collects less -- not more -- of it.

While most of us have willingly disclosed our personal information in exchange for some perceived benefit, we have generally assumed that the personal information was required for a specific transaction or benefit -- not that once in the system it could be disclosed for almost any reason at all. The bedrock privacy principle that personal information should be used only for a purpose compatible for the purpose for which it was collected has been routinely stretched so thin that it has often become meaningless.

To return to the access/privacy scale, the freedom of information movement in the United States -- which dates back to just after World War II and continues, albeit fitfully, even today -- is clearly premised on the idea that government records are to be disclosed except where the Legislature has provided an exemption. While there are exemptions in open records statutes collectively, the federal privacy exemption requires release of personal information unless disclosure "would constitute a clearly unwarranted invasion of privacy." Congress indicated that personnel, medical and similar files would be covered by the exemption.

No one knows for sure what "clearly unwarranted" means, but it is certain that, if some disclosures would be unwarranted, others would be warranted. The only way to apply that reasoning on a case-by-case basis is to balance the degree of invasion against the benefit of disclosure. Congress clearly intended that access would receive a somewhat greater consideration than would privacy. For example, in the legislative history of the Privacy Act, the barebones discussion of the section that precludes the government from selling or renting mailing lists contains a comment by Rep. William Moorhead (D-Pa.), the chairman of the House Government Information Subcommittee at the time. He noted that the provision would not affect the availability of mailing lists under the Freedom of Information Act (FOIA) -- an indication that Moorhead, at least, believed that lists of names and addresses were not cloaked with a privacy interest that outweighed the interest in access.

Courts Rule

Over the years, courts grudgingly, but reasonably accurately, balanced the two values and came down on either side depending on the circumstances. However, that all changed when the U.S. Supreme Court made up a new test that has neither statutory nor legislative underpinnings but is now considered the correct test on privacy balancing solely because the Supreme Court crafted it.

While the high court's ruling in Dept. of Justice vs. Reporters Committee contains some useful insights, its conclusion that the only public interest in disclosure of personal information is whether it sheds light on government operations or activities finds its primary support in a 20-year-old law review article and nothing more. The language pertaining to government operations or activities was borrowed by the court from the fee waiver provisions of FOIA, but the decision to provide a discretionary financial benefit to a requester because his or her request is in the public interest has nothing to do with whether information is exempt from disclosure.

Unfortunately, the Reporters Committee decision has had a rippling effect throughout the legal world and was adopted by the California Court of Appeals in Los Angeles as the basis for its decision not to disclose public arrest record information to an information broker who wanted to create a database for attorneys. The California court based its ultimate decision on the California constitutional right of privacy. Further ripples found an ingenious public defender applying that decision to public criminal docket information in court files. While such records were momentarily closed and then quickly reopened after reconsideration, the force of the argument still remains.

Technology -- which allows anyone with a computer and a modem access to reams of public record information -- has seriously exacerbated public concerns over

Harry Hammitt  |  Contributing Writer