Ostergren v. McDonnell, Civil Action No. 3:08cv362.
| Citation | 643 F.Supp.2d 758 |
| Decision Date | 02 June 2009 |
| Docket Number | Civil Action No. 3:08cv362. |
| Parties | Betty J. OSTERGREN, Plaintiff, v. Robert F. McDONNELL, in his official capacity as Attorney-General of Virginia, Defendant. |
| Court | U.S. District Court — Eastern District of Virginia |
Rebecca Kim Glenberg, ACLU of Virginia, Richmond, VA, for Plaintiff.
James V. Ingold, Office of the Attorney General, Richmond, VA, for Defendant.
This matter is before the Court on Plaintiff Betty J. Ostergren's BRIEF ON INJUNCTIVE RELIEF (Docket Number 26) filed pursuant to the Court's Order dated August 22, 2008, 2008 WL 3895593. Ostergren seeks to have the injunction previously entered by the Court, which enjoined enforcement of certain provisions of Virginia's Personal Information Privacy Act against her website as it then-existed, expanded to enjoin enforcement against her website at any time. The Defendant, Robert F. McDonnell, has filed a responsive BRIEF ON INJUNCTIVE RELIEF (Docket Number 27), which seeks to maintain the scope of the Court's remedial injunction. For the reasons set forth below, the Court's remedial injunction will be expanded to the extent, and for the reasons, set forth below.
For several years, clerks of court in Virginia, acting under authority conferred by Virginia's legislature, have made available on the Internet ("online") land records that are maintained in the office of the clerks of court in each city and county in Virginia. Of course, the clerks of court, by law, are required to maintain publicly available real (and some personal) property records in the courthouse and to have them available for public inspection. The land records contain many documents by which land is conveyed or encumbered, such as deeds, deeds of trust, divorce decrees, and documents which evidence the financing and ownership of land. Counsel for the Attorney General has advised, and Ostergren does not dispute, that the impetus for placing these land records online came principally from the real estate industry because to do so facilitated real estate transactions of all sorts. Years ago, Virginia's General Assembly blessed this process and authorized the clerks to charge fees for online access to public records. Va.Code. Ann. §§ 17.1-276, 279, 292.
For some time, dating back at least to the 1980's, some lawyers have included, for reasons not of record, Social Security numbers ("SSNs") in a significant number of documents tendered to the clerks of court for filing in the land records. (Hr'g Tr. at 69.) As the clerks of court began to make land records available online, they did nothing to redact from them the SSNs.
Until 2007, Virginia law did not require the clerks of court to redact SSNs from land records before making them available online. Even then, the redaction requirement was conditioned on the General Assembly making funding available to the various clerks for the redaction process. The General Assembly has not provided adequate funding to accomplish redaction for all jurisdictions.
Virginia law establishes a so-called "secure remote access" system which allows individuals, for a nominal fee, to obtain online access to the land records of a given locality. The term "secure remote access" system is something of a misnomer, because the system is not secure. Only the payment of a nominal registration fee stands between any person with an internet connection and access to the information contained on the system. (Stip. ¶ 6.) Ostergren paid the fee and secured the online land records that are posted on her website. (Id.)
Ostergren, who is a resident of Hanover County, Virginia, advocates for privacy rights in Virginia and nationwide. (Stip. ¶¶ 2, 3). Ostergren actively has opposed the posting of land records online without first redacting the SSNs. In fact, she has lobbied the General Assembly to stop that practice. As part of her advocacy work, Ostergren established the website www. TheVirginiaWatchdog.com in 2003. (Id. ¶ 5.) On this website, Ostergren has posted examples of public records that are available online and that contain SSNs. (Id.) The land records on the website, which contain the SSNs in question, appear along with written advocacy in support of Ostergren's views opposing the making of SSNs available online.
Ostergren's stated reason for doing so is to demonstrate graphically to members of the public that their own personal information may be available online. (Id. ¶ 5,) As "an object lesson" and for "shock value," Ostergren decided to post mainly the SSNs reflected in the land records of "legislators and clerks [of court] because, in her view, they are principally responsible for the online availability of millions of records containing SSNs." (Id. ¶ 12). Her website also includes public records obtained from government websites in other states and from sources other than Virginia's secure remote access system. (Id.; Hr'g Tr. at 22-28.) Ostergren has been successful in effecting change in record-keeping and SSN protection policies through her advocacy. (Hr'g Tr. at 73.)
At issue in this action is a provision of Virginia's Personal Information Privacy Act ("PIPA"), Va.Code. §§ 59.1-442-59.1-444. Section 59.1-443.2 provides, inter alia, that "a person shall not . . . [i]ntentionally communicate another individual's social security number to the general public." This provision took effect on July 1, 2008. Before then, the statute contained an exception for "records required by law to be open to the public." Va.Code. § 59.1-443.2(D) (2007). That exception was removed to create the current version of the statute, which Ostergren asserts to be unconstitutional as applied to her website.
Ostergren argues that her activities— posting copies of actual public records with SSNs clearly identified—fell within the scope of the old exception, but would now be subject to a range of civil sanctions, including fines, investigative demands, and injunctions. Va.Code Ann. § 59.1-201-59.1-206. Counsel for the Attorney-General agreed that, if Ostergren maintained her website with the posted records, she would be violating the law and be subject to those sanctions.
Ostergren represents that she obtained the unredacted public records that are posted on her website through Virginia's1 secure remote access system. (Decl. of Betty J. Ostergren ¶¶ 3, 11-14). She argues that the State, having made these documents available to the public on the Internet through its secure remote access system, cannot now prohibit her from posting those documents on her website in furtherance of her advocacy efforts.
On August 22, 2008, the Court held that Va.Code. § 59.1-443.2 was unconstitutional as applied to Ostergren's website as it existed as of the date of the filing of this action. (See Mem. Op. at 33.) The Court simultaneously ordered Ostergren to brief the issue of the appropriate scope of the permanent remedial injunction if she was of the view that an injunction of broader reach was appropriate. (Order issued August 22, 2008 (Docket Number 25).)
Thereafter, Ostergren filed a brief requesting that the permanent remedial injunction prohibit enforcement of Va.Code. § 59.1-443.2 against Ostergren's website for posting any public records, now or in the future. (PI. Br. at 1.) The Attorney General responded, arguing that, because of the basis for the Court's ruling, the appropriate scope of the injunction was limited to Ostergren's website as it existed when this action was filed (Def. Br. at 1.)
The parties also have filed a second stipulation of facts primarily relating to the progress made by the Virginia court clerks in redacting and removing SSNs from the records available through the secured remote access system. (Second Stip. at ¶¶ 1-5.) The second stipulation also indicates that many jurisdictions outside of Virginia continue to post available through records posted on public websites public records that contain SSNs. Additional evidence concerning Virginia's treatment of SSNs was adduced at the February 24, 2009 hearing on the issue of injunctive relief. That evidence, and its import, will be further discussed in connection with the legal issues to which it is relevant.
"The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury." Marbury v. Madison, 1 Cranch 137, 163, 2 L.Ed. 60 (1803). It having been determined that a violation of the First Amendment exists, the issue now presented is the appropriate remedy for that violation. Ostergren asserts that the appropriate remedy is injunctive relief preventing the State from enforcing Va.Code. § 59.1-443.2 against her website. (Def. Br. at 1.)
Requests for injunctive relief in the context of Constitutional violations are generally subject to the same standards for equitable relief as non-Constitutional harms. See, e.g., Phelps-Roper v. Nixon 545 F.3d 685, 694 (8th Cir.2008); Aid for Women v. Foulston, 441 F.3d 1101, 1115 (10th Cir.2006); Ayres v. City of Chicago, 125 F.3d 1010, 1014-15 (7th Cir.1997); American Federation of Teachers—West Virginia, AFL-CIO v. Kanawha County Bd. of Educ, 592 F.Supp.2d 883, 891-92 (S.D.W.Va.2009) (Goodwin, C.J.). The Supreme Court has recently described the burden on a plaintiff seeking a permanent injunction as follows:
a plaintiff seeking a permanent injunction must satisfy a four-factor test before a court may grant such relief. A plaintiff must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.
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