From an access perspective, privacy seems to be on the ascendancy while access seems to be waning. I'm sure that a privacy advocate would see that balance in virtually the opposite direction.
That being said, the fact that there are such divergent sentiments about the relative merits or demerits of access vs. privacy strongly suggests that our political and social leaders need to engage in -- at all levels of government -- a debate on the public policy of these two worthy values, which butt heads like tectonic plates along a fault line.
After serving as the reporter for a significant privacy symposium in Hartford, Conn., I concluded that both government and business can protect and respect individual privacy by adhering to fair information practices. Only the press came across as the proverbial bull in the china shop, unwilling to be regulated -- and rightly so under the First Amendment -- but also unwilling to act responsibly when it came to invading people's privacy. Instead, the press seems to hunker down into defensive discussions of legal niceties -- almost everyone who sues the press for invasion of privacy loses -- and refuses to see the forest for the trees.
However, within the past several weeks there have been reports of an individual suing because they, or someone chillingly like them, was depicted in a movie without their permission. Also, recently re-elected New York Mayor Rudy Giuliani has apparently brought an action against New York magazine for using his name in an advertisement; Giuliani was not depicted as wrongly endorsing a product, but instead he was referred to within the context of his public persona.
Both of these suits are essentially privacy actions. Even the press has a legitimate defense in actions such as these.
Historically, privacy has been maintained by trust among friends, neighbors and associates who, even though knowing an individual's darkest secrets, were willing to keep a confidence; this was, perhaps, in line with the Golden Rule: "Do to others as you would have them do to you."
It wasn't that others did not know about our personal affairs or idiosyncrasies; it was that they were willing to keep them quiet. To the extent that small-town life did not allow for the keeping of such secrets, the individual just had to live with that.
Recorded transactions were most likely already a matter of common knowledge in small towns. Everyone knew who owned property, who voted, who had been arrested, who paid taxes and how much. As a society, access to most of that information was deemed a public good, a trade-off for living as a community and a civil necessity for keeping track of community life.
The accelerated speed of technology has changed much of that and has made us increasingly anxious about the volume of personal information that can be obtained on every one of us. As small towns gave way to larger cities, fewer people in the community knew about our public comings and goings. Your friends and neighbors might still know you like a book, but strangers who had nothing in common with you except for the fact that they lived in the same city probably did not. As a result, our public record information became known to an increasingly smaller subset of the larger community.
Government continued to intrude on our lives, and the debate over big or small government is another can of worms completely; but what the growth of government meant in information terms was that more information about us was continually required and demanded. From a privacy perspective, even with a solid statutory basis of fair information practices, the best way to protect ourselves against runaway availability of personal information is to make sure government and business 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.
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 privacy. While criminal history records probably shouldn't be floating around on the Internet, to the extent those records are public, what legitimate privacy concern does an individual have? But technology threatens to spew out DMV, voting, property and all kinds of other public records in a haphazard way that may make perfectly good access sense but may be a privacy disaster.
Unfettered access may not be the right conclusion, but neither is closing these records to public access solely because they could be misused or be embarrassing. We need a serious debate over the balance between these two issues and a determination of which one will become the default position. Without that debate, policy will continue to be made on an unsatisfying and unsatisfactory ad hoc basis.
Harry Hammitt is editor/publisher of Access Reports, a newsletter published in Lynchburg, Va., covering open government laws and information policy issues. E-mail: <firstname.lastname@example.org>.
February Table of Contents