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Access faces formidable foe in privacy fears

By Eugenia Harris
First Amendment Center Online

Floyd Abrams at National FOI Day conference.

ARLINGTON, Va. — Both inside and outside the courtroom, courts are grappling with the tension between personal privacy and public access, speakers said this week during the National Freedom of Information Day Conference.

Outside the courtroom, court officials are having to decide just how public their own records should be. During his presentation, “An Access Challenge: Electronic Court Records,” attorney Floyd Abrams discussed his involvement on a commission organized by the chief justice of New York’s highest court to decide if that state’s court records should be treated the same in electronic and paper form.

When courts consider whether to make their records available in electronic form, tension arises, Abrams said, because some records contain litigants’ sensitive, personal information. Some judges hesitate to make such material widely available.

In the past, Abrams said, decisions to make court records public in paper form were sometimes governed by a concept known as “practical obscurity.” In other words, because the records were available only at courthouses — and thus “practically obscure” — they were deemed safe to make public. Many court officials fear, Abrams said, that making records available online would make practical obscurity obsolete.

In the end, Abrams said, the New York commission recommended that the courts grant equal access to paper and electronic records. The commission had an easier time resolving the issue than similar panels in other states, he added, because New York law already exempted some records that could be considered sensitive (such as those from family court proceedings) from public disclosure.

The commission, however, did suggest shielding some personal information from both paper and electronic court records. For example, Abrams said, the panel recommended that only the last four digits of Social Security numbers be listed in records and that initials be used rather than names in references to children.

Lucy Dalglish, who moderated a panel after Abrams’ presentation, said the issue centered on whether technology is viewed in a positive or negative light.

“On one hand, you have reporters and open-government activists who are saying, ‘Oh my God, all these records are easily available,’ ” said Dalglish, executive director of the Reporters Committee for Freedom of the Press. “And on the other hand, you have some public officials and some privacy advocates saying, ‘Oh my God, these records are going to be more easily accessible.’ ”

Bob Gellman

Panelist Robert Gellman, a privacy and information-policy consultant, agreed that technology had changed the concept of openness.

“Technology is one of the main drivers here," Gellman said. "It’s a different thing to make records public today than it was 25 years ago.”

Gellman said the New York commission’s decision to treat electronic and paper records the same was the right decision. But, he warned, people have to be aware that there are consequences to making personal information public.

“All public records of any type that are made available will be collected by [data brokers], and there will be unlimited and perpetual consumer profiling of everybody based on the information in court documents or other public records,” he said. “I think that there are a lot of choices to be made and remade and revisited over time as people get a better understanding of what the consequences are and where the technology is and whether they want to live with the widespread availability or the unavailability of information.”

Later, attorney Lee Levine discussed how courts had handled the issue of privacy and public access inside the courtroom.

Lee Levine

During his presentation, 'Strange Bedfellows: Reconciling Privacy & Freedom of Information,' Levine discussed the Supreme Court’s ruling last year in National Archives & Records Administration v. Favish, in which the Court said privacy outweighed the right to access certain post-mortem photos.

Levine also discussed developments involving the Privacy Act, which, he said, “may lead to restrictions on public access to government information nearly as significant as those imposed by the executive branch in the post-9/11 era.”

Daniel Metcalfe, who joined Levine and others for the panel “Access and the Courts,” discussed the issue of privacy and access from the government’s perspective.

Metcalfe, co-director of the Department of Justice’s Office of Information and Privacy, summed up the issue in three phrases: “conflict of interest,” “commonality of interest,” and “contradiction of interest.”

Explaining the first phrase, Metcalfe said FOIA officers believe journalists have a conflict of interest when it comes to requesting access to personal information. “Personal information is a large part of the lifeblood of media activity,” he said. As such, FOIA officers believe they are protecting the public interest by seeking to shield personal information in some cases, he said.

Explaining the second phrase, Metcalfe said FOIA processors and journalists have a commonality of interest in wanting to protect their sources. He said that’s why FOIA contains exemption 7(d) (which exempts from disclosure any document that “could reasonably be expected to disclose the identity of a confidential source”) and why law enforcement agencies seek to protect their sources.

Given this commonality, Metcalfe said, FOIA officers see a contradiction of interest when journalists fight against source protection under FOIA.

“It’s a little bit inconsistent for journalists to talk about … the need for protection of confidentiality under the journalist’s privilege and then to attack that same basic premise in the application of exemption 7(d),” he said. “When you take that, it … comes around full circle that FOIA officers [are prone] to think that there’s a conflict of interest with respect to privacy.”

In response, panelist Jane Kirtley, a professor of media ethics and law at the University of Minnesota, called Metcalfe’s comments “snake oil.”

Jane Kirtley

“It’s hogwash because it’s two totally different things,” Kirtley said, referring to Metcalfe’s assertion that there is a commonality between journalists and FOIA officers.

“Journalists aren’t the government. They may be powerful, they may influential, but (they are) not the government. The public has no presumptive right of access to journalists’ sources or journalists’ information. And in fact journalists are … making that information available every single day in the pages of the daily newspaper or in their broadcast.”

Toward the end of the discussion, panelist Tom Blanton, director of the National Security Archive, summed up the importance of FOIA.

“The Freedom of Information Act is a dialogue between people and their government about what’s reasonable for the government to be able to release to you, with some exceptions, and what’s reasonable for a requester to be able to get … to increase security, safety, efficiency — all those good things that we’re all about.”

“Congress and the Courts: Confronting Secrecy” was the theme of this year’s FOI Day conference, held as usual on March 16, James Madison’s birth date.

The conference brought together access advocates, government officials, lawyers, librarians, journalists, educators and others to discuss the latest issues and developments in freedom of information. It was sponsored by the First Amendment Center, in cooperation with the American Library Association.


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