A Discussion Paper Prepared by Robert Gellman
Consultation on Public Records April 21, 1995
© 1995 All Rights Reserved. Revised Draft May 16, 1995
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Public Records: Access, Privacy, and Public Policy A Discussion Paper Prepared by Robert Gellman Consultation on Public Records April 21, 1995 © 1995 All Rights Reserved. Revised Draft May 16, 1995 |
TABLE OF CONTENTS
Executive Summary
I. Introduction and Issue Definition
II. The Stakes: Personal Information in Government Records
III. Right of Access
A. Constitutional Considerations
B. Statutory Considerations
C. Common Law
IV. Right of Privacy
A. Constitutional Considerations
B. Statutory Considerations
V. Use Restrictions
A. Publication Limitations
B. Commercial Speech
1. Credit Reporting
2. Traffic Violations
C. Other Records
1. Election Records
2. Voter Registration
3. Postal Records
D. Copyright and the Price of Information
VI. Observations
Appendix: The Driver's Privacy Protection Act of 1994
This paper provides background for a policy discussion about access to public records. It is not intended to offer solutions to the conflict between access and privacy interests. A "public record" includes any information maintained by or on behalf of a unit of government that can be linked to a specific individual. This includes a record that contains a name, address, social security number, or other identifier. There is a wealth of personal information in government files, including motor vehicle licensing, land ownership, voter registration, and occupational licensing records.
Constitutional principles governing access to government records and the right of informational privacy are unsettled and controversial. The Supreme Court has found a qualified First Amendment right of access to criminal trials and to records directly related to criminal trials. However, there is no clear First Amendment right of access to other government records, including most records about individuals. The adoption of federal and state freedom of information laws has made exploration of constitutional access rights largely unnecessary.
The Supreme Court has implied that a constitutional right of informational privacy exists, but there is no direct holding. In interpreting the Freedom of Information Act, the Court has come down strongly in favor of protecting privacy, but these decision are statutory and do not explicate the edges of constitutional protections. Other federal and state statutes governing the disclosure of public record information reach a wide variety of results ranging from full public access to no public disclosure. It is difficult to derive general principles from existing statutory law.
Use restrictions may offer a middle ground between openness and confidentiality. Some laws permit limited access to public records or restrict use of the records by the recipients. An example is a voter registration list that may be used for election-related purposes but not for commercial solicitation. Restrictions on publication of information placed in the public domain may be unconstitutional, but other types of restrictions on access or use have been upheld. Giving individuals a choice about the public release of personal information in public records is another option for balancing access and privacy. The legality of use restrictions for public record information is unclear.
Tradition is a recurring theme in discussions about access. There is a greater reluctance to interfere with the availability of information that has been traditionally made public. This is balanced, in part, by a developing concern about the increased threat to privacy by computerization of personal information.
Overall, sharp conflicts between privacy advocates and information users over the availability of public records remain unresolved by absolute principles.
I. Introduction and Issue Definition
What are the principles that govern or should govern access to and use of public records? This paper reviews policy issues surrounding decisions by governments to make available to third parties or to withhold from availability information from government files that can be linked to identifiable individuals. The purpose is to outline the ongoing debate over access to public records, to identify the policies that impact on disclosure decisions, and to provide the basis for a discussion of options and approaches available to address access and privacy interests.
Examples of records that fall within the scope of this discussion include, but are not limited to:
These types of records are commonly referred to as "public records." This terminology is troublesome for several reasons. First, one underlying issue is whether these records should be available for public inspection and copying. The use of the term "public" to describe the records implies a result. It is best to consider that the word "public" refers to the public organization that maintains the records.
Second, the concept of "record" has grown fuzzy with new technology. In the past, a record was a paper document containing particular data. In the computer era, there may be no fixed relationship between information and the format in which it is maintained or disclosed. Also, practical limitations on collection, maintenance, use, and disclosure that exist for paper records may disappear when records are electronic and easy to extract, combine, or otherwise manipulate. Some court decisions on access were significantly influenced by differences in ease of use and disclosure that exist between paper and computer records.
Despite these problems, the term "public records" will be used in this paper for convenience and lack of a readily available alternative. No inference should be drawn one way or another by use of the term that any type of information identified as a "public record" should or should not be publicly available or that the information should be available under particular terms or conditions.
For purposes of this paper, a "public record" includes any record maintained by law, regulation, or practice, by or on behalf of a unit of federal, state, or local government, that contains information that can be linked to a specific individual. This includes a record that contains a name, address, social security number, or other identifier. Records without identifiers are outside the scope of this paper.
Access to a proceeding, hearing, or meeting does not fall directly within the scope of this paper. However, there is a healthy jurisprudence on the issue of access to judicial proceedings and a direct policy overlap between access to judicial proceedings and access to judicial records. As a result, it is appropriate and necessary to consider some "proceedings" precedents when exploring "records" issues. However, these precedents are not always directly relevant to records access because the decisions often hinge on other values (e.g., fair trials, deliberative process).
The paper proceeds by considering the constitutional, statutory, and common law rules governing the right of access, the right of privacy, and restrictions on use of public record information. Court cases and statutes have been selected to illustrate different approaches, theories, results, and points of view.
II. The Stakes: Personal Information in Government Records
Many details of an individual's life, activities, and personal characteristics can be found scattered throughout the files of government agencies. At the federal level, the privacy exemption in the Freedom of Information Act and the Privacy Act of 1974 prohibit the public disclosure of personal information contained in government files. At the state and local level, however, different types of records are maintained, and the laws and policies governing access and disclosure vary, leading to disparate results.
It is possible to construct a detailed profile of an individual using only publicly available, individually identifiable information from government records. While the types of records available from jurisdictions vary, the information that may be available on a given individual (and a likely source of the information) can include:
There may be considerably more information available in public records about an individual who has interacted with the courts as a criminal defendant, as a plaintiff or defendant in civil litigation, as a juror, through divorce proceedings, in bankruptcy proceedings, as a beneficiary of a will, or in other ways. Additional information is also available about individuals who are required to file information on stock ownership with the Securities and Exchange Commission; political candidates and government employees required to file ethics disclosure forms with state or federal offices; recipients of student loans, housing loans, small business loans, and other forms of government assistance; and employees who have filed workers compensation claims.
There are categories of personal information maintained by government agencies that are not routinely available to the public. These include:
The discussion in this paper tends to focus on one specific type of record at a time because this is the manner in which cases have arisen in court or statutes have been passed. The simultaneous availability of many different types of public records containing personal data on an individual is not discussed separately. The ability to compile a detailed dossier on an individual from disparate government records is a broader concern that has yet to receive significant attention in case law.
III. Right of Access
Public access to government records, activities, and proceedings serves several different and overlapping policy goals. Citizens need government information to make political decisions about government programs, legislative and regulatory options, and candidates running for office. Knowledge about government is an important element in instilling confidence in the political system. Citizens need government information to assist in oversight of and accountability for government programs. Individuals need government information to know what services are provided by the government. Many government agencies exist principally to create, collect, or provide information to assist in the conduct of business, legal, or personal affairs. Government information is a valuable resource and commodity that can be used in many different ways to further economic growth. This is not an exhaustive list of the benefits of government information.
Other reasons support public access to specific government records. The list of authorized disclosures included in the Driver's Privacy Protection Act of 1994 provides an example. For motor vehicle records, the law recognizes fourteen disclosures that are either mandatory or permissive. For example, motor vehicle records may be made available for use in any judicial proceeding, including the service of process, and in investigations in anticipation of litigation. Each permitted disclosure can be read as reflecting a legislative judgment that a particular use of the public record is beneficial, legitimate, or otherwise tolerable.
There are other interests and values that may be negatively affected by the public availability of government information, and most cases call for a balance of conflicting interests. Government records may need to be withheld from public disclosure to protect foreign policy or national defense interests, to foster law enforcement investigations, to support the deliberative processes of government, to protect the confidentiality of private business information in government files, and to protect the privacy interests of individuals. At the federal level -- and for some states as well -- there may be hundreds of laws providing that specific categories of information are not available for public access. For other records, specific legislation expressly provides for public inspection and use or for inspection and use for specified purposes. These laws reflect specific conclusions about the appropriate balance between disclosure and non-disclosure.
A. Constitutional Considerations
The leading decision on the constitutional right of access is Richmond Newspapers, Inc. v. Virginia, a case decided by the U.S. Supreme Court in 1980. The Court held for the first time that the public and the press have a qualified First Amendment right of access to criminal trials. Although the decision did not address access to public records, it is highly relevant to a discussion of the right of access. Richmond Newspapers spawned a long line of cases that examined constitutional rights of access to court records.
The Court's analysis began by tracing the public nature of criminal trials back to before the Norman Conquest. The historical details supporting the conclusion are not relevant here, but the reliance on tradition is an important theme that will recur in other cases involving access to both proceedings and records. Tradition is a two-edged sword, sometimes supporting access and sometimes confidentiality.
The Court found that the public nature of criminal trials served the public purpose of administering justice. The reasons for access to criminal trials are varied, but openness, fairness, the perception of fairness, and confidence in the governmental process are central. The Court found that secrecy would undermine the significant therapeutic value and educative effect that communities derive from the open administration of justice. Nothing in the opinion suggests that the privacy rights of defendants or witnesses justify the closing of trials. Criminal trials are public events.
In another portion of the opinion, the Court found that the right of access to places traditionally open to the public was assured by an amalgam of the First Amendment guarantees of freedom of speech and freedom of the press. The right of assembly was also relevant. These interests relate to events and proceedings like trials, rather than to records maintained in government files. Again, no countervailing right of privacy was mentioned.
The Court noted that there may be circumstances in which all or part of a trial may be closed to the public. This means that the First Amendment right to attend trials is qualified and not absolute. Justifications for closing a trial were not considered in any detail, but the Court's brief discussion of the possibilities centered on the fair administration of justice. There is no hint of privacy as a justification.
In a later decision, the Supreme Court sharpened the standard to be applied in assessing the First Amendment right of access to a criminal proceeding, in this instance a preliminary hearing. In addition to tradition, the Court specifically considered whether public access plays a significant positive role in the function of the particular process in question. The Court concluded that if a proceeding passes the tests of tradition and function -- or what the Court called experience and logic -- then a qualified First Amendment right of access attaches.
Richmond Newspapers defines the scope of First Amendment rights for access to criminal trials and establishes a framework for analysis of the right of access to other proceedings. However, its direct relevance for access to non-judicial public records is limited because the considerations that support access to criminal trials are, at least in part, different from the considerations that support access to government records in general. The right of access to places and the right of assembly must be stretched to cover documents. At some points, the stretch has been found to exceed the reach of the First Amendment, even for judicial documents. Also, the important tension between the right of access and the right of privacy that exists when public records are at issue appears absent in decisions about criminal trials.
There have been many cases since Richmond Newspapers and many different formulas have been used to restate the nature of the First Amendment interests in access to trials. Courts have discussed procedures, burdens, and timing issues that the Supreme Court did not reach. These cases can be mined for words and phrases that support different results and different assessments of the importance of the First Amendment interests or the need to balance those interests. There is no magic formula or test. Each case requires the application of the "experience and logic" test. A recent decision offers a good overall statement:
Justified originally by common-law traditions predating the enactment of our Constitution, the right of access belonging to the press and the general public also has a First Amendment basis. Neither the common-law nor the constitutional right is absolute. More general in its contours, the common-law right of access establishes that court files and documents should be open to the public unless the court finds that its records are being used for improper purposes. The First Amendment presumes that there is a right of access to proceedings and documents which have "historically been open to the public" and where the disclosure of which would serve a significant role in the functioning of the process in question. This presumption is rebuttable upon demonstration that suppression "is essential to preserve higher values and is narrowly tailored to serve that interest." The difficulties inherent in quantifying the First Amendment interests at issue require that we be firmly convinced that disclosure is inappropriate before arriving at a decision limiting access. Any doubts must be resolved in favor of disclosure.
There are significant parts of the criminal justice system that, despite the Supreme Court's strong First Amendment rhetoric, remain outside the public eye. For example, there is no First Amendment right of access to grand jury proceedings. Grand juries operate traditionally and statutorily under strict secrecy rules. The Supreme Court has repeatedly cited several reasons for grand jury secrecy, including the need to protect the innocent accused who is exonerated. This is, at least in part, a privacy interest, and one of a few privacy interests that can be clearly identified as a foil to the First Amendment access interests in the criminal justice system.
Cases that followed Richmond Newspapers found qualified rights of access to other judicial proceedings such as bail reduction hearings, voir dire and pretrial suppression hearings, and preliminary hearings. Richmond Newspapers did not address whether the qualified First Amendment right of access includes access to documents, but other courts have extended the decision and found a qualified First Amendment right of access to records such as pretrial criminal documents, search warrants, and vouchers for payment of court-appointed counsel.
There are some areas in which the right of access has been expressly balanced against the right of privacy. For example, in a case involving access to presentence reports, the Seventh Circuit held that there was no First Amendment right of access. The court found that the reports have traditionally been confidential, and their disclosure would hinder probation officers and the court. Disclosure also would affect the privacy interests of the defendant and others. The court did not identify the origin or nature of the privacy interest.
In another case, the Second Circuit found a qualified First Amendment right of access to pretrial motion papers, including some material obtained from wiretaps under Title III of the Omnibus Crime Control and Safe Streets Act of 1968. Because there was a clear basis in the wiretap statute for concern about the privacy interests of those who were wiretapped, the court determined that this privacy interest was relevant in balancing the First Amendment right of access. As a statute, the wiretap law did not automatically overcome a constitutional right, but it had to be considered in the balancing of interests. Both the defendant and third parties had recognized privacy rights.
A 1986 First Circuit decision considered the issue of public access to pretrial discovery in a civil law suit. Court documents are a step removed from criminal trials, and discovery materials are a step removed from court documents. In Anderson v. Cryovac, Inc., a trial court issued protective orders denying a newspaper access to information obtained through discovery. On appeal by the newspaper, the First Circuit did not entirely rule out consideration of First Amendment interests, but it found that the "good cause" test in the civil procedure rules governing protective orders was sufficient to encompass those interests. The court found no absolute public right of access to discovery materials. The access interest was diminished far below the level in Richmond Newspapers. In evaluating the possibility of a public right of access, the court took note that pretrial discovery is a fairly recent invention. Before 1938, there was no discovery, and the lack of an access tradition played a significant factor in the court's evaluation.
It is impossible to offer any meaningful evaluation of state court decisions on access to records. A 1978 review in a legal treatise found reported decisions that range from one extreme to another. Some courts supported unqualified public access to court records; some found no absolute right of access; some permitted access only for a proper or legitimate purpose. Surely, more recent state court holdings were influenced by the Supreme Court's Richmond Newspapers decision.
It is fair to conclude that there is a clear, but qualified, First Amendment interest in access to court proceedings and, to a somewhat lesser degree, to court records. The interest, while not absolute, is strongest for criminal trials. The First Amendment interest diminishes in strength when public access to the proceeding is less important in the administration of justice. At some point, the First Amendment interest diminishes entirely. Some types of court proceedings -- such as hearings involving juveniles -- have been closed to the public without challenge. The turning point where the balance shifts from open to confidential has not been definitively identified by the courts.
First Amendment interests support access to many types of judicial records. Here too, the right of access is qualified, and the First Amendment concerns must be balanced against other interests, including the privacy interests of participants. The privacy interests have not been clearly articulated, but they have been considered in scattered cases involving judicial records.
It is more difficult to find significant case law asserting a constitutional right of access to executive branch records. Federal and state open records laws with access procedures have largely made the development of constitutional access rights unnecessary. Constitutional issues tend to arise in cases involving the courts because the courts are not always subject to freedom of information laws, and a constitutional right may be the only way to obtain access. Nevertheless, the qualified First Amendment right of access to the courts is not a holding of ancient vintage, although the policy has a rich historical tradition. The seminal Richmond Newspapers case was decided in 1980.
Executive agencies at the federal level have operated under the Freedom of Information Act since 1967. All fifty states and the District of Columbia have some type of open records laws. Constitutional access arguments have been offered from time to time, but the statutory access schemes have provide the basis for most decisions. The few cases that touch on a constitutional right of access to executive records are not significant influences on access policy today. Had open records laws not been passed, it is likely that constitutional access principles parallelling the Richmond Newspapers decision would have evolved, but the nature of any such principles is speculative.
A case that illustrates one possible line of development for a constitutional right of access to executive records is El Dia, Inc. v. Hernandez Colon. A newspaper in Puerto Rico challenged the Governor's executive order establishing uniform procedures to regulate the inspection and reproduction of public documents. The executive order required that requesters have a genuine interest in documents sought and appeared to give government officials unlimited discretion to deny documents. The federal district court found a qualified First Amendment right of access to a state's public documents and held that the state must advance a substantial compelling interest in order to limit access. The court held the executive order to be unconstitutional.
In some respects, this decision parallels the line of cases finding a qualified right of access to court proceedings and documents. Without open records laws, constitutional principles may have been extended in this fashion. However, both the district court and the court of appeals noted that no Supreme Court decision had ever extended the constitutional right of access to executive documents. The court of appeals was skeptical that Richmond Newspapers and its progeny carry positive implications for rights of access outside the criminal justice system. Comments in several Supreme Court decisions suggest that great deference would be afforded to legislative judgments exempting documents from public disclosure. This is reflected in the general body of Freedom of Information Act case law.
An earlier case from the Wyoming Supreme Court had found a First Amendment right of access to police records, but the right was conditioned by statutory restrictions and balanced with relevant competing interests. In effect, the court used some constitutional language, but its decision was principally statutory. In the absence of a statute, the constitutional holding might have been explored in more depth. Interestingly, the court expressly rejected categorical withholding of public records and insisted on a selective review on a record-by-record basis. The Supreme Court reached a sharply different conclusion on this point in the Reporters Committee case. Reporters Committee is discussed below in the section on the right of privacy.
Another state case that found a constitutional right of access to police records is Houston Chronicle Publishing Co. v. City of Houston. This case turned in part on the importance of information concerning crime and the activities of law enforcement agencies. The court held that a police blotter, showup sheet, and arrest sheet were public records, but that disclosure of a personal history and arrest record ("rap sheet") could result in massive and unjustified damage to the individual. The court found it noteworthy that rap sheets may fail to reflect disposition of charges and may be otherwise inaccurate or misleading.
One reason courts extended the Richmond Newspapers decision to some law enforcement records may be the close relationship between law enforcement and criminal trials. If there is a constitutional interest in access to criminal trials, it is only one step to reach the same conclusion for the law enforcement activity that precedes the trial. If this analysis is correct, then extension of constitutional access rights to other types of records will be harder to accomplish.
B. Statutory Considerations
Statutory rules regulate access to some court records and proceedings. For example, there is a general statutory policy of denying public access to records of criminal cases involving juveniles. Under federal law, juvenile court records are safeguarded from disclosure to unauthorized persons. Similarly, the Uniform Juvenile Court Act excludes the public from hearings and permits no general inspection of court files and records without a legitimate interest and leave of the court. Protecting juveniles from undue expose is an obvious reason for the policy of confidential proceedings and confidential records.
Judicial records for adoption proceedings are generally confidential and are withheld from public inspection except upon order of the court. State laws sometimes set specific standards for access, such as good cause, best interests of the child, or demand of the adoptee, adoptive parent, or welfare department. Here too, the reasons for confidentiality appear to be protection of the privacy interests of the families and encouraging adoptions. No cases have been found challenging the constitutionality of the policy for confidential juvenile and adoption proceedings, and the prospects of any such challenge are uncertain.
In contrast, federal bankruptcy law expressly provides for public access to records filed in bankruptcy proceedings. Records are open to public examination without charge. The law permits the court to protect: 1) records that would reveal trade secrets, or confidential research, development, or commercial information; and 2) a person with respect to scandalous or defamatory matter. Given the nature of bankruptcy proceedings, which necessarily involve a public discussion and resolution of the rights of creditors and the estates of debtors, a broad public right of access to records is a logical result.
Presumably, the Congress or the states could establish statutory rules governing access to court records for any particular type of judicial proceeding. There are some firm constitutional limits, so that a law closing all criminal trials to the public would almost surely be struck down. But within the constitutional boundaries, there is considerable discretion for the legislature.
Access to executive branch records is governed everywhere by statute, and there is no purpose in reviewing the details and differences of state and federal access laws. Many state laws follow the federal model, but state policies are sometimes significantly different from federal policies even through the statutory language may be identical. Legislatures uniformly support public access to government documents. The rhetorical support is sometimes stronger than the statutory language. Each access law includes many exemptions for specific categories of records. The federal FOIA has nine general categories of exempt records, but many state laws have a much larger number of specific exemptions. The conflicts that arise with privacy interests will be discussed in the Right of Privacy section.
C. Common Law
The common law right of access to judicial records offers another perspective. The common law right was discussed in Nixon v. Warner Communications, Inc. During the criminal trials that followed the Watergate investigation, tape recordings made by President Nixon in the White House were admitted into evidence. At the close of the trials, broadcasters petitioned for access to the tapes. The Supreme Court denied the request.
In reaching its decision, the Court noted that there is a general right to inspect and copy public records and documents, including judicial records and documents. However, the Court found that the right was not absolute and that every court has supervisory power over its own records and files. The Court was unable to distill a comprehensive definition of the common law right of access, but it did find a constant recognition of the sound discretion of the trial court. While the Nixon case ultimately turned on issues that are not directly related to the general issue of access to public records, the Supreme Court's conclusion that there is no absolute public right of access to judicial records is relevant here. When judicial records serve as proxies for trials -- pretrial criminal documents, for example, -- the public interest in access may be closer to the strong interest in access to public trials. The public interest in access to other records may be weaker, and any rights of access to evidence are more attenuated than rights of access to trials. The balancing of all interests is left to the sound discretion of the trial court.
Since every state now has a freedom of information or open records law, common law rights of access to executive branch records are no longer of significant importance. Nevertheless, a gloss on the common law right of access to government records can be found in an older line of cases involving land title records. Access to land title records is the subject of express statutory regulation in most states, with many state laws providing for public inspection and copying. The breadth of current disclosure policies is clearly demonstrated by the availability of land ownership records from commercial services that make the information available through online computer services for many states.
The older cases hold that, without statutory authorization, access to records of real estate titles can be limited. The English common law rule -- a rule that was not applied uniformly in the United States -- was that the right to inspect and to copy title records as well as other government records was limited to those records in which the requester has an interest for the purposes of an immediate transaction or for some other recognized purpose. For example, in The King v. The Justice of Staffordshire, an attempt to allow rate-payers to inspect government accounts and expenditures was denied. The court found that the rate-payers did not have a sufficient interest. Remarkably, the court noted that even if illegal expenditures had been made, there was no remedy because the money could not be recovered. The court suggested that if this result was unwise or unfair, it would have to be changed by statute.
These older, restrictive principles were applied to land title records for a time by some state courts. In Webber v. Townley, a person who wanted to carry on an abstract business and who sought to make a complete abstract of all land titles in a county was denied access to the records. Under the common law rule in effect in Michigan in 1880, the person was seeking the records for private and speculative purposes, and this was not a recognized interest or a legitimate public purpose.
In 1918, the Tennessee Supreme Court offered an analysis of the reasons for the difference between England and the United States on access to title records:
According to the rules of the common law as administered in England there was no general or public right of inspection of public records, that right being confined to those who had a personal interest in the property affected by the records. The greater portion of the real property in England was held by the nobility and the aristocracy in large estates, and the system that prevailed looked to the descent of realty to the oldest son and other heirs, often by entail, and this resulted in few transfers.
In America different ideas have prevailed, and these brought, as a necessary consequence, a decided change. Small holdings in fee have resulted from the American concept and principle of equality as between heirs, and activity of sales and freedom of transfer have been encouraged by the policy of our laws.
Even in some early cases construing statutory access provisions, there was a tendency to deny abstracters the right to have access to the records. These restrictions appear to have been completely superseded by later recording laws, open records laws, or modern practice. Restrictions upheld in the past do not appear to be good law today.
These cases are relevant because they show that unrestricted access to land title records and other government records was not a universal common law principle in the past. At some times, in some states, title records were not accessible by all. However, no hint of concern about the privacy interests has been found. There is a flavor of paternalism in the English cases. In the American cases, the disputes appear to center over competition with the state recording officer by those wishing to maintain independent archives of land records; over the fees that state officers were entitled to charge; over the difficulty of administering an office that might be overrun with requesters; or over a "natural" aversion to use of public records for private gain. These concerns bear some similarity to arguments used against the passage of freedom of information laws. They appear old-fashioned and are generally out of favor today.
Limiting access to government records to parties with a recognized interest is not entirely an outdated and ancient common law doctrine. The 1946 Administrative Procedure Act, which established basic procedural rules for federal agencies, included a public access provision that permitted agencies to provide access only "to persons properly and directly concerned." This standard was consistent with the common law tradition. This language was repealed in 1966 to make way for the Freedom of Information Act and its core policy of access by "any person". But until the FOIA took effect in 1967, federal agencies could limit access to requested federal records to those with a proper interest. Under this standard, agencies could deny most information requests.
IV. Right of Privacy
There is a vast literature on the nature and scope of the right of privacy, but there is no consensus on the constitutional, legal, or general meaning of the concept of privacy. The U.S. Constitution guarantees individuals a right to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures; a right against self-incrimination; and a right to speak and assemble. These and other constitutional principles have been associated with privacy interests. Justice Brandeis referred to these collective interests as the "right to be let alone." The right of privacy has been analyzed as two separate interests: an interest in avoiding disclosure of personal matters and an interest in independence for personal decisions involving marriage, procreation, contraception, family relationships, child rearing, and education.
As with other constitutional rights, there is no absolute right of privacy. Like the right of access, the right of privacy must always be balanced against other interests. Many interests involved in balancing access and privacy are the same: national security, law enforcement, and the operational requirements of government. Of course, interests in access and privacy are constantly balanced against each other.
A. Constitutional Considerations
The constitutional right of privacy -- particularly as it pertains to the use and disclosure of personal information -- is largely undefined. Perhaps the most famous statement about the Constitution and the right of privacy is found in Griswold v. Connecticut where Justice Douglas wrote:
[S]pecific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. . . . Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers "in any house" in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
This rhetoric does little to define the scope of the right of privacy with respect to personal information. The Supreme Court came the closest to defining a right of informational privacy in Whalen v. Roe. The case involved a constitutional challenge to a New York State computer system for the reporting of the names and addresses of all persons who obtained certain prescription drugs. The Court did not find a constitutional violation, although the opinion did state that the duty to avoid unwarranted disclosures "arguably has its roots in the Constitution." The decision to uphold the statute relied in large part on the protections against unauthorized use and disclosure in the reporting system. The Court noted that disclosures of private medical information are often an essential part of modern medical practice and could not find reporting to the state to be an impermissible invasion of privacy.
The case hints at a constitutional right of informational privacy, but does not squarely hold that the right exists. The Court expressed concern over the "vast amounts of personal information in computerized data banks or other massive government files." Had there been a greater possibility of public disclosure under the New York statute, the Court might have directly confronted the nature of the constitutional interest. The Court seemed to say that the statute did not pose a sufficiently grievous threat to a constitutional interest, no matter how that interest might be defined. In a concurring opinion, Justice Brennan would not rule out the possibility that there may, at some point, be a need for a curb on technology that supports central storage and easy accessibility of computerized data. In a separate concurrence, Justice Stewart expressed his view that there is no general constitutional right of privacy, although there are protections against government intrusion into personal and private matters.
Whalen created a considerable amount of confusion in the lower courts, and cases can now be found on all sides of the issue of the constitutional right of information privacy. No clarification of the existence or scope of a constitutional right of informational privacy is likely until there is another Supreme Court decision.
An interesting gloss on the constitutional right of informational privacy can be found in a successful challenge to the disclosure of social security numbers from Virginia voter registration records in Greidinger v. Davis. Virginia voter registration lists are open to public inspection and, before a 1994 amendment, the lists included the social security number of each registered voter. The public disclosure requirement of the law was challenged as an unconstitutional burden on his right to vote. The plaintiff did not challenge the collection and internal use of the social security number by the state, simply the disclosure requirement. What is most interesting about this case is that no constitutional right of privacy in the social security number was asserted. The plaintiff only argued that the privacy interest in the number is sufficiently strong that the right to vote cannot be predicated on disclosure of the number to the public or to political entities.
The Fourth Circuit found that Virginia conditioned the right to vote upon the public disclosure of the social security number. The court also found that the harm that can be inflicted from the disclosure of the number is "alarming and potentially financially ruinous." The court also quoted Whalen to make a point about the dangers of computerized data banks. Nevertheless, the right to vote and not the right to privacy was the basis for the court's decision. The court concluded that the fundamental right to vote was substantially burdened by the provision requiring public disclosure of the social security number. Since there was no compelling state interest in public disclosure of the number (as opposed to internal use of the number), the court found the requirement an unconstitutional burden on the right to vote as protected by the First and Fourteenth Amendments. Following the decision, Virginia changed its law to prevent public inspection of social security numbers.
A stronger constitutional holding on privacy can be found in a recent opinion by the Ohio Supreme Court in a state Public Record Act case. A newspaper requested a computer tape of the city of Akron's master employees files pursuant to the state public record statute. The tape included name, address, telephone number, social security number, birth date, education, employment status and position, pay rate, service rating, annual and sick leave, overtime hours and pay, and year-to-date earnings. The entire tape was provided in response to the request, except the social security numbers. It is noteworthy that the Ohio public records law does not include a privacy exception. This may explain the breadth of the disclosure of personal information that was made without dispute.
The newspaper challenged the withholding of the social security number, and a sharply split Ohio Supreme Court upheld the denial. The court's analysis included discussion of the social security number restrictions in the federal Privacy Act of 1974, the Whalen and Greidinger decisions, and congressional hearings on the abuse of social security numbers. Finding a high potential for fraud and victimization by the unchecked release of social security numbers, the court concluded that the United States Constitution forbids disclosure "under the circumstances of this case" and upheld the denial. It appears that the majority was heavily influenced by the factual presentations about misuse of the social security number. A well-reasoned dissent accused the majority of creating an exception to the Ohio public records law. Proponents of a general constitutional right of informational privacy will find it difficult to make much of this decision, despite the favorable result.
There are provisions in state constitutions that may provide additional privacy protections. For example, the California constitution was amended in 1972 to recognize expressly the right of privacy. The interests that the amendment was intended to protect include "the improper use of information properly obtained for a specific purpose, for example, the use of it for another purpose or the disclosure of it to some third party." There is limited case law interpreting state constitutional privacy provisions.
B. Statutory Considerations
The federal government and all fifty states have enacted general open records laws. In addition, there are laws regulating public access to specific categories of records. Many state laws are based on the federal Freedom of Information Act, but there are significant differences. For example, some state laws do not include a general privacy exemption. The Ohio Supreme Court case on social security numbers, discussed in the preceding section, illustrates how the absence of a privacy exemption can result in far greater disclosure of personal information that would be mandated under federal law. Of all the information in a government personnel file, only the social security number was protected, and that was accomplished only through a constitutional holding by the Ohio Supreme Court.
Central to a discussion of access to public records is the 1989 Supreme Court decision in Department of Justice v. Reporters Committee for Freedom of the Press. The case arose when a reporter made a FOIA request to the Federal Bureau of Investigation for disclosure of records about the arrest, indictment, acquittal, conviction, and sentence of four individuals who had been identified as connected to organized crime. Information on three of the individuals who later died was released by the FBI. Information on the fourth individual was withheld on the grounds that disclosure would constitute an invasion of personal privacy.
At stake in the case were criminal identification records commonly known as "rap sheets." A rap sheet is a compilation of an individual's arrests, charges, convictions, and incarcerations. Descriptive information, such as date of birth and physical characteristics, is also included. Much rap sheet information is public information at another location or in a record publicly available. Arrests, indictments, convictions, and sentences are public events documented in public court records. Police blotters or equivalent sources of arrest information are public in many jurisdictions. Most states, however, do not allow general public access to rap sheets.
The key to the Reporters Committee case is the recognition that a rap sheet compiles in one place information that, while publicly available in disparate locations, is otherwise not readily available in compiled form. Although a diligent researcher may be able to accumulate the same information from public sources, the task can be impossible as a practical matter. For example, identifying all arrests for a specific individual could require a review of all available court records and police blotters throughout the country for the individual's entire lifespan.
The district court upheld the FBI's denial of the records on privacy grounds. The Court of Appeals reversed, finding a minimal privacy interest in information already public. The Supreme Court unanimously decided that disclosure of the rap sheet would be an invasion of privacy under the FOIA.
The Supreme Court rejected the notion that there was no privacy interest in information that had been previously disclosed, finding an important difference between the scattered disclosure of the bits of information contained in a rap sheet and revelation of the rap sheet as a whole:
But the issue here is whether the compilation of otherwise hard-to-obtain information alters the privacy interest implicated by disclosure of that information. Plainly there is a vast difference between the public records that might be found after a diligent search of courthouse files, country archives, and local police stations throughout the country and a computerized summary located in a single clearinghouse of information.
The Court found support for its conclusion that there is a strong privacy interest in the nondisclosure of compiled computerized information in the federal Privacy Act of 1974. That Act grew out of a series of hearings on computer data banks and privacy.
The Court also reached a conclusion about the FOIA relevant to a discussion of public records. The Court found that the purpose of the FOIA is the disclosure of official information that sheds light on an agency's performance of its statutory duties. This purpose is not fostered by the disclosure of information about private citizens maintained in government files that reveals little or nothing about an agency's conduct. Although the information might be newsworthy, or relevant to a decision about extending credit to the subject of the file, these interests fall outside the ambit of the public interest that the FOIA was enacted to preserve. Measuring individual FOIA requests against the general purpose of the law is a controversial part of the decision.
Finally, the Court held categorically that releasing rap sheet information in response to third party FOIA requests is an invasion of personal privacy. Therefore, all such requests must be denied without regard to the identity of the requester, the requester's purpose, or the subject of the rap sheet. The categorical aspect of the decision is another controversial element, and one that has implications for both the FOIA in general and the privacy exemption in particular. It remains to be seen if other personal information will be treated similarly.
The decision in this case was not based on constitutional principles but on an interpretation of the FOIA as passed by Congress. There is no doubt that the statutory conclusion could be altered or reversed by a later law. Nothing in the case suggests a constitutional right of access or a constitutional right of informational privacy, but the Court did not need to reach that far to achieve the result. It is apparent from the decision that the Justices have strong reservations about the availability of personal information -- especially computerized information -- but it is unclear if these reservations have a constitutional basis.
The result in Reporters Committee contrasts well with a decision in Ohio where compiled arrest histories were found to be public records subject to public disclosure. Why did the Ohio court reach the opposite result? The Ohio public records law does not include an exemption for privacy. This difference underscores the statutory basis of both decisions. An important theme in Reporters Committee, and one that has recurred in decisions of other courts, is the greater impact on privacy that results from the computerized compilation of information otherwise available in disparate locations. In Westbrook v. Los Angeles County, a California appeals court denied a private seller of criminal history information a copy of a computer tape of criminal history information from a municipal court information system. The case was decided in part under California statutes and in part under the California constitutional privacy provision. The most relevant part of the decision found constitutional significance in the difference between obtaining one record and obtaining all records:
There is a qualitative difference between obtaining information from a specific docket or on a specified individual, from obtaining docket information on every person against whom criminal charges are pending in the municipal court. If the information were not compiled in [the Municipal Court Information System], respondent would have no pecuniary motive (and presumably no interest) in obtaining it. It is the aggregate nature of the information which makes it valuable to respondent; it is the same quality which makes its dissemination constitutionally dangerous.
Remarkably, the Westbrook decision hints that the ability of a private party to store and redisseminate personal data may be relevant to the constitutional evaluation of the privacy right.
Another broad interpretation of the privacy exemption to the federal FOIA is found in a later Supreme Court decision. After considerable controversy and disagreement in the lower courts, the Supreme Court settled the issue of disclosure of the names and home addresses of federal employees under the federal FOIA. In U.S. Department of Defense v. F.L.R.A., the Court held that disclosure was a clearly unwarranted invasion of personal privacy under the FOIA. The requester was a labor union seeking to contact potential members, but under the holding in Reporters Committee, the identity of the requester and the purpose of the request was irrelevant. In an especially interesting comment, the Court noted that a privacy interest does not dissolve simply because the information may be available to the public in some other form, such as a telephone directory or a voter list.
Here again, the Supreme Court's concerns about privacy were strong. The disclosure of a name and home address was found not just to affect privacy interests, but to be a clearly unwarranted invasion of privacy. If a home address falls under this standard, it seems likely that the Supreme Court would interpret the FOIA to support the withholding of all types of personal information. This decision was an interpretation of a statute and not of the Constitution, but it strongly suggests that there is no constitutional right of access that would trump a statutory decision to withhold names and addresses.
A case decided under a state freedom of information law offers a similar result with a different type of data. A request made in Illinois for the names of assistant State's attorneys, their salaries, and dates of hire was granted under the state's Freedom of Information Law. The request for the race of the people was denied, and the denial was upheld as an unwarranted invasion of personal privacy. The court assumed, arguendo, that an individual's race could be accurately determined by observation. Nevertheless, the court concluded that just because information is not wholly private does not mean that an individual has no interest in limiting its disclosure or dissemination.
Different results can be found in other states. In Michigan, a request for the home addresses of state employees was held not to be a clearly unwarranted invasion of personal privacy under the Michigan freedom of information law. Although the language of the state law is identical to the federal law, the state Supreme Court found that the state privacy exemption did not require a balancing of interests and concluded that the name and address information was available to all.
There are statutes that provide for confidential treatment of specific categories of information. A good example is the census law. Information collected by the Census Bureau cannot be used for any purpose other than the statistical purpose for which it was collected, cannot be published in any way that would permit a particular establishment or individual to be identified, and may not be accessed by anyone other than a sworn Bureau officer or employee. This is as restrictive a statute as will be found for any class of information. The purpose is to encourage full compliance with requests for information. The law provides equal protection for personal information and for corporate information. The principal concern of the law is ensuring the integrity of the collection process; only the protection of sensitive data is secondary. Other government programs collect data of equal or greater sensitivity without statutory confidentiality protection.
There are additional specific statutes and more cases interpreting the general privacy exemptions of open records laws, however, there is little point to a complete review. Different courts have read identical or similar language to require diametrically opposite results. Whether these cases are right or wrong, well-reasoned or not, it is apparent that the legislature has considerable discretion in deciding whether personal information in state records must be disclosed to the public. Different balances can easily be struck between access and privacy interests by different legislatures and for different types of personal information.
V. Use Restrictions
Access to public records is not simply a yes-or-no proposition. Sometimes, only selected parties have been permitted to have access to the records, parties are permitted to have access for specific uses, or specific uses are prohibited while others are permitted. Use restrictions can be categorized as an exception to an access policy or, depending on your point of view, as an exception to a confidentiality policy. Use restrictions offer additional alternatives for crafting policy, but it becomes more difficult to establish a simple framework for analysis. New constitutional considerations may arise with use restrictions.
A. Publication Limitations
In Cox Broadcasting v. Cohn, the Supreme Court addressed the constitutional line between the right of privacy and the right of a free press in the context of publication of information. The statute under review made it a misdemeanor to print the name or identity of a rape victim. The father of a deceased victim sued Cox for publication of his daughter's name. The victim's name had been publicly revealed in connection with a prosecution. The issue was whether the state could limit the publication of information that had been made public by the state.
The Court characterized the case as a collision between claims of privacy and the claims of a free press, each deeply rooted in the traditions and significant concerns of our society. Nevertheless, the Court had little difficulty concluding that the First and Fourteenth Amendments do not allow the press to found liable for the truthful publication of information released to the public in official court records.
The Court said that if there are privacy interests that need to be protected in judicial proceedings, "the state must respond by means which avoid public documentation or other exposure of private information." Once information is disclosed, the press cannot be sanctioned for publishing it. Striking the balance between privacy and the public interest to know is a political question. The Court expressly declined comment about constitutional questions that might arise from denying access to official records such as juvenile court proceedings.
The Supreme Court took on the easier part of the privacy issue by deciding that a newspaper cannot be prohibited from publishing information maintained in a public record relating to a public prosecution. This holding is clear and strong as far as it goes. In The Florida Star v. B.J.F., however, the Court expressly declined to reach the ultimate question of whether truthful publication can be punished consistent with the First Amendment. The Court also reserved judgment on the possibility that a truthful publication could be subject to civil or criminal liability for a privacy invasion defined by the state.
It is apparent that a state can deny access to much information on privacy and other grounds. How far a state can go in denying access remains uncertain, but the context is clearly important. The earlier discussion on the right of access showed that some proceedings and some documents (e.g., criminal trials) require a greater degree of public access than others. Punishing truthful publication of information in the public domain may be a drastic remedy, but other restrictions to forestall public disclosure are available. These may include classification, procedures restricting release, and damage remedies against government or government officials when mishandling leads to dissemination.
The 1984 Supreme Court decision in Seattle Times Co. v. Rhinehart squarely addressed whether parties to litigation have a First Amendment right to disseminate, in advance of trial, information gained through the pretrial process. The case involved an action for defamation and invasion of privacy brought against a newspaper. During the discovery process, the plaintiff sought and ultimately was granted a protective order preventing the newspaper from disseminating any information gained through discovery. The newspaper argued that the protective order was a prior restraint prohibited by the First Amendment.
The Supreme Court upheld the protective order, finding no First Amendment violation. In reaching its decision, the Court concluded that discovery rules are matters of legislative grace and that a litigant has no First Amendment right of access to information made available only for purposes of trying his suit. The right to speak and publish does not carry with it the unrestrained right to gather information. At common law, pretrial deposition and interrogatories were not public components of a civil trial. Therefore, restraints placed on discovered, but not yet admitted, information are not a restriction on a traditionally public source of information. This is a distinction from Cox where the information that was published was publicly disclosed by the state.
This decision upheld a restriction on a newspaper's right to publish discovery information when the newspaper was a party to a lawsuit. The newspaper-as-party aspect of the case might be considered to be another circumstance that distinguishes the result from Cox. Regardless, the Court upheld a prohibition on a newspaper from publishing information in its possession.
The invitation in Cox to avoid the conflict between a free press and the right of privacy by simply denying access to information was accepted in another discovery case. In Anderson v. Cryovac, Inc., a case discussed above in the context of access to discovery records, the court found no public right of access to the records. As a result, the problem of use restriction disappeared because there were no accessible records. The non-party newspaper was denied access, and any potential conflict disappeared as a result.
B. Commercial Speech Restrictions
Some important cases turn on the issue of the constitutional protection afforded to commercial speech, or expression related solely to the economic interests of the speaker and its audience. Because the law in this area has changed in the last twenty years, a review is worthwhile.
1. Credit Reporting -- The old view of commercial speech is well-represented by a 1976 court of appeals decision in a case that challenged the disclosure restrictions of the Fair Credit Reporting Act as a violation of the First Amendment. The Eighth Circuit held that commercial speech was not subject to full First Amendment protection. The court followed the traditional analysis of commercial speech that was the law at the time, but in reaching its decision, the court took note of a pending Supreme Court case that might revisit the commercial speech doctrine.
That case was Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, and it changed the rules governing regulation of commercial speech. The Court found unconstitutional a statute that effectively prohibited the advertising of prescription drug prices. The restriction of speech based on content was a violation of the First Amendment even though it was commercial speech. The statutory prohibition exceeded the bounds of permissible time, place, and manner restrictions.
The next commercial speech case was Central Hudson Gas & Elec. Corp. v. PSC of New York where the Supreme Court refined the test for evaluating commercial speech. The Court set out four steps for evaluating whether commercial speech is expression protected by the First Amendment. First, does the speech related to unlawful activity and is it misleading? If not, the second prong is whether the interest that the government is protecting is substantial. The third prong is whether the regulation directly advances the governmental interest asserted. Finally, the last prong is whether the regulation is more extensive than is necessary to serve that interest.
In a case decided immediately after Central Hudson, the Maine Supreme Court applied the new test to a state restriction on the use of public record information in credit reporting. Equifax Services, Inc. v. Cohen is a long and complex decision that resolved a challenge to the Maine Fair Credit Reporting Act, a law that parallelled -- but was not identical with -- the federal Fair Credit Reporting Act. The part of the decision that is relevant here addressed the provisions of the Maine Act that prohibit consumer reporting agencies from including in a consumer report information that can be obtained from public records. The prohibited public record information includes bankruptcies more than ten years old; suits and judgments more than seven years old; paid tax liens more than seven years old; and records of arrest, indictment, or conviction more than seven years old. The policy behind the federal law was that it is unfair to burden a consumer for life with a bad credit record if the consumer's performance has improved.
The Maine Supreme Court held that the restriction on the communication of truthful, accurate facts from public records was unconstitutional. The Court reached this conclusion in full awareness of the similarity with the federal law. The Court noted, however, that the federal law was passed at a time when commercial speech was afforded no constitutional protection. When the four part Central Hudson test was applied to the restrictions, the defect flowed from the law's assumption that inevitably or most probably, users of consumer reports will be improperly influenced if the prohibited categories of information were included. The Court concluded that the governmental interest could have been adequately served had the restrictions been imposed the use of the information by decision makers rather than on the communication. Since the regulatory scheme was more extensive than is necessary to serve the state interest, it was unconstitutional.
It is difficult to evaluate fully the Maine Supreme Court's decision. The federal restriction on the use of public record information has never been challenged. Whether a federal court would reach the same result is speculative. If the Maine judgment is correct, then the restrictions on credit reports that are important parts of the Fair Credit Reporting Act are unconstitutional.
2. Traffic Violations -- The unsettling result reached in Equifax is matched by equally troubling results found in other cases on public records and commercial speech. Lanphere & Urbaniak v. Colorado is a recent Colorado case that illustrates some boundaries concerning the use of criminal justice records. In 1992, Colorado passed a statute requiring the official custodian of criminal justice records to deny access to the records unless the person signs a statement that the records will not be used for the direct solicitation of business for pecuniary gain. The law was challenged by a law firm that obtained names and addresses of individuals facing prosecution for traffic violations to engage in direct mail solicitation.
The Tenth Circuit upheld the statute's restrictions on access to and use of the records. The court found no absolute First Amendment right of access to government records, but it found a First Amendment interest because the Colorado Legislature drew a regulatory line based on the use of the records. To evaluate the restriction on commercial speech, the court applied the four-prong Central Hudson test.
The court found that the speech was protected because it concerned lawful activity and was not misleading. That satisfied the first prong. The court also found that the state had a substantial interest in protecting the privacy of those charged with misdemeanor traffic offenses and driving under the influence, notwithstanding the availability of the same information from other sources such as local newspapers. This parallels a conclusion reached by the Supreme Court in the Reporters Committee case. The court found a substantial state interest in lessening the danger of solicitor abuse and in maintaining public confidence in the system of justice. This met the second prong of the test. The third prong requires that the restriction advances the governmental interest, and the court had no trouble finding that restricting access accomplished this.
The fourth prong is whether the restriction is more extensive than is necessary to serve the state's interest. Here, the court had to work harder to reach its conclusion. In earlier Supreme Court cases involving solicitation by attorneys, the Court found limitations on solicitation to be improper. The Tenth Circuit distinguished these cases because of the privacy interest involved (in the solicitation cases, the attorneys were already in possession of the information) and because an indirect barrier to solicitation was imposed by denial of access rather than prohibition of solicitation. The result was that the court found that the statute passed constitutional muster. In effect, the court took up the invitation in Cox to deny access. The selective denial of access presented in Lanphere, however, is a wrinkle not specifically contemplated in Cox.
The decision drew a sharp dissent. The dissenting judge found "national experience" provides for public access to records of this type. This was an argument based largely on a tradition of access to court records. The dissenter also found a public interest in facilitation of legal representation in criminal proceedings. He also noted that a drug and alcohol treatment center was also prevented from soliciting clients by the restrictions and concluded that treating alcohol abuse is another benefit for the justice system by limiting repeat offenders.
Finally, the dissenter concluded that a restriction must further a compelling state interest and be a carefully tailored resolution of the conflict between that interest and the First Amendment concerns. Based on this standard, the dissenter found insufficient reason to deny public access since the access is not sought for an unlawful purpose. Solicitation by lawyers or rehabilitation programs is not unlawful. Therefore, the dissenter would have found the statute to be unconstitutional.
In two other cases where similar records held by non-judicial agencies were sought by attorneys, courts upheld restrictions. In one case, traffic accident records sought by a law firm were released, but the deletion of names and addresses was upheld pursuant to the state Freedom of Information Law that makes the release of the information an unwarranted invasion of personal privacy if the lists would be used for commercial or fundraising purposes. It may be tempting to characterize these cases as a reflection of the antipathy of the courts to lawyer solicitations, but another case weakens that conclusion. A copy of a computer tape of traffic accident reports sought for use in a statistical study of accidents was denied as a clearly unwarranted invasion of personal privacy because the purpose of the State FOIA law was to monitor public agency actions. No solicitation was involved.
The Equifax and Lanphere decisions are not necessarily inconsistent. Equifax is a "use" case and not an "access" case. It is possible that a credit bureau could obtain bankruptcy information from a local newspaper instead of a public record, but under the law, the source was irrelevant. Like Cox, the Maine Court would not allow a restriction on use of public record information. For the Maine Supreme Court, the Cox holding extended to commercial speech. Lanphere was an "access" case that did not involve a direct use prohibition. The law cut off direct access to commercial users. The law firm could use the information if obtained elsewhere. While the same information was available from another source, it seems unlikely that the lawsuit would have been pursued if the other source could have provided complete or timely information.
Both decisions seem consistent with the Supreme Court's decision in Cox. The state may not be able to prohibit use of information directly, but it may be able to limit access and thereby prevent use. This use/access distinction may appear to be an appealing way to divide the world, but it no longer works when we reach the Federal Election Commission case.
C. Other Records
1. Election Records -- One duty of the Federal Election Commission (FEC) is to collect, compile, and make available reports of campaign contributions filed by candidates for federal office and other persons required to disclose the receipt of political contributions. The law provides that the FEC must make these reports available for public inspection and copying within forty-eight hours of receipt. The law also provides a restriction on the sale or use of the records by recipients:
[A]ny information copied from such reports or statements may not be sold or used by any person for the purpose of soliciting contributions or for commercial purposes, other than using the name and address of any political committee to solicit contributions from such committee.
FEC regulations explain that soliciting contributions includes any type of contribution or donation, such as political or charitable contribution. The regulations also state that the use of FEC information in newspapers, magazines, books, or similar communications is permissible as long as the principal purpose is not to communicate any contributor information to solicit contributions or for other commercial purposes. These rules have been enforced. Civil fines were imposed against a company that rented FEC tapes for commercial purposes.
The constitutionality of the use restrictions was squarely challenged in a 1992 case -- FEC v. International Funding Inst. -- and in an en banc decision the D.C. Circuit found that the restrictions were constitutional. Some arguments in the case have broader relevance to issues of use restrictions on public records. The first set of arguments related to what level of scrutiny ("strict" vs. "intermediate") was appropriate for a review of the statute. The defendant argued that the restrictions were a direct infringement upon activity protected by the First Amendment and called for strict scrutiny. The court rejected this argument, in part based on its comparison of the situation before passage of the Federal Election Campaign Act. Prior to the Act, a person had no right to obtain a contributor list from a political committee. The passage of the Act imposed no new burden on those who want to use contributor lists to solicit. As before, this can only be done with the consent of the political committee. There is no infringement on a First Amendment right to solicit contributions.
The court considered an argument that strict scrutiny is required because the law selectively prohibits use of the list. The argument was that the law facilitates all forms of political speech except the solicitation of contributions. The court, however, did not find this persuasive. It found no obligation to facilitate one protected right just because a related right was facilitated.
The court rejected a third argument that strict scrutiny was required when the government makes information available for some purposes but forbids use of that information for other purposes. The defendant argued that such a restriction is not content-neutral and therefore requires strict scrutiny. The court rejected this argument based on an earlier Supreme Court decision applying only intermediate scrutiny to use restrictions on information when the government had compelled disclosure.
The substantive arguments are of less relevance here. The court concluded that the restrictions on the FEC lists advance an important governmental interest, namely reserving the value of a contributor list to the political committee that created it. In concurring opinions, James Buckley and Raymond Randolph both saw the case as one involving property rights over lists and not freedom of speech issues. The court's conclusion and the concurring opinions underscore the importance of the proprietary interest of the campaign organizations required to report the names of contributors. Privacy interests of contributors are at stake in the statute and in the case, but those interests were not the motivation for the litigation.
The FEC decision did not provide an express "commercial speech" analysis, although the standards it applied are similar ("important governmental interest" and "no broader than necessary") to the Central Hudson test. The law provides yet another type of outcome: access but not use. The Cox use/access division no longer helps. Everyone can have access to FEC records, but some uses are prohibited.
2. Voter Registration -- Access to voter registration records varies considerably among the fifty states. Although a comprehensive survey of state laws was not undertaken, it appears that about half the states restrict access to or use of voter registration records. California is a restrictive state. The law permits disclosure of voter rolls to candidates for federal, state, or local offices, to committees for or against any initiative or referendum measure, and to any person for election, scholarly, journalistic, or political purpose, or for governmental purposes. The law also sets out requirements for applications for voter registration information. Among other things, applicants must provide a statement of the intended use of the information requested.
Pennsylvania permits public inspection of voter registration lists but prohibits use of the lists for "commercial or improper purposes." The statute offers no definition of the terms "commercial" and "improper." Examples of states with unrestricted voter rolls include Oklahoma (open for public inspection) and South Carolina (open to the inspection of any citizen).
Greidinger strongly suggests that the right to vote might offer a constitutional basis for limiting the commercial use of voter registration records. The strong constitutional interest might overcome the First Amendment antipathy to restrictions on publication of public record information. The commercial speech distinction also might be used to uphold restrictions against commercial uses while allowing traditional news reporting to continue unabated. The FEC law clearly relies on this type of distinction. Identifying the line between news reporting and commercial use is a largely unexplored and complex issue.
3. Postal Records -- The U.S. Postal Service has for many years operated a variety of address correction and disclosure services. One service enabled any person to receive the new address of an individual who had filed a change of address order within the last eighteen months. The charge for an address was $3.00. In December 1994, the Postal Service changed the availability of this service. The service is now available only to federal, state, and local governments for official purposes; to process servers; and when necessary to comply with a court order.
This service and the change in its availability are of interest here for several reasons. First, the address information was traditionally available from the Postal Service. The elimination of the service represents a significant reversal of a long-standing program of disclosing public records. Second, the reasons offered by the Postal Service for the change are relevant to the general debate over public records. The Postal Service notice indicated that there were about 300 objections filed opposing the proposal to eliminate the service. Objectors included investigators, attorneys, financial and insurance companies, businesses, and news organizations. The objections showed that the service "had come to be used primarily as a quick, almost immediate, way to discover the physical whereabouts of individuals, rather than for the purpose of correcting mailing addresses in order to communicate by mail." The Postal Service concluded that "Congress has not given the Postal Service the function of serving as a national registration point for the physical whereabouts of individuals." The Postal Service was unmoved by the many institutions that had grown dependent on the service.
D. Copyright and the Price of Information
Copyright offers information owners an additional tool to regulate the use of information. Under the Copyright Act, the federal government may not copyright its own data. State governments, however, may copyright their own information, but the extent to which a state can copyright a list of names and addresses is unclear. Under the Supreme Court's 1991 decision in Feist Publications v. Rural Telephone Service Co., the ability to copyright a list depends on whether the list posses sufficient originality. The Supreme Court refused to recognize copyright in an alphabetic list of names, addresses, and telephone numbers. Whether an alphabetic list of drivers could be copyrighted is problematic. A state might be able to copyright lists by changing the order of information (e.g., by zip code), by including or excluding certain information, or by arranging the information so that it might be used more effectively by readers.
Copyright may present a way to control downstream uses of personal information, but there are some complications. First, it is not clear how to reconcile the ability to copyright information with state open records laws. The potential conflict between copyright and open records laws has not been squarely addressed, nor has the potential conflict between copyright and the First Amendment.
Second, states can exempt information from open records laws and release the information under other terms and conditions. Some states have statutorily established the terms and prices for the disclosure of some personal information outside the framework of the state open records law. A state could set the price at any level, even an unreasonably high one, unless a constitutional principle imposes a limit. A high price could be used to discourage access, raise revenues, or preserve a state franchise. In early cases limiting access to land title records, preserving revenues was cited as a justification. The prospect of raising revenues through the sale of personal information is welcome in some states.
Finally, even if lists could not be protected by copyright, recipients could be required to sign license agreements that restrict use or further disclosure of the information. It seems more likely that license agreements would be used to protect a state's revenue than to accomplish other purposes.
VI. Observations
Drawing general principles from the material summarized here is a challenging task. Precedents range from one extreme to the other. Some records are entirely public and available for use without restrictions. Some records are not available to the public under any circumstances. Intermediate models illustrate partly open or partly confidential disclosure systems, with either statutory, regulatory, or wholly discretionary standards.
Existing case law provides a wealth of material from which support for any desired result can be found. Judicial rhetoric supporting both public access and personal privacy abounds. There are separate lines of conflicting or overlapping precedents that allow a judge to select the precedent that achieves a desired outcome. Some cases offer constitutional conclusions, although it is difficult to extrapolate in this area with any confidence unless using rulings of the U.S. Supreme Court, and even the Supreme Court decisions are fuzzy in many respects. Except in the area of access to criminal trials, there is no clear, sharp, single line of reasoning or precedent that controls decision making.
Similarly, policy support can be found for all points of view. General freedom of information principles can be cited to support maximum use of government records for the benefit of all. Yet somewhat conflicting principles have been applied to limit disclosures under the FOIA to information that relates to the operations and activities of the government. This line of reasoning has been applied to sharply restrict the disclosure of personal information. Fair information practice principles raise similar questions about the propriety of using personal information for a purpose other than the purpose for which the information was collected. Support for any result can be found by selective use of available policies and principles. Reasonable people can agree on principle yet disagree on the application to particular records.
The many statutes that require, permit, or prohibit the disclosure of specific categories of public records would appear to offer a wealth of material from which more general principles can be deduced and policies can be isolated. In practice, this is much more difficult than it appears. For state statutes, it is frequently impossible to find materials explaining the intent or purpose of the law. Even if materials may be found, they may not reflect current controversies.
For example, a statute opening drivers records that passed decades ago in the pre-computer era may have resulted in unforseen uses of those records. One may argue fairly that the intent of the open records law was to permit all such uses without distinction. One may just as easily argue that the expanded use of records resulting from computers and industry practices was not foreseen or intended. More recent statutory activity in one state or another will offer support for both sides.
Conflicting policies can be found in the same state for different types of records. One record may be closed to inspection while another record with similar information is open. For example, a social security number may be public through motor vehicle records but not through voter registration records. Similarly, medical information in a state public health department is normally confidential, but medical information from a driver's license may be disclosed.
In addition, there has been a considerable change in the general approach to the disclosure of government records since the passage of the federal Freedom of Information Act in 1966 and the Privacy Act of 1974. This too cuts both ways. While there has been much greater focus on the benefits of access to government records in general, there has also been a greater emphasis on the protection of privacy interests. Much has been learned about disclosure and privacy laws in the last twenty years, and old laws often fail to address modern issues.
It is a truism that legislatures do not always make decisions with logical, rational, and consistent policy objectives in mind. Sometimes, however, statutes on related subjects passed over time can be analyzed to divine a coherent set of legislative principles. Other times, this is difficult or impossible. For public records, this is a difficult task if approached with a broad focus. It may be possible to categorize policies for specific classes of records, but this is much harder when many types of records are under consideration.
Attempts to look behind the statutes to constitutional principles are equally frustrating. There are no absolutes to be found. There is no absolute constitutional or First Amendment right of access to government records about individuals in their personal capacity. The First Amendment interests in disclosure are qualified. The interests range from strong to non-existent. Similarly, there is no firm constitutional right of privacy that can be cited to prevent the government from generally disclosing personal information about individuals. There is some suggestion of a constitutional right of informational privacy, but the support is uncertain and the scope is far from clear. There are conflicting precedents and considerable confusion in the courts.
There are recurring themes, but they lack the consistency needed for making broader determinations. One important theme is tradition. Some public records have traditionally been open to the public, and this has influenced the setting of some access policies. Yet tradition can be a double-edged sword when new classes of records are created that begin with no tradition of public access. Traditions also may be subject to change when circumstances change, when new legislation is passed, or when record keeping technologies change. Older traditions were restrictive with respect to some categories of government records. More recent traditions -- highlighted by the modern freedom of information movement -- are much less restrictive. However, the open access policies reflected in freedom of information laws are a tradition with roots of less than thirty years. Recent cases involving personal information have mostly but not exclusively limited public access.
Another identifiable theme is special concern about computerized records. The trend of modern information policy has been to support the availability of computerized government records in electronic formats convenient to users. Legislation to support access to computerized records has been proposed or adopted in many jurisdictions. But some courts have found greater threats to privacy when personal records are computerized and have imposed restrictions on computerized records that do not necessarily apply to paper records. These format restrictions appear inconsistent with the strong trend toward increased access to computerized and networked information, although personal information may simply be an exception to a general rule.
At the same time, the availability of computers and networks may result in instantaneous, unrestricted, world-wide access to digital government records. Broader availability may intensify the privacy intrusion that flows from the initial disclosure. Case law tends to address disclosure issues through a system-by-system approach, and the overall effects of the availability of many different types of personal information from disparate government systems is frequently ignored.
Another complication is the possibility that individual records made available by government may be collected by the press or by others and compiled independently into complete, computerized databases that are privately maintained and unregulated. Those who are willing to make individual records available -- but not computerized compilations -- may find that the distinction becomes less meaningful as private repositories are developed.
One type of personal record that has drawn special attention is the social security number. Strong arguments have been presented about the possibility of fraud and economic loss resulting from the misuse of social security numbers, and courts have imposed special restrictions on availability. It is unclear whether these concerns are narrowly limited to social security numbers or whether similar arguments can be presented for other classes of data.
The cases and statutes restricting use of public records represent a largely unexplored area. The clash between privacy interests and First Amendment interests has resulted occasionally in the establishment of legislative use restrictions as a middle ground between the extremes of access and disclosure. The middle ground, however, is filled with vague categories, unclear distinctions, fuzzy language, and different approaches.
There are several different models of use restriction. The Fair Credit Reporting Act (FCRA) contains no access restrictions, but it limits the use of some public information in credit reports. Yet this same information may be used by others without regulation under the Act. As the Equifax case suggests, credit grantors can obtain and rely on public record information although credit reporting agencies are prohibited from reporting that same information. The Fair Credit Reporting Act is similar in some respects to the rules governing FEC contribution records. Here too, there are no limits on access, but specific uses are prohibited. Under the FCRA, only specific actors are prohibited from using regulated information. Under the FEC law, all actors are prohibited from using information in specific ways.
The Colorado statute upheld in the Lanphere case permits disclosure of criminal justice information except to those who will use the information in direct solicitation of business for pecuniary gain. A similar approach can be found in the New York Freedom of Information Law that includes a legislative determination that use of names and addresses for commercial or fundraising purposes is an unwarranted invasion of personal privacy. Information sought for that purpose is exempt from disclosure.
The new Postal Service rule for disclosing address records over-the-counter supports disclosure only to qualifying organizations or for approved purposes. Others may not have the information at all. By affirmatively identifying those entitled to the information, the postal model avoids the use of broad and vague categories of uses and users. The California voter registration law uses a similar model of disclosure to identified organizations or for specified purposes. The California restrictions follow the information as it is passed to downstream users. The Postal Service limitations do not. Access to postal records is case-by-case. Downstream restrictions appear to be a significant issue only for large collections of records.
The Federal FOIA offers a different twist. Under the Reporters Committee decision, the identity or purpose of a requester is not relevant in determining whether personal information can be disclosed. The law, however, includes a fee structure that distinguishes among requesters by purpose or status. Requesters who seek information for "commercial use" are charged the highest fees. The cost of search, duplication, and review can be charged for these requests. The term "commercial use" is not defined in the statute. Another category of requester is "representative of the news media". These requesters are charged the lowest fees.
At a minimum, the Equifax decision identified some uncertainty about the constitutionality of use restrictions. If use restrictions are unconstitutional, then parts of the Fair Credit Reporting Act are unconstitutional. This is a troublesome conclusion for a law that appears to be working well with respect to the use limitations. Even if the Equifax holding is correct, however, other approaches to implement use restrictions may still be available. It is far from clear that all of these methods would be tarred as unconstitutional. If any form of access restriction, use restriction, or fee differential is upheld, then the door to substantive restriction is open. Further, if use restrictions are unconstitutional, then the only alternative for those concerned about privacy and misuse of personal information may be to cut off public access entirely. For most public records, there is no clearly established constitutional right of access that would trump a statutory limitation on disclosure. For some categories of records, however, a complete bar to public access would interfere with other objectives and may be objectionable from a political or policy perspective.
It is hard to find firm principles that can be used to evaluate use restrictions from a constitutional or a policy perspective. There has not been enough litigation to enable the drawing of clear lines. A secondary complication is whether use restrictions can be realistically enforced in an era of computers and networks. Only the FEC law polices remote users by salting lists with fake names. In other cases, it may be impossible to determine if there has been an actual violation of a use restriction.
The Driver's Privacy Protection Act of 1994 (see appendix) offers individual choice as an alternative. Instead of treating all records as open or confidential, the subject of each record is allowed to determine the degree of public disclosure of his or her own record. The way in which the option is presented has been and will be the subject of considerable debate, but individual choice offers a way of balancing interests on a case-by-case basis. It may be appropriate to break down choices even further. For example, an individual could be offered a choice about the disclosure of elements of a record. Some might object to disclosure of medical information, height and weight, or need for corrective lenses from a driver's license but not to home address. Individual choice offers an alternative to complex or unclear statutory standards, but the costs of collecting and enforcing individual choices may not be trivial. Computerization may reduce these costs significantly, making individual choice a viable option to address conflicts over access and privacy interests.
Appendix: The Driver's Privacy Protection Act of 1994:
As part of the Violent Crime Control and Law Enforcement Act of 1994, Congress enacted the Driver's Privacy Protection Act of 1994 to establish rules governing the disclosure of individually identifiable information from state department of motor vehicle records. The legislation was sponsored in the House of Representatives by Rep. James Moran (D-VA) and in the Senate by Senator Barbara Boxer (D-CA). The idea of providing an opt-out for drivers records and for other state records dates back at least to 1977 when the Privacy Protection Study Commission recommended that state agencies be directed to develop an opt-out procedure.
The Driver's Privacy Protection Act of 1994 restricts the ability of motor vehicle departments to disclose motor vehicle operator permits, motor vehicle titles, and motor vehicle registrations. Information on accidents, driving violations, and driver's status is expressly excluded from the federal disclosure rules. For covered information, only those disclosures specifically authorized in the Driver's Privacy Protection Act are allowed. Violations are punishable by a criminal fine or by a civil fine against a department of motor vehicles. The law also provides for civil actions by aggrieved individuals.
Mandatory disclosures cover motor vehicle and driver safety and theft programs; motor vehicle emissions; product alterations, recalls or advisories; performance monitoring of vehicles and dealers by manufacturers; and activities mandated under federal laws regulating motor vehicles. Essentially, motor vehicle records can continue to be used to conduct legally mandated motor vehicle activities.
There are fourteen permissive disclosures in the Act, and two of these were especially controversial. The twelve less controversial disclosures are --
to a government agency or its agent
These disclosures generally authorize specific uses of motor vehicle information that relate to public or private motor vehicle activities, or that had become established in past years. Interest groups that regularly use motor vehicle records were generally successful in lobbying to retain access to and use of the records.
There are two disclosures that were made contingent on offering the subject of the record the opportunity to object to the disclosures. The first is for use in response to a request for an individual record. Before any such disclosure, the individual must be given notice of the possibility of a disclosure to any requester and a clear and conspicuous opportunity to prohibit the disclosure. The notice can be provided on application or renewal forms, titles, or registrations. The law does not require specific notice of each request.
The other contingent disclosure is for bulk distribution for surveys, marketing, or solicitations. Before making this type of disclosure, a motor vehicle department must have implemented procedures to ensure that a) individuals have been provided an opportunity, in a clear and conspicuous manner, to prohibit the disclosure, and b) the information will be used, rented, or sold solely for bulk distribution for surveys, marketing, or solicitations but that no survey, marketing, or solicitation will be directed at an individual who objected in a timely fashion.
The first of the controversial disclosures was crafted in response to objections from the news media. One concern that prompted the establishment of dual opt-out procedures was that a single opt-out by individuals seeking to avoid marketing use of their names also would eliminate access by reporters as a by-product. A two part opt-out was used, and the first permits record subjects to object to requests for individual motor vehicle records.
The second of the controversial disclosures was carefully crafted to allow disclosure of individual information for use in marketing and related activities but to prohibit the use of the information by the recipient when an objection was on file. This procedure was developed because some organizations maintain complete drivers records obtained from motor vehicle departments and use them for a variety of authorized purposes such as vehicle recalls. The statute allows the organizations to maintain a complete list but to exclude from marketing uses those individuals who have opted-out.
The Driver's Privacy Protection Act of 1994 becomes effective in 1997. The opt-out provision may be implemented beginning with license renewals after the effective date. States must allow individuals who have not yet been offered an opt-out through the renewal process to initiate an opt-out on their own.
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