Government Records and Privacy

From Cradle to Grave: Government Records and Your Privacy

November 1993; Rev’d. November 1994
Copyright 1993, 1994 Center for Public Interest Law

This copyrighted document may be copied and distributed for nonprofit,
educational purposes only. The text of this document may not be altered
without express authorization of the Privacy Rights Clearinghouse.

This fact sheet should be used as an information source and not as
legal advice. Privacy Rights Clearinghouse materials are designed
primarily for California residents. Laws in other states may vary.

The Privacy Rights Clearinghouse
The Center for Public Interest Law
5998 Alcala Park
San Diego, CA 92110
(619)260-4806
(619) 260-4753 (fax)
e-mail [email protected]

Hotline: +1 800-773-7748 (Calif. only)
+1 619-298-3396

**From Cradle to Grave: Government Records and Your Privacy**

Government records are public in order to ensure the free flow of
information in a democratic society. The challenge to policymakers is to
balance the public’s right to information with the individual’s right to
privacy.

Virtually every major change in life is recorded somewhere in a
government document. Shortly after you are born, a birth certificate is
issued; if you obtain a driver’s license, get married, buy a house, file
a lawsuit—all of these events are recorded in public documents
easily available to you and to others.

This fact sheet covers:

Public records page 1
Confidential records page 5
Federal privacy laws page 7
State privacy laws page 8
Policy considerations page 9
For more information page 9

*Public Records*

Public records are just that—public. There are few, if any,
restrictions on the release of this information. For example, information
from public records is frequently obtained by direct marketers. (See
Privacy Rights Clearinghouse fact sheet number 4 on “junk mail.”) Public
records may also be used by private investigators, law enforcement
officials and other government agencies. In fact, as more public records
are computerized, anyone with a computer and a modem can easily compile
detailed profiles on individuals.

The most common government records containing personal information are
listed below:

Your California Department of Motor Vehicles (DMV) driver’s license
file contains:

your name;
birth date;
home and mailing addresses;
license number;
physical description;
Social Security number;
failures to appear in court;
failures to pay traffic fines;
license status (valid, revoked, suspended, expired);
major traffic convictions for the past seven years;
minor traffic convictions for the past three years.

The DMV also keeps files of vehicle registrations which include:

the name of the person who owns the vehicle;
residential and mailing addresses of the registered owner;
vehicle year, make and body style;
year the vehicle was bought by the current owner and previous
owners’ names and addresses going back three years;
license plate number; vehicle identification number;
name of the lienholder if the loan for the vehicle has not yet been
paid in full.

DMV files are routinely consulted by employers, insurance companies,
attorneys and private investigators. They used to be sold to marketers,
but access has been restricted since 1990.

Confidential portions of your file include medical information, home
address and Social Security number. Even though it is considered
confidential, in some specific instances your home address can be
released to insurance companies, banks, attorneys and process servers.
The DMV also releases information to “casual requesters.” However, the
requester must apply to the main DMV office in Sacramento and explain the
purpose of the request and potential uses of the information. Then, the
person who is the subject of the inquiry is notified and can object to
the release of the information. In the case of a dispute, the DMV decides
whether to release the information.

There have recently been changes in the information you must provide
to receive a license. Your Social Security number is now required to
receive or renew your driver’s license, but this information is
considered confidential. The law allows SSNs to be used for tax
administration purposes, collecting government fines, and helping track
down parents who have not made court-ordered child support payments.

Another change is in the appearance of the license. It now looks very
similar to a plastic credit card with a magnetic “stripe” on the back.
The “stripe” holds information which can be read by special scanners.
Currently the information on the stripe is the same as the front of the
license. It can be used by law enforcement officers to print traffic
tickets and by retailers to record information when a customer pays by
check. Some privacy advocates are concerned that the magnetic stripe
makes it easier for merchants to establish computerized data banks about
their customers, and thereby poses a threat to personal privacy. Voter
registration records are kept at the County Clerk’s or Registrar of
Voters office. As of January, 1995, only limited amounts of voter
registration information are public record: your name, city, zip code,
post office box (if applicable) and party affiliation. Other data,
including your home address, telephone number, occupation, precinct
number, and prior registration information will be confidential. The
sealed information will be released if your vote is challenged. On
election days, state law requires the index of precinct voters, including
name, address, phone number and party affiliation, to be posted in each
polling place.

Complete voter registration information may be sold to candidates, and
organizations which will use the information for a political, scholarly,
journalistic, election or governmental purpose. Requestors must apply to
the Secretary of State or the county elections office for the records and
certify the purpose of their request.

Birth certificates are on file in the county in which the birth
occurred and at the State Registrar’s office in Sacramento. Birth records
usually contain the name of the child, date and time of birth, the city
and the hospital in which the child was born, the parents’ names, the
attending physician’s name and various signatures. Birth records housed
in the State Registrar’s Office are public and can be ordered by anyone
with sufficient identifying information (for address see page 8). County
records may be confidential and available only to the subject of the
record or by court order. Confidentiality policies differ by county.

Marriage certificates are usually filed in the County Clerk’s office
where the marriage application was filed and in the State Registrar’s
office in Sacramento. An index is available to the public. It contains
the bride and groom’s names, the county where the application was filed
and the date of the marriage. In California a couple may file for a
confidential marriage certificate which is not placed in the index and is
not a public record. A confidential marriage license is open only to the
bride and groom or by court order. Death certificates are also public
documents. They are usually kept on file in the county in which the death
occurred at the County Clerk’s office. The State Registrar’s office in
Sacramento also maintains these files. An index of death certificates is
available to the public. It contains the name of the person who died,
where the death occurred, the date and the person’s Social Security
number. Property records are open for public inspection. When you
purchase a home or other real estate, a record of the transaction is made
by the County Assessor’s office and the County Recorder’s office. The
files maintained by the Assessor, Tax Collector and/or Recorder contain
the location of the property, current owner’s name, address and previous
owners’ names, dates of sale, description of the property and the
approximate value of the real estate holding.

Court records, unless they involve a juvenile, are usually public.
Superior, municipal and small claims court records are kept in the court
clerk’s office. The court clerk maintains an index of civil and criminal
cases which is filed in alphabetical order by the names of the parties
involved. Case files can be retrieved under the name of either the
plaintiff or the defendant. They contain the initial complaint, the
defendant’s answer and motions filed in the case. Case files may also
contain evidence or exhibits which were used in court.

A person involved in a lawsuit can ask the judge to have parts of a
case file “sealed.” If the judge consents to seal parts of the record,
that portion is no longer open to public viewing. In criminal cases,
probation reports, medical information and psychiatric information are
removed from the file before it is made available to the public.

Divorce records are public documents and are usually considered part
of court files. They are filed at the Superior Court clerk’s office of
the county in which the divorce was granted.

Arrest records are public records. They may include detailed
information about the person arrested, the incident leading to the arrest
and the victim. These records can be closed if their release would
endanger an ongoing investigation or public safety. If the person
arrested is found innocent of the charges, he or she may ask to have the
record sealed and claim they have never been arrested.

Postal address information is not a matter of public record through
the U.S. Post Office. However, the information from postal Change of
Address forms is available to many people. The Change of Address form
carries a notice that the information you provide may be used by others.
By filling out the form, the Post Office assumes you have read this
warning and consent to the release of your information.

If you move and fill out a Change of Address form (USPS Form 3575),
the information is sold to mailing list, direct mail and credit bureau
companies by the National Change of Address system to help mailers update
their lists.

Local post offices will release Change of Address forms to someone
presenting a subpoena or court order, to a law enforcement or government
official for authorized purposes, or to someone who is certified to serve
legal documents. (Note: These are interim rules by the U.S. Postal
Service. Final rules are expected early 1995.)

If you file a change of address form, the Postal Service will release
your new address to people who send you mail at your old address, for up
to 18 months, if the sender specifies “address correction requested.”
Victims of a threatening or potentially violent situation can prevent the
release of his or her new address by obtaining a temporary restraining
order or court order and presenting it to the Postal Service.

*Confidential Records* Some records kept by government agencies are
considered confidential. For example, your tax records are private. You
may have access to your Internal Revenue Service file but others do not.
The following are some common government records which are
confidential.

Social welfare information such as Medicare records and Social
Security information is generally confidential. However, social service
agencies must supply a list of benefit recipients and their Social
Security numbers to tax authorities.

In addition, the federal government has a computer matching program
which allows agencies to compare computerized records to verify
eligibility or compliance with benefit programs. This program is also
used to collect debts owed to the government or unpaid child support. If
you apply for benefits, you must be told that the matching program is
being used. No one can be denied benefits based solely on the results of
information obtained through matching.

Tax information, both federal and state, is not a public record. It is
not disclosed unless:

the taxpayer is part of a court proceeding where tax issues are
relevant;
a government agency is trying to locate a parent who owes child
support payments;
state financial aid programs have been requested;
it is for statistical use;
agencies request tax information for the purpose of tax
administration.

People who file joint returns have equal access to tax records.
Federal law allows the Social Security Administration and the Department
of Education access to tax records to withhold tax refunds if money is
owed to the government.

School records are usually confidential. Persons over age 18 must
authorize the release of their school records before they can be viewed
by others (including parents). The records of children under 18 years of
age are under the control of their parents and/or guardians. The records
can be released without consent only to:

the current school district;
a school district to which the student is transferring;
state or federal education authorities;
state or federal financial aid programs;
law enforcement officials for “child welfare” protection;
or upon a judge’s order for release.

Parents have the right to inspect all records a school has about their
child if the child is under 18, and to request that any errors be
corrected. In California, noncustodial parents and foster parents have
the right to view a child’s records. However, only custodial parents may
challenge its content or consent to its release. Adult students have the
same rights as parents of minor students.

Schools must keep a log, open only to parents and school officials,
which lists those who have received information from a student’s record
and how the information was used.

The school may release directory information about students only after
the parents (or the student if over 18) have been notified as to the type
of information to be released. Parents have the right to block the
release of the information by notifying the school of their objection.
Usually a notice dealing with this issue is sent home at the beginning of
the school year.

Public library records are confidential under the California Public
Records Act. All registration and circulation records of any library
which receives public funds may only be disclosed for library employees
to do their job, by order of a superior court, or if the person
authorizes the release.

Confidential data includes information provided to receive a library
card and a list of the materials that have been borrowed. Records of
fines and statistical reports are not confidential. Privately-funded
libraries may not have the same privacy protection as those which receive
public funds. You may want to request a copy of the facility’s
policies.

Criminal history information compiled by local and state criminal
justice departments is not public. “Rap” sheets (records of arrests and
prosecutions) can only be accessed by:

law enforcement agencies;
attorneys working on a case involving the individual;
the subject of the information;
probation or parole officers;
a state agency which needs the information to license an
individual;
employers, under limited circumstances authorized by law.

With the increasing computerization of records, however, some private
firms are able to compile what amounts to a “rap sheet” by searching
arrest records and court files which are public records. The information
compiled by such firms is sometimes used by employers to run background
checks on prospective employees.

*Federal Privacy Laws*

The two main federal privacy laws are the Privacy Act of 1974 and the
Freedom of Informa-tion Act. They apply only to federal government
agencies. At first glance, the two laws seem diametrically opposed. The
Privacy Act deals with keeping government records about individuals
confidential, and the Freedom of Information Act is commonly used to pry
open government files. However, these laws are attempts to balance the
public’s right to know about the actions of government with the rights of
an individual to retain his or her privacy.

The Privacy Act gives an individual the right to:

see and copy files that the federal government maintains on him or
her;
find out who else has had access to the information;
and request a change in any information that is not accurate or
relevant.

A government agency is required to:

respond to a request for information within 10 days;
notify the public about the types of files they maintain via the
Federal Register;
inform the public how they use the information;
make sure the information in files is relevant;
not use the information for any purpose other than the one for
which it was initially collected.

Government files on an individual may be opened to others in a few
cases including:

a purpose similar to the original reason for collecting the
information;
for statistical research;
for law enforcement purposes;
when ordered by a court;
if it is medically necessary for the requester to have access to
the information.

There is no central index of federal government records about
individuals. If you want to look at your records, you must first identify
which agency has them. Then use the Privacy Act to ask to see your files.
The agency must respond to your request within 10 days. You may be
charged a “reasonable” fee for copying the file.

You may be denied access to government records about you if they
involve:

law enforcement activities;
the Central Intelligence Agency (CIA);
litigation;
civil service exams (to the extent access would affect the fairness
of the tests);
and confidential government sources.

If you are denied access to your records, you can appeal in court. You
may also take a government agency to court if you believe it has
improperly disclosed information about you or if you want to block
impending disclosures.

The Freedom of Information Act was designed to help individuals obtain
information about the actions of government. It requires that citizens be
given access to government records unless disclosure involves:

litigation;
the CIA;
internal agency memos;
personnel matters;
trade secrets;
classified documents;
law enforcement activities;
confidential government sources;
violating an individual’s privacy interests;
civil service exams (to the extent it would affect the fairness of
the tests).

If an agency denies your request for information, it must tell you why
within 10 days. You may appeal the denial either within the agency itself
or in court.

*State Privacy Laws*

California has two state laws which are similar to federal privacy
legislation: the Information Practices Act and the Public Records
Act.

The California Information Practices Act applies only to state
agencies. It is similar to the federal Privacy Act and gives individuals
access to information about them held by state agencies. However, the
Information Practices Act does not require the state to publish a list of
the type of records agencies create.

If you request information, the state agency must respond within 30 to
60 days. You can be denied access to your records for the same reasons as
under the Privacy Act. If a request is denied, you must be told the
reason for the denial. You can appeal the decision in court.

If you find incorrect information in a record the state keeps about
you, you have the right to amend your file. The agency must note in the
record that you dispute its accuracy.

The Information Practices Act does not cover city or county government
records. Local governments are free to make their own laws in this
area.

The California Public Records Act is similar to the federal Freedom of
Information Act and covers state, city and county boards, special
districts, commissions, agencies and school districts. With public
documents. The major exemptions from public disclosure include:

personnel matters;
medical records;
tax records;
litigation;
public library records;
preliminary drafts, notes, or memos;
complaints or investigations by law enforcement authorities unless
the person requesting the information is involved in the crime or
suspected crime;
information which would compromise civil service exams.

If you request information under the California Public Records Act,
the agency must let you know within 10 days that it has received your
request. If your request is denied, you must be notified within 10 days
and given the reason the information is not being released. You have the
right to appeal such decisions in court.

*Policy Considerations*

Currently most public records are obtained by visiting the appropriate
government agency and inspecting or copying

May 26, 2012