Defenitions & Information about Public Records
What exactly are Public Records?
Public records refers to information that has been filed or recorded by public agencies, such as corporate and property records. Public records are created by the federal and local government, (vital records, immigration records, real estate records, driving records, criminal records, etc.) or by the individual (magazine subscriptions, voter registration, etc.). Most essential public records are maintained by the government and many are accessible to the public either free-of-charge or for an administrative fee. Availability is determined by federal, state, and local regulations.
Public records are held in physical files. Many public records are available via Internet or other sources; even though public records are indeed "public", their accessibility is not always simple, free or easy. Some states such as California have separate policies that govern the availability of information contained in public records. The PRA or public records act states that "except for certain explicit exceptions, personal information maintained about an individual may not be disclosed without the person's consent."
Most businesses offering access to databases specialize in something particular, yet a few attempt to offer all sorts of available records to professionals in the legal, risk management, corporate, government, law enforcement, accounting and academic markets. Certain unscrupulous companies, who sell software with a promise of unlimited access to public records, generally provide nothing more than just basic information on how to access already available and generally free public Websites.
Public Records in the USA:
Access to public records in the US at the federal level is guided by the Freedom of Information Act (FOIA). Each state has its own version of FOIA. For example, in Colorado there is the Colorado Open Records Act (CORA) and in New Jersey the law is known as the Open Public Records Act (OPRA). There are many degrees of accessibility to public records between states, with some making it fairly easy to request and receive documents, and others with many exemptions and restricted categories of documents. One state that is fairly responsive to public records requests is New York, which utilizes the Committee on Open Government to assist citizens with their requests. A state that is fairly restrictive in how they respond to public records requests is Pennsylvania, where the law currently presumes that all documents are exempt from disclosure, unless they can be proven otherwise.
With the advent of the Internet and the Information Age, access to public records in the U.S. to anyone who wishes to view them has dramatically increased. Third-parties such as the information broker industry make regular use of public records to compile profiles on millions of innocent people that are easily accessible to anyone at the click of a mouse, and sometimes make a profit from the service of re-compiling and mining the data. Many private matters such as the full accounts of divorce cases, insurance lawsuits, voter registration (varying from state to state), and almost any other transactions people make with the government or do through a courthouse, is put into public records and made available for all eyes of society. Employers regularly do background checks either on their own or through information agencies, and often come across embarrassing information about a job applicant that is prejudicial and disadvantageous. The institution of public records was created to make the government accountable for its actions and to make operation of the government transparent[verification needed]. However, the advent of the Information Age and electronic databases has promoted efficient large-scale shuffling and mass-compilation of personal information that some believe has created a "dossier society" -- a society in which everyone is subject to perpetual electronic profiles that document and amass everything known about an individual's private life. This has the effect and prognosis of invading the privacy of millions, preventing any social forgiveness for embarrassing matters that go through courts (civil and criminal) no matter how much time goes by, and creating a growing disenfranchised group of society
Freedome Of Information:
Over seventy countries around the world have implemented some form of freedom of information legislation. These laws—also described as open records or (especially in the United States) sunshine laws—set rules on access to information or records held by government bodies.
Sweden's Freedom of the Press Act of 1766 is thought to be the oldest such law.
Many more countries are working towards introducing such laws, and many regions of countries with national legislation have local laws. For example, all states of the US have laws governing access to public documents of state and local taxing entities, in addition to that country's Freedom of Information Act which governs documents in the possession of the federal government.
In general, such laws define a legal process by which government information is available to the public; In many countries there are vague constitutional guarantees for the right of access to information, but usually these are unused where specific legislation to support them does not exist.
A related concept is open meetings legislation, which allows access to government meetings, not just to the records of them. In many countries, privacy or data protection laws may be part of the freedom of information legislation; the concepts are often closely tied together in political discourse.
A basic principle behind most freedom of information legislation is that the burden of proof falls on the body asked for information, not the person asking for it. The requester does not usually have to give an explanation for their request, but if the information is not disclosed a valid reason has to be given.
Invasion of privacy:
Invasion of privacy is a legal term essentially defined as a violation of the right to be left alone. The right to privacy is the right to control property against search and seizure, and to control information about oneself. However, public figures have less privacy, and this is an evolving area of law as it relates to the media.
Development of the doctrine:
In the United States, the development of the doctrine regarding this tort was largely spurred by an 1890 Harvard Law Review article written by Samuel D. Warren and Louis D. Brandeis on The Right of Privacy. Modern tort law gives four categories of invasion of privacy :
Intrusion of solitude - physical or electronic intrusion into one's private quarters.
Public disclosure of private facts -- the dissemination of truthful private information which a reasonable person would find objectionable
False light - the publication of facts which place a person in a false light, even though the facts themselves may not be defamatory.
Appropriation -- the unauthorized use of a person's name or likeness to obtain some benefit
Intrusion of solitude:
Intrusion of solitude occurs where one person exposes another to unwarranted publicity. In a famous case from 1944, author Marjorie Kinnan Rawlings was sued by Zelma Cason, who was portrayed as a character in Rawlings' acclaimed memoir, Cross Creek. The Florida Supreme Court held that a cause of action for invasion of privacy was supported by the facts of the case, but in a later proceeding found that there were no actual damages.
Public disclosure of private facts arises where one person reveals information which, although truthful, is not of public concern, and the release of which would offend a reasonable person.
In the United States, one who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability for invasion of privacy, if:
The false light would be highly offensive to a reasonable person; and
The actor acted with malice -- had knowledge of or acted with reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.
See Section 652D of the Restatement (Second) of Torts.
The tort of false light involves a "major misrepresentation" of a person's "character, history, activities or belief." See Gannett Co., Inc. v. Anderson, 2006 WL 2986459 at 3 (Fla. 1st DCA Oct. 20, 2006.)
For example, in Peoples Bank & Trust Co. v. Globe Int'l, Inc., a tabloid newspaper printed the picture of a 96-year-old Arkansas woman next to the headline “SPECIAL DELIVERY: World's oldest newspaper carrier, 101, quits because she's pregnant! I guess walking all those miles kept me young.” 786 F. Supp. 791, 792 (D. Ark. 1992). The woman (not in fact pregnant), Nellie Mitchell, who had run a small newsstand on the town square since 1963, prevailed at trial under a theory of false light invasion of privacy, and was awarded damages of $1.5M. The tabloid appealed, generally disputing the offensiveness and falsity of the photograph, and arguing that Mitchell had not actually been injured, and claiming that Mitchell had failed to prove that any employee of the tabloid knew or had reason to know that its readers would conclude that the story about the pregnant carrier related to the photograph printed alongside. The court of appeals rejected all the tabloid’s arguments, holding that “[i]t may be. . .that Mrs. Mitchell does not show a great deal of obvious injury, but. . . Nellie Mitchell's experience could be likened to that of a person who had been dragged slowly through a pile of untreated sewage. . . [and] few would doubt that substantial damage had been inflicted by the one doing the dragging.”
The false light invasion of privacy cause of action has been a source of hot debate among judges and legal scholars. See Gannett at 1. Some courts have held that this invasion of privacy action duplicates the cause of action for defamation, while allowing the plaintiff to avoid the strict requirements that are designed to ensure freedom of expression. Gannett at 4.
Acceptance by courts
Nine US states (Colorado, Massachusetts, Minnesota, Missouri, New York, North Carolina, Texas, Virginia and Wisconsin) have rejected false light as a viable claim. Some of those states (such as Virginia) have statutes that dictate what type of privacy claims may be made and that specifically leave out false light. In the other states, the highest courts have determined that false light will not exist in their state.
In eleven states (Alaska, Florida, Hawaii, Michigan, North Dakota, Oregon, South Carolina, South Dakota, Vermont, Washington and Wyoming) supreme courts have not had an opportunity to rule on whether false light is recognized. The remaining states and the District of Columbia accept false light as a viable claim.
Ohio, previously undecided on the issue, has adopted false light in a recent decision. 113 Ohio St.3d 464
Although this is a common-law tort, most states have enacted statutes that prohibit the use of a person’s name or image if used without consent for the commercial benefit of another person.
Privacy and the Fourth Amendment:
Invasion of privacy is a commonly used cause of action in a legal pleading. The Fourth Amendment to the Constitution of the United States ensures that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The amendment, however, only protects against searches and seizures conducted by the government. Invasions of privacy by persons who are not state actors must be dealt with under private tort law.
Sex offender registration:
Sex offender registration is a system in place in a number of jurisdictions designed to allow government authorities to keep track of the residence and activities of sex offenders, including those who have completed their criminal sentences. In some jurisdictions (especially in the United States), information in the registry is made available to the general public via a website or other means. In many jurisdictions registered sex offenders are subject to additional restrictions, including housing. Those on parole or probation may be subject to restrictions that don't apply to other parolees or probationers.
Past, Present, Future:
In 1947, California became the first state in the United States to have a sex offender registration program. Community notification of the release of sex offenders from incarceration did not occur until almost 50 years later. In 1994, a federal statute called the Jacob Wetterling Act required all states to pass legislation requiring sex offenders to register with state sex offender registries. Then again in 1996, based on a set of New Jersey Laws called "Megan's Laws," the federal government required states to pass legislation mandating public notification of personal information for certain sex offenders. The Adam Walsh Child Protection and Safety Act became law in 2007. This law implements new uniform requirements for sex offender registration across the states. Highlights of the law are a new national sex offender registry, standardized registration requirements for the states, and new and enhanced criminal offenses related to sex offenders. Since its enactment, the Adam Walsh Act (AWA) has come under intense grassroots scrutiny for its far-reaching scope and breadth. Even before any state adopted AWA, several sex offenders were prosecuted under its regulations. This has resulted in one life sentence for failure to register, due to the offender being homeless and unable to register a physical address.
In the United States, all 50 states have passed laws requiring sex offenders, especially child sex offenders, to register with police. They report where they live when they leave prison or are convicted of a crime.
In 2006, California voters passed Proposition 83, which will enforce "lifetime monitoring of convicted sexual predators and the creation of predator free zones." This proposition was challenged the next day in federal court on grounds relating to ex post facto. The U.S. District Court for the Central District of California, Sacramento, found that Proposition 83 did not apply retroactively.
Sex Offenders - CANADA:
Canada's National Sex Offender Registry (NSOR) came into force on December 15, 2004, with the passing of the Sex Offender Information Registration Act (SOIRA) Since then, any offender who is convicted of a designated sexual offence may be ordered, at the time of sentencing or as soon as possible thereafter, by the court to register with the registration site that serves the area of their main residence. A person so ordered must register within 15 days, or if they are incarcerated for their crime, within 15 days from their release date. The information that is collected from the offender is confidential, and is not available to the public.
The main purpose of Canada's NSOR is to assist a police officer who is investigating a crime of a sexual nature. NSOR analysts can provide the most current information available about a suspect who is already a registered sex offender, or can search the NSOR database for possible suspects in sexual offence cases where the offender is unknown.
The NSOR database also contains details concerning many sex offenders who were convicted and sentenced prior to December 15, 2004, referred to as "retrospective" offenders, the criteria being that they must have still been serving an active portion of their sentence on the date that the SOIRAct came into force (eg. still incarcerated, on probation, or on parole). These retrospective offenders were tracked down by various law enforcement authorities, and were served with a Notice that they were required to register for the NSOR after a one-year grace period. The last day of that grace period was December 15, 2005.
Anyone required to register with Canada's National Sex Offender Registry is required to comply with the following obligations:
1) to register with their registration site once a year. (The registration site is usually the police agency that serves the area where the offender's main residence is located, although this description varies somewhat by province or territory);
2) to advise their registration site, within 15 days, of any change of name;
3) to advise their registration site, within 15 days, of any change of address;
4) to advise their registration site, within 15 days, of any absence from their main address that will be for at least 15 consecutive days. They must advise of their date of departure, their actual or estimated date of return, and of the address(es) where they will be while absent. In addition, the offender is required to advise the registration site, within 15 days of their return to their residence, of their actual date of return.
An Order or Notice requires an offender to comply with the SOIRAct for a term of either 10 years, 20 years, or Life. The term is determined by the maximum possible penalty the offender could have received for the offence for which he/she was sentenced. Also, if the offender has a previous conviction for any sexual offence (it does not have to be the same sexual offence for which they're now being sentenced), or if they're already under a previously-issued Order or Notice, the minimum term that will apply, is Life.
Sex Offenders United States:
In Smith v. Doe, 538 U.S. 84 (2003), the Supreme Court of the United States upheld Alaska's sex-offender registration statute as not violating the Constitution's prohibition on ex post facto laws, reasoning that sex offender registrations are civil laws, not punishments. Justices Stevens, Ginsburg, and Breyer dissented.
In Connecticut Dept. of Public Safety v. Doe, 538 U.S. 1 (2003), the Supreme Court ruled that Connecticut's sex-offender registration statute did not violate the procedural due process of those to whom it applied. Still, the Supreme Court declared that it "expresses no opinion as to whether the State’s law violates substantive due process principles."
In US v. Grant, No. 06-3649, Denial of a motion to suppress evidence in a prosecution for possessing child pornography and criminal forfeiture is affirmed where: 1) an affidavit supplied in support of a search warrant application was sufficient to establish probable cause that defendant's computer contained child pornography; and 2) even if the affidavit was insufficient, the Leon good-faith exception applied under the circumstances.
In U.S. v. Madera, 2007 U.S. Dist. LEXIS 3029 (M.D. Fla. January 16, 2007) , Defendant, a New York state convicted misdemeanor sex offender, upon moving to Florida failed to register with the Florida sex offender registry as required by the Sex Offender Registration and Notification Act ("SORNA"), a provision of the Adam Walsh Child Protection and Safety Act of 2006. Defendant was arrested and prosecuted pursuant to 18 USC 2250. The Florida Court held as follows:
SORNA does not violate the non-delegation doctrine of Article I, § 1 of the U.S. Constitution;
SORNA does not violate the Ex Post Facto clause, per the logic in Smith v. Doe, 538 U.S. 84 (2003), which addressed the Alaska Sex Offender Registry requirements;
SORNA does not violate procedural due process under the Fifth Amendment per Conn. Dept. of Pub. Safety v. Doe, 538 U.S. 1 (2003);
SORNA does not violate substantive due process per decisions in various circuits, Doe v. Moore, 410 F.3d 1337 (11th Cir. 2005), Doe v. Tandeske, 361 F.3d 594 (9th Cir. 2004), and Gunderson v. Hyass, 339 F.3d 639 (8th Cir. 2003);
SORNA does not violate the Commerce Clause, per Gonzales v. Raich, 545 U.S. 1 (2005).
Defendant filed a motion to dismiss on multiple grounds. The District Court denied defendant’s motion and held the Adam Walsh Child Protection and Safety Act of 2006 is constitutional as written and is retroactive.
(The above Definitions & Information is Taken from wikipedia.org)
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