A judge has refused to block New York State from selling housing court data to companies that promise to help landlords screen out troublesome tenants.
The decision late last year by State Supreme Court Justice Eileen Rakower of Manhattan has reactivated calls by some members of the state legislature to curb misuse of public records by companies that buy the information from government agencies. Tenant advocates have long complained that the information is used by some property owners to reject applicants for housing who merely asserted their right to a court hearing.
Four years ago, Manhattan state senators Liz Krueger, Thomas Duane and Eric Schneiderman (now state Attorney General) and others secured a promise from the state Office of Court Administration to better protect people’s personal information when it sells court records to commercial data vendors. Most of the promised measures have not been implemented.
“I am a bit horrified that the New York State Unified Court System said they were doing X in January 2008 and we’re here in January 2012 having a discussion about how they haven’t done any of this,” said Krueger. She says she has been meeting with advocates and other elected officials to discuss a renewed push for rules restricting the delivery and use of the data. “We have a new Chief Judge, we have a new administration, there’s a new group of players and it’s very high on my list to follow up.”
Legally, the state courts can sell the data, which includes tenants’ names and their court dates. Since 2008, the state courts have required that companies buying their data include a disclaimer on any resulting reports: “A lawsuit in housing court does not necessarily mean that a tenant owed rent or was evicted from an apartment.”
But other pledges made by the administrative judge in charge of Housing Court, Ann Pfau, remain unfulfilled. In a 2008 letter to Krueger in which Pfau discussed adding the disclaimer, she also promised more rigorous measures to avoid “improper use” of the data, including “prompt and accurate processing of updates and deletions,” “compliance with federal and state credit reporting statutes,” “audits” and “immediate termination for improper use.”
Office of Court Administration spokesperson David Bookstaver acknowledged that none of these measures has been carried out. Bookstaver added that OCA is now looking into its practices. Judge Pfau left her position as chief administrative judge last year and has been succeeded by Judge A. Gail Prudenti.
Since 1995, the Office of Court Administration has offered a daily electronic subscription to activity in housing courts in New York State, which lists names of anyone involved in a housing court case, whether as a plaintiff or defendant. Landlords can bring tenants to court for nonpayment of rent, for example. Tenants, meanwhile, can seek an order from a judge to force a landlord to make necessary repairs. Combined, landlords and tenants file between 300,000 and 325,000 housing court cases each year in New York City.
The data the companies obtain and resell is far from complete. As supplied by the state courts, it lists neither whether the tenant was the plaintiff or the defendant, who won the case, nor any specifics of the dispute.
Currently, four companies buy housing court data from the New York State Office of Court Administration, and three of them — CoreLogic SafeRent, National Tenant Network, and RentPort, Inc – resell the information for background screenings. The companies pay the state courts a one-time fee of $20,000 and $350 a week for daily updates, and then other vendors resell it to subscribers. (In the past year, the state has collected $81,500 in revenue from the sales.) In turn the data retailers offer a variety of tenant screening products that usually between $15 and $100 per search depending on the scope of the search.
Paradoxically, one change made by the courts to address advocates’ concerns – the removal of tenants’ addresses from the records it sells — has made the information less reliable and more open to misuse than it had been before, complain some companies that retail the court data.
“We don’t rely on OCA’s electronic subscription at all,” said Eric Basart, Director of Corporate Development for background screening firm On-Site.com, one of the largest background screening firms in New York State. It used to buy directly from the state courts. Then about five years ago, he recalled, the address information disappeared. “At that point,” he said, “it became pretty much useless to us.” Without an address, there was no way to prove that the John Smith applying for an apartment today is the same John Smith who had a case in housing court last year.
These days, On-Site relies on court research service companies that send people into the courthouse to pull names manually. To maintain accuracy, On-Site checks its data against multiple independent sources. If discrepancies start to show, Basart said, or they receive complaints from incorrect credit reports, On-Site looks to change vendors. The company also doesn’t report cases against tenants that were “dismissed with prejudice” – court jargon for a frivolous lawsuit. But not all screening firms have such strict policies.
How landlords use the information varies. Roberta Bernstein, president of the trade group Small Property Owners of New York (SPONY), says she understands that the records in housing court don’t always mean a tenant was evicted for nonpayment of rent. But “should this information be made available?” she asked. “Yes, it should be, because tenant who has a history of scamming owners should not be given free rein to do it again.” Owners refer to these people as “professional tenants,” Bernstein said. Landlords say they have to pick their battles. Neal Dunatov, an apartment manager in Manhattan, says that when a prospective tenant has a housing court record, “there’s always a story it and you got to work with people. If you want to fight with the world, you’re going to have an empty building.”
Sen. Krueger sees another side. Before she entered elected office she worked to help tenants avoid eviction, and says that in her experience “poor people and people of color are disproportionately dragged into housing court” for frivolous cases. Landlords, she says, “start a court process as a way to simply harass people because they got a lawyer filing paperwork. They’re hoping you miss a deadline on 15 documents.”
Restricting the sale of electronic data, suggested Sen. Duane, would force landlords to rely on more substantial references, “similar to references looking for a job.” Duane would prefer to see Housing Court information treated similarly to confidential family court and youth arrest records or medical information protected under federal privacy law. Bob Freeman, executive director of the state Committee on Open Government, disagrees. He says that locking Housing Court data under the same seal as medical records would cut off any number of potentially beneficial uses for it, such as databases that could allow tenants to see whether a landlord has a negative history in Housing Court. He also cautions against treating online records any differently than information openly available at a courthouse.
John Kaehny of Reinvent Albany suggests that the data should remain available online – for free – and in a comprehensive form that would provide a fuller picture of cases and outcomes. “What’s happening here is information inequality: only the rich have access to the information and not the general public,” he said. “The best thing to do in the public interest here is to put it online for everyone and that would allow people to correct the record and create public pressure to make sure the information is complete, so it wasn’t mischaracterizing you.”
Krueger is skeptical that the people with the most at stake would benefit. “I understand the idea that if you make all the information available to everybody, you get close to a perfect world when it comes to transparency,” she said. “That doesn’t change the uneven power relationship [between] people with their own specialist law firm and people that don’t have access to a computer.” Housing court in Brooklyn or the Bronx, she said, “is filled with people frantic with documents saying ‘I don’t know what to do with this,’ ‘I don’t know where to go.’ Then you see the organized professional people.”