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Texas Court Clerks Complain About Public Record Access
Taylor County has joined more than 100 counties opposing a state proposal to make all court records available to the public online, a move that court clerks say would rob them of their constitutional responsibility — and of revenue.
At least 116 counties have passed resolutions opposing the online database.
The statewide database supported by the Supreme Court of Texas, re:searchTX, includes documents from all 254 counties. Currently, only judges have access to this system, but those records could be available to attorneys and the public if the proposal is implemented as originally planned, said David Slayton, administrative director of the Office of Court Administration.
A bill filed by state Rep. Travis Clardy, R-Nacogdoches, that asserts that clerks and commissioners courts should decide whether their counties participate in the service could derail those plans.
That would be fine with Taylor County Clerk Larry Bevill, who said the proposal is fraught with problems.
"The Texas Constitution creates the county and district clerk and vests in them the authority for local control of the court records. This would be a state bureaucracy making those records available," Bevill said, referring to the OCA.
All court records must be filed electronically, as mandated by the Texas Supreme Court in 2012. Those records are maintained in a single system operated by a third-party vendor, Slayton said. When the OCA signed that contract, granting the public access to those records was part of the agreement.
The system would be similar to the federal filing system PACER (Public Access to Court Electronic Records) and charge 10 cents per page up to $6, with revenue going to the county in which the document originated, he said.
Judges were granted access to re:searchTX in January 2016, Slayton said. The plan was to have attorneys gain access in early 2017 and the public in fall 2017. But the public access recommendation has been deferred until at least March 3 while some issues with the proposal are resolved, he said.
"They're still studying a lot of issues out there that might be something they need to take into account," such as privacy concerns, Slayton said. "Court documents are the most open documents in state government. We're trying to make them available in a way that balances the privacy rights of our court users with the access rights of the citizens."
The Supreme Court is continuing to examine the proposal, working out kinks with privacy, access and impacts on county revenue, he said.
If the system is implemented, Taylor County could lose more than $50,000 a year, said Tammy Robinson, district clerk. That's not including records printed off in the county clerk's office.
In 2016, the district clerk's office received $50,985 from selling copies of court documents, Robinson said. Each page costs $1, as per state law.
But that is not her only concern. She, like Bevill and many other clerks, worry the system will strip clerks of their authority as custodians of records and result in a loss of privacy for court users.
Nolan County District Clerk Jamie Clem echoed Robinson's concerns.
"I'm the keeper of those records, and at that point I don't have any control over them because they're in someone else's system," Clem said. "When you start putting people's documents online, we have to be very careful about what is included. There's a lot of information in some cases that needs to be redacted. It has personal information, such as Social Security numbers, or minors' information."
Right now, Taylor County has an online system of court records that attorneys may access, but the public must go to the courthouse to see those same records.
That's just another reason to move forward with the uniform system, said Joseph Larsen, a Houston-based First Amendment attorney who is on the board of the Freedom of Information Foundation of Texas.
"The days of having to take your papers down to the courthouse and have them stamped by the clerk are gone," Larsen said. "Almost any county is already using its own vendor in terms of digitizing or maintaining their digital records. It's not like this is a new idea."
Harris County already has an online database of court records, and Travis County has plans to do the same, Larsen said.
"There is a compelling argument that it is the 21st century and people demand to be able to do business at their house, over the internet. We demand to be able to go to Amazon.com or Walmart.com and buy the latest CD from George Strait. We demand to be able to go online and buy tickets to the movies," Bevill said. "But your court records are different."
He said putting court records online without redacting personal information, which would be expensive, would make it easier for identity thieves to steal people's information. It would cost Taylor County roughly $600,000 to redact just the misdemeanor records.
"If you are a no-good, lousy, identity-thieving criminal, are you going to come to the courthouse to look at these records to get the information you need to steal somebody's identity?" Bevill said.
Larsen said that has always been a problem with "bringing court records into the digital age" because it ends "practical obscurity," which is the idea that while the information may be public it is obscure because it's not easily accessible. "I don't think this event changes it that much. Everything is being filed electronically now," he said.
A survey conducted by the OCA found that 98 percent of attorneys want access to a single, uniform system of court records, while just 50 percent of clerks said they would participate in that service, Slayton said.
"Improving access to information should be a net positive. Anytime the public can better inform itself on what's going on with its institutions, the democratic process is always going to be better off," Larsen said. "The biggest concern for counties is a revenue concern. How important is that? Part of the answer to that question has to be what is the impact on the public."
Better coordination between the OCA and clerks would be ideal, Larsen said, but he still has a difficult time seeing clerks' real complaint, though he is not surprised the proposal is "ruffling feathers."
"How does this change the privacy concerns one would have now from what one would have in the future? The amount of their duties, such as they are, isn't changing, but their revenue will be less," he said. "Maybe that means it's time to change the way things get done."
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