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CFP'93 - Petersen

CFP'93 - Access Versus Privacy in Florida

by Barbara Petersen

Staff Attorney
Joint Committee on Information Technology Resources
Florida Legislature
1/25/93

The State of Florida has consistently been a leader in the area of open government. Because Florida has some of the strongest policies favoring disclosure of public records in the country, the conflict between an individual's right to privacy and public access to government records is particularly inherent and inescapable. For example, under Florida's Public Records Law, first codified in 1909, all government records are open for inspection and copying unless specifically exempt. Only the Legislature can create exemptions to Florida's Public Records Law - the judiciary is excluded from balancing competing interests in public access cases.

This rich tradition of open access culminated in the November 1992 election when Florida voters overwhelmingly approved a constitutional amendment which guarantees access to the records of all three branches of government and stipulates that any future exemptions to the Public Records Law "shall be no broader than necessary to accomplish the stated purpose of the law." In apparent contrast, Florida's Constitution also contains a provision which guarantees a person's "right to be left alone and free from governmental intrusion into his private life." This right to privacy is limited, though, in that the Constitution specifically states that the right "shall not be construed to limit the public's right of access to public records."

It would seem, then, that under Florida's Constitution the public's right to access government information overrides an individual's right to privacy. However, the increased collection and use of personal information made possible by rapidly changing information technology has resulted in more public support for legislative protection of personal information, and there is increasing pressure upon the Legislature from the voting public to enact laws which control access to public information and protect individual privacy. During the 1992 Legislative Session, before the right to access had been elevated from a statutory right to a constitutional guarantee by that same voting public, both the Florida Legislature and the Governor showed a willingness to approve exemptions to the Public Records Law based solely on the issue of individual privacy. Thus, the effect of Florida's new constitutional guarantee of open government - the first in the Nation - on the right to privacy has yet to be determined.

In Florida, as elsewhere, new computer-based information technologies permit rapid accumulation and exchange of personal information on large numbers of individuals, and computers are increasingly used to certify the accuracy and completeness of personal information before an individual receives government benefits or services. Florida differs from many states, however, in that the vast majority of this personal information becomes public record, readily accessible by anyone with a desire to see it.

Obviously, advances in information technology may permit improvements in government record keeping, detection and prevention of fraud, reduction of waste and abuse of government resources, and law enforcement investigations. Computer tapes, software, and networking also make it possible to compare personal information stored in different record systems - in effect, as if the government had established centralized files and data bases. And, while microcomputers have transformed the modern office, improving both productivity and the capacity to effectively manage and massage vast amounts of government information, this technology places control of public information in the hands of the end-user who, in Florida, may have access to a great number of centralized data bases through telecommunications networks.

In order to ease the burden of routine record requests on over-worked agency staff and in response to demand from the private sector, a growing number of state agencies and local governments in Florida are providing on-line, remote electronic access to a variety of government data bases, including driver history records, motor vehicle registration, public utility information, property records, tax roles, and criminal history information. This type of access allows comparison of massive amounts of personal information in an unlimited number of public and private agencies using direct on-line linkages. In addition, some government agencies have statutory authority to sell entire data bases for a flat, fixed fee - all others agencies must provide a copy of the requested data bases for the actual cost of duplication - and there is nothing in the law which controls how such data bases may be used. As a result, it is becoming increasingly difficult for the citizens of Florida to know where personal information is stored, to know who has access to it, and to assure that such information is correct.

The challenge facing the Legislature is how to deal with legitimate concerns regarding disclosural privacy within the context of our unique Public Records Law. The solution, I believe, is enactment of a Fair Information Practices Act. In simply - and necessarily - focusing on the collection by government agencies of non-essential personal information which becomes subject to public disclosure, FIPA legislation in Florida would surely enhance the rights of all individuals about whom personal information is collected by protecting the individual from unnecessary data collection and ensuring that personal information will not be used, disclosed, or destroyed in inappropriate or harmful ways.