...is that the effect of 42 U.S.C. 405(c)(2)(C)(viii)(I) and the various state statutes cited by the AG isn't vitiated by the pronouncement of the AG that his most recent opinion is abated. Those statutes, along with previous AG opinions, (ORD 622., e.g.) still give me some pause on how to advise my clerk. Thoughts?

We have gone back to business as before. I disagreed with the legal analysis and conclusion of GA-0519, but we were going to comply with it. As long as his opinion is abated and has no effect, I don't believe that there is any legal authority that makes the SSN's in county clerk's records confidential. Despite the AG's conclusion, 552.147 does not make them confidential and the Social Security Act only makes confidential those SSN's that the clerk has obtained by virtue of a law enacted after 10/1/90. I don't think any SSN's in the County Clerk deed, etc. records fit into that category, so they would not be confidential. Of course I could always be completely wrong.

I'm with you Russ. At this point the AG Opinion and his subsequent abatement does nothing to solve a new problem that county clerks are realizing - that commingled among all of their records are documents that may contain social security numbers that are required pursuant to a law enacted after October 1, 1990. If county clerks are required or permitted by law to file such documents, then I believe they need to be cautious in making sure that those rare SSNs are not released. The larger question that I hope someone can help me get my arms around is what documents could be in the county clerk's files that require social security numbers pursuant to some law enacted after October 1, 1990? It is the unknown that makes me cautious. For example Texas Family Code section 2.004 prescribes the requirements for an application for a marriage license. This law seems to be a law enacted after 10-1-90. It requires social security numbers of the applicants and requires the county clerk to maintain and record it. [An argument can be made that section 2.004 does not explicitly require social security numbers of the applicant because the section merely states that the application contain a space for the applicant's social security number], however I do not believe that is what the legislature intended. As such, assuming there is an implicit requirement that an applicant provide their social security number, than this would be one example of a troublesome document that is commingled among documents sent to title companies, viewed on computer terminals, etc. I do not believe there are a lot of documents that fit into this niche, but I'm sure my county clerk would like to know all that do exist. The new law needs to address this issue to get around the federal law on a global scale like the Texas Property Code did with waiver notices on deeds and mortgage documents filed with county clerks. Also, I sure would be interested in reading some remarks regarding section 35.58 of the Texas Business and Commerce Code that discusses the confidentiality and release of social security numbers in great depth and appears to protect government agencies. AARRGG!!!!! What a hamster wheel.

County Clerks will also get divorce decrees filed in the property records (usually if there is an absent party who is not available to sign a deed) - and those usually have SSN's for the parties and children. I have to wonder just how effective the AG is going to be attempting to collect child support when access to SSN's is severely restricted...

...in their frantic bid to address the problem is that amending Section 552.147 is likely to have NO effect on the AGs decision when it comes up again, because the crux of the decision, based on law outside the PIA, is that SSNs are confidential, which has dramatic implications under 552.001 and 552.352. I do not believe that repealing or changing 552.147 will change the AGs mind about confidentiality implications from other statutes as related to those two sections.

Like Geoff, I'm very concerned that it seems very difficult to get a verifiable, accurate list of records that a county clerk would have that fits into the prohibitions in 42 U.S.C. 405(c)(2)(C)(viii)(I).

What are your counties doing to address that issue?

There may be some records in the county clerk's office that fall into the post 10/1/1990 rule, but I don't think that divorce decrees or applications for marriage licenses fall into that category. Although the current family code sections for both documents were enacted post 1990, there were merely codifications of previous statutes that existed with the same requirements pre-1990.

I don't believe that a Divorce Decree with no children requires a SSN, although a Final Orders in a SAPCR does. But Final Orders in SAPCR's first required SSN's in 1983, and applications for marriage license required SSN's as far back as 1971. So I don't think you need to worry about either of those

I just received a fax of a retort from Michael W. Dixon with Haley-Olson, an attorney for the Texas Association of County and District Clerks. I don't know if it is on the web anywhere. I don't think that attachments are available on this post. I have read, but not studied, the letter. Seems to make some persuasive arguments against GA-0519. I presume this is a "public document" since it was sent to the Office of Court Administration and since my clerk has one in her office.
If someone has the facilities to post this on the web I think that would be the best way to share it. They could call me at 806-6593703 to discuss that. John Hutchison, CA Hansford, Co.

BILL ANALYSIS


C.S.H.B. 2061
By: Keffer, Jim
Energy Resources
Committee Report (Substituted)



BACKGROUND AND PURPOSE

Recently, Texas Attorney General Greg Abbott issued an opinion that requires the state's county clerks to redact social security numbers from documents subject to public information laws, including information made available on the Internet. The opinion also concludes that distributing such confidential information is a criminal offense.

While removal of social security numbers from public documents is an important privacy concern, state and county officials say it could cost taxpayers hundreds of millions of dollars and take several years to comply with the law. Furthermore, the opinion could make the state's county clerks and some other county officials liable to arrest and jail if they are unable to immediately strip out the information. In response to the ruling, some county clerk offices have shut down public access to some records, while others have blocked access to online records.

This bill amends the Government Code to state that a county clerk or district clerk is not liable for the disclosure, in the ordinary course of business, of a social security number contained in information held by the county or district clerk. However, the county or district clerk shall establish a procedure for the redaction of a social security number in information held by the clerk, including information available on an Internet website maintained by or controlled by the clerk upon written request by that individual or that person's authorized representative.


RULEMAKING AUTHORITY

It is the committee's opinion that this bill does not expressly grant any additional rulemaking authority to a state officer, department, agency, or institution.

ANALYSIS

This bill amends the Government Code, to state that the social security number of a living person is not confidential under the Public Information Act.

This bill provides that notwithstanding any other law, a county or district clerk may disclose in the ordinary course of business a social security number that is contained in information held by the clerk's office, and that disclosure is not official misconduct and does not subject the clerk to civil or criminal liability of any kind.

This bill provides that a county or district clerk shall establish a procedure under which the social security number of a living person that is contained in information held by the clerk, including information available on the Internet website maintained by or under the control of the clerk, shall be redacted within a reasonable time by the clerk upon receiving a written request from the living person or that person's authorized representative that identifies the specific document or documents from which the number shall be redacted.


EFFECTIVE DATE

Upon passage, or, if the Act does not receive the necessary vote, the Act takes effect on the 91st day after the last day of the legislative session.

I agree that it will fast track pass, but I hear that several cooks are still working this meal. As a result while it looks promising it still bears watching.

I agree that the bill is promising but I have a question. Since documents in a District or County Clerk's court files are not subject to the PIA, and this bill amends the PIA, am I correct in thinking that it would not have any effect on SSN's in those files? DC's and CC's would potentially be criminally liable for release of certain SSN's in their court files and the procedure that the bill provides for a person to seek to have their SSN redacted from filed documents would not apply to those files. Is this correct or am I all wet?

russwm - I think you are right on track. The AG opinion, it seems, served only to point out the law (rather poorly). Abating the opinion cannot "legalize" the conduct, or change the underlying law regarding confidentiality of SSN's. So while the abatement may calm the clerk's down since apparently the AG won't be going after them (at least for a couple of months), the conduct may still be a problem. As far as the bill addressing the Co. Cler & Dist. Clerk offices, I think you are correct - the "solution" provided by the bill does not fit the problem. I imagine this may be an issue in your area with landmen nearly always being in the county clerk's office researching titles - though it seems that there is a pretty good argument that they are not receiving information under the PIA, so maybe not an issue.

If you want to fix the problem, the solution is to get involved in the legislative process.

Signed,
Your Friendly Neighborhood Guide Through the Legislative Process

In case you missed it:

Message - March 28, 2007
House Bill No. 2061 allows county and district clerks to disclose social security numbers contained in documents held by the clerk's office in the ordinary course of business. It releases county and district clerks from civil and criminal liability for disclosure of social security numbers and clarifies that a social security number of a living person is not confidential under Texas law. The bill instructs county and district clerks not to obtain or maintain social security numbers on documents filed in the future and additionally allows individuals to request redaction of a social security number found in specific documents.

It does not, however, fully address the need for greater privacy protection for Texas citizens to avoid identity theft and fraud. I look forward to legislation to fully address this concern.

IN TESTIMONY WHEREOF, I have signed my name officially and caused the Seal of the State to be affixed hereto at Austin, this 29th day of March, 2007.

RICK PERRY
Governor of Texas

ATTESTED BY:
ROGER WILLIAMS
Secretary of State

I'm in the "me, too" camp about almost all of this. I would only point out that, while just about everything in a district clerk's records will be excluded from the PIA, that's because they are records of the judiciary. County clerks certainly have custody of a fair amount of that material, but deed records, marriage licenses, DBA certificates and the like are not records of the judiciary. Consequently, they're going to fall within, rather than without, the reach of the PIA's confidentiality provisions. The big "but" regarding those records is how much can be charged for copies, since the cost provisions of the Local Government Code (ch. 118) apply, as distinguished from those set under the PIA.

Should the law be changed to treat the public records in a clerk's office differently than information covered by the PIA? We treat judicial records differently because of the different considerations involved with those records as opposed to records of a public official's office. Perhaps we should treat public records differently as well. After all, whether you make a public information request, you can still go looking through the "books" in the county clerk's office.

It seems to me that it is extremely hard to balance the PIA with privacy concerns when you are talking about the vast amount of records that our county clerks hold.

Pages 12 through 15 of Chapter XIV of the County Clerk's Procedure Manual published by the Office of Court Administration discusses the redaction of SSNs from various documents maintained by county clerks and identifies twelve documents under which SSNs are obtained or maintained under laws enacted after October 1, 1990. See

http://www.courts.state.tx.us/pubs/Manuals/cclerk/ch14_rev_jul06.pdf

Property Code 11.08(b) now says that ". . . the social security number of an individual is not obtained or maintained by the clerk under this section. . . ." and seems to be the legislature's attempt to circumvent the confidentiality and nondisclosure requirements of 42 USCA 405(c)(2)(c)(viii)(I). This effort wouldn't give me great comfort were I a clerk. I agree with Russ (3/1/2007) that codification or recodification of existing laws after October 1, 1990 shouldn't be considered an "enactment" after October 1, 1990 under 42 USCA 405. However, I think the child support lien notice law was first passed in 1991 (see acts 1991, 72nd Leg., 1st C.S., ch. 15, � 4.06, enacting Family Code � 14.973, now Family Code � 157.313). Our clerk says he has in excess of 3500 child support lien notices among our official public records for real property. How should a clerk handle disclosure of these records? Since they've already been recorded can a clerk alter the recorded record, i.e., can he/she make a copy of the recorded record, redact the SSN and record the redacted copy in replacement of the original recording? Or should he/she maintain two sets of recordings, an "as redacted" set for public access in which the SSNs have been redacted and an "as originally recorded" set in which the SSNs haven't been redacted but that are not available for public access?