Ohio woman's case highlights Okla. court records issue

Journal Record, The (Oklahoma City),  Mar 21, 2008  by Marie Price

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As Oklahoma struggles with new rules that would eliminate several personal identifiers from court records, an Ohio federal appeals court has ruled against a woman who said publication of a traffic citation containing information such as her Social Security number violated her right to privacy.

Cynthia Lambert sued a county court clerk and county commissioner board after a speeding ticket she received was published on the court clerk's Web site.

Lambert said her identity had been stolen as a result of the publication and that she suffered economic damages, as well as damage to her credit rating and reputation.

A federal district court concluded that Lambert's claim of a privacy interest did not reach constitutional dimensions, and the appellate court affirmed.

About a year after receiving the ticket, Lambert was contacted by a couple of retail stores about suspicious purchases made in her name. The purchaser presented a driver's license displaying Lambert's full name, address, birth date, driver's license number and Social Security number.

One of the retailers told Lambert that the thief might have obtained her data through the court clerk's Web site.

Lambert found the citation and complained to the clerk's office about the publication of her personal information.

She was told that the records were made public for the convenience of the parties and that removing the information would take "vast amounts" of manpower.

Lambert sued in December 2004, saying the court's clerk's policy violated her rights to privacy and due process and the right to be free from unreasonable searches and seizures.

By that time, law enforcement had broken an identity theft ring that used personal data from the clerk's site to undertake its activities. Those arrested included a woman who admitted stealing Lambert's identity.

The 6th Circuit concluded that Lambert had standing to bring a claim.

However, the appeals court outlined its narrowly constructed holdings in informational privacy cases, which extend that right only in situations that implicate a fundamental liberty interest.

The court has recognized an informational privacy interest of constitutional dimension in two instances: where release of the data could lead to bodily harm and where the information released was of a "sexual, personal and humiliating nature."

Lambert argued for a new standard, one that did not require the court to determine whether the privacy interest in question implicates a fundamental right. Instead, her attorneys contended, the issue should be whether a claimant has a reasonable expectation of privacy in such information and, if so, whether the government has a legitimate interest in disclosing it.

"The reasonable-expectation-of-privacy standard that Lambert proposes is in many ways similar to the more fluid approach that other circuits have adopted for assessing claims of informational privacy," the appellate court said.

The 6th Circuit declined to adopt that standard, however, sticking with its requirement that asserted privacy interests implicate a fundamental right.

As an alternative, Lambert had argued that the district court erred in holding that her case did not involve a fundamental right.

Lambert's lawyers contended that disclosure of her Social Security number interfered with her right to personal security, and that the damage to her credit rating was an injury to her reputation - both of which she designated as fundamental liberty interests.

Lambert is undoubtedly correct that identity theft is a serious personal invasion, the court said, but it does not rise to the level of a right to personal security as contemplated by the courts.

The court also did not buy into Lambert's argument that what happened to her constituted infringement of a property interest.

"Lambert has undoubtedly shown that, as a policy matter, the clerk's decision to provide unfettered Internet access to people's Social Security numbers was unwise," the court said. "This much is evidenced by the fact that the defendants have subsequently removed the citations in question from the Web site and changed the local rules to better protect sensitive personal information."

The appeals court concluded, however, that "constitutionalizing" the type of harm Lambert suffered would open a Pandora's Box of federal claims, a step the 6th Circuit was unwilling to take.

Ohio's highest court recently back off of a decision to block access to birth dates, addresses and the last four digits of Social Security numbers.

The Oklahoma Supreme Court recently adopted new rules that require redaction of Social Security numbers, birth dates, full addresses, financial account numbers and other personal data from court filings. The court's decision has prompted a flood of criticism from the press, some attorneys and government officials and firms that conduct background checks for employers, among others.

Chief Justice Winchester has asked the state court administrator to gather input and draft a report for the justices to review before the rules take effect on June 10.

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