Online access to sensitive court records sparks concern

By Kiah Collier
Houston Chronicle
Originally published Aug. 20, 2014

Harris County court documents in contentious Child Protective Services cases that should be labeled as sensitive, or kept confidential, are being posted online for anyone to see, sparking concerns that abused and neglected children and their caretakers could be put at risk.

University of Houston Law Center professor Ellen Marrus, a juvenile law expert, said access to such files online could be used by parents whose children have been taken away to find out where they are living.

In addition, she said, “Children who have been sexually abused or physically abused are great targets for pedophiles, for human trafficking, for people who want to take advantage of a child who’s in a very vulnerable position. If that information is available to people, it can get into the wrong hands.”

Harris County’s three juvenile courts, which handle the vast majority of CPS cases, took measures a decade ago to ensure such documents containing highly sensitive information are not posted online, signing orders saying they should be protected and accessible only to the lawyers directly involved in the cases and their clients.

However, the county’s nine family courts, which handle CPS cases involving children who were the subject of prior litigation, have not yet done so.

After having his staff lawyer review the issue, Administrative Family Judge David Farr signed a similar order in his 312th District Court on Wednesday and sent a form to his peers in case they want to do the same. “I think this needs to be done,” he said.

Farr, however, pointed out that the order will do no good if lawyers do not mark documents as sensitive when they are filed.

“If the process is flawed from the beginning,” he said, “then everyone on the planet can look at it.”

The issue was raised by Webster family lawyer Greg Enos, who emailed the county’s nine family court judges and Harris County District Clerk Chris Daniel, whose office is the keeper of court records, to complain that filings containing the names and photographs of children who have been removed from their homes, information about where they are living and their medical histories are being posted online without any disclosure or warning that the files contain sensitive information.

“I hope someone does something about this immediately,” Enos wrote. “We owe it to these abused and neglected children to protect them from public disclosure of the sad details of their young lives.”

Accessible at kiosks

One document viewed online by the Houston Chronicle, a home visit report filed by a CPS caseworker, contains a picture of two smiling little girls, along with their names and one of their dates of birth. Another, filed in the same case last year, details an absentee mother just released from jail and a 6-year-old daughter sent to live with her aunt, including the aunt’s name.

Both documents are accessible to the public via some 40 kiosks at the Harris County Civil Courthouse downtown and online to any Texas Bar-certified lawyer with a log-in, a spokesman for Daniel confirmed, noting in an email that the office does “not make the rules about who can and cannot access court documents online or in person at the (district clerk) offices.”

Under state law, CPS “files, reports, records, communications, audiotapes, videotapes, and working papers used or developed in an investigation under this chapter or in providing services as a result of an investigation” should be kept confidential. In addition, the Texas Rules of Civil Procedure say documents containing that sensitive information “may not be filed with a court unless the sensitive data is redacted” and that “Documents that contain sensitive data in violation of this rule must not be posted on the Internet.”

“I am astounded that the attorneys in CPS cases, including the attorneys in the (Harris) County Attorney’s office who represent CPS, do not know and follow this rule,” Enos said. “I am astounded that the judges are not reminding the attorneys and ordering them to follow this rule. It is amazing the clerks take these documents and without question scan them and put them online.”

Marked filings needed

Bill Murphy, the district clerk’s spokesman, said it is not the responsibility of the office’s clerks to review every legal document filed to make sure it does not contain confidential information. He, too, put the responsibility on the lawyers, imploring them to “exercise great care in redacting sensitive information.”

“If they don’t mark filings to indicate they include sensitive data, clerks cannot carry out their responsibility and make sure that access to those documents is restricted,” Murphy said.

Lawyers, he said, are given the option of marking filings as including sensitive data when they e-file.

Farr linked the problem to the court’s recent move to a new electronic-only filing system via state Supreme Court mandate, a system he said many lawyers are struggling to get used to.

First Assistant County Attorney Robert Soard said the office “will certainly go back and redouble our efforts to make sure we are … doing the right thing,” noting lawyers there have been trying to figure out how best to maintain confidentiality now that all documents must be filed electronically. “There is disagreement even among the courts about what information should be redacted and what information should not be,” he said. “There’s even some conflict between the family code and the e-filing rules, which are relatively new, so we’re kind of working through this issue of how you maintain confidentiality.”

Farr said the issue had been discussed previously, but he thinks judges didn’t see it as a pressing risk. He also said there has been concern about lawyers who need access to case files not being able to get them.

Marrus, the law professor, said the effort to make child welfare cases more private fits with a growing trend, and described it as “the appropriate way to go,” both legally and ethically.

Child abuse and neglect and delinquency filings and proceedings in other states are kept far more private, she said, but some courts here have begun to make changes. “There’s not a national standard for the way these things should be handled, but we’re moving in that direction to have more uniformity.”