Attorney General Opinions | 2009 Miss. AG LEXIS 198 | 2018
Attorney General Jim Hood received your letter of request and assigned it to me for research and response.
Issue Presented
Your inquiry to our office concerns a specific requirement of the Violence Against Women Act, 18 U.S.C.A. Section 2265(d)(3), which prohibits the publication on the internet of information which would disclose the identity or location of victims of domestic violence. You state that your court has, in compliance with this provision, begun sealing actions filed under the Protection from Domestic Abuse Act, to conceal the identity of petitioners which would otherwise be available on-line to the general public. Your specific questions are as follows:
1. Does VAWA apply to intrastate domestic violence actions, thus requiring Mississippi courts to conceal the identifying information of petitioners filing under our Protection from Domestic Abuse Act in on-line dockets?
2. If so, what does "identifying information" specifically entail?
Response
Pursuant to Section 7-5-25 of the Mississippi Code, the Mississippi Attorney General's Office is directed to provide Official Opinions on matters of state law. Your request seeks an interpretation of a federal law, although related to its application to a state matter. While we are unable to provide you with an Official Opinion regarding the federal provisions, the following is offered as general guidance and direction in handling matters brought pursuant to the Mississippi Protection from Domestic Abuse Act, Miss. Code Ann. Section 93-21-1 et seq., and the Uniform Enforcement of Interstate Domestic Violence Protection Orders Act, Miss. Code Ann. Section 93-22-1 et seq., in light of those federal provisions.
The answer to your first question is yes. The Violence Against Women Act does not differentiate between intra-state and inter-state orders of protection for purposes of non-disclosure of identifying victim information, and as such, this information is to be protected in actions related to the request for or issuance of a domestic violence protection order by a Mississippi court, or to the enforcement by a Mississippi court of such an order issued by a court of another jurisdiction.
With regard to your second question, the phrase "identifying information" is not defined in the language of the Act, but in its broadest sense includes any information from which the general public could discover the identify or location of a victim of domestic violence (e.g., name, names of children, name of abuser, home address).
Applicable Law and Discussion
Chapter 21 of Title 93 of the Mississippi Code provides the mechanism for domestic violence victims to seek and obtain orders of protection in Mississippi courts. Chapter 22 of Title 93 provides the scheme whereby domestic violence protection orders issued in other jurisdictions can be enforced by Mississippi courts, and can be registered with the Chancery Clerk of the county of residence of the victim. In either case, the court will necessarily possess information which may identify a victim or that victim's whereabouts. The federal provision about which you inquire restricts the manner in which that information may be made public, requiring that no publication of certain information is to be made via the internet to the general public.
The applicable provision of the Violence Against Women Act is 18 U.S.C.A. Section 2265(3)(d), which provides:
(d) Notification and registration.--
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(3) Limits on Internet publication of registration information.--A State, Indian tribe, or territory shall not make available publicly on the Internet any information regarding the registration, filing of a petition for, or issuance of a protection order, restraining order or injunction, restraining order, or injunction in either the issuing or enforcing State, tribal or territorial jurisdiction, if such publication would be likely to publicly reveal the identity or location of the party protected under such order. A State, Indian tribe, or territory may share court-generated and law enforcement-generated information contained in secure, governmental registries for protection order enforcement purposes.
We assume for purposes of this response that by use of the term "intrastate" in your inquiry, you were referring to actions taking place solely within the boundaries of Mississippi (issued and enforced by Mississippi courts). There is no such distinction in the federal law. Further, the federal statute specifically mentions the publication of that information in either the issuing or enforcing state, thus evidencing the intent of Congress that no matter where the order is issued or enforced, all jurisdiction maintaining this type of information are required to comply with the restrictions on publication. Neither the federal law or state law require the sealing of the court file in this type of action. However, please be advised that, in addition to the federal provisions against publication via the internet, from and after July 1, 2009, state law will provide that when a victim of domestic violence has indicated in a petition for relief that disclosure of his or her address would place that person or minor children in danger of further abuser or would disclose the location of a domestic violence shelter, the court must keep that address in a separate nonpublic file. This provision regarding keeping the non-public record of a victim's address was added by Senate Bill 2967, adopted during the 2009 Legislative session.
If information about the identity or location of a victim is linked to the type of matter (in this instance, the filing of a petition for protection order, hearing on a protection order, the registration of a protection order), the disclosure of that information on the internet would be prohibited. As to the question of what type of information constitutes information that "would be likely to publicly reveal the identity or location of the party protected...", that term is not defined in this section. However, in the arena of HIPAA, the National Institute of Standards and Technology, which operates under the purview of the U.S. Department of Commerce, has developed a general definition for this type of information in its publication NIST Guide to Protecting the Confidentiality of Personally Identifiable Information which defines that term as follows:
Information which can be used to distinguish or trace an individual's identity, such as their name, social security number, biometric records, etc. alone, or when combined with other personal or identifying information which is linked or linkable to a specific individual, such as date and place of birth, mothers maiden name, etc.
Nat'l Inst. of Standards & Tech., Special Publ's, 800-122 (Draft Jan. 2009).
As can be seen, this definition encompasses more than simply a person's name, but can mean any information from which the person's identity could be extrapolated. For example, the identity of a person may be established by publication of children's names or of a spouse's name. Although not binding, the use of this definition as a general guide by courts in seeking to protect the identity of victims of violence would be permissible.
Harrison County Chancery Court has an on-line docket system which enables members of the general public to search the docket. With respect to actions brought pursuant to M.C.A. Sections 93-21-1 et seq., or 93-22-1 et seq., the docket system should be designed to ensure that members of the general public are not able to view identifying information of the victim.
If our office may be of further assistance, please advise.