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Privacy vs. public right to know

By Ken Paulson
President and chief operating officer, Newseum and First Amendment Center
03.19.10

Editor's note: This article originally ran March 18 in USA Today. It was written for Sunshine Week, a national initiative about the importance of open government and freedom of informationReprinted by permission.

The fear in the little boy's voice was palpable. "There's some guy who's going to kill my mom and dad," a 7-year-old identified only as Carlos told the 911 operator. "Bring cops. A lot of them! ... And soldiers, too."

Los Angeles County Sheriff's dispatcher Monique Patino did her job well, trying to keep the boy calm and sending him the help he needed. The robbers fled when they learned the boy had called 911. Last week, Carlos hugged Patino in front of television cameras.

The 911 call was played all over the airwaves, making for dramatic television, but it was also compelling evidence of the effectiveness of the 911 system and the professionalism of this particular dispatcher.

That's not always the case. Recordings of other 911 calls have revealed inattentive or incompetent dispatchers, leading to promises of reform and changes in policy.

The 911 recordings have a clear public benefit, yet four states have banned the public release of these calls, and legislators in Alabama, Ohio and Wisconsin are exploring whether to follow suit.

It's part of a growing trend to limit access to public information and records in the name of privacy:

  • Last month, a legislative committee in Wisconsin passed a bill to limit access to online information on pending court cases or cases in which a person was found not guilty or a party was not found liable.

  • A bill pending in Oklahoma would allow a district attorney to keep autopsy reports secret, preventing the public from knowing how a person died or what injuries he suffered.

  • Legislators in Maine are considering a bill that would restrict the release of birth and marriage records that are currently public.

  • In Washington state, members of a group opposed to a law giving gay couples more rights are fighting to keep their names private. They had signed petitions seeking a public referendum, but now argue that release of their identities might subject them to harassment. The U.S. Supreme Court has agreed to hear the case.

    Why trend to secrecy?

    What's going on here? What's driving legislation to make public information secret?

    The answer is two-fold. New technology and the Web have spurred understandable anxiety from people concerned about having the details of their lives shared with strangers, as well as the possibility of identity theft. Second, lawmakers tend to write bills limiting information when they believe the news media may exploit it.

    The best example of that came shortly after the death of beloved NASCAR driver Dale Earnhardt in 2001. As part of its investigation into the crash that killed Earnhardt, the Orlando Sentinel asked to see the autopsy photos. The Sentinel had no plans to publish those images, but merely asking to see them led to a torrent of public outrage and legislation in Florida and other states declaring that autopsy photos would no longer be public records. Without Earnhardt's fame, those bills would not have become law.

    Privacy concerns are real and not to be dismissed. Still, I have to believe that those who first articulated a right to privacy in America would be amazed by its robust application today. This year marks the 120th anniversary of the publication of a paper by legal scholars Louis Brandeis and Samuel Warren. They argued that "the press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade." Clearly, they hadn't seen anything yet.

    But privacy advocates — then and now — can too easily overlook the value of the free flow of information in a free society. At the birth of this nation, the first generation of Americans made a commitment to a free press, creating an expectation that journalists and citizens would act as a watchdog on government.

    When members of the press do their jobs well, abuses of power are curbed and misconduct is revealed. But the key to keeping an eye on government is being able to see its inner workings. Who's on the payroll? How and why is money being spent? And are public servants — including 911 operators, coroners, court officials, district attorneys and police chiefs — doing their jobs?

    Exposing abuse
    The stakes are significant. For example, the Federal Emergency Management Agency paid out $1.2 billion to more than 600,000 Florida residents who claimed damages from storms in 2004. When The (Fort Myers) News-Press, Florida Today and the Pensacola News Journal, all owned by Gannett, publisher of USA Today, suspected waste and fraud, it sought the names and addresses of those who received the funds. FEMA refused, citing privacy concerns. In 2007, a federal appeals court told FEMA to release the addresses, with Judge Stanley Marcus noting, "We cannot find any privacy interests here that even begin to outweigh this public interest."

    Tensions between personal privacy and public information will undoubtedly continue, but advocates for both have some important common ground. In an era in which our government gathers and tracks ever-growing collections of data, it's critically important that we hold our officials accountable. Talk of transparency is fine, but there's little value in having a window on government if the blinds are closed.

    Ken Paulson is a former editor of USA Today.


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