Privacy. It’s a far-reaching, powerfully confusing concept. So sharp and tangled with strong opinions and emotion, debates on privacy are easily reduced to oversimplified squabbles.
Privacy protection is one of those hot-button issues that often fails to bring about a healthy discussion, giving way instead to the clamor of fear and mistrust. Politicians, privacy hawks and journalists all contribute to the problem with one-dimensional speeches and news coverage that amplify the dangers of privacy invasion. But as a steady beat of fear is sounded, voices touting the benefits of an open society are being drummed out.
Privacy is an apt and legitimate concern, but without the benefit of context, it threatens to limit access to useful public information. The conflicting interests of privacy and access to public records are nothing new. Significant measures to protect the public’s privacy were made with the Privacy Act of 1974, which placed limits for disclosure under the Freedom of Information Act. Likewise, numerous laws protecting privacy interests have sprouted at the state and local level since that time. But with the growth of identity theft and the explosion of personal information on the Internet, the debate has been reinvigorated in recent years.
Fear that personal information will be misused is something that registers very high in the public consciousness, and the government is responding to this concern. By shaping restrictive information policies, state and federal lawmakers are shielding a growing body of public records from disclosure. This has set off alarms for journalists and others who rely on information found in those records. In a broad sense, they are worried the government has overstepped its bounds and is using the public’s fear to close records that should clearly be open.
It is a growing trend throughout the country. From hospital and driving records to information as mundane as home addresses, vital public records are increasingly being withheld on privacy grounds. As courts and legislatures set new standards for disclosing personal information, access advocates face the daunting challenge of quelling inflated privacy concerns by demonstrating the social benefits of transparency.
A FEARFUL PUBLIC
Opinion surveys and focus group studies show that an overwhelming majority of the public worries about personal privacy being violated. A 2001 American Society of Newspaper Editors study found that 90 percent of Americans are very or somewhat concerned about personal privacy.
The study also showed general support for the principle of open government, but when it comes to tradeoffs between privacy and openness, people are more apt to side with privacy.
This relationship between privacy concern and support for open access interested David Cuillier, a graduate student at the Edward R. Murrow School of Communication at Washington State University. But when he set out to write his master’s thesis on the topic, he found hardly any research examining the relationship between the two.
With the financial support of the Washington Coalition for Open Government, Cuillier conducted a telephone survey of 402 randomly selected adults in Washington State. The data he collected showed that the public is willing to trade a good measure of openness for privacy protection. In his study, the lowest support for access came from the poorest and least-educated segments of society.
The study also showed that people tend to support their own right to access while expressing a desire to limit the access of the news media. For example, 70 percent of those interviewed support their own access to property records, while only 31 percent support media access to the same records. For driver’s licenses, the figures were 50 and 11 percent, respectively.
Support also depended on the type of record. Making criminal records available was almost universally accepted, but when it came to releasing information on lawful activity – like records of public utility usage – support for access plummeted.
Bill Felber, outgoing Associated Press Managing Editors FOI chair and executive editor of the Manhattan (Kan.) Mercury, warns about the onset of the moat mentality. He describes a world where people construct figurative barriers around themselves to keep both friend and foe at bay. He said this is an easy and tempting trap for people in the computer age to fall into.
The notion that “our biggest concern ought to be our neighbors” erodes communities and stands out as a significant social threat, he said. “The concerns contribute to the withholding of information where there is no rational justification.”
While the idea of the moat mentality goes beyond privacy concerns, Felber suggests that recent legislation that shelters information on privacy grounds – such as the Health Information and Accountability Act and the Driver’s Privacy Protection Act – carries the implicit message not to trust anyone.
“The privacy lobby has a vested interest in promoting that fear. I think we need to be cautious of that,” he said.
Could the public’s reluctance to support press access to government records be motivated by fear rather than critical thought?
Perhaps, said Arthur M. Ahalt, a retired circuit court judge from Maryland. “It is important to recognize most everyone wants access to other’s information, but they don’t want other people to have access to theirs,” he said. “It’s a dilemma only solved through the implementation of sound public policy.”
Ahalt, who has a stake in keeping public records open as an adviser to LexisNexis CourtLink, said the first step toward a good information policy is shifting the focus to punishing those who misuse information. He cites the fair Credit Reporting Act that resulted from the misuse of credit information as a good example. “It hasn’t cured all of the evils that exist, but it has given the public the ability to be more confident that their credit information won’t be used inappropriately,” he said.
INFORMATION AS BIG BUSINESS
In our increasingly wired world, where nearly everyone leaves electronic footprints in their daily activities, an entire industry is springing up around collecting public information.
A handful of data collection companies is cashing in on public electronic records, building massive consumer databases that they claim hold information on 220 million Americans. Collecting public records in bulk, these companies compile information into databases and sell them to businesses and the government.
This information has its uses. Giant data brokers such as ChoicePoint are popular among law enforcement agencies that use them to nab money launderers and chase down deadbeat dads. Also used for employment prescreening, criminal background checks and other business necessities, companies that specialize in compiling public records are credited with increasing the speed of commerce. With quick mortgage closings and the extension of instant credit, these companies are thought by some to be an essential component of the American economy.
But some think the commercialization of public information violates both privacy and the spirit of open records laws.
“The government has required you to put your information into a database, then it disregards its duty as a data steward to guard the use of that data,” said Chris Hoofnagle, Deputy Counsel with Electronic Privacy Information Center, a privacy research group in Washington, D.C.
He explains that the sum of personal information is greater than its parts.
“It’s a problem of aggregation. As nonsensitive information is aggregated, it becomes increasingly sensitive. The long-term risk is the inability of individuals to escape their personal profile,” he said.
The practice of collecting personal information into digital dossiers is raising the eyebrows of people such as Hoofnagle, who wonder where this is all heading. Potential abuses by law enforcement or companies are what worry him most.
The government’s expanded investigatory powers to intercept terrorists under the USA Patriot Act draws the apprehension of civil libertarians, who say the government might abuse its new authority by peering too far into the lives of law-abiding citizens.
Sean Moulton, senior policy analyst with the public interest group OMB Watch, has reservations about the government’s close ties with the data collection industry. He thinks the relationship opens the door for privacy invasion on a grand scale.
“I think those programs are extremely dangerous,” he said. “They could far too easily be abused by the government as a means to harass or investigate people that are unpopular with the current government.”
Ahalt, on the other hand, said concerns of this nature don’t give the constitutional controls of the American system enough credit. It’s a matter of checks and balances he said.
“Over time if you examine the abuses of government power, you’ll come to the conclusion that the American form of government does a pretty good job at correcting those abuses,” he said.
PRIVACY AND THE LAW
Privacy moved higher on the radar screens of federal administrators in the past few years, say frequent FOIA requesters.
While the statute itself hasn’t changed, FOIA policy shifted its focus under the watch of Attorney General John Ashcroft. In a strongly worded Oct. 2001 memo, Ashcroft encouraged federal officials to place special emphasis on privacy interests when considering FOIA requests.
The now notorious memo set off a new tone of secrecy in Washington, according to access advocates.
“It’s being felt by FOIA officers throughout the system,” said Mouton. “They see the writing on the wall and there’s this sense that if there is a way to deny this on privacy grounds, I should.”
Over the past five years, two in three denials cite privacy exemptions, according to a study released at the Investigative Reporters and Editors national conference this June. The study of 13 cabinet-level departments shows an upward trend in federal agencies’ use of privacy exemptions to deny FOIA requests.
While security exemptions enacted since the Sept. 11, 2001, terrorist attacks have diminished access, national security claims still only account for about 1 percent of access denials. Meanwhile, the two privacy exemptions account for nearly 80 percent of all FOIA denials, according to the study. In 1998, the figure was about 40 percent.
Wendell Cochran, who conducted the study, said nobody was greatly surprised by the findings. “We’ve documented what people have suspected all along,” he said. Cochran, director of the journalism division at American University, has been collecting annual FOIA reports for each of the agencies since they were made available in fiscal year 1998.
“We’re definitely seeing more of those (privacy exemption denials) than we saw before,” said Rebecca Doherty, FOI service center director for the Reporters Committee for Freedom of the Press.
Doherty said some recent extensions of privacy bordered on the ridiculous. The government’s refusal to release the names of the hundreds of immigration detainees held at Guantanamo Bay, Cuba, in connection with the Sept. 11 terrorist attacks is a good example, she said. The government said that releasing the names would violate the privacy of those who were detained, a claim that brought skepticism even from privacy advocates.
Meredith Fuchs, general counsel with the National Security Archive at George Washington University, said she, too, has noticed privacy increasingly used to deny FOIA requests. The archive, which regularly obtains records from the National Archives, can no longer obtain records that were available in the past, she said.
But the trend for officials to lean on privacy is not exclusive to the federal government. In fact, privacy may be given even greater weight to deny access at the state and local levels.
From a California county judge’s decision to bar the release of municipal workers’ salaries to the New Jersey governor’s quickly withdrawn executive order banning the release of home addresses, new categories of information are being removed from public scrutiny.
Joanne McNabb heads California’s Office of Privacy Protection, the first state agency in the country dedicated to protecting the privacy of citizens. Established through legislation in 2000, the office was created to address California’s growing privacy protection needs at a time when many people were experiencing the conveniences and perils of online shopping for the first time.
Given a broad mandate that includes educational programs, assisting law enforcement and victims of identity theft as well as making recommendations and policy prescriptions, McNabb’s small staff was handed a big job.
She said friction between public access and privacy gets very tricky. The California constitution grants citizens both access and privacy rights that sometimes overlap, she said. “It’s absolutely critical that citizens be able to observe what the government is doing,” she said. “But can you keep an eye on the government without spying on individuals?”
“More recently, the concern has been identity theft. That’s the new buzzword,” said Barbara Petersen, president of The First Amendment Foundation in Florida.
This year, the Florida legislature sought to enact the highest number of bills ever to change the state’s public records laws. Among those was a bill aimed at sealing the phone numbers and addresses of public utility users.
Like California, Florida’s constitution grants both access and privacy rights, but Petersen said the constitutional right to privacy is secondary to the right to access. But that doesn’t stop the barrage of legislation aimed at curbing the public’s right to know.
Doug Clifton, FOI chair for ASNE said the number of exemptions proposed every year is staggering. Invariably, he said, this shotgun approach will get some exemptions passed.
“If you throw enough of them out there, some of them will stick.”
FIGHTING THE TIDE
Clifton, who also is the editor of the Cleveland Plain Dealer, said open records laws around the country face a growing threat – if not a crisis.
This is why ASNE, SPJ, OMB Watch and 30 other organizations have launched a campaign to coordinate FOI efforts (see related story, Page 28). Clifton said this will give these groups an efficient way to quickly identify threats to access. The goal is not to subordinate any group, he said, but to cut down on redundancies.
The need to educate the public on open access issues is another area journalism groups are considering.
“In some significant measure, I would fault the profession,” said APME’s Bill Felber. “In some instances, we present FOI as an insular tool for us.”
ASNE and APME have collaborated on projects that include public service advertisements, op ed pieces, speeches for editors and a collection of FOI victories to be distributed to the public.
Studies examining public attitudes toward FOI show a low level of awareness. Only 33 percent of those polled for the ASNE study mentioned earlier had heard about FOI laws. A mere 5 percent of those in the Washington survey could name the state’s 30-year-old public records law.
This doesn’t surprise Doherty from the Reporters Committee for Freedom of the Press. One solution she offers is to require high school government classes to study the public’s entitlement to open government.
“The public is very uneducated when it comes to FOI matters, and I think it’s a shame,” said Doherty. “These acts don’t exist for journalists. They exist for the public.”
She said it’s important to share with the public examples of citizens who use open records laws to discover problems and misdeeds in their communities – for instance, a D.C.-area woman who discovered the government owned a crack house in her neighborhood and a group in Missouri that found its city used public funds to build a golf course without the public’s knowledge.
“Joe and Jan reader at home, when they see these debates between a government outlet and media organization, they would say ‘I would benefit from knowing that information,’ “ said Felber. “They need to say that over the corn flakes.”
David Chircop was a summer Pulliam/Kilgore intern at SPJ’s national headquarters. He now covers local government for the Merced (Calif.) Sun-Star.
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