In a closely watched case, the New Jersey Supreme Court has ruled land title records compiled into electronic databases require more privacy protections than originals of the same documents filed in county courthouses.
The high court voted 5-2 that Data Trace Services, which operates land transaction databases for much of the country, must pay the Bergen County Clerk's Office $460,000 so it can remove social security numbers from millions of records before releasing them.
The company sought 22 years worth of mortgages, deeds, discharges and other land records filed with the clerk's office. Under state law, records filed since 2005 do not contain social security numbers. They were not required previously, either, but were sometimes included on documents filed by lenders or others involved in the transactions.
Data Trace "was asking for the keys to the information kingdom," said attorney John Carbone of Ridgewood, who represented the clerk's office. It received the backing of the state Attorney General's Office and the American Civil Liberties Union of New Jersey.
On the other side, the New Jersey Land Title Association, Consumer Data Industry Association, LexisNexis, Real Estate Information Professionals Association and the National Association of Professional Background Screeners supported the company.
The majority decision, written by Chief Justice Stuart Rabner, acknowledged the land transactions sought by Data Trace "are public records, required to be accepted for recording, maintained and kept... and will remain available, for copying and inspection at clerks’ offices."
But the decision noted Data Trace intends to incorporate the Bergen County records into the databases it sells, eliminating the requirement for private citizens and business employees to search the clerk's records individually.
"Bulk disclosure of realty records to a company planning to include them in a searchable, electronic database would eliminate the practical obscurity that now envelops those records at the Bergen County Clerk’s Office," the Chief Justice wrote.
The finding might be different if a researcher or investigative reporter had made the records request, the majority said. Justices Jaynee LaVecchia, John E. Wallace Jr., Roberto Rivera-Soto and Helen Hoens joined Rabner.
Their approach brought a sharp dissent from Justice Barry Albin, who was joined by Justice Virginia Long. They said the decision "strikes a blow against governmental transparency in the electronic age.
"Today's majority decision will close the door to the Open Public records Act and potentially have far-reaching consequences for the dissemination of information in state offices," Albin wrote.
The immediate effect of the ruling is to protect and possibly expand an important stream of revenue for county clerks. They already collect fees when titles and other documents are filed or copied, with rates set by statute.
By requiring inspection and redaction before bulk release for commercial use, the ruling forces companies trying to put the records into more accessible forms must pay the counties up front for the additional service. The $460,000 price quoted Data Trace is based on an estimate from a private vendor, Carbone said.
"These are records which we simply accept into our arms," he said. "They don't have anything to do with the functioning of state, county or municipal government."