FOR YEARS, the title industry has taken efforts to protect Social Security numbers and other personal information of individuals involved in real estate transactions. Recent redaction measures are intended to shield the location and other personal information of individuals with recognized safety concerns from being accessible through documents contained in public records. While there is a need to shield protected classes with recognized privacy concerns, this must be addressed in a way that does not hinder the ability to complete transactions in a timely fashion.
While various states handle record shielding differently, the tragic shooting of U.S. District Court Judge Esther Salas’ son brought the issue into the national spotlight. Last July, self-described “anti-feminist” lawyer Roy Den Hollander killed the judge’s 20-year-old son, Daniel Anderl, and injured her husband. Den Hollander compiled personal information about the judge, including her home address in New Jersey. He posed as a FedEx delivery worker to carry out his crime.
In response, New Jersey Gov. Phil Murphy signed A1649, known as “Daniel’s Law,” that requires the redaction of home addresses and telephone numbers of judges, prosecutors and law enforcement officers from public records. (A bill was passed in March to delay enactment of provisions affecting law enforcement personnel for 18 months.)
“This is a renewed commitment to ensure our judiciary, prosecutors and members of law enforcement who answer the call of justice can do so without fear for their personal safety, or that of their loved ones,” said Gov. Murphy. “By shielding the home addresses and private contact information for those who serve on the bench and enforce our laws, we are demonstrating that in the face of unspeakable tragedy, New Jersey responds not with thoughts and prayers, but with concrete action.”
The bill amends the Open Public Records Act (OPRA) to exclude from the definition of a public record the portion of any document that discloses the home address of any active or retired judge, prosecutor or law enforcement officer. The bill also prohibits government agencies, individuals and businesses from knowingly publishing on the internet, or otherwise making available, the home address or unpublished home telephone number of any active or retired judge or prosecutor.
The bill also enables any active or retired judge, prosecutor or law enforcement officer whose home address or unpublished telephone number is disclosed on the internet or otherwise made available to the public—or whose immediate family member’s name, home address or unpublished phone number is similarly disclosed—to request that the information be removed. The government agency, individual or business would be required to remove the information within 72 hours of receiving such a request in writing.
While records-shielding laws have been seen traditionally on the state level, in September 2020, U.S. Sens. Bob Menendez and Cory Booker introduced The Daniel Anderl Judicial Security and Privacy Act of 2020, a bipartisan bill that would safeguard the personally identifiable information of federal judges and their immediate families.
“We must extend these privacy protections nationwide, so that no one lives through what Judge Salas and her husband lived through,” said Sen. Menendez. “We are living in a time of endless vitriol, rising hate crimes, and increased personal attacks. And while we may not be able to eliminate hatred from someone’s heart, we can take action to better protect the men and women of our federal bench. That’s why I am proud to see Governor Murphy sign Daniel’s Law here in New Jersey—and why I remain committed to the passage of the Daniel Anderl Judicial Security and Privacy Act in Washington.”
Sen. Booker added, “No person who takes on the responsibility of serving as a federal judge should ever have to live in fear that they or their family could be targeted by someone who is able to easily access their personal information. Judge Salas and her husband, Mark, have gone through something that no parent should ever have to endure.”
Despite receiving bipartisan support, the proposed legislation failed to pass the Senate in December but could be reintroduced this year. ALTA has worked with Senate staff on minor changes to the federal bill to ensure it does not impact the ability of a protected party to buy or sell real estate. ALTA is hopeful suggested changes are included in the legislative text when the bill is refiled in 2021.
“A promising aspect of this federal legislation is funding for states to use during implementation,” said Elizabeth Blosser, ALTA’s senior director of government affairs. “Critical funding will go a long way to ensuring uniformity in how redaction laws are applied, which is good for the title industry and protected parties.”
Additionally, last year, the U.S. Judicial Conference, the policymaking body for the federal court system, urged Congress to pass legislation that would force a person, business or agency to remove the personal information of federal judges from public records within 48-72 hours of getting a request to do so. That information would include a judge’s home address, birth date, Social Security number, property tax records, personal email address, phone number, photographs and more.
At the end of February, various types of redaction and record shielding bills had been introduced in many more states, including Arizona, California, Florida, Illinois, Iowa, Kentucky, Missouri, Nevada, Ohio, Rhode Island, Texas and Utah.
The Uniform Law Commission has considered taking up the redaction issue and forming a drafting committee to design uniform legislation. ALTA sent a letter supporting this step and offered to help during the process.
ALTA believes the best way to shield sensitive information is to limit who has access to the protected data, without removing or altering vital public records. Arizona and Minnesota are examples of effective state programs.
In Arizona, an eligible person can file an affidavit with the court to prohibit the public from accessing personal information. If approved, a court order is issued directing the clerk to prohibit public access to the information. The prohibition on public access expires after a period, generally four to six years. Access for real estate/title professionals is available. Basically, the company emails a request, and the county sends the information.
Susan Tawney, vice president and chief title officer for Pioneer Title Agency in Arizona, said buyers must apply and get permission to have information redacted during recording.
“If it’s the seller, they have to give the title company authorization to review the documents,” said Tawney, who has been with Pioneer Title for 36 years. “I haven’t seen too many of these cases over the years, but it does take a little more time.”
In one instance, an undercover FBI agent was selling his home and didn’t want to disclose his information. Tawney said they explained the process to him so he could understand, and the transaction proceeded.
“My son is a police officer, so he should probably look into this,” Tawney said.
Meanwhile, Minnesota’s Safe at Home confidentiality program allows an eligible person to file an application with a state agency—usually the attorney general or secretary of state—to certify eligibility for the program. Once certified, a participant may file a notice to prohibit public access to government records containing personal information. When someone enrolls in the program, they are assigned a PO Box address that they can use as their legal address. Access for real estate/title professionals is also available in Minnesota. Richard Welshons, president of DCA Title in Minnesota, said his company has had a few transactions involving Safe at Home but added most in the program don’t own real property.
“It is up to the title examiner and closers to determine why there is a difference in the chain of title,” Welshons said. “Often, there is also a disconnect between the owner’s name in the tax records as compared to the seller’s name on title application.”
Insuring cash purchasers has been trouble free, however, because redaction programs vary by state, many lenders are not familiar with Minnesota’s Safe at Home.
DCA Title’s search team typically can determine a property owner may be involved in the program when the seller’s name on the title application is different than the name that shows up as the current fee holder.
“Most title insurers require us to include exceptions in our commitments and policies regarding the inability to foreclose the mortgage,” Welshons said. “For that reason, some lenders balk at lending to a borrower enrolled or enrolling into the program.”
Because these deals occur infrequently, Welshons said there’s a learning curve to get familiar with the requirements, so closers work with the company’s underwriters to adhere to the rules. Meanwhile, DCA Title’s recording department is experienced at handling these documents and works with the county office involved to ensure privacy. Blosser said methods in Arizona and Minnesota provide effective solutions that balance protecting at-risk parties and allowing necessary access to public records.
“Other approaches, such as full redaction, are less effective and can lead to potential unintended consequences such as permanently impacting the integrity of land records, non-uniform shielding procedures, creating a false sense of security for the protected party, and the inability to buy, sell or finance property,” Blosser said. “The title industry wants to ensure that these laws do not have adverse consequences for the very people they are designed to protect.”
ALTA’s Redaction Work Group developed frequently asked questions to help promote best practices for record shielding or redaction measures. Ideally, title professionals should maintain access to be provided with permissioned access mechanisms. Other best practices include uniform standards, setting a time limit on shielding with a renewal process, ensuring there is a restoration process available and making sure that in-person contact is not the only way for authorized parties to gain access to information.
In 2019, ALTA’s Real Property Records Committee finalized a white paper titled “Privacy, Redaction, and Public Land Records,” which provides guidance on the redaction of information in public records. The paper acknowledges a need to shield protected classes with recognized privacy concerns, but this need must not impede normal business activities. Redacting specific parts of a document or expunging/removing an entire recorded document can prevent access to information and documents that are necessary for providing constructive notice, protecting land rights and preventing fraud, according to the paper.
“Redaction of name and property information from public land records can create unintended consequences including hindering or even prohibiting people from buying and selling real estate,” said Elizabeth Reilly, senior privacy counsel for Fidelity National Financial. “Even worse, redaction can create a false sense of security for the people who are intended to be protected and can increase the risk of fraud.”
In addition to making recommendations for effective solutions to protect privacy in the public land records, the paper addresses these redaction topics:
• Where privacy is a recognized concern and redaction of public land records works
• Where privacy is a recognized concern, but redaction of public land records is not an effective solution
• The potential impact of redaction of public land records on businesses
• The potential impact of redaction of public land records on local government
• Additional unintended consequences of redaction of public land records
“Expansion of redaction and record shielding efforts across the country creates challenges for our industry and can impact constructive notice,” Reilly said. “As an industry we must face the reality that supporting the status quo is not an effective advocacy technique. Instead, we must actively identify and present viable solutions for record shielding.”