Recent developments seem to indicate that, when faced with a choice between access and privacy, the average individual prefers privacy. The comparison isn't quite that simple, since the average citizen usually doesn't know much about the rights of access to government information, but signs seem to point to privacy as a more cherished individual right than access.

Several months ago, Maryland implemented state legislation to enforce the provisions of the federal Drivers Privacy Protection Act (DPPA), which was passed by Congress to ensure that motor vehicle registration records would not be disclosed to just anyone. Although, in trying to pacify interest groups who regularly relied on such records, Congress provided more loopholes than any privacy advocate would like to see. When the dust had cleared, the only groups that could not get access to individual registration records were the press and the general public. Direct marketers could still get the names in bulk; insurance companies could get the information; private investigators could get it; even tow-truck operators could get it.

The act provided that states offer an opt-out, allowing individuals to have their records generally insulated from disclosure. When the law passed, a prevalent view in the privacy community was that the opt-out provision would not mean much because, statistically, most people don't bother to take advantage of such options.

But Maryland aggressively promoted the opt-out, and many drivers took advantage of it. Their desire to opt-out of the system was encouraged in part by widespread misreporting in the media, which left many drivers with the impression that they could prohibit their insurance companies from obtaining their records. Whether that played a large role in the matter, the result was Marylanders voting overwhelmingly to keep their records away from direct mailers and the like.

ACTING CONTROVERSIAL

DPPA has been controversial from the beginning. DMV records have traditionally been relied on by direct mailers and the press -- for the demographic information that can be gleaned from them, and because they are considered more accurate than phone or city directories.

These records have traditionally been open -- although that is generally unknown to the average driver -- and for Congress to mandate that states close them meant that access advocates saw a sizeable chunk of public records restricted for privacy reasons. Further, many thought Congress did not have the constitutional authority to require states to take such an action, but press advocates thought the argument was better made by the states than by the press. Only four states rose to the challenge -- South Carolina and Oklahoma first followed by Alabama and Wisconsin -- and DPPA was temporarily blocked in those states. But once a state has voluntarily passed implementing legislation, the constitutional challenge is probably vitiated.

GETTING IN LINE

On another front, the U.S. Court of Appeals for the Third Circuit in Philadelphia recently issued a decision putting the circuit in line with all other circuit courts that had looked at the matter. While the records at issue were of less universal application than motor vehicle records, the implications of the decision were equally damaging to the access side of the equation.

The case involved a review of a district court's decision that the Department of Veterans Affairs had to disclose payroll records -- including names and addresses, but excluding Social Security numbers -- to a union local that wanted to use them for monitoring compliance with the Davis-Bacon Act, which requires federal contractors to pay the local prevailing wage. The district court found that a 1988 Third Circuit decision, which allowed for disclosure of such lists without Social Security numbers, was binding and that the union met the Supreme Court's public interest analysis in Department of Justice v. Reporters Committee because disclosure of the names, addresses, and wage statements would allow

Harry Hammitt  |  Contributing Writer