Government records are public in order to enable citizens to monitor their government and to ensure accountability 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.
2. Public Records
Note: Most of the information in this section is specific to California. Other states may vary in how they regulate access to 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 PRC Fact Sheet 4: Junk Mail: How Did They Get My Address?) Public records may also be used by private investigators, attorneys, law enforcement officials and other government agencies. In fact, as more public records are posted online, anyone with a computer and Internet access can easily compile detailed profiles on individuals.
The most common California 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:
- 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 lien-holder 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. Each request is reviewed by DMV to determine that the purpose of requesting the information is for a legitimate us. http://www.dmv.ca.gov/forms/inf/inf70.htm.
Your Social Security number is required to receive or renew your driver’s license. 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.
The California driver’s license 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.
In California, Civil Code 1798.90.1 prohibits bars, car dealers and others from collecting personal information by swiping the magnetic stripe for purposes other than verifying age or the authenticity of the driver’s license, or preventing fraud.
One court has ruled that the federal Driver’s Privacy Protection Act (18 U.S.C. 2721-2725) allows states to turn over their entire DMV database to certain private entities, including research companies, online database operators, grocery chains, insurance companies, employee screening services, technology businesses and consulting companies. The court held that these entities, which buy DMV records in bulk, are making a permissible use of the information. Taylor v. Acxiom Corp.(5th Circ., July 14, 2010).
Voting records are kept at the County Clerk’s or Registrar of Voters office and at the California Secretary of State office. California voter records are available to four categories of users: election/political, scholarly, journalistic, or governmental purpose. Requesters must apply to the California Secretary of State or the county elections office for the records and must certify the purpose for their request.
The state offers the Safe at Home program to provide confidential address protection for individuals who must keep their home address private because of personal safety issues. Victims of domestic violence and stalking, employees and volunteers of reproductive health care clinics, and others whose safety is at risk can apply for the California Safe at Home program. For more information, call the California Secretary of State at (877) 322-5227, www.casafeathome.org . At least 28 states offer similar confidentiality programs (See National Network to End Domestic Violence’s list of state confidentiality programs).
Birth certificates are on file in the county in which the birth occurred and at theOffice of Vital Records 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 Vital Records Office are public and can be ordered by anyone with sufficient identifying information (See CA State Vital Record’s explanation of Authorized Copy vs. Informational Copy). 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 Vital Records 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. These files are increasingly made available on the Internet by county government agencies and by information brokers.
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 that were used in court. Court records are increasingly available on the Internet.
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.
The National Center for State Courts has information on state policies for public access to court records on its website at http://www.ncsc.org/topics/access-and-fairness/privacy-public-access-to-court-records/state-links.aspx?cat=Privacy%20Policies%20for%20Court%20Records.
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.
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.
3. 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 Securityinformation 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. (See Fact Sheet 29: Privacy in Education: A Guide for Parents and Adult-Age Students.) 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 releasedwithout 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. But parents (or the student if over 18) must be 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. (See the legal citation for the federal Family Educational Rights and Privacy Act, or FERPA, at the end of this publication.)
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 in California. ”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, information brokers are able to compile what amounts to a “rap sheet” by searching arrest records and court files that are public records. This information is sometimes used by employers to run background checks on prospective employees. Such records can be obtained from Internet-based information broker services.
4. Federal Privacy Laws
The two main federal privacy laws are the Privacy Act of 1974 and the Freedom of Information 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. (Legal cites are located at the end of this guide.)
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)
- Civil service exams (to the extent access would affect the fairness of the tests)
- 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:
- The Central Intelligence Agency (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)
The agency has 20 days to make a determination on a request for access. If you are denied, you may appeal the denial either within the agency itself or in court.
5. California Privacy Laws
California has two state laws which are similar to federal privacy legislation: the Information Practices Act and the Public Records Act. (The legal citations are found at the end of this guide.)
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 a few exceptions, all records from these bodies are considered public documents. The major exemptions from public disclosure include:
- Personnel matter
- Medical records
- Tax records
- 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.
6. Policy Considerations
Traditionally, public records were obtained by visiting the appropriate government agency and inspecting or copying them there. But Internet access to government records is increasing. Consumers should be aware of the growing public policy debate over the availability of government records online. While such records have always been public, Internet access is making them easier to gather and compile, both by individual citizens and by a variety of institutional users. Information brokers, direct marketers, employers, private investigators, law enforcement officers and other government agencies are finding new ways to use this information.
Should public records, including sensitive court files like divorce records and insurance cases containing medical information, be freely available by anyone via the Internet? The issue of online access to public records will be an increasingly significant privacy concern in the coming years. For additional information on this matter, read the PRC’s Public Records on the Internet: the Privacy Dilemma andThe Privacy Advisor (May 1, 2012) Assessing Public Information in the Digital Age.
The information in this Fact Sheet covers only the most common government records. There are a number of other government agencies that may contain information about you. For example, various local, state and federal agencies license individuals for certain professions, and many of these records are open to the public.
A useful guide to federal government information is Your Right to Federal Records, GSA Federal Citizen Information Center (November 2009).www.pueblo.gsa.gov/cic_text/fed_prog/foia/foia.htm
The California Public Records Act is explained in “Access to Public Records in California,” Citizen Media Law Project www.citmedialaw.org/legal-guide/california/access-public-records-california
Individuals may obtain a copy of their criminal record by writing to the Federal Bureau of Investigation. Include a letter stating why you are making the request, a set of fingerprints and a money order (no checks) for $18. Mail to: FBI, Criminal Justice Information Services Div., 1000 Custer Hollow Rd., Clarksburg, WV 26306. Telephone: (304) 625-3878. Web: www.fbi.gov/hq/cjisd/fprequest.htm
Individuals who do not have a criminal record can make a request under the Freedom of Information Act to determine if the FBI has compiled information about them. The request must be in writing and should include a complete name, address, date and place of birth and notarized signature. It should be sent to FBI, Freedom of Information Privacy Section, at the same address and telephone number as the previous paragraph.
On the state level, to receive a copy of your “rap” sheet (record of arrests and prosecutions), contact the California Attorney General. Write to: California Department of Justice, Record Review Unit, P.O. Box 903417, Sacramento, CA 94203-7410. Telephone: (916) 227-3832. Send a $25 for the processing fee, plus 10-print fingerpint card, name, date of birth, gender, address, and letter stating purpose of request. Web: http://ag.ca.gov/fingerprints/security.php.
For additional information on California birth, death and marriage certificates, contact: Center for Health Statistics, California Department of Public Health, Office of Vital Records, P.O. Box 997410, Sacramento, CA 95899-7410. Telephone: (916) 445-2684 (recorded message). Web:http://www.cdph.ca.gov/certlic/birthdeathmar/Pages/ContactUs.aspx
Legal citations for federal and state laws on government records are as follows:
Federal laws: (www.law.cornell.edu/uscode)
Privacy Act of 1974, 5 USC, § 552a.
Freedom of Information Act, 5 USC, § 552.
Family Educational Rights & Privacy Act (FERPA), 20 USC § 1232
California state laws: (www.leginfo.ca.gov/calaw.html)
Information Practices Act, Calif. Civil Code, § 1798.
Public Records Act, Calif. Government Code, § 6250.