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Disappearing Documents
by Robert Franco | August 01, 2008

Source of Title recently ran a feature on documents that were discovered missing from the online records in two counties (see Title Examiner Discovers Documents Missing from Online Database). These incidents appear to have been limited to the online databases, but it should give us all pause for concern.  If this can happen with the online records, how can we be sure that the records we access in the courthouse, maintained by the same companies, are not subject to the same inconsistencies?  Truth be told... documents have disappeared from the computers at the courthouse too.

In both of the incidents covered in the article, the examiner had searched the records at the courthouse and attempted to access the online records just to print copies.  Upon bringing the missing records to the attention of the county recorders, they quickly called the company that maintains their indexing systems and the errors were corrected.  Nobody can say for sure how long these documents had been absent from the online records, but they had been filed 2 years before they were discovered to be missing.  It also begs the question, how many more records are missing?

Obviously, computer indexing is subject to many more hazards than traditional book indexes.  Once something was entered in a book index, it was there permanently.  If I check the index today, tomorrow, next month, or 10 years from now... the records I first found will be there without doubt.  Computers, however, are subject to "glitches," data-entry errors, hardware failures, etc.

In our home county, Richland County, Ohio, we have an ACS [Affiliated Computer Services]indexing system.  We have had problems in the past with missing documents. There were times that you could search the same name from three different terminals in the office and get three different results.  One would show no results, another would show some results, and the third would return even more (see Bring Back The Books!).  All of the examiners were concerned when the recorder decided to cease maintaining the books and switch to an all computer index and imaging system. 

Nobody could ever satisfactorily explain why we had a "now you see it, now you don't" indexing system - it was always assumed that the clerks were making "corrections" and not noting anything in the public system.  This too, is something that we didn't have to worry about with the book indexing systems.  If a change was made to a book index, you could easily see where there had been a modification.

This latest problem with missing documents was also on an ACS system, LandAccess.com.  In preparing the article, Source of Title contacted the county recorders in the affected counties and verified that the documents were available from the system maintained in the office; it was only in the online version that they were not available.  We also contacted ACS and asked what steps had been taken to address the issue and what they were doing to ensure that this wasn't happening in other counties they serve. 

ACS responded by saying that the company, in cooperation with local county recorders and clerks, provides access to property indices and information available as a convenience to the public. But, all information maintained at this portal (LandAccess.com) is maintained on a "best effort basis and is considered unofficial record copies."

"The LandAccess.com portal is successfully used thousands of times each day to view property records over the Internet," said Ken Ericson, the director of corporate communications for ACS. "Official records are kept and maintained in the county recorder's/clerk's office and are available during normal business hours."

Ericson added that ACS believes it is also important to note that each user who accesses the system agrees to a statement that reads "assessing accuracy and reliability of information is the responsibility of the user."

It has been pointed out before, by some who search online, that the records they access over the Internet are the exact same records that they use at the courthouse.  I received one call from an abstract company in New York that told me that even when searching at the courthouse, they use terminals that take them to LandAccess.com over the Internet.  There is a problem with this... if the LandAccess records are only maintained on a "best effort basis" and only considered "unofficial records," what are the official records in these counties?  The caller was obviously concerned.

It is clear that computerized records are here to stay.  As these indexing systems go, I would have to say the ACS system is among the best I have seen.  However, their response to the issue of documents missing from the online records bothers me.

As an abstractor, I need to know that I can rely on the records I search.  We search only at the courthouse and do not rely on online searching at all.  As ACS points out, the information that is available online does provide a convenience.  Occasionally, I just may need to check to see if something has been recorded or get some basic information before I send my examiner to the courthouse.  For that, it is a useful service.  However, my concern is that the system we use at the courthouse is also an ACS system.  If LandAccess is only maintained on a "best effort basis," how are they maintaining the records at the courthouse?  Is there something better than their "best effort" that I can rely on?

Furthermore, despite the claim from ACS that "each user who accesses the system agrees to a statement that reads 'assessing accuracy and reliability of information is the responsibility of the user,'" I can find no such disclaimer on the LandAccess Website. If it is there, they have hidden it well... I certainly didn't have to click on an "I agree to the terms and conditions" button to access our county records on LandAccess.com.  Shouldn't that important bit of information be prominently displayed?

I would have much rather ACS provided a more technical explanation that would ease my concerns about the possibility of this occurring with their systems we search at the courthouse.  Of course, that would still be inadequate for those who search the online records from within the recorders' offices, as they do in some New York counties.  It would have been nice to hear that these instances were due to an understandable "glitch" or human error, and there is some monitoring system in place to alert them to the fact that documents may be missing from their databases. 

I really have to wonder why there isn't some monitoring in place to prevent this already.  All of the documents that are recorded are assigned consecutive instrument numbers.  It does seem that it would be a relatively simple procedure to scan the records and look for missing documents. 

My next contention with the reply from ACS is one of practicality... how can a user assess the "accuracy and reliability of the information?"  A user has no way to know when something is missing when searching a computer database.  Unless you already know that there is supposed to be something there, how could you tell if your search didn't return a properly filed document? That is why we do the search - to find out what is, or is not, of record. 

And, why should the responsibility for verifying the accuracy of a company hired by our government fall on the user?  In my opinion, that is what the counties contract ACS to do - provide a reliable platform for the imaging and indexing of the county records.  There should be no disclaimers, and no "best effort" defenses for their negligence - in the courthouse, or on the Internet.  The counties owe the public a duty to maintain accurate and reliable records - that duty should fully extend to those they contract with to provide such services.  The Public Records should not be subject to a "use at your own risk" disclaimer.

It seems odd to me that there have been proven problems with indexing records as important as these on the computers, yet nobody really seem to be concerned.  Imaging systems, along with electronic indices, are continuing to grow and, in many cases, they are the only records that exist.  It is one thing to have unknown problems with online records, many of us know better than to trust them for our work anyway, but it is scary to know that the same problem can plague our official records at the courthouse.

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