CFP'93 - Freedom of Information - The Continuing Dilemma
by Jack H. Reed1/93
Two centuries ago a founding father, James Madison, stated: "A popular government without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy or perhaps both. Knowledge will forever govern ignorance and a people who mean to be their own governors must arm themselves with the power knowledge gives."
Currently, a very large industry has grown as a result of our forefathers' vision of the need for knowledge. The information industry now gathers private and public information and dispenses it to hundreds of thousands of users for various commercial and legal purposes. Blanket open records and statutes in many states, along with the judicial system's position from the early 17th century, denote that public records belong to the public. Ongoing government requirements, regulations, and commercial practice have added fuel to the information expansion of today.
There are many records that have not been tapped, because they are buried in the bowels of government; the private sector has not found a cost effective way to dissuade bureaucracy that the records held by the government are public and should be made available in a form that the public can disseminate. These records include various agency hearings, judicial decisions, administrative law findings, complaints and findings on judges, lawyers, the medical profession, and other regulated and licensed professionals and industries across the nation. Some courts have refused to release electronic entries such as criminal bankruptcy.
There is considerable information that will become available in the years ahead if the arguments of the information industry are heeded. However, if the arguments for absolute privacy are made, very few records, if any, will be released. We will then have a government of the government, by the government and for the government, rather than a government of the people, by the people and for the people.
Both the public and private sectors play a necessary, legitimate and distinct role in disseminating government information. By redisseminating this information, the press, libraries, non-profit organizations, public interest groups, and the private information industry help the government meet the needs of public users by providing information, products and services that the government cannot support or that are beyond the bounds of government activities. At times the private sector, libraries, and non-profit organizations provide essential products or services to the government that the government is unable to provide for itself. A diversity of sources for government information and not a monopoly best serves the public interest.
Common law provides individuals with a limited right to inspect public records. However, this cognizable, common law interest in obtaining access to public records does not grant individuals an absolute right to the documents. Rather, it requires a balancing of interests, the individual's personal or particular interest in the information against the public's interest in the confidentiality of the file. By doing away with the common law requirement of showing a personal and particular interest, most freedom of information statutes have bestowed upon the public an unqualified right of access to government records.
Sometimes there are legitimate interests that justify some restrictions on the public's right of access. Statutory exemptions from disclosure have generally been drawn from a judiciary consensus on the proper resolution of cases seeking access to government records. Many arguments have been raised regarding the difference between electronic records and "hardcopy" records. Some government agencies have been very reluctant to release electronic information, whereas they will release individual "hardcopies".
There is a recent case (the U.S. Department of Justice v. Tax Analysts) in which the Supreme Court unambiguously stated that, in freedom of information cases, courts must direct their analysis at the releasability of agency records, not the requestor's ability to obtain the information contained in those records in some other fashion. The court also pointed to the wide dissemination of similar information in different forms as a reason why Congress may have declined to exempt all publicly available materials from the freedom of information disclosure requirements. Such an exemption would endanger intractable rights over precisely what constitutes public availability. In some sense nearly all of the information characterized as public is available. Although the form (such as reports or testimony) in which the material comes to an agency may not be generally available, the information included in the report or testimony may very well be.
Therefore, it appears that the courts in that and other decisions have now recognized the need for dissemination of records in any form that is available. It is actually cheaper for government to produce magnetic tapes of the stored information than it is for them to obtain the "hardcopies." Therefore, it seems somewhat illogical that a federal or state agency would even consider not furnishing the magnetic tape format as a general rule rather than the exception.
There are many arguments as to why information should be released, what kind should be released, who has the rights to it, and who does not. There are many arguments today saying that individuals, or "consumers," has the right to information about themselves and an economic right in their personal information, including address. They argue that no one has a right to that information without the individuals' permission and may not use it except for a purpose compatible for which it was collected. In most instances, this is quite contrary to the open meetings and public records acts. This type of argument would also produce situations where individuals' criminal records (no matter how egregious) would not be available to the public because the individuals have an economic right to the information contained therein; although the public may have paid for the courts, attorneys, law enforcement, and other costs of the arrest including the cost of incarceration of the individual.
Some states have attempted to bar criminals from selling stories about their crimes to make money while the victims suffer and the state and public pay. There are also courts that have held that the state may not prevent individuals from selling their life stories.
There is the issue of freedom of speech versus, as in California, the constitutional issue of the right of privacy. There is no stated right of privacy in the federal constitution. There are also questions as to the issue of privacy versus confidentiality.
Since 1974 the California constitution has guaranteed all residents the "inalienable rights of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness and privacy." It is argued that the provision was intended only to protect private citizens from the excesses of the government; however, in more and more cases these rights have been extended to the private work place where invasion of privacy issues may conflict with other legal mandates, work traditions, or employer/ employee relationships.
The California Supreme Court currently has two pending cases on privacy. In Hill v. NCAA the court will consider a policy that requires drug tests for college athletes. In Surrocca v. Dayton Hudson Corp. the court will rule on the constitutionality of a department store's use of pre-employment psychological testing, which the plaintiff contends is an invasion of privacy.
It has been argued that government should be able to use the copyright act, however, Section 105 of the copyright act expressly bars the federal government from copyrighting its works. Even in the absence of statutory restrictions, the U.S. Constitution restricts federal or state governments from exercising copyright-like controls over public information. As a leading copyright treatise states, "on a constitutional level any statute which purported to prohibit the reproduction or distribution of government documents by reason of the government's property interest in the ideas or expression contained therein arguably would run afoul of the first amendment guarantee of freedom of speech and press."
In California the former director of the Department of Motor Vehicles, A. A. Pierce, who recently spoke at the Conference on Privacy in the Information Age, assisted the DMV in closing records to private investigators and others in the state. He has personally sparked a national debate on closing motor vehicle records nationwide. Illinois closed DMV records to private investigators, but continues to sell to bulk users. Other states such as Texas and Wisconsin are either looking at closing the DMV records entirely or providing only to specific classes of individuals and commercial entities. It is this writer's understanding that California's DMV was selling about 240 million records a year prior to the act and is currently selling only 120 million records a year. This required them to increase registration fees on all vehicles in the state to support their budget. This is a side of the information equation the government does not talk about: the commercial success of reselling information that is provided to the government by taxpayers. So, government is in a profit making enterprise at the taxpayers' expense.
There is the debate of privacy versus confidentiality. In legal circles the word privacy is limited in applicability to information about individuals; whereas, confidentiality is the term appropriate for inhuman information about government, corporations, businesses, property, products, services, etc. Some of the most serious, legitimate conflicts between freedom and privacy arise when privacy is claimed in the context of protecting confidentiality.
Some view the legal system as virulently adversarial. Each counsel zealously defends only one position and avoids as much as possible disclosing information harmful to that position in the furtherance of confidentiality or privacy. Attorneys depend on a tortuous, politicized, pac-riddened legislative process for the rules (statutes) outside of government. Attorneys are perhaps the group most comfortable with the ever growing bureaucracy that legislation creates. It provides the foundation for most of their careers.
Much of the governmental information that is made public, such as assessor records, licenses, complaints, disciplinary actions, drivers license records, vehicle ownership, voter registration, etc., is assumed to be public record. For example, voters are those who choose to be the nation's final decision makers seeking to impose their will on society. Hiding the voters' identities would mean that concerned citizens could not identify nor directly contact government's ultimate leaders. This would be limited to insanely expensive news-paper and broadcast advertising, random face-to-face contact, and would be functionally useless in a modern political district of any significant size. If the body politic is to effectively communicate with itself then those who are empowered to make the most important decisions must remain publicly identifiable.
Free societies have long recognized that it is essential for arrest records to be public. If this is not so, history illustrates a tendency for prisoners to get lost. Reporters regularly check arrest records and publicize the arrest of note-worthy individuals, even though they are legally innocent until convicted. Several companies now collect arrest information and sell it to defense attorneys or send literature from the attorneys to those arrested. Civil disobedience organizers made similar use of arrest records back in the 1960s anti-war protests. The identity of someone charged with a crime is subject to full public disclosure. However, the identities of the accusers are often hidden and protected until and unless they must testify in court.
Public employees' complaints and disciplinary actions, such as school teachers who are state certified, and their profession, are nothing less than our future; however, disciplinary hearings, even for drunkenness in the classroom, racial discrimination and sexual harassment, must usually be conducted in private, unless there is a criminal prosecution. Details are generally sealed even if the teacher is disciplined or dismissed. When a teacher is forced to resign or is overtly dismissed and seeks to work in another district, school administrators are often advised against giving candid recommendations to the target school district. Privacy for errant teachers is well protected.
Political donors had strong privacy protection for many years. Currently that has been penetrated. Now they channel contributions through employees, subordinates, children, and relatives. When East Bay officials in Oakland, California tried to woo the Los Angeles Raiders football team back to Oakland two years ago, they spent nearly $5 million of public funds for an unsuccessful promotional campaign. In 1988 the Sacramento Municipal Utility District secretly paid more than $970,000 in cash and benefits to eight managers who were forced to leave the utility company within a two-year period. These facts were gleaned from records that were often grudgingly opened by governmental agencies or leaked under pressure to the press. They were facts that likely would have gone unknown without the leverage of state laws allowing public access to governmental records and giving citizens the right to attend meetings where government decisions are made. The attitude in government all too often is "This isn't my job. It is a distraction and an impediment to our mission." Recent efforts expanding open record and open meeting laws have had mixed results. One court decision opened the investigative files of the State Fair Political Practices Commission. At the same time, the courts have given new authority to governors to block access to records.
The California Correctional Peace Officers Association maintains that access to police disciplinary records amounts to being held accountable by a mob. The unions have vowed opposition to any renewed efforts to open disciplinary records. In 1992 the governor in California vetoed a set of bills that would have expanded the number of local agencies subject to open meeting requirements and would have expanded the requirements for keeping records of closed meetings. He said they were too costly for local governments.
Personal banking records are normally considered private. Yet the House of Representatives has publicly disclosed some but not all of the personal records of legal overdrafts of personal accounts by various House members. And, of course, banks must report all cash transactions over a few thousand dollars, presumably excluding cash transactions for the CIA, DEA, friendly despots, etc. It is essential that the public be fully informed about what personal information government is collecting and what it is doing with it, including how it is being shared.
In a fit of privacy some years ago, England passed a law requiring that virtually all computerized databases (of almost any size) containing personal information had to be registered annually and a fee paid. Thus, almost every business and private organization with computerized payroll records, accounts receivable, accounts payable, customer lists, client records, prospect lists, subscribers, etc. had to register and pay. One English visitor said he didn't believe anyone had ever used the registration for anything; they are functionally unusable, but annual registration of fees are still required. Very small social organizations were exempted, as were all government agencies.
The private sector's collection and use of personal information may need some regulation in some instances; however, it needs to be defined and delimited very, very carefully based only on input resulting from a very aggressive outreach effort to all possibly affected parties. Otherwise, it will be irrational, abusive, and as useless as England's database registration regulation. Admittedly an aggressive outreach effort by legislative staff seeking to draft any such legislation will put every special interest in the city, state or nation in orbit and create a monumental lobbying nightmare. Alternatively business and privacy interests could actively initiate meetings with each other and seek a negotiated peace. That happens right after the wolf lays down next to the lamb.
Private sector policy regulation must give careful consideration to the cost of regulation, compliance, and oversight. In the case of state level regulation, California is already seeing the business flight results of rampant regulation at any cost. Beware!
One can advocate only to the extent that one can initiate contact. How much more should a free society restrict the ability of advocates to use modern mechanisms to identify and initiate contact with the nation's final decision makers (its citizens). Furthermore, there is a need for the commercial and legal systems to function properly. In today's fast moving society there must be the ability to make contact with witnesses, parties to lawsuits, information gatherers, and the thousands of other people that are necessary in order to bring a matter to a final resolution, either at the political level or to the final arbitration in court. Free speech and the right to defend one's self and protect one's property as stated in the Constitution is extremely important. In order to do this the individual must know how to locate the necessary people to facilitate the defense of one's property and self. Without the ability to refute an individual's allegations without having to go through a court process, the court system in this country would come to a complete stop. It is currently somewhat limited by virtue of the fact that in many cases you have to file a lawsuit in order to get information about an individual or from an individual to refute the alleged charges. To prevent employers, insurance companies, businesses and individuals from being subject to manipulation, fraud, embezzlement, theft and violence, one needs to have information. The government does not have the facilities nor the budgetary process to protect every citizen from all of the normal, daily predators that they meet.
Consider impact when choosing freedom versus privacy. Individuals must be held accountable for the results of their judgements and actions that impact others. To the extent that one is not held responsible and is permitted to be irresponsible, the fabric of society is torn. The well-being of others is threatened or degraded. Personal accountability requires access to personal information. To the extent that an individual's actions do not impact on others, then the privacy of information about their actions may be rigorously protected. However, to the extent that an individual's actions do impact others, then the freedom of those others to information about the actions impacting them must supersede the individual's right to privacy.
One of the greatest dangers is that over zealous privacy protection may excessively erode legitimate access to information on which to base informed decisions. This defends the need to balance protection of personal privacy with protection of needed and appropriate access to personal information.
We would like to thank and acknowledge the following publications and authors for information used in this article.
What are the dangers of eroding freedom of information? Jim Warren, CFP'92.
PRIVACY TIMES, Jan. 5, 1992, Editor: Evan Hendricks
Privacy And Fair Information Practices: Practical Guidelines, CFP'92.Security and Privacy, Joseph M. Pujals, CFP'92.
PRIVACY JOURNAL, Nov. 1992, Robert Ellis Smith
Privacy, Security, and Electronic Records: What Are the Ground Rules? David Plocher, CFP'92
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