                                   ATTORNEY GENERAL                          OF   TEXAS
                                                  GREG         ABBOTT




                                                       June 14,2004



The Honorable Ben W. “Bud” Childers                               Opinion No. GA-0203
Fort Bend County Attorney
301 Jackson Street, Suite 728                                     Re: Whether, in accordance with an order from
Richmond, Texas 77469-3 108                                       the board of county court at law judges, a county
                                                                  clerk may redact Social Security numbers from
                                                                  documents     available on the county clerk’s
                                                                  website, although the numbers are not redacted
                                                                  from the hard copies of the same documents filed
                                                                  in the clerk’s office (RQ-0154-GA)


Dear Mr. Childers:

        On behalf of the Fort Bend County Clerk (the “Clerk”), you ask whether, in accordance with
an order from a board of county court at law judges, a county clerk may redact Social Security
numbers from documents available on the clerk’s website, although the numbers are not redacted
from hard copies of the same documents filed in the clerk’s office.’

        You explain that the Clerk has scanned all public documents filed in her office into the
 computer, where they are available to the public on the Clerk’s website’ and at a computer terminal
in the Clerk’s office. Request Letter, supra note 1, at l-2. “[Jluvenile records and other records
deemed confidential by law” have not been scanned into the computer and generally are not available
to the public. Id. at 1. “The Board of County Court at Law Judges has ordered the County Clerk to
redact Social Security numbers . . . from the imaged documents available” online, but the “judges
do not want the Social Security numbers redacted from the paper copy maintained by the . . . Clerk
for use by the judges and walk-in public customers who request to view the hard copy.” Id. at 2.
The Clerk has informed us that the order pertains only to case-related filings, although some case-
related documents are placed in other records (for example, probate court case documents affecting
the chain of title of real property may be placed among the real-property records).3



          ‘See Letter from Honorable Ben W. “Bud” Childers, Fort Bend County Attorney, to Honorable Greg Abbott,
Texas Attorney General, at 1 (Dec. 23,2003) (on file with the Opinion Committee, also available at http:/lwww.oag.state
.tx.us) Fereinafier Request Letter].

         ‘See http://www.co.fort-bend.tx.us/Admin_of_Justice/County_.

          3See Telephone conversation with Honorable        Dianne Wilson,    Fort Bend County Clerk, and Mary Reveles,
Assistant Fort Bend County Attorney (May 4,2004).
 The Honorable Ben W. “Bud” Childers - Page 2                (GA-0203)




        Your letter suggests that adhering to the order would affect the use of resources, including
 employees, in the Clerk’s office:

                 [A]t the time a request for a copy is made,by a member of the public,
                 a copy of the imaged document is printed and a deputy clerk certifies
                that copy. . . . This process saves the deputy clerks a great deal of
                time, as it does away with the need to locate a physical file, remove
                the requested document from the file, make the copy and put the file
                back together . . . . Additionally, in the event a specific file is not in
                the clerk’s office, but is with a specific court, the requestor does not
                have to wait until the file is returned to the clerk’s office to obtain
                copies. If the . . . Clerk is required to redact [Social Security]
                information from the imaged’document,        [she believes she will be]
                unable to certify that document as a. certified copy of the original
                document on file.

 Request Letter, supra note 1, at 2.

        Based on the situation you have described, you pose three questions:

                1.      Whether the . . . Clerk may redact social security numbers
                        only from the imaged court document available on the . . .
                        Clerk’s website of public documents filed in her office,
                        rendering the information inaccessible to the public who view
                        the documents on the intemet?

                2.      Whether the . . . Clerk has the authority to designate a
                        document filed in her office as the original document,
                        contrary to the opinion of the County Court at Law Judges
                        . . . as to what constitutes the original?

                3.     Whether the . . . Clerk is able to issue a certified copy of an
                                                                 ‘.
                       imaged document [from which] certain mformation . . . has
                       been redacted . . . ?

Id. at 1. Given the facts you provide, however, the ultimate issue is whether a county clerk must
comply with the order of a board of judges (the “Board”) to redact Social Security numbers on
electronic copies of case-related documents filed in the clerk’s office. This office typically does
not consider the validity of a court order issued in a particular case. See Tex. Att’y Gen. Op. No.
JC-0364 (2001) at 10. But the Board’s order is not a court order. See Request Letter, supra note 1,
at 2.

        We consider the order only as it relates to Social Security numbers that are not confidential
by law. In certain cases, statutes mandate the redaction of Social Security numbers, but we do not
understand you to ask about situations in which Social Security numbers are subject to such statutes.
 The Honorable Ben W. “Bud” Childers - Page 3                  (GA-0203)




For example, federal law makes Social Security numbers confidential if the governmental body
possessing the number obtained it or maintains it under a law enacted on or after October 1, 1990.
See 42 U.S.C. $405(c)(2)(C)(viii)(I) (2002). And in probate cases, although a court may request an
applicant to produce information identifying the applicant or a decedent, including a Social Security
number, the information may not be filed with the clerk; it must be maintained by the court. See
TEX. PROB. CODE ANN. 9 36(b) (Vernon2003); see also TEX. CODE GRIM. PROC. ANN. art. 35.29
(Vernon Supp. 2004) (restricting the disclosure of jurors’ Social Security numbers).

         A county clerk is an elected officer, whose position is created under article V, section 20 of
the Texas Constitution. See TEX. CONST. art. V, 5 20. Under that provision, the county clerk “shall
be clerk of the county . . . Courts,” and the clerk’s duties “shall be prescribed by the Legislature.”
Id. The county clerk is the custodian of county court records in civil and criminal cases and in
probate matters. See TEX. Lot. GOV’T CODE ANN. $192.006(a) (Vernon 1999); TEx. CODE C&M.
PROC. ANN. art. 2.21(a) (v emon Supp. 2004) (listing a county clerk’s duties in a criminal
proceeding). And the clerk may receive papers filed in guardianship and mental-health actions. See
OFFICEOFCOURTADMINISTRATION,COIJNTYCLERKMANIJAL V-7through-8,-19,-28(2003).                        The
clerk provides an “attested,” or certified, copy of an instrument recorded in the clerk’s office in
certain circumstances.   See TEX. LOC. GOV’T CODE ANN. § 191.004(a) (Vernon 1999); see also id.
$9 118011(a)(3), .014 (Vernon 1999 & Supp. 2004) (providing for fee for certified papers).
Certification signifies that the copy is a “true copy.” Tex. Attorney Gen. v. Litten, 999 S.W.2d 74,
78 n.7 (Tex. App.-Houston [ 14th Dist.] 1999, pet. denied) (quoting BLACK's LAWDICTIONARY 287
(4th ed. 1968)); seealso BLACK'S LAW DICTIONARY 337 (7th ed. 1999) (defining a “certified copy”
as “[a] duplicate of an original document certified as an exact reproduction usu[ally] by the officer
responsible for issuing or keeping the original”).

         As an elected officer, the clerk occupies a sphere of authority within which another elected
officer may not interfere. See Abbott v. PoZZock, 946 S. W.2d 5 13,5 17 (Tex. App.-Austin 1997, writ
denied); Renken v. Harris County, 808 S.W.2d 222,226 (Tex. App.-Houston          [ 14th Dist.] 1991, no
writ); Tex. Att’y Gen. Op. No. GA-0126 (2003) at 9. The clerk’s sphere of authority encompasses
authority over both (1) records in the clerk’s offrce and (2) resources in and personnel employed in
the clerk’s office.

         First, a clerk is, by statute, “custodian” of case-related records, with a statutory responsibility
for keeping the records “properly indexed and arranged.” TEX. Lot. GOV’T CODE ANN. $192.006
(Vernon 1999); see Hooten v. Enriquez, 863 S.W.2d 522,530 (Tex. App.-El Paso 1993, no writ)
(stating that a clerk has the duty to manage, protect, and preserve records in the clerk’s custody). The
El Paso Court of Appeals has described the clerk as holding “‘virtually absolute sway over the
particular tasks or areas of responsibility entrusted to [the clerk].“’ Hooten, 863 S.W.2d at 531
(quoting Familias Unidas v. Briscoe, 619 F.2d 391,404 (5th Cir. 1980)). Thus, for example, while
a commissioners       court 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” in the clerk’s office, the commissioners court may do so “only if’ the county clerk, as
records custodian, “agrees in writing.” TEX. Lot. GOV’T CODE ANN. 9 191.008(a) (Vernon 1999).
Similarly, the county commissioners court may not expend records management and preservation
 The Honorable Ben W. “Bud” Childers - Page 4                (GA-0203)




 fees, collected under sections 118.01 l(b)(2) and 118.0216 of the Local Government Code, without
 consulting with the countyclerk.   See Tex. Att’y Gen. Op. No. GA-01 18 (2003) at 8; see also TEX.
 Lot. GOV’TCODEANN. 5 9 118.02 11 (b)(2), .02 16 (Vernon Supp. 2004) (providing for the collection
 and use of records management and preservation fees).

          Second, a clerk has authority to determine how to use resources allocated to the clerk’s office
 to accomplish the clerk’s constitutional       and statutory duties.   See Tex. Att’y Gen. Op. No.
 JC-0214 (2000) at 5. This includes authority to determine how personnel in the clerk’s office use
 their time. See Tex. Att’y Gen. Op. No. GA-0037 (2003) at 3 (quoting Tex. Att’y Gen. Op. No.
 JC-0239 (2000) at 4); see also Tex. Att’y Gen. Op. No. JC-0239 (2000) at 4 (stating that an elected
 county officer has authority “to determine what activities constitute a legitimate use of an employee’s
 time”).      l




         The Board’s order in this case improperly infringes upon the Clerk’s sphere of authority to
accomplish constitutional and statutory duties, as well as upon her authority to determine how to use
the resources, including personnel, allocated to her office. For example, the Board’s order affects
the Clerk’s “exclusive and absolute discretion to develop policies and records management
procedures that will preserve permanent records in the most efficient and cost-effective manner.”
Hooten, 863 S.W.2d at 531. The Board’s order also affects the Clerk’s authority to provide the
public with access to records belonging to her office, as section 191.006 of the Local Government
Code requires. See TEX.Lot. GOV’TCODEANN. $19 1.006 (Vernon 1999). Likewise, the Board’s
order affects the Clerk’s decision that her employees’ time is better spent responding to records
requests by printing a hard copy of an exact electronic copy of the original, rather than finding the
filed original, copying it, and returning it to the correct place in the file. A board ofjudges may not
control a clerk’s discretion in this way.

          Moreover, case-related documents are generally presumed to be open to the public. See
 Nixon v. Warner Communications, Inc., 435 U.S. 589,597 (1978); Taylor v. Tex., 938 S.W.2d 754,
  757 (Tex. App.-Waco        1997, no writ) (quoting Nixon). Rule 76a of the Texas Rules of Civil
 Procedure establishes a presumption that court records generally “are. . . open to the general public.”
 See TEX.R. CIV. P. 76a(l). Records of criminal proceedings are likewise presumed open to the
 public. See TEX.CODEGRIM.PROC.ANN. art. 1.24 (Vernon 1977) (“The proceedings and trials in
 all courts shall be public.“); Star-Telegram, Inc. v. Walker, 834 S.W.2d 54,57 (Tex. 1992) (stating
 that documents filed in a criminal action are, in accordance with article 1.24, “part of the public
 record”); In re Ehoma, 873 S.W.2d 477, 496 (Tex. Rev. Trib. 1994, no appeal) (affirming “our
judicial system’s abiding commitment to providing public access to civil and criminal proceedings
and records”).

         While the public’s right to access judicial records is not absolute and a court has the power
to supervise its own records, see Nixon, 435 U.S. at 598; Dallas Morning Navs v. Fift Court of
Appeals, 842 S.W.2d 655,658 (Tex. 1992) (quotingNixon); Taylor, 938 S.W.2d at 757, we believe
that a court may limit public access to case-related documents only in accordance with statutes and
rules of the Supreme Court of Texas or the Court of Criminal Appeals of Texas authorizing such
limitations. See TEX.CONST.art. V, 5 3 1(a), (c) (delegating rule-making authority to the supreme
The Honorable Ben W. “Bud” Childers - Page 5               (GA-0203)




court and court of criminal appeals).        For example, civil court records may be sealed, and
information within therefore made inaccessible to the public, only in accordance with rule 76a of the
Texas Rules of Civil Procedure, which requires a showing, among other things, of a predominant
specific, serious, and substantial interest. See TEX.R. CIV. P. 76a( 1). Cases that have examined a
court’s authority to close certain records to the public have done so in the context of a motion that
was fully aired by the court in specific cases. See Nixon, 435 U.S. at 595 (concerning a motion for
the release of tapes); Dallas Morning News, 842 S.W.2d at 655 (concerning a motion to limit the
disclosure of certain documents under rule 76a of the Texas Rules of Civil Procedure); Taylor, 938
S.W.2d at 754 (concerning a motion to inspect materials the trial court used in a hearing). No statute
authorizes a board of judges, or a court, to order the redaction of Social Security numbers on
electronic copies of case-related documents, nor do we find any statute authorizing a court to issue
a blanket order requiring certain information to be redacted from all electronic copies of case-related
documents, without reference to a particular case.

        We conclude that a board of judges has no authority to order a county clerk to redact Social
Security numbers on the electronic copies of case-related documents. A clerk need not comply with
such an order. Because we believe this conclusion resolves the situation in the Clerk’s office, we
do not answer your specific questions.
 The Honorable Ben W. “Bud” Childers - Page 6              (GA-0203)




                                      SUMMARY

                       A board of judges has no authority to order the county clerk
               to redact Social Security numbers on the electronic copies of case-
               related documents. The county clerk is not required to comply with
               such an order.

                                             Very truly yours,.




                                             Attoweneral          of Texas



BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee
