high
privacy interest in the "compiled computerized information" derived from rap sheets and held that
they were not subject to disclosure under FOIA. Reporters Comm., 489 U.S. at 766.

       Houston Chronicle Publishing Co. and Reporters Committee both deal with criminal history
information held by a law enforcement agency, not information about cases held by a court clerk.
The information addressed in those cases included conviction information, but it also included
information about arrests that never resulted in indictment and incorrect or unverified information
that might cast suspicion on a person who in reality had never been arrested. However, we find no
authority indicating that the privacy interests in criminal history information articulated in these two
cases would apply to case records made available online by the El Paso County District or County
Clerk.

111.    Limits on Public Access to Online Database of Court Records Maintained by District
        or County Clerk

        Your predecessor raised a broad issue about the confidentiality of information in an online
database of court records-whether access must be limited to certain parties. See Request Letter,
supra note 1, at 1. Records in the district or county clerk's office are as a general rule available to
everyone. See TEX.LOC.GOV'TCODEANN.5 191.006 (Vernon 1999) (county clerk records shall
be open "to the public"); TEX.R. CIV.PROC.76a. 1 (presumption that court records are open); EL
PASOCOUNTY     E-FILINGR. 6.2(a)-(b) (district clerk records may be viewed "by all persons" and may
be made available "for both filers and the general public"). Of course, the general public may not
have access to confidential or privileged records. See TEX.LOC.GOV'TCODEANN. $ 191.006
(Vernon 1999) (county clerk records are accessible only if "not otherwise restricted by law or by
court order"); TEX.R. CIV. PROC.76a (procedure for sealing court records); EL PASOCOUNTY
E-FILINGR. 6.2(c) (district clerk records not accessible if "legally confidential"). Section 191.008
of the Local Government Code authorizes a commissioners court to establish eligibility criteria for
users and to "delineate the public information to be available through the system." TEX.LOC.GOV'T
CODEANN.5 191.008(b)(2)-(3) (Vernon 1999). Pursuant to this authority, a commissioners court
The Honorable Tracy King - Page 5                       (GA-0566)



may assist the clerks in determining whether specific kinds of information may be made available
to the general public or only to a narrow class of persons.

       Your predecessor also asked whether identifiers, such as social security numbers and bank
account numbers, should be redacted from documents made available ~ n l i n e Our
                                                                              . ~ advice will thus
go beyond the limits that the law places on district and county clerks.

        Court clerks are not required to place social security or bank account numbers online. A
commissioners court, in providing for a computerized electronic information system pursuant
to Local Government Code section 191.008, may "delineate the public information to be available
through the system." TEX. LOC. GOV'T CODEANN. 8 191.008((b)(3) (Vernon 1999). The
commissioners court and the court clerks, in deciding what information should not go online, have
an opportunity to combat the serious and growing crime of identity theft. Social security numbers
are much sought-after by identity thieves because these numbers can be used to locate other
information about a person. See SOCIALSECURITY         ADMINISTRATION,   IDENTITYTHEFTAND YOUR
SOCIAL  SECURITY    NWER (Jan. 2006) (Publ'n No. 05- 10064), available at http://www.ssa.gov
/pubs/10064.pdf (last visited Aug. 14,2007). We urge commissioners courts and court clerks to help
prevent identity theft by ensuring that social security numbers and bank account numbers from court
case documents will not be available online. Court clerks should anticipate and prepare for new laws
directed toward greater privacy for social security numbers and other personal identifiers5

IV.      Authority of Clerk to Charge a Fee to Access Online Database

        Your predecessor finally asked whether the El Paso County District Clerk or County Clerk
may assess a reasonable fee to the public for access to electronically-stored case inforrnation. See
Request Letter, supra note 1, at 1. The El Paso County E-Filing Rules provide that the district clerk
"shall ensure that all the records of the court, except those made confidential or privileged by law
or statute, may be viewed in some format by all persons for free." See EL PASOCOUNTY       E-FILING
R. 6.2(a). Section 118.066 of the Local Government Code provides that "[a] county clerk is not


          4The Eightieth Legislature amended section 552.147 of the PIA, overruling the analysis of this provision set
out in Attorney General Opinion GA-05 19 (2007). See Act of Mar. 19,2007,SOth Leg., R.S., ch. 3 , § 1,2007 Tex. Sess.
Law Serv. 3 , 4 (effective immediately) (to be codified at TEX.GOV'TCODEANN.§ 552.147); see also Tex. Att'y Gen.
Op. No. GA-0519 (2007) (addressing former version of Government Code section 552.147(a)).

           Section 552.147(d) requires district and county clerks to redact the first five digits of an individual's social
security number from its records upon the individual's request. See Act of Mar. 19,2007, supra, 2007 Tex. Sess. Law
Serv. 3 , 4 (to be codified at TEX.GOV'TCODEANN.4 552.147(d)). The PIA does not govern "[a]ccess to information
collected, assembled, or maintained by or for the judiciary." TEX.GOV'TCODEANN. 5 552.0035(a) (Vernon 2004).
The obligation to redact part of a social security number applies to information subject to disclosure under the PIA, and
it thus does not apply to the court case documents that your predecessor inquired about. See Tex. Att'y Gen. ORD-67 1
(2001) (the PIA does not apply to records of the judiciary maintained by a district clerk).

           'See TEXASJUDICIAL COUNCIL,  PUBLICACCESSTO COURTCASERECORDSr~ TEXAS(2004) (proposing Rule
of Judicial Administration on public access to case records), available at h~:llwww.courts.state.tx.us/tjc/reports.asp
(last visited Aug. 14,2007).
The Honorable Tracy King - Page 6              (GA-0566)



entitled to a fee for . . . the examination of a paper or record in the clerk's office." TEX.LOC.GOV'T
CODEANN.$ 118.066(1) (Vernon 1999); see id. $ 191.006 (records of county clerk to which access
is not restricted by law or by court order shall be open to the public). Section 51.606 of the
Government Code moreover provides that "[a] clerk is not entitled to a fee for . . . the examination
of a paper or record in the clerk's office." TEX.GOV'TCODEANN.$ 51.606(1) (Vernon 2005). The
El Paso County Attorney states that "in El Paso County, both the District Clerk and the County Clerk
have . . . online access and terminals set up in their offices for use by the public." Rodriguez Brief,
supra note 3, at 3. If a clerk provides for public access to records in his office by providing online
access, as the El Paso County District and County Clerks have done, he may not charge a fee for this
service.

        Section 191.008(b)(4), however, permits a commissioners court to "set a reasonable fee,
charged under a contract" to use the computerized electronic information system. TEX.LOC.GOV'T
CODEANN.$ 191.008(b)(4) (Vernon 1999). As long as district and county clerks provide free onsite
access to records maintained by their offices, persons who contract with the county pursuant to
section 191.008 for electronic access to such information may be charged a fee as set by the
commissioners court.
The Honorable Tracy King - Page 7           (GA-0566)



                                     S U M M A R Y

                      Pursuant to Local Government Code section 191.008, the El
              Paso County Commissioners Court may adopt an order authorizing
              the District Clerk and County Clerk to create electronic databases of
              public information in court case documents and to provide online
              access to that information. Records maintained by each clerk must be
              available to the public without charge in the clerk's office, but
              persons who contract with the county for electronic access to such
              information may be charged a fee as set by the Commissioners Court.
              A court clerk should redact social security numbers and bank account
              numbers from documents made available online.

                                            Very truly yours,




                                            ~ t t o r n e m e r aof
                                                                  l Texas


KENT C. SULLIVAN
First Assistant Attorney General

NANCY S. FULLER
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General, Opinion Committee
