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FOI Columns
Return to The FOI Center
May-June, 2001
Fears over privacy lead to more government secrecy
By Charles Davis
What do Dale Earnhardt, electronic court records and e-mail between Indiana legislators and their constituents have in common?
Privacy, of course. It seems that, in several important areas, privacy concerns are threatening to overwhelm access advocates' arguments to the contrary. The practical result of this is that limits on access to all sorts of data contained in government-managed files are increasing. Citing personal privacy, lawmakers are sealing information that once was public.
This message dominated a recent meeting at Freedom Forum headquarters of FOI advocates. We were there to celebrate the 35th anniversary of the federal FOIA and the 250th birthday of James Madison, drafter of the First Amendment. The mood, however, was less than festive in Washington.
Ironically enough, right across town, several of our group were testifying at hearings of the United States Judicial Conference regarding public access to electronic court records. An eight-member subcommittee of the United States Judicial Conference took testimony from some of the many organizations and individuals, including IRE, that submitted comments. All these comments are available at www.privacy.uscourts.gov, while you can look at just IREs testimony at www.ire.org/history/pr/courtrecords.html.
The Subcommittee on Privacy and Electronic Access to Case Files, created by the Court Administration and Case Management Committee of the Judicial Conference of the United States, is wrestling with issues of access and privacy. The federal judiciary's Case Management/Electronic Case Files (CM/ECF) project, designed to replace aging records systems in more than 200 bankruptcy, district and appellate courts by 2005, will let courts file documents in electronic format and accept filings over the Internet. Providing public access to those files long presumed to be open for public inspection and copying unless sealed by court order is a different issue, they say. The Judicial Conference's own statement points out some of the perceived problems with electronic access: bankruptcy debtors must divulge intimate details of their financial affairs. In some courts, case files may contain medical records, personnel files, tax returns or propriety information.
Easier Internet access
So, how do court records that have been presumed open for decades by courts all over the country suddenly raise privacy concerns? Why are significant rifts developing between public interest groups on the privacy-access debate?
It's the technology, I guess.
The current furor over privacy didn't just happen overnight. It began to grow with the rise of the personal computer, and the inevitable recognition by the citizenry that networked communications made it possible for government to capture and collate more personal information about individuals than ever before.
The democratizing power of the Internet to make information instantly available to us all thrills some of us, but frightens others. As the private sector has discovered that it, too, can obtain information about us and use that information for commercial purposes, the allure of privacy gained grassroots strength.
The idea that public information is somehow transformed into private information is given strength by the United States Supreme Court in a 1989 case involving media access to "rap sheets" compiled by the FBI. The court said, in a hotly contested and novel interpretation of the FOIA, that so long as the records sat in dusty courthouses scattered across the country, they were public records existing in "practical obscurity." The computer, they reasoned, raised privacy issues because it made the records easier to obtain.
"Practical obscurity" pops up all over the comments on the court records debate, usually by government attorneys from the Social Security Administration or the FBI. Court records, however, are not FOIA-related records: they are covered by a common law access right stretching back hundreds of years to our days as English colonists. But watch how the terms are muddled, the doctrines intertwined by those who would cloak all governmental information with privacy.
Legislative action
The movement for greater and greater personal privacy, whatever that entails, is about law but is grounded in emotion. Take the recent Dale Earnhardt flap. After The Orlando Sentinel reached an agreement with the widow, Florida legislators and Gov. Jeb Bush rushed to make it a felony to release autopsy photos except to state and federal agencies. No matter that Mr. Earnhardt's privacy rights ended once he passed away. No matter the many, many important stories that have been told by autopsy photos. No matter the fact that an autopsy photo posted on the Florida Supreme Court's Web site contributed to the state legislature's decision to replace the electric chair with lethal injection.
No, our political leaders love privacy. It's the new new thing. It plays perfectly into an uncertain public's fear of a technology-driven tomorrow. And, most importantly, it presents a scenario that must have savvy politicos thanking the stars: the public asks its government to keep what it knows about them under lock and key, where government and only government can know what is going on.
Perhaps the best example of where all of this might be heading was another hot topic of conversation at FOI Day. Seems the Indiana House of Representatives passed a bill in March 93-1 that protects Internet usage records and e-mail from public scrutiny or publication.
The problems with this bill from an FOIA standpoint would require another column, but note that this is a shocking departure from current access law. For starters, at the federal level and in all 50 states, exemptions have always been made on the basis of subject matter. Indiana's bill would extend a blanket provision based solely on the mode of transmission of a message.
FOI Day ended on a positive note, however, as the participants celebrated the death (for now) of last year's federal anti-leak legislation with a panel on secrets and whistleblowing and the protection of anonymity in journalism. An expert in the audience none other than Daniel Ellsberg, leaker of the Pentagon Papers brought the crowd to life with a rousing statement that served as a call to arms for beleaguered access advocates. The Pentagon Papers-inspired nostalgia helped remind us that some battles are worth fighting, and that if we continue to demand privacy, we might just get more than we bargained for.
Charles Davis is executive director of the Freedom of Information Center, an assistant professor at the Missouri School of Journalism and a member of IREs FOI Committee.
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