Right to Post Public Records, Ostergren v. McDonnell.
For the past several years, Virginia clerks of court and other agencies have been in the process of making public records available online, particularly land records such as deeds. These documents often contain Social Security numbers. A Virginia law that would have required the redaction of Social Security Numbers from online records never went into effect because the state did not fund it.
B.J. Ostergren is a privacy advocate who is incensed that documents containing Social Security Numbers are available online. In order to get her message across, she collects public documents that contain the SSNs of key individuals – such as legislators and clerks of court – and posts them on her own website, www.TheVirginiaWatchdog.com.
Under Virginia Law before July 1, 2008, a statute prohibited the dissemination of SSNs, but contained an exception for “records required by law to be open to the public,” Va. Code. 59.1-443.2(D), such as the documents posted on B.J.’s website. A law passed by the General Assembly effective July 1, 2008 eliminates the “public records” exception, making it unlawful for an individual to post public records containing SSNs, even though those records are publicly available from the government.
The ACLU believes that the law passed does not really address the privacy problem: Public records containing SSNs will still be available online from government agencies. Moreover, that law violates the First Amendment. People have the right to disseminate information that is publicly available and lawfully obtained. For example, in The Florida Star v. B.J.F., 491 U.S. 524 (1989), the Supreme Court held that a newspaper could not be sued for publishing the name of a rape victim it had obtained from a publicly released police report. The Court noted that “punishing the press for its dissemination of information which is already publicly available is relatively unlikely to advance the interests in the service of which the State seeks to act. . . . . [W]here the government has made certain information publicly available, it is highly anomalous to sanction persons other than the source of its release.”
On June 11, 2008, we filed for injunctive relief, asking the court to prevent the state from enforcing the law. On June 30, 2008, after prodding from the federal court judge, the Attorney General’s office agreed not to enforce the law against B.J. while the lawsuit is pending. On August 14, Judge Payne heard oral arguments and on August 22 ruled that the statute is unconstitutional as applied to B.J.'s website. However, he required further briefing as to the scope of any injunctive relief. On June 2, 2009 Judge Payne ruled that B.J. could post on her website public records that contain Social Security Numbers of Virginia legislators, Virginia Executive Officers and Clerks of Court. The state has appealed, and we filed our response brief on October 13, 2009. Oral argument took place in March 2010 and in July, the Fourth Circuit Court of Appeals affirmed the lower court and remanded for modification of the injunction. On April 14, 2011, the court entered an injunction allowing Ostergren to continue posting documents from government websites that contain Social Security Numbers.
Court Documents (click links to view pdf)
July 26, 2010 Opinion- Fourth Circuit Court of Appeals
June 2, 2009 Opinion- U.S. District Court, Richmond
Injunction Order- U.S. District Court, Richmond
Opinion- U.S. District Court, Richmond
Complaint - U.S. District Court, Richmond