Court: State can’t privacy advocate from publishing most records found on government websites

In an order signed Wednesday, United States District Court Judge Robert E. Payne ruled that privacy advocate B.J. Ostergren may post public records that contain Social Security Numbers on her website, despite a 2008 Virginia law prohibiting the dissemination of such information.

The injunction, which was agreed upon by Ostergren and Virginia Attorney General Ken Cuccinelli, prohibits the state from prosecuting Ostergren for posting records that were (1) obtained from out-of-state government websites, (2) obtained from a Virginia circuit court website before it completed the process of redacting Social Security Numbers, (3) obtained from a Virginia circuit court website that has not completed the redaction process, or (4) obtained from a Virginia circuit court website and contain a Social Security Number that was missed in the redaction process and has not yet been redacted.

For many years, Ostergren has run TheVirginiaWatchdog.com, which advocates against the government making personal information available on the Internet. The Virginia Watchdog posts public records, including the Social Security Numbers of some public officials, obtained from government websites. By posting these documents, Ostergren illustrates how easy it is to get private information from government websites and hopes to prod elected officials to take action to prevent such information from becoming available to identity thieves.

Under Virginia law, all land records are available on the Internet. These records include deeds and mortgage information, as well as legal judgments, such as divorce decrees, that may contain Social Security Numbers and other personal information.

In June 2009, Judge Payne found that the law prohibiting the dissemination of public records containing Social Security Numbers, commonly referred to as the “anti-B.J. law,” violated Ostergren’s First Amendment rights. Payne ruled that Ostergren had the right to post the Social Security Numbers of Virginia legislators, Virginia Executive Officers and Clerks of Court whenever the numbers were obtained from a government website accessible to the public.

Other courts, including the U.S. Supreme Court, have held that the government cannot make information available to the public, but then restrict what the public can do with it.

The Fourth Circuit Court of Appeals affirmed the lower court’s decision that the law was unconstitutional as applied to Ostergren’s website, but held that Judge Payne’s did not accurately reflect the extent of the constitutional violation. The case was therefore remanded to the lower court for revision of the injunction.

“Ms. Ostergren’s most powerful advocacy weapon has been to demonstrate to the public how bad a job the government is doing to protect our online privacy rights,” said ACLU of Virginia Executive Director Kent Willis. “We are pleased that this agreement will allow her to continue posting documents that can be found on government websites.”

Attorneys representing Ostergren are ACLU of Virginia Legal Director Rebecca K. Glenberg and Richmond attorney Frank Feibelman. The order can be found online at www.acluva.org/wp-content/uploads/2011/04/20110413OstergrenOrderJudgePayne.pdf.