I have written articles for Government Technology in the past and, as those of you who have read those articles already know, my main area of interest is access to government information, particularly from a legal and policy perspective. I'm sure that over time many columns will deal with issues arising out of access matters, but the other side of my beat is what I call statutory privacy -- laws or regulations that provide fair information practices principles for personal information collected by government. Because this side of the equation is every bit as important as the access side, privacy will often be a thread running through these columns. I look forward to addressing these issues from an editorial point of view and welcome your comments and feedback.
Jim Warren's farewell column last month focused on the inherent tensions between access to government records and the possibility that disclosure of those records might invade the privacy of individuals whose names, addresses or other personal information are contained in the records. Jim referred to this as an "insoluble" problem, and it is. But from an access point of view, privacy advocates or guardians seem to have hijacked the debate over disclosure of traditionally public records, urging governments to close down records that have been routinely available to the public for years.
The idea that public records had serious implications for invasions of privacy found a home at the U.S. Supreme Court when it handed down its decision in Dept. of Justice vs. Reporters Committee in 1989. The Court ruled that a criminal history database maintained by the FBI was exempt under the Freedom of Information Act (FOIA) because disclosure of any record from the system would per se constitute an "unwarranted invasion of personal privacy." The Court decided that, even though most of the records were public at their source, their compilation in one location made them considerably more sensitive. The Court adopted the concept of "practical obscurity" to justify
its decision -- the notion that, as public records become more difficult to locate because of their age or the location at which they are maintained, such obscurity provides an individual with an increased expectation of privacy.
For more than 20 years courts had accepted the idea that the FOIA's privacy exemptions required a two-step analysis. First, the court had to decide if disclosure of the information would even rise to the level of an invasion of privacy. If the court found that it did, the next step was to balance the privacy interest against the public interest, an analysis that usually resulted in disclosure for those purposes the courts found socially useful or benign, and protection for those aims which might be considered more malevolent.
While Reporters Committee was a real shot in the arm for privacy advocates, the public policy debate did not gather force until the advent of the Drivers' Privacy Protection Act several years ago. Sponsored by Sen. Barbara Boxer (D-Calif.) and Rep. Jim Moran (D-Va.), the bill mandated that states shut down routine public access to drivers' registration data. The justification for the legislation was to prevent stalkers from using DMV records to harass or harm others. What emerged is a statute that, starting next year, will prohibit access to registration information for average citizens, but will allow access to direct mailers, private investigators, tow-truck operators, and more than half a dozen other interest groups.
Most states have routinely sold their DMV databases to commercial requesters and those sales have been substantial revenue sources. The press has used such databases both as an analytical tool in developing stories about highway safety and as a source
for confirming names and addresses. In other words, the records have been considered presumptively public until recently. There may well be good reasons for restricting access to the data, and the nature of driver registration records does not suggest that they are heavily imbued with a public interest component, but, be that as it may, the Drivers' Privacy Protection Act is not the appropriate fix. It makes far more sense to penalize the misuse of government information than to cut off access for everyone.
While the murder of actress Rebecca Shaefer by an obsessed fan has been the most-repeated anecdote about the harms of allowing access to DMV records, ironically, the new DMV restrictions would not have averted that tragedy since the fan got the information through a private investigator who would still have access under the new legislation. After Shaefer was murdered, the response of the California Legislature was to allow drivers to use a post office box as an address, a way to protect residential information while continuing to allow access to the DMV database.
The most alarming aspect of the DMV legislation is its acceptance as the basis for information policy. There are any number of other public records containing the same name and address information that could easily be restricted for the same purpose -- to prevent misuse by the few, we must prohibit use by the many.
Earlier this year, a court of appeals in Arizona upheld legislation curtailing access to voter registration databases. While the records were available to recognized political parties, anyone else would have to pay a substantial fee, prohibitive in most cases. While the Legislature itself had offered no rationale for the law, the court found that it could be justified on the grounds that some individuals might not participate in the voting process if their registration data was made public.
While the case for public access to voter registration data carries with it a strong accountability argument, since access to such records is important to monitor voter fraud and other electoral improprieties, policies such as those embodied in the Arizona legislation illustrate that accountability concerns can give way to privacy concerns.
Other records, such as property tax and land records, could just as easily fall victim to a drive to protect society from lunatics and disgruntled neighbors.
The bottom line is this: there are certain types of records that describe our relationships with government and our society that have historically been public because their nature is such that public availability helps ensure that the system runs properly. Our neighbors' property taxes generally help form the basis for our own taxes. That's the kind of information to which we as citizens need access. To deny access based on overly broad concerns about personal privacy would be to risk running aground on the shoals of government abuse and impropriety. We live and function in a society made up of individuals. But to undermine the necessary availability of information, which undergirds that social fabric solely in an attempt to avoid potential embarrassment to an individual member, is to risk abdicating the social good for individual benefits.
Harry Hammitt is editor/publisher of Access Reports, a newsletter published in Lynchburg, Va., covering open government laws and information policy issues. E-mail: <75111.743@compuserve.com>.
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