Informational Privacy
vs.
Public Access to Governmental Records
Informational Privacy:
a. Alan Westin (1967): "Privacy is the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about themselves is communicated to others."
b. "[T]he basic attribute of an effective right to privacy is the individual's ability to control the flow of information concerning or describing him -- a capability that often is essential to the establishment of social relationships and the maintenance of personal freedom." (Arthur R. Miller)
Public Access to Governmental Records:
"Public business is the public's business. The people have the right to know. Freedom of information is their just heritage. Without that the citizens of a democracy have but changed their kings.
"Citizens of a self-governing society must have the legal right to examine and investgate the conduct of its affairs, subject only to those limitations imposed by the most urgent public necessity.
"Freedom of information is the very foundation for all those freedoms that the First Amendment of our Constitution was intended to guarantee."
Harold L. Cross, "The People's Right to Know: Legal Access to Public Records and Proceedings" (1953)
Competing Social Values:
Discussions about the use of government-held information about individuals usually occurs under the theoretical umbrella of an individual's right to privacy vs. the right of the public to access government records. To what extent does an individual have the right to control the amount of data about him or her that is gathered and disseminated by governmental entities?
COMMON LAW:
Common law right to informational privacy: Recognized that individuals had an interest in controlling information about themselves, but this interest was mitigated when the information was a matter of public concern. (Restatement of Torts )
Common law right of access to government information: Limited right to inspect government records based on having a specific interest in the record, not a general right of the public to inspect government records.
U.S. CONSTITUTION:
Constitutional Right to Informational Privacy: In Whalen v. Roe (1977), the U.S. Supreme Court recognized such a right, but NOT as explicitly as it has the privacy rights that involve freedom from governmental interference in intimate matters such as reproduction.
First Amendment Right to Know: Some legal scholars have contended that a "right to know" is based on Alexander Meiklejohn's First Amendment theory of self-government. In a democracy, the citizen as sovereign must have all the information available in order to instruct the government.
However, the U.S. Supreme Court has NOT found a firm right to know in the First Amendment. In Procunier v. Pell (1974), Saxbe v. Washington Post (1974), and Houchins v. KQED (1978),the Court said the press has no more First Amendment right of access than the public. In Houchins v. KQED, Justice Burger said, "This Court has never intimated a First Amendment guarantee of a right of access to all sources of information within government control."
In Richmond Newspapers (1980) and its progeny, the Court did find a First Amendment right of access to judicial proceedings and documents. Justice Stevens, in his concurring opinion in Richmond, viewed the decision as creating a First Amendment right of access to all government information.
The Court has acknowledged that information about government operations is significant to the public, but only a few lower federal courts have found a First Amendment right to government records.
STATUTORY:
Freedom of Information Act (FOIA): This federal statute gives every person the right to look at all records of all federal agencies. Its purpose is to establish a philosophy of the fullest possible disclosure of government-held records. It requires full disclosure of records, unless they are specifically exempted by statute. At its discretion, a federal agency may disclose records that fall within the nine categories of exempted records.
Any person means that journalists have no greater access rights than others. You need not be a U.S. citizen to request records.
All records - Not information. No right to interview or obtain oral information from a government official. Records consist of items that can be copied or reproduced, not physical objects.
FOIA does not apply to the federal courts, Congress, the president and his personal advisers, or state governments. It applies to all federal executive branch departments, including:
1) all cabinet departments (Defense, Justice, Education, etc.),
2) all federal law enforcement agencies (FBI, CIA, etc.),
3) all military departments (Army, Navy, etc.),
4) all government-controlled corporations (Amtrak, U.S. Postal Service, etc. ), and
5) all independent regulatory agencies (FTC, FCC, NLRB, etc.)
FOIA Procedures: Initial request should go to person designated by agency as FOIA officer. Agency has, by law, 10 working days in which to respond to the request. However, that response often will be, "We've got a backlog of requests and will get to you as soon as possible." Some agencies have backlogs of thousands of requests and waiting times as long as a year. If the request is denied, the first appeal is to the agency head (Attorney General, Secretary of the Navy, FBI Director, etc.) who has 20 days in which to respond. If the agency head denies request, the next recourse is to appeal to U.S. district court.
FOIA fee structure: Commercial users must pay all search and copy costs. All other users get the first two hours of search time and first 100 pages copied free.
Journalists and representatives of educational and scientific institutions are not supposed to have to pay any search fees. All fees should be waived or reduced for anyone if the disclosure of the record is "in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government."
Generally, records are exempted if they either are unreasonably intrusive to private parties or are disruptive to certain important government functions.
NINE FOIA Exemptions: Agencies may (notice: not "must") refuse to release records that fit in the following categories:
1. National security: Properly classified documents the release of which would endanger national security.
2. Internal agency rules and practices: Documents relating solely to the internal personnel practices of an agency, e.g., sick leave procedures, parking regulations.
3. Statutory exemptions: More than 100 other federal statutes designate certain records as confidential.
4. Trade secrets and other confidential business or financial information that businesses must submit to the government.
5. Pre-decisional agency memoranda: Protects working documents.
6. Personnel, medical or similar records if the disclosure of such files would constitute a clearly unwarranted invasion of personal privacy. Courts must decide if an invasion of privacy would be "clearly unwarranted." (Note: This exemption is discussed in detail below.)
7. Law enforcement records if their release would 1) interfere with law enforcement proceedings, 2) interfere with someone's right to a fair trial, 3) constitute an unwarranted invasion of personal privacy, 4) disclose the identity of confidential sources, 5) reveal law enforcement techniques, 6) endanger lives.
8. Banking reports.
9. Geological and geophysical records about oil, gas and water wells.
FOIA's Privacy Exemption (#6): Exempts individual personnel, medical files and "similar files" if disclosure constitutes "a clearly unwarranted invasion of privacy." In defining "similar files," courts have said the key is not kind of file, but the kind of information requested.
Privacy Act of 1974: Congress began to recognize the need to protect the privacy value. Congress had particular concerns over the potential abuse of computerized technology and sophisticated information systems. The Privacy Act is aimed at protecting the privacy of individuals identified in federal information systems and preventing misuse of the information. It balances the government's need to accumulate certain information and the individual's right to privacy, particularly in computerized record-keeping systems.
Privacy Act requires that which the FOIA exemptions permitted. Under the Privacy Act, the power to disclose private records is no longer at the discretion of the agency, but, instead, individuals have the right to prevent disclosure of private records.
It applies to all executive departments, independent regulatory agencies, and government corporations. It does not apply to Congress, federal courts, the District of Columbia, or state governments.
It governs the collection, maintenance, use, and disclosure of federal governmental records on individuals. Agencies are required to:
1) collect only "relevant and necessary" data,
2) collect directly from the individual to the extent possible,
3) inform the individual of the authority for data collection, purpose for which data is intended, routine use of data, and consequences for not providing data.
Agencies are forbidden from:
1) collecting data for one purpose and using it for another without notice to and the consent of the individual, and
2) disclosing a "personally identifiable record" without the consent of individual.
The individual is guaranteed three rights:
1) see records about one's self, subject to exemptions,
2) amend records if inaccurate, irrelevant or incomplete, and
3) sue government for violations of the law.
THREE types of Exemptions:
1. general exemptions from entire Act (CIA and some law enforcement agencies).
2. exemptions from some of the Act (covers records for government employment, Secret Service actions, law enforcement, national security, and statistical purposes).
(Under the first two exemptions, records are not available to the individuals to whom the records pertain.)
3. Eleven specific exemptions to nondisclosure, mostly allow disclosure to other governmental entities.
The Privacy Act requires disclosure when disclosure is required by the FOIA.
Balancing informational privacy and public access to government records:
With such fundamental values, a wise balance would give neither clear dominance over the other. There are dangers in extremes: too much or too little of a quality is a vice.
The FOIA and the Privacy Act of 1974 illustrate the inherent tension between society's need for the free flow of information and the individual's need for privacy.
They have a common purpose: open up government-held records. The FOIA opens government records to the general public. The Privacy Act opens government records on individuals to the individual.
They have common exemptions: the government can refuse disclosure to the public and the individual with records involving law enforcement, foreign affairs, and national security.
These opposite values need each because the tension tension created by the two sharpens the understanding of each. They keep each other in check because extreme advocacy of one motivates countering demands from the other.
The FOIA and Privacy Act are interrelated: Each Act is strong where the other is weak, and each obtains its justification by its ability to offset the negative values of the other. The FOIA requires disclosure, except its nine exemptions that allow nondisclosure at the discretion of the agency. The Privacy Act mandates nondisclosure, except its exemptions that require disclosure. Thus, the requirements of each statute promote the positive values of that statute, while its exemptions prevent excess (negative values) by promoting the opposite positive values of the other statute. In other words, the general rules of one of the statutes produce similar results to the exemptions of the other statute.
However, the different penalties make it wiser for bureaucrats to withhold data and risk a lawsuit under the FOIA rather than the Privacy Act. Under the FOIA, the plaintiff can collect attorney's fees and costs. Under the Privacy Act, the plaintiff can collect attorney's fees, plus general damages caused by disclosure. Before the Privacy Act, data not required to be disclosed the under FOIA could still be disclosed at the discretion of the agency. Now exempted data is routinely withheld for fear of violating the Privacy Act.
Supreme Court balancing FOIA and Privacy Act:
The U.S. Supreme Court has swung the balance in favor of the privacy by broadly interpreting the privacy interests and narrowing the interest in public disclosure to only the government's operations.
In Justice Department v. Reporters Committee for Freedom of the Press (1989), the Court did not follow Congress' intent in the FOIA. The Court narrowly interpreted the public interest in disclosure and broadly interpreted the privacy value to withhold information. The decision departed from several other FOIA cases in which lower courts weighed the benefits to the public at large from disclosure of personal information.
The Reporters Committee case dealt with a request for "rap sheets" compiled by the FBI. The information was gathered from public records across the country and stored in a computer database.
The Court upheld withholding the information and:
1) articulated a "practical obscurity" doctrine (a judicial acceptance of "forgive and forget") in which the Court assumed that computers exacerbate the threat to personal privacy by eliminating the natural elements of time and distance among "scattered bits of information" that once afforded individuals the ability to distance themselves from past mistakes and start their lives anew.
2) concluded that compilations of personal information taken from generally accessible public records enjoyed a rejuvenated privacy interest when stored in government computers.
3) concluded that disclosure of certain categories of public information held in computers always constituted an undue privacy threat and could routinely be deemed an unwarranted privacy threat and be witheld without a case-by case analysis. Exemptions 6 & 7 of the FOIA had been interepreted by courts as requiring a balancing of competing interests, whereby the courts considered the privacy interests at stake vs. the public benefit from disclosure.
4) held a seemingly narrow view of the public interest served by disclosure, focusing only on information that had an obvious bearing on the agency's performance of its statutory duties. In other words, although the government collects vast amounts of information on virtually every facet of society, the public is entitled to have access only to information pertaining to governmental functions.
Driver's Privacy Protection Act: a 1994 federal law that closed public access to state drivers' licenses in September 1997.
Like the Privacy Act, it mandates nondisclosure and its exemptions allows disclosure under some circumstances (tow-truck operators, statistical purposes, law enforcement and courts, etc.).
It was sponsored by Sen. Barbara Boxer of California in response to the murder of actress Rebecca Schaeffer, who was killed by a fan who hired a private detective to find the actress. The private detective did so by getting her driver's license. However, the Act still allows private detectives to still get drivers' licenses. Another irony is that movie star addresses are still available in maps of the stars' homes.
The Act allows state legislatures to vote to keep the records open,if drivers can opt out of the database.
The records can tell how government operates. In 1991, for example, the Miami Herald had used DMV records to document how Florida failed to keep convicted drunk drivers off the road. In October 1985, the Providence Journal-Bulletin used a computerized list of driving records from the state DMV to document that some school bus drivers had among the worst driving records in the state.
At the heart of the statute is the conflict between opposing social values: individual privacy vs. public access to government records. FOUR federal courts have said the information provided to obtain a driver's license -- name, address, birth date, Social Security number, photograph, height and weight -- should NOT be kept from public view. Drivers have no reasonable expectation that such motor vehicle record data will be kept secret.
The Privacy claim is reduced because: