Researching Public Records, Generally
| public records definition | Fair Credit Reporting Act | Research Hints |
| Access Restrictions | Social Security No. Acts | |
| Drivers Privacy Protection Act | GraMm Leach Bliley |
I. What are Public Records?
Ohio- Not all government records are public records under Ohio law. Public records may be accessed for the 
most part, without restriction. For state records, a public record is defined by ORC 149.43. Some of the items excluded from the definition of public records are: medical records, probation records, adoption records and confidential law enforcement records.
For more information, see Public Records Law in Ohio, an Ohio Legislative Service "Members Only" Brief, Oct. 23, 2008; Ohio Attorney General - Ohio Sunshine Laws.
Federal - Freedom of Information Act (FOIA) limitations.
The federal government also has categories of information it will not disclose. For example, these include national defense information, personal and medical information, ongoing law enforcement investigations and confidential sources, certain geological information and information exempt under federal law. See 5 USC 552(b).
For more information on the federal Freedom of Information Act and Ohio public records law, see Cleveland Law Library's Public Records FAQ.
II. What are some restrictions on accessing public records?
The government or a purchaser and distributor of government information may be subject to certain laws prohibiting distribution of the information unless there is a permissible use.
A. Driver’s Privacy Protection Act, 18 USC 2721
only allows access to driver’s license information for certain purposes. Under the Driver’s Privacy Protection Act, use in connection with a civil or criminal case is a permissible use.
B. Fair Credit Reporting Act, 15 USC 1681 et seq.
requires that a “consumer report” gathered by anyone regularly involved in the business of compiling and selling consumer reports (“consumer reporting agency”) can only be disclosed to those who have a permissible use.
What is a "consumer report"
… any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer's credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer's eligibility for--
(A) credit or insurance to be used primarily for personal, family, or household purposes;
(C) any other purpose authorized under section 1681b of this title.
Consumer reports include more than credit reports. They include "anything that impacts general reputation", such as criminal and civil court records, driving records and more.
If the information was originally collected for purposes of credit eligibility, insurance, employment or licensing AND/OR the report is used or expected to be used for credit eligibility, insurance, employment or licensing, the report falls under the Act. If the report was not created or used for these purposes, or expected to be used for these purposes, it is outside the FCRA.
Under the FCRA whether a credit report is a consumer report does not depend solely upon the ultimate use to which the information contained therein is put, but instead, it is governed by the purpose for which the information was originally collected in whole or in part by the consumer reporting agency. St. Paul Guardian, 884 F.2d at 883-84.
Bakker v. McKinnon 152 F.3d 1007, 1012 (C.A.8 (Ark.),1998) ( credit reports on dentist and his daughters were “consumer reports” within meaning of FCRA, regardless of attorney's intended use of the credit reports )
Where, in suit against credit-reporting service for alleged violations of Fair Credit Reporting Act, it appeared that credit report was prepared for use in connection with state court civil action in which individual defendant was seeking to increase child support and medical expenses to be paid by plaintiff, such report was not “consumer report” within meaning of Act
Gardner v. Investigators, Inc. 413 F.Supp. 780 (D.C.Fla. 1976).
Is a lawsuit a permissable purpose?
While a lawsuit occasionally may give rise to a “legitimate business need” for a consumer report, see Spence v. TRW, Inc., 92 F.3d 380 (6th Cir.1996), trial preparation generally does not fall within the scope of § 1681b. See Mone, 945 F.2d at 308; Houghton, 795 F.2d at 1149; see also Allen v. Calvo 832 F.Supp. 301, 303 (D.Or.1993).
Duncan v. Handmaker 149 F.3d 424, 427 (C.A.6 (Ky.),1998). This case involved credit reports compiled by TransUnion. TransUnion's orginal purpose for compiling the report was determining eligibility for credit.
Consumer reporting agencies include Westlaw, Lexis, Accurint and OpenOnline because they are in the business of buying and selling consumer reports. Open Online requires you to select a permissible purpose, while the Lexis and Westlaw descriptions of databases, such as Lexis Smartlinx, contain warnings that the information must be used for a permissible purpose.
Use for employment purposes: The Fair Credit Reporting Act also imposes restrictions when the consumer report is used for employment purposes. The employee/potential employee must agree in writing that the employer/potential employer can have access to the consumer report. If the employer/potential employer takes an adverse action as a result of the consumer report, the employee/potential employee must be notified. 15 U.S.C. 1681b.
When you are searching public records via a “consumer reporting agency” such as Westlaw, Lexis, Accurint or OpenOnline, the Fair Credit Reporting Act applies. If an employer conducts a search of a government database on the Internet for the same information, the restrictions of the Fair Credit Reporting Act do not apply.
For more information on the Fair Credit Reporting Act, see Federal Trade Commission: Facts for Businesses
Also See: Attorney Liability Under the FCRA: The Limits of Zealous Representation, T. Leigh Anenson, 23 Ann. Rev. Banking & Fin. L. 431 (2004) via Westlaw.; 1-10 Anderson's Ohio Consumer Law § 10.4; 1-16 Consumer Credit Law Manual § 16.02.
C. Social Security Number protection legislation: Besides the threat of being sued for negligence, is there any Ohio or Federal legislation prohibiting the disclosure of social security numbers?
- Intelligence Reform and Terrorism Prevention Act of 2004 (Can not put social security number on driver’s license) 42 U.S.C.A. § 405c(2)C(vi)(II);
- Ohio S.B. 6 prohibits a public office from making available to the general public on the Internet any document that contains an individual's Social Security number. (R.C. 149.45(B)(1) and (2))
- Legislation has been introduced in the U.S. Congress in recent years to prohibit the commercial sale of SSNs. The latest version is the Protecting the Privacy of Social Security Numbers Act of 2009, HR 122 and S. 141. (Use the search feature in http://thomas.loc.gov/ to locate this bill. See also www.govtrack.us for the latest information on Congressional legislative activity. ) These bills contain exceptions, including an exception for employee background checks. See Privacy Rights Clearinghouse, My Social Security Number: How Secure is It?
D. Gramm Leach Bliley 15 USC §§ 6801-6809, also 16 CFR Part 313.01, esp. 313.14, 313.15
If a compiler of records such as Lexis or Westlaw, obtains information from credit bureaus or other "financial institutions", then there must be compliance with the Gramm Leach Bliley Act. Financial institutions include anyone who lends money.
GLB applies to non-public personal information. "This type of information is contained in the credit header data LexisNexis and its competitors receive from the credit bureaus." Some (ex ALLFIND) but not all of the Lexis person finder database contain this information. Lexis will ask you to select a permissible purpose before using the database. See What You Should Know About LexisNexis Person Locator Products and the Gramm Leach Bliley Act (2001)
The end user of the information (ie. the researcher, you) must have a permissible purpose for the information.
Some possible permissable purposes may include due diligence research, insurance claims investigations, asset verification to prevent fraud or for consumer collections, locate beneficiaries and heirs to prevent fraud or if acting in a fiduciary capacity, locate customers for legal purposes, child support enforcement, acting in a fiduciary capacity to locate shareholders or pension beneficiaries, collection activities, skip tracing to locate debtors. (this is a general summary and is not legal advice) See What You Should Know About LexisNexis Person Locator Products and the Gramm Leach Bliley Act
INTERESTED IN MORE ABOUT PUBLIC RECORDS LAW? Check out the Privacy and Security Data Law Journal, which started publication in 2006. It has articles on state and federal privacy laws.
IV. Hints for Public Records Research
- Is it possible to do a comprehensive online background check for free? Probably not. The free materials available on-line are generally discrete bits of information – from one court or agency, whereas pay services will search many databases at once. There are some free online databases which allow searching across states, such as criminalsearches.com, but these may not contain data from every court or every county. Additionally, not every court or government agency makes records available on the web.
- What are some good for-fee databases? Lexis and Westlaw are good, but can be expensive. Accurint, OpenOnline, Mergent, Choicepoint and KnowX are reputable services that usually cost less. 1800US Search.com, NetDetective.net, SearchSystems.com are also said to be reputable.
- When using information from fee services, cross-check the information among multiple databases or websites to ensure accuracy. When using ANY public records providers, it is a good idea to double check the information with another service for accuracy. Information in a database may lack currency or suffer from data entry errors.
- Check the coverage of the database. How far does it go back ? What states or counties are included?
SA 12/2008
Links Checked SA 5/7/2009