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Government Blames Technology for Rash of Expunged Record Breaches

Online breaches of expunged case information could leave hundreds of counties nationwide facing lawsuits from people who have lost jobs, reputation, licenses or otherwise been hurt by the release of information that was supposed to have been erased. But officials say it isn't their fault.

This month, officials in Hays County Texas joined a growing list of officials across the country who are blaming their technology vendors for displaying information online that court orders said must be destroyed.

The problem began when Hays County officials made the decision in April to export the county’s massive database of records out of the courthouse and onto the World Wide Web. Many of those records should never have left the courthouse. Now officials are blaming Tyler Technology, Inc. for producing the 12.4 million dollar program that made it possible to carry out their decision.

Expunged records are records that a judge has ordered destroyed. For example, state law may allow the criminal records of a juvenile offender to be expunged when he reaches the age of majority, to allow him to begin his adult life with a clean record. Most states seal at least some records of juvenile offenses. Many states also allow adults arrested for or convicted of minor crimes like possessing marijuana, shoplifting or disorderly conduct to ask a judge, sometimes after a certain amount of time has passed without further trouble, to expunge their records.

In forty one states, almost anyone acquitted of a crime, or whose charges have been dismissed, can ask a court to expunge the case.  If the court grants the request, every law enforcement agency, jail, court and state criminal history database must destroy all records related to the case. But online commercial and government databases are fast undoing the societal bargain of expungement, one that used to give people who had been arrested for minor crimes a clean slate and a fresh start.

Earlier this month, defense attorneys in San Marcus were stunned to discover that officials in Hays County had failed to meet the legal requirements for expunged records  and were actually displaying expunged records online. Under Texas law, knowingly disclosing or failing to destroy expunged information is a Class B misdemeanor punishable by a $2000 fine and up to 180 days in jail. For affected counties the civil penalties of a class action lawsuit could be even greater. It isn't surprising that officials are casting the blame on their vendors.

From a security standpoint, computerized systems work well for as long as the databases are kept offline but fall apart quickly when entire systems are published over the Internet. In systems that are kept offline, when the clerk's office expunges the computer record of a case, the case disappears from computer screens and searches at the courthouse. The data lives on in the database for about six months but is invisible on local public computers. Offline systems are set up this way as a remedy for accidental deletions. But when whole databases are ported to the Internet, records that should have been destroyed have a way of suddenly and irreversibly appearing on computer screens all over the world.

Deleting the not-so-expunged records from the Hays County database will not be a difficult task according to County Information Technology Director Jeff McGill. He told the Austin American-Statesman, "Even though technically it was a minor issue, legally it was a major issue."

The Hays County information technology staff shut down public access to the site for searching records two days after finding out about the problem, and it remains down today. But the legal problems the county and affected citizens face could linger for years.

What McGill didn’t say is how the county or Tyler Technologies will remove records from computers all over the world that have already downloaded the data or how anyone can retroactively expunge data after the county publishes it online. Neither the county or software vendor has any control over what happens to the data after it is posted on the Internet. "We basically took a bullet for the entire state of Texas," McGill said. This isn’t the first time expunged records have popped up on the Internet or the first time officials have tried to blame the technology that made it possible.

In August of 2006, the Dallas Morning News reported that hundreds of expunged criminal cases were exposed when Dallas County's new computer system, Adult Information Systems, put the database online 18 months earlier. In that case, officials blamed Atos Origin – to whom the county gave a five-year, $53 million contract to handle the county’s mainframe computer. Dallas Commissioner Mike Cantrell, who pushed for AIS to publish the records online blamed Atos for providing the data to AIS.

"Atos gave us backup data that included those expunged cases and fed it directly into AIS (the county’s new online system)," Cantrell complained.

"They're the owners of the information and the suppliers of the information. It should have never been an issue," Cantrell said.

Indeed it shouldn't have been and issue and wouldn't have been if county officials had not gone along with Cantrell's plan to publish the database online. Cantrell may have missed another important point. The database belongs to county taxpayers. Elected officials are the custodians responsible for security, maintenance and control of this valuable taxpayer asset. Or at least they should be. But that doesn't always happen when officials turn their responsibilities over to private companies.

In June 2006, CBS4 in South Florida reported that Florida Attorney Ken Hasset received several calls from worried clients who have found their expunged records on the internet for all to see. Counties were selling the records in bulk and county vendors were publishing them online before they were expunged. Citizens paid with their reputations and tax dollars.

Thomas A. Wilder, the district clerk for Tarrant County in Fort Worth recognized the problem early on. In spite of harsh criticism, Wilder stands on principle and refuses to sell criminal history records in bulk.

“How the hell do I expunge anything,” Mr. Wilder asked  New York Times reporter Adam Liptak in October 2006, “if I sell tapes and disks all over the country?”

Wilder is in agreement with judges nationwide. As early as May 2001, judges were speaking out against putting court records online.

“As a matter of logic and common sense, the degree of an individual’s privacy is necessarily a reflection of two distinct matters: the amount of access others have to his or her personal information,"  Judge Robert H. Alsdorf, wrote in a Superior Court case in King County, Washington. "and the extent to which others may be able to disseminate or otherwise act upon any information to which they do obtain access"..

“It is hard to conceive of a broader invasion of privacy than freely disseminating the information to the entire world and rendering it instantaneously accessible to all,” Alsdorf said.

In March 2005 Florida’s Fifth District Court of Appeal Judge Jacqueline R. Griffin told The Orlando Sentinel that the state would "rue the day" it decided to put court records on the Internet.

The issue has also caught the watchful eye of the U.S. Government Accountability Office. Last month the GAO  issued a report that warned officials, "When records are sold in bulk or made available on the Internet, it is unknown how and by whom the records, and the personal identifying information contained in them, are used…"The 47-page report goes on to say, "Online access to electronic record images provides potentially unlimited access to the content of records, including SSNs and other personal identifying information." The consequences such rapid, uncontrolled, and irreversible dissemination of this information has for constituents can be devastating. Affected citizens are quickly becoming potential targets for busybodies, stalkers, blackmailers, scam artists and identity thieves all over the world.

In spite of the dangers, many counties have rushed to put those documents online for more than a decade. Local officials are encouraged by software vendors that stand to make millions of dollars and face strident demands from data miners eager to exploit a profitable county asset. Now the courts will have to decide if the counties, their technology vendors or data miners are to blame.

If you or a loved one has a record that you thought was expunged or have otherwise been damaged by online databases you may be due compensation. Click here for legal help and a free evaluation of your possible case  

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