The impact of computer privacy concerns on access to government information

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The impact of computer privacy concerns on access to government information
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Public records -- Access control   ( lcsh )
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Thesis (Ph. D.)--University of Florida, 1993.
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Includes bibliographical references (leaves 276-290).
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by Sigman L. Splichal.
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THE IMPACT OF COMPUTER PRIVACY CONCERNS ON ACCESS
TO GOVERNMENT INFORMATION













By

SIGMAN L. SPLICHAL


A DISSERTATION PRESENTED TO THE GRADUATE SCHOOL
OF THE UNIVERSITY OF FLORIDA IN PARTIAL FULFILLMENT
OF THE REQUIREMENTS FOR THE DEGREE OF
DOCTOR OF PHILOSOPHY

UNIVERSITY OF FLORIDA

1993


UNIVERSITY OF FLORIDA LIBRARIES















ACKNOWLEDGMENTS

I thank the professors who served on my supervisory

committee: Drs. Leonard Tipton and William McKeen from the

University of Florida College of Journalism and

Communications; Fletcher Baldwin of the UF College of Law;

and Dr. Kermit Hall, dean of the College of Arts and

Sciences at the University of Tulsa.

I owe a special debt of gratitude to Dr. Bill F.

Chamberlin, Joseph L. Brechner Eminent Scholar in Mass

Communication and chairman of my committee, for offering

guidance, inspiration, and unstinting faith in me and my

project throughout difficult times.

I also wish to thank Dean Ralph Lowenstein and Dr. Kurt

Kent of the College of Journalism and Communications, Rick

Donnelly and Rosalie Sanderson of the Legal Research Center,

and reference librarian Dolores Jenkins.

I will never forget the help and good humor of Matt

Bunker, my fellow graduate student, to whom I wish a

successful career at the University of Alabama. My student

days also were enriched considerably by the friendship of

Dr. Judy McFetridge. My thanks to them both.









And finally, my love and heartfelt thanks go to my

wife, Colee, and our son, Clark, for their support beyond

measure.


iii
















TABLE OF CONTENTS


ACKNOWLEDGMENTS........................... .............. ii

ABSTRACT ................................................ vii

CHAPTERS

ONE PRIVACY VS. ACCESS: THE ROLE OF THE COMPUTER.. 1

The Importance of Access....................... 1
The Issue of Privacy........................... 6
The Scope of the Privacy/Access Issue......... 12
The Effects of Privacy Concerns on Access..... 16
A Framework for the Access/Privacy Conflict... 17
Contribution to the Literature................. 19
Definition of Terms ........................... 23
Notes ........................................ 27

TWO THE DEVELOPMENT OF SOCIAL AND LEGAL THEORIES
SUPPORTING PRIVACY AND PUBLIC ACCESS TO
GOVERNMENT INFORMATION......................... 32

A Right of Privacy ............................ 33
Privacy as a Social Value ..................... 35
Privacy as a Legal Concept ..... ............... 39
Constitutional Privacy ........................ 47
Legislative Recognition of a Right to Privacy. 58
A Right of Access to Government Information... 61
Toward a Theory of Self-Governance ............ 62
Libertarian Underpinnings ..................... 63
Building on the Revolutionary Experience...... 65
Twentieth Century Legal Theory................. 68
A Common Law Right of Access .................. 73
Access and the Constitution ...... ............. 74
The Right to Receive Information.............. 77
A Right of Access to Government Information... 79
Statutory Access to Government Information.... 86
State Access to Government Records............ 89
Privacy and Access in Conflict................. 90
Notes ........................................... 92









THREE THE EVOLUTION OF COMPUTER/PRIVACY CONCERNS:
ACCESS TO GOVERNMENT INFORMATION HELD IN THE
BALANCE ......................................... 104

The Core of the Debate ........................ 104
Backdrop for the Computer/Privacy Debate...... 107
The Computer Issue Unfolds in the Media........ 112
Hearings on Creation of a National Data
Center ................. .................. .. 120
The Computer and the Bill of Rights Hearings.. 132
The Health, Education, and Welfare Report..... 138
The Privacy Act of 1974 ....................... 141
The Computer Matching and Privacy Act......... 145
Other Legislation Concerned About Computers
and Privacy ................................. 151
Fair Credit Reporting Act................... ... 151
Fair Credit Billing Act ....................... 152
Family Education Rights and Privacy Act....... 152
Right to Financial Privacy Act................. 153
The Computer Crime Act ........................ 154
Electronic Communication Privacy Act of 1986.. 155
Computer Security Act of 1987................. 155
Video Privacy Protection Act.................. 157
Scales Tipped Toward Caution.................. 157
Notes ................ ......................... 159

FOUR COURT CASES ADDRESSING PRIVACY CONCERNS
ABOUT COMPUTERS ............................... 170

A Question of Balance ......................... 170
A Right of Informational Privacy? ............. 173
The Seeds of Informational Privacy............. 174
The Supreme Court and Informational Privacy... 175
A Seminal Case for Informational Privacy...... 183
The Long Road to the Supreme Court............ 186
A Definition of Informational Privacy.......... 192
A Public Record in the Computer Age............ 194
Purpose of Disclosure ......................... 198
Categorical Exemption of Information .......... 203
Cases Decided Since Reporters Committee....... 206
Privacy-Access Cases Addressing Technical and
Definitional Concerns........................ 208
Federal Courts and Technical and Definitional
Privacy Concerns ............................ 209
State Courts and Computer Access Issues....... 216
Privacy/Access Out of Balance................. 227
Notes .......................................... 228









FIVE TOWARD RESOLVING THE COMPUTER PRIVACY/ACCESS
ISSUE ................. .......................... 239

Summarizing the Problem ....................... 239
Access and Privacy: American Ideals........... 242
When Values Collide ........................... 246
A Model of Relative Values .................... 248
Relative Privacy Values....................... 252
Relative Access Values......................... 256
Application of the Model....................... 264
The Need for a Response ....................... 268
Notes ................ ......................... 272

BIBLIOGRAPHY ............................................ 276

BIOGRAPHICAL SKETCH ................ .................... 291















Abstract of Dissertation Presented to the Graduate School
of the University of Florida in Partial Fulfillment
of the Requirements for the Degree of
Doctor of Philosophy

THE IMPACT OF COMPUTER PRIVACY CONCERNS ON ACCESS
TO GOVERNMENT INFORMATION

By

Sigman L. Splichal

August 1993

Chairman: Dr. Bill F. Chamberlin
Major Department: Mass Communication

This project explores how the growing computerization of

government information is affecting the balance between

personal privacy and public and media access to that

information. The following questions are addressed, using

legal and historical research to analyze court cases,

legislation and legislative histories, and other sources:

Have computer privacy concerns affected public policy and

legislative activity related to government information

practices? Have computer privacy concerns affected court

opinions dealing with privacy-access issues? Have

legislation and court opinions reduced, or threatened to

reduce, access to computerized government information?

Analysis suggests concerns about computers and privacy

run wide and deep, dating to a proposal in the early 1960s


vii









for a National Data Center to pool information from various

federal agencies. Computer privacy concerns raised during

congressional hearings over the data center proposal

eventually led to passage of the Privacy Act of 1974.

A review of court cases shows computers are raising

novel issues, some of which are skewing the traditional

balance between privacy and access to government information.

Issues fall into three categories: technical and mechanical,

interpretational and definitional, and public policy.

Technical and mechanical issues arise when access is

reduced simply because a machine stands between the record

keeper and the information requester and the record keeper is

unable or unwilling to use the computer to effect access.

Interpretational and definitional problems related to

access terminology and agency duties arise because most

record laws and customs developed when government information

existed primarily on paper. When the same information is in

a computer, record keepers are not sure what responses are

required to satisfy legitimate access requests.

Public policy questions have been centered on the nature

of computerized information and whether it poses a greater

threat to privacy than the same information in paper form.

The access/privacy issues raised when government

information is in computers, and their potential threat to

legitimate public and media access, indicate a need for

legislatures to revisit access legislation to ensure it


viii









remains viable. To this end, a descriptive model is proposed

to show the relationship between access and privacy in the

computer age.
















CHAPTER ONE
PRIVACY VS. ACCESS: THE ROLE OF THE COMPUTER

The Importance of Access

The transistor was invented in 1947, the integrated

circuit came along about 11 years later, and the modern

computer epoch was born. That "mindless simpleton, but very

fast mindless simpleton,"1 forever altered how individuals

and institutions, including governments, gather, store,

sort, and analyze information.

Computers numbered fewer than three score among the

federal agencies when California Congressman John Moss began

hearings in 1955 that set the stage for passage of the

Freedom of Information Act, a congressional recognition that

the government's business was the people's business.2 The

Census Bureau had introduced the first government computer,

a UNIVAC I, just four years earlier.3 Crude by the

standards of the 1990s, these behemoth assemblages of

hundreds of vacuum tubes and miles of electrical circuitry

were novel, and their vast potential as information

processors remained to be fully understood and exploited.

When President Lyndon Johnson signed the Freedom of

Information Act on Independence Day, 1966, with the

proclamation that "democracy works best when the people have








2

all the information that the security of the nation

permits,"4 the federal government operated about 3,000

computers.5 Twenty years later, it maintained 22,000 large,

mainframe computers; by 1990, that number had more than

doubled to 48,000.6 Government use of smaller

microcomputers increased from 490,000 in 1987 to more than a

million two years later.7 In a scant three decades,

computers and computer programming capabilities were refined

and streamlined to the point that computer screens replaced

the ubiquitous file cabinet as the dominant office fixture

in an increasingly information-hungry society.

Along the way, the onslaught of computer technology has

confounded many of the laws and customs affecting public

and media access to government information that were

established when most records had four corners and could be

tucked into a filing cabinet. At the same time, the very

existence of information in computers--its compactness and

accessibility--has opened up a range of possibilities for

involving the public in the democratic process, enhancing

the ability of citizens to make informed decisions and to

acquire more knowledge about the governments they elect to

represent them.

The importance of an informed citizenry in a democratic

society, discussed at length in Chapter Two, is deeply

rooted in the American experience and has been a guiding

force in twentieth century legislation and jurisprudence.9







3

The role of the citizen-elector was galvanized by the late

Alexander Meiklejohn, the noted educator and former

president of Amherst College. In elucidating the theory of

freedom of expression, Meiklejohn strongly tied the

importance of the free flow of information to self-

governance. In his work Free Speech and Its Relation to

Self-Government, published in 1948, Meiklejohn said the

First Amendment's main purpose was to allow citizens to

understand "the issues which bear upon our common life." He

maintained that "no idea, no opinion, no doubt, no belief,

no counterbelief, no relevant information" should be kept

from the people. "Under the compact upon which the

Constitution rests," he said, "it is agreed that men shall

not be governed by others, that they shall govern

themselves."9

Government information is a vital raw material for the

press and an essential ingredient in a self-governed,

democratic society. Much of the daily content of news

broadcasts and publications is about government. But the

task of keeping track of government goings-on is daunting.

Newspapers, magazines, and broadcast stations in this

country employ roughly 260,000 reporters and editors, many

of whom in some way cover the activities of 17 million

government workers. Although reporters attend press

conferences, scour government documents, and have legions of

sources within the bureaucracy, they still fall short of










covering the countless official decisions that are made and

actions taken. Without a doubt, reporters--and the public--

go unaware of many of them.10

With the unprecedented increase in government use of

computers--and the media's comparatively recent abilities to

gain access to millions of records on the large computers

often used in government--a new kind of reporting has

evolved that heretofore was not deemed possible. For

example, St. Louis Post-Dispatch reporters George Landau and

Tim Novak uncovered the fact dead people were voting in

elections, by matching a computerized list of registered

voters to a computerized list of death certificates. The

computer was the all-important alternative to plowing

through thousands of records--requiring an investment of

time and manpower beyond the resources of many newspapers."

That improved access to computerized government

information can lead to news stories that are more useful to

the public is being demonstrated increasingly at computer-

savvy newspapers around the country. Examples abound, among

them the analysis of Internal Revenue Service files by the

Transactional Records Access Clearinghouse in Syracuse,

N.Y., which proved incorrect an IRS claim that underpayment

of taxes had risen sharply during the previous 20 years.

Computer analysis showed tax compliance rates had remained

about the same since 1969.12










Similarly, when the National Transportation Safety

Board said the maintenance record of a 25-year-old DC-9 that

crashed in Cleveland was typical of any aircraft that age, a

Cleveland Plain Dealer computer analysis of Federal Aviation

Administration records showed a history of equipment

malfunctions not found in similar planes.13

Such computer-assisted reporting, though around for

more than a decade, came to the fore in 1989, when an

Atlanta Journal and Constitution data base project showed

widespread discrimination against blacks by home-mortgage

lenders and won a Pulitzer Prize for investigative

reporting. Since 1989, investigative projects involving

computers have become the norm, resulting in additional

Pulitzers for computer-assisted reporting. As Bill Dedman,

the reporter who won the Pulitzer for the Atlanta stories,

told News Inc., "Ten years from now there won't be a

term 'computer-assisted reporting.' It would be like saying

pen-and-paper assisted reporting."14

Andy Schneider, whose efforts helped the Pittsburgh

Press win back-to-back Pulitzer Prizes for stories based on

computer analysis of government information, summed up the

potential of the new technology another way: "It's not

magic, but if you're willing to master the new technology,

it's close."15

The initial successes of computer-assisted reporting

are not without potential drawbacks. As record custodians










become more aware of the ability of reporters to probe

government data bases, reporters could become victims of

their own successes. Hard-hitting stories have shown record

custodians that sophisticated analysis of computerized

agency information can result in criticism of agency

performance and practices. In some cases, this independent

analysis of agency data has revealed problems not apparent

to agencies themselves. For example, Newsday's Penny Loeb

reported that New York City owed property owners $275

million in tax overpayments and had failed to inform them.

The city's finance department had provided her with

computerized records, but the agency no longer was so

forthcoming after the story appeared. "I've been in an

eight-month battle for more tapes," Loeb told a news

magazine.16

Common sense suggests that awareness of computer

reporting capabilities by record custodians could result in

some self-serving attempts to limit access. And socially

and politically attractive arguments based on the costs of

computer access, computer security, and privacy could foster

attempts to foreclose access to information that previously

has been publicly available, simply because it is contained

in a computer.

The Issue of Privacy

Access to government information has never been an

absolute; it always has involved balancing the social










benefits of public disclosure with competing social

interests.17 While access undoubtedly yields substantial

social benefits by informing the public about government and

other important matters, values supporting access sometimes

conflict with other equally important values, such as the

privacy rights of individuals who interact with government

and relinquish personal information in the process. The

"rules" of this balancing process once yielded relatively

predictable results when records were in paper format, and

record custodians in comparison knew what was expected of

them to fulfill requests for information lawfully. But most

existing laws--including the federal Freedom of Information

Act and similar state access statutes--are not adequate to

acknowledge the presence of information in computers or deal

with the increased demand by the public and press for such

information.

Another, potentially more threatening challenge posed

by computers is that their mere proliferation has stirred

alarm at all levels of American life. This concern, first

raised by the rampant growth of computers in the federal

government during the 1960s, continues to be reflected in

news stories of the 1990s, with disclosures and commentaries

about the excesses of private data vendors who buy and sell

personal information.18

When the computer was introduced to business and

government, its star climbed steadily in the constellation










of historic innovations; a 1965 Time magazine cover story

titled "The Cybernation Generation" quoted a General

Electric vice president who proclaimed that "the electronic

computer may have a more beneficial potential for the human

race than any other invention in history."19 But as the

computer's star rose, so also rose the specter of "Big

Brother," the faceless, omnipresent technocrat in a society

devoid of individualism and personal privacy, thrust into

the lexicon in 1949 by George Orwell's unsettling novel

1984.20 Orwell's villain was invoked during hearings in the

1960s over a proposal for a National Data Center to pool

government data on individuals in a central computer.

References such as "chains of plastic" and an "unforgiving

god" abounded as discussion focused on the potential dangers

posed by the vast accumulation of personal information by

government bureaucrats.21

Computer privacy concerns continued into the 1970s,

punctuated by passage of the Privacy Act of 1974. Pollster

Louis Harris reported in a 1983 study, aptly titled The Road

After 1984: A Nationwide Survey of the Public and Its

Leaders on the New Technology and Its Consequences for

American Life, that nearly half of those surveyed said they

were "very concerned" about the threat computers posed to

personal privacy. Sixty percent of the respondents favored

drastic measures to ensure that computers did not erode

privacy.22 The depth of support for strong constraints on










the new information technology impressed Harris, who

observed,

Americans are not willing to endure abuse or
misuse of information, and they overwhelmingly
support action to do something about it. This
support permeates all subgroups in society and
represents a mandate for initiatives in public
policy.23

Indeed, the pervasiveness of computers in society has

raised numerous legal and public policy issues related to

privacy, both inside and outside of government. Many of

these issues and problems--both practical and philosophical

in nature--may threaten public and press access to government-

held information. They have brought about--and could

continue to result in--well-intentioned legislative and

legal actions that endanger public access to government

information.

Irony is inherent to this problem: While the public

desires to be better informed about its government, and

while the media now have more capability than ever to

assemble and analyze that information (and more time and

resources than any single citizen normally would have),

fears for privacy may supersede all other concerns. Part of

this fear is certainly based on a stereotype derived from

popular culture, that of the anthropomorphic machine that

takes over from the humans who have programmed it--and in

some way goes awry. The idea is that if humans create

machines in their own image, "play God," if you will, the

consequences are disastrous. The scenario has been played










out from the dawn of the Industrial Age in Mary Shelley's

novel Frankenstein through Stanley Kubrick's film "2001: A

Space Odyssey" and beyond.24

Fears were fanned in the early 1990s by the credit-

reporting excesses, in which commercial vendors of

computerized personal information were criticized for their

mishandling of that information. Sometimes the abuse was in

the form of incorrect computer entries that were allowed to

self-perpetuate, adversely affecting the lives of

individuals without their knowledge. Again, hovering around

the discussion was the image of an implacable computer

holding information that takes on a malevolent life of its

own. Stories in publications ranging from The New York

Times and Newsweek to American Demographics and the columns

of James J. Kilpatrick and Jane Bryant Quinn noted this

concern, offering proclamations from the experts that

privacy was a hot issue.25 Although the controversy in the

early 1990s centered on the private sector, not government,

worries about computer-held personal information were

generalized. Newsweek reported Congress was scrambling to

"bring some order to the hodgepodge of privacy and

technology laws" and that the U.S. Office of Consumer

Affairs was targeting privacy as one of its prime concerns,

as were such advocacy groups as the Consumer Federation of

America and the American Civil Liberties Union. Said










Janlori Goldman, head of the ACLU's Privacy Project,

"There's a tremendous groundswell of support out there."26

In seeking protection from the watchful eyes of others

or from any computerized compilation of personal

information, however, lies the danger of muzzling the

traditional watchdog of government, the press. Legislation

and court interpretations could have the corollary effect of

permitting government--in the name of protecting personal

privacy--to hide information, cover up mistakes and

excesses, obscure the governing process from the people.

The U.S. Supreme Court's 1989 opinion in Justice

Department v. Reporters Committee for Freedom of the Press

more than anything else has underscored the need for renewed

legislative consideration of the privacy-access conflict.27

The case ultimately involved attempts by a CBS correspondent

and the Reporters Committee for Freedom of the Press to

obtain prior arrest information, or "a rap sheet," on a

principal in a business identified by the Pennsylvania Crime

Commission as having ties with organized crime. The

business also had been linked to a corrupt congressman. The

information in question was compiled from public record

sources in a Justice Department computer data base.28

In allowing withholding of such information in a

computer compilation, the Court articulated the "practical

obscurity" doctrine, an acknowledgment of the social value

of allowing individuals to put time and distance between










themselves and past mistakes. The Court concluded, among

other things, that personal information--even information

taken from public sources--enjoyed a reinvigorated privacy

interest when drawn together in a government data base. The

Court also held that such information could be categorically

exempted from public disclosure, forgoing what had been the

usual process of balancing particular privacy interests with

the public interest in disclosure on a case-by-case basis.29

In effect, the Court shifted the analysis away from the

content of the information and its public-record status and

focused instead on the computerized form of the information.

The holding and legal reasoning of the Reporters Committee

opinion are discussed at length in Chapters Four and Five.

For those in government who might wish to shield

information from public scrutiny, the Court provided a

potentially powerful weapon--based on the politically

attractive rationale of personal privacy.

The Scope of the Privacy/Access Issue

Most privacy-access conflicts related to computers fall

into three general categories: technical and mechanical

issues, definitional or interpretational issues, and public

policy issues. The general outlines of these issues,

discussed at length in subsequent chapters, are presented

below.










Technical and Mechanical Problems

Technical and mechanical problems related to computer

privacy occur simply because the computer machinery--or

hardware--stands between the record requester and the record

custodian. Requesters who do not know how the machinery

works frequently do not know the proper questions to ask to

facilitate the release of disclosable information that is

mixed with private, undisclosable information. On the other

hand, record custodians often are not properly trained to

respond to computer requests or are indifferent to the new

technology (or perhaps use it as an excuse to withhold

embarrassing information in the name of privacy) and,

therefore, are unresponsive to legitimate information

requests. For example, the Freedom of Information Act

requires agencies to provide "reasonably segregable"

portions of records that contain exempt private information

mixed with disclosable information.30 With paper records,

exempt private information is simply blacked out before

documents are provided. When records are in computers,

custodians have used the computer as an excuse to deny

access requests simply because they do not know how to

segregate information stored in computer format, or they are

unwilling to take the time or incur the cost. How courts

have addressed these problems is examined in Chapter Four,

which looks at legal opinions dealing with access-privacy

issues.










Definitional or Interpretational Issues

Problems of definition and interpretation have occurred

because most record-access laws and practices predate the

widespread use of computers by government agencies. When

the Freedom of Information Act was passed in 1966, most

records existed in paper form. Paper also was the dominant

record medium when most public access problems were sorted

out, either by new legislation or by the courts. But laws

and duties that were understood when most records were paper

became muddled when the same kinds of records were held in

government computers. And when laws and duties become

muddled, they provide opportunities for government agencies

to offer their own interpretations, sometimes motivated by

administrative convenience or the desire to hide information

rather than by legitimate privacy concerns.

The previous example of providing reasonably segregable

portions of records is illustrative. In the paper era,

agencies had learned through experience what constituted a

reasonable response to requests for records that required

the editing out of private information. But when records

were computerized, it no longer was clear to agencies what

constituted a reasonable response when exempt and nonexempt

material were mixed in a computer data base. Are agencies

in effect denying legitimate public access because they are

reluctant to take time to operate or reprogram their

computers to separate disclosable nonprivate information










from exempt private information? These questions are

addressed in Chapter Four.

The Freedom of Information Act does not require

agencies to create a "new record" to satisfy public record

requests. But does the use of agency computers to separate

disclosable and nondisclosable information constitute

creation of a "new record"? Court cases discussing such

problems of definition and interpretation also are studied

in Chapter Four.

Public Policy Issues

Important public policy issues related to the

widespread gathering and storage of personal information in

government computers have arisen on a number of fronts. A

fundamental concern involves the very nature of the computer

and its role in a democratic society. The value of

computers in improving government efficiency and cost

effectiveness is beyond question. This societal benefit, in

both the public and private sectors, is the driving force

behind their widespread use. But, as witnesses during the

National Data Center hearings asked, is the ability of

computers to sort, compare, and analyze information with

exacting efficiency itself an unwarranted threat to personal

privacy that calls for further legal and public-policy

analysis?31 Fear about the threat computers posed to

personal privacy was expressed during the debate over

whether to create a National Data Center and ultimately led










to passage of the Privacy Act of 1974 and other computer-

related legislation. These hearings and legislation are

discussed at length in Chapter Three. A generalized concern

about computers and the danger they pose to personal privacy

was the central issue in the Supreme Court's Reporters

Committee opinion, mentioned previously.

A second public policy question involves the cost of

computer technology and the extent to which agencies must

invest in computer technology to ensure reasonable public

and press access. Cost is a legitimate public policy

consideration, but it also provides agencies with an

attractive rationale for limiting access to computers. This

question is discussed briefly in several court opinions in

Chapter Four.

The Effects of Privacy Concerns on Access

The goal of this dissertation is to explore how the

tension between the rampant growth of computer record

systems in government and resultant privacy concerns is

threatening public and press access to government-held

information, an essential component of democracy. To this

end, the dissertation employs legal research techniques,

analyzing primary sources such as legal cases and

legislation that reflect patterns and changes in the

privacy/access equation. Historical research, tapping

primary sources such as hearing transcripts as well as some

secondary materials, also is used. Its role is to establish










the historical, social, and political contexts of some

issues, and to delve into the legislative history of the

privacy issue.

In addressing the proper balance between privacy and

access, several questions are posed:

--How have computer concerns affected legislative

activity related to personal privacy?

--To what extent have computer privacy concerns

affected public policy regarding information in government

computers?

--To what extent have computer privacy concerns

affected court opinions dealing with privacy-access issues?

--To what extent have legislation and court opinions

regarding access to computerized information reduced, or

threatened to reduce, public and press access to government

information?

It is hoped that attempting to answer these questions

will help to determine what the proper course of action

should be to protect privacy when appropriate without

unnecessarily reducing public and media access to government

information.

A Framework for the Access/Privacy Conflict

To establish a theoretical foundation from which to

assess the impact of computer privacy concerns on access to

government-held information, Chapter Two explores the

philosophical, political, and legal roots of two important--










and sometimes competing--social values. The first is the

right to personal privacy, which Supreme Court Justice Louis

Brandeis has called simply "the right to be let alone."32

The second social value is the right of public and press in

a democratic, self-governing society to have access to the

information government uses to go about the people's

business.

An overview of the tension between the sometimes-

conflicting values supporting privacy and access to

government information will provide the theoretical

framework for discussing how legislators, government

agencies, and the courts attempt to balance these values and

to what effect.

Chapter Three attempts to trace the evolution of the

federal government's concern about the threat of computers

to personal privacy and to define the extent to which the

federal government has responded to these concerns. The

chapter looks at how various responses to computer privacy

concerns have affected access to computerized information on

individuals that the government gathers and disseminates.

Chapter Four looks at how the courts have dealt with computer-

privacy issues and at what these cases portend for public

and press access when government information is held in

computers.

Chapter Five attempts to construct a hierarchy of

privacy and access values that could be used to help resolve










access/privacy questions. A model is proposed to help

define a reasonable balance between privacy and public

access. So that former levels of access--when laws

pertained to records on paper--are maintained in the high-

tech age, the model focuses on the content, not the form, of

the information held by government. In doing so, the model

looks at the kind of personal information involved, the

likelihood that harm would result from disclosure, and the

relative strength of the public good derived from

disclosure.

This project also will propose the urgent need for a

legislative response to prevent the reasoning of Reporters

Committee and other computer-privacy cases from reducing

public and media access to government information simply

because information is held in a computer.

Contribution to the Literature

Much has been written about computers and the dangers

they hold for personal privacy. Some works, such as Vance

Packard's The Naked Society,33 deal with general concerns

about the effects of technogical change on society and, when

in the wrong hands, on civil liberties. Alan Westin's

Privacy and Freedom34 and Arthur Miller's The Assault on

Privacy35 are seminal books that greatly influenced early

public debate when government agencies were just beginning

to realize the capabilities of computers. Both authors

played prominent roles in hearings that led up to the










Privacy Act of 1974. Westin and Miller and others, such as

Richard I. Miller, wrote related articles for scholarly and

legal journals and in the popular press dealing with the

effects of technology on personal privacy.36

Many substantial works have been written supporting

public access to government-held records. Foremost among

them is Harold Cross' The Right to Know.37 Cross' work,

sanctioned by the Society of Professional Journalists,

influenced the debate that led to congressional recognition

of the public's right to government information.

Several articles have been written about the overall

effect computers are having on access to public information.

Elliot Jaspin and Mark Sableman, for example, explore the

significant changes wrought by the "new electronic

government" in the traditional relationships between

government and press. The authors conclude,

[T]he control and release of government computer-
stored information is too important an issue to be
left to the haphazard pattern of statutory and
case law that has governed it to date. Many
of the existing decisions overemphasize general
fears of the new electronic information-storage
technology, and understate or ignore the great
potential benefits of access to such information
to the public.38

Other articles state the urgent need for redefining the

federal Freedom of Information Act in the face of burgeoning

computer technology. Leo Sorokin, for example, calls on

Congress to "broaden the definition of a record in the

context of electronic information, enable FOIA requesters to










choose between paper and electronic formats, establish

substantive criteria to determine when depository libraries

should be provided access to on-line government databases,

and direct that agencies provide the public with the

benefits of computerization when agencies develop electronic

dissemination programs."39

Another author, Jerry Berman, envisions an "Electronic

Freedom of Information Act," through which citizens can dial

up the federal FOIA data base that has an index of agencies

and subjects.40 In the Jurimetrics Journal of Law. Science

and Technology, Jamie Grodsky maintains "a broad,

legislative message is needed to establish at least minimum

requirements for agencies and give clearer guidance to the

courts. "41

Joining the chorus of advocates for better access to

government information is Patti Goldman in Government

Information Ouarterly, but her perspective is that the

Freedom of Information Act need not be tinkered with;

instead, it is how the agencies interpret it that must be

altered in the context of computer records. Instead of

passing legislation tailored to electronic information, she

suggests, Congress should "maintain vigilant oversight of

agency practices to ensure that access to electronic

information is provided to the public in accordance with the

Act. "42










Matthew Bunker, Sigman Splichal, Bill Chamberlin, and

Linda Perry, who devote some attention to the privacy/access

nexus, propose computer-access criteria based on the

assumption that access should not be restricted simply

because records are in a computer. Among their 13

recommendations: Federal, state and local governments must

promote public access needs when agencies install or upgrade

computer systems, at which stage public access can be built

in at little additional cost; all information in government-

owned and operated computers must be a public record, absent

specific statutory exemptions; and any agency using

computerized records should make nonexempt information

available through user-friendly computer terminals.43

A host of other articles has examined how advancing

technology has encroached on privacy, without focusing on

how privacy concerns affect access. Among other things, the

articles recommend individuals be informed in writing of the

existence of identifiable information stored about them, the

reasons it has been recorded, and the extent of its use by

and dissemination to others. One author advocates amending

the Privacy Act of 1974 to include predisclosure

notification. Central to many of these articles seems to be

the recognition that while computerized information is

necessary for government efficiency, the individual must

somehow retain some type of control over potentially

harmful, identifiable information. In Computer/Law Journal,










C. Dennis Southard IV says courts must maintain a "minimum

standard" of privacy based on the Fourth Amendment's

guarantee of protection against unreasonable searches and

seizures. "It should allow government to continue its police

and national security protection at its current level, while

guaranteeing that if an individual takes certain steps to

assure his privacy, it will be respected,"44 he reasoned.

None of the articles, however, looks specifically and

in depth at how computer privacy concerns--both practical

and philosophical--relate to public and media access to

information held in government computers. It is this

author's belief that by focusing on the question of how

computer privacy concerns affect overall legitimate access

to government-held information, the undertaking contributes

to the scholarly discourse on one of the important social

dilemmas in the information age.

Definition of Terms

Privacy has many dimensions, as the subsequent

discussion of the evolution of the value will show. For the

purposes of this dissertation, with its focus on access to

government-held information, the type of privacy discussed

will be informational privacy. The following definition of

informational privacy, adopted by a congressional committee

and later endorsed by the U.S. Supreme Court, will be used:

"Privacy is the claim of individuals to determine for










themselves when, how, and to what extent information about

them is communicated to others."45

The definition of government "information" also is

central to this dissertation. For the purposes of this

project, a definition provided by the U.S. Supreme Court in

the 1980 case of Forsham v. Harris will be adopted.

Borrowing terminology from the Federal Records Disposal Act,

the court defined government information as

all books, papers, maps, photographs, machine-
readable materials or other documentary materials,
regardless of physical form or characteristic,
made or received by an agency of the United States
government under federal law or in connection with
the transaction of public business.46

No attempt is made to distinguish between government

"information" and government "records," for to do so in the

age of computerized information begs for circular reasoning.

In this undertaking, they are assumed to be one and the

same. The Colorado Supreme Court, in a 1986 computer access

case discussed in Chapter Four, rejected an attempt to

distinguish between "information" and "records." Said the

court, "This is a distinction without a difference.

Information does not exist in a vacuum. Rather a 'record'

by its very nature exists to impart the information

contained in it."47

Various words and terms are used throughout this

dissertation. To facilitate understanding, some key

definitions follow.










Computer: A mechanical device that stores and

processes information electronically. Computer systems are

traditionally divided into three subclassifications:

mainframe, mini, and micro. These divisions are related to

the size of the computer and its speed of processing

information.

Mainframe computer: A large, multitask computer

designed to be operated simultaneously by multiple users.

Personal computer: A small, self-contained computer

designed to be operated by one individual.

Computer hardware: The physical machinery used in the

electronic computing process.

Computer software: The electronic instructions that

tell a computer how to store information and manipulate it.

Computer data: Individual pieces of electronically

stored information, such as names, addresses, Social

Security numbers, etc., suitable for processing and

interpretation.

Computer data base: An electronic collection of pieces

of related data.

Computer input: Data entered into a computer system

for storage or processing purposes.

Computer output: The conversion of electronic computer

impulses into some usable format, such as computer tapes,

disks, screen images, or printouts.










Computer system: The computer hardware, software,

input devices, output devices, and auxiliary storage

devices.

Computer program: Coded instructions that instruct a

computer to complete a sequence of tasks to achieve a

specific result.

Computer programming: The process for coding

instructions so a computer can complete a specific task.

Computerized government information: The sum of all

data in a government computer.

Computerized government records: Data in a government

computer that have been organized in some fashion pursuant

to a government or other function.

Public access to government information: Access

predicated on any of several legal theories, primarily

common law access and statutory access. A majority of the

U.S. Supreme Court have never agreed that access to

government information is a constitutional right.

Publicly accessible government information: All

government-held information not specifically shielded from

disclosure by statute.

Privacy: In most general terms, the right of

individuals to be secure in their private lives and personal

affairs. (Webster's New World Dictionary of the American

Language, Second College Edition.) This general definition










encompasses informational privacy. (See Informational

Privacy.)

Constitutional privacy: The right of individuals to be

secure from intrusion by government into their private

affairs. The U.S. Supreme Court has recognized this right

in several areas: the right to be secure in one's home, the

right of association, the right of intimate decision making,

and the right to control information about oneself. (See

Informational Privacy.)

Informational privacy: The right of individuals to

control access to, and the dissemination of, personal

information about themselves.

Notes

1. T.R. Reid, "Computerthink," 5 APF Reporter 7
(Winter 1983).

2. David Morrissey, "The Age of Electronic
Government," presented at the 1990 Conference on Advanced
Investigative Methods for Journalists 2 (1990).

3. John W. Macy Jr., "The New Computerized Age--4:
Automated Government: How Computers Are Being Used in
Washington To Streamline Personnel Administration--To the
Individual's Benefit," Saturday Review, July 23, 1966, at
24. Macy points out that one of the first completely
electronic computers ever built was called ENIAC, for
electronic numerical integrator and calculator. It was
built by the War Department and the University of
Pennsylvania in 1946 to solve problems with ballistics
research. The UNIVAC I was put into service by the Census
Bureau in 1951 and was retired to the Smithsonian
Institution in October 1963.

4. Thomas M. Susman, "Introduction to the Issues,
Problems and Relevant Law" in "Your Business, Your Trade
Secrets, and Your Government," 34 Admin. L.R. 117 (1982).


5. Morrissey at 2.










6. General Services Administration, Federal Equipment
Data Center, Automated Data Processing Equipment in the U.S.
Government (April 1990).

7. General Services Administration, Office of Federal
Information Resources Management, Microcomputer Survey
Report (September 1988).

8. See the Freedom of Information Act, 5 U.S.C. sec.
552; New York Times v. Sullivan, 376 U.S. 254 (1964).

9. Alexander Meiklejohn, Free Speech and Its Relation
to Self-Government 88-89 (1948).

10. Elliot Jaspin and Mark Sableman, "News Media
Access to Computer Records: Updating Information Laws in the
Electronic Age" 36 St. Louis U.L.J. 351 (February 1992).

11. George Landau and Tim Novak, "Dead or Alive," St
Louis Post Dispatch, September 9, 1990, at 1A.

12. Katherine Corcoran, "Power Journalists," News
Inc., November 1991, at 30. See also Mitchell Hartman,
"Investigative reporters use databases to break stories,"
The Quill, November/December 1990, at 21-26.

13. Corcoran at 30.

14. Corcoran at 32. See also Howard Kurtz, "Reporters
Let Their Terminals Do the Walking," The Washington Post,
July 7, 1991, at F4.

15. Kurtz, supra note 14.

16. Katherine Corcoran, "Beating the Tape Resistance,"
News Inc., November 1991, at 30.

17. For example, Exemption 6 of the Freedom of
Information Act allows withholding of information "that
could reasonably be expected to cause an unwarranted
invasion of privacy." This language contemplates a
balancing of privacy interests with the public interest in
disclosure.

18. See e.g., John Schwartz, "Consumer Enemy No. 1,"
Newsweek, October 28, 1991, at 42-47.

19. John W. Macy Jr., "The Cybernation Generation,"
Time, April 2, 1965, at 84.


20. George Orwell, 1984 3 (1949).










21. The Computer and Invasion of Privacy: Hearings
Before the Special Subcommittee on Invasion of Privacy of
the House Committee on Government Operations, 89th Cong., 2d
Sess. 12 (1966). See also Computer Privacy: Hearings Before
the Subcommittee on Administrative Practices and Procedures
of the Senate Committee on the Judiciary. 90th Cong., 1st
Sess. 2 (1967).

22. See J. Kirchner, "Latest Harris Poll Uncovers
Mixed Attitudes About High Tech," Computerworld, December
12, 1983, at 1, on the 1983 Louis Harris survey, The Road
After 1984: A Nationwide Survey of the Public and Its
Leaders on the New Technology and Its Consequences for
American Life. See also "Sharp Increase in Concern" 16
Privacy Journal 7 (May 1990), citing other Harris surveys
noting privacy concerns among the population. See also John
Schwartz, "How Did They Get My Name?" Newsweek, June 3,
1991, at 40-42. A 1990 Harris poll taken for consumer-data
conglomerate Equifax showed that 79 percent of the
respondents were worried about threats to their privacy, up
from 47 percent in 1977.

23. Id.

24. 2001: A Space Odyssey (Metro-Goldwyn-Mayer 1968).
In the movie, a computer named HAL takes over a space
station from two astronauts.

25. See e.g., Jane Bryant Quinn, "Guarding Your Good
Name," Newsweek, August 12, 1991, at 64.

26. Schwartz, supra note 22 at 40.

27. Justice Department v. Reporters Committee for
Freedom of the Press, 489 U.S. 749 (1989).

28. Id.

29. Id.

30. Freedom of Information Act, 5 U.S.C. sec. 552(b).

31. See generally The Computer and Invasion of
Privacy, supra note 21.

32. Olmstead v. United States, 227 U.S. 438, 478
(1928).

33. Vance Packard, The Naked Society 3-43 (1964).


34. Alan F. Westin, Privacy and Freedom (1967).










35. Arthur Miller, The Assault on Privacy (1971).

36. See Richard I. Miller, "Data Banks and Privacy,"
in Computers and the Law: An Introductory Handbook 156-161
(R.P. Bigelow 2d ed. 1969).

37. Harold Cross, The People's Right to Know (1953).

38. Jaspin and Sableman, supra note 10 at 405, 404.

39. Leo T. Sorokin, "The Computerization of Government
Information: Does It Circumvent Public Access Under the
Freedom of Information Act and the Depository Library
Program?" 24 Colum. J.L. & Soc. Probs. 297 (1990). See
generally Sandra Davidson Scott, "Computer Technology v.
Laws on Access," unpublished paper presented to the
Association for Education in Journalism and Mass
Communication annual convention, Boston, Mass. (August
1991).

40. Jerry J. Berman, "The Right To Know: Public Access
to Electronic Public Information," 3 Software L.J. 523
(Summer 1989).

41. Jamie A. Grodsky, "The Freedom of Information Act
in the Electronic Age: The Statute Is Not User Friendly," 17
Jurimetrics J. 51 (Fall 1990).

42. Patti A. Goldman, "The Freedom of Information Act
Needs No Amendment to Ensure Access to Electronic Records,"
7 Gov't Info. 0. 400 (1990).

43. Matthew D. Bunker, Sigman L. Splichal, Bill F.
Chamberlin, and Linda M. Perry, "Access to Government-Held
Information in the Computer Age: Applying Legal Doctrine to
Emerging Technology," 20 Fla. St. U.L. Rev. 594-598 (Winter
1993).
44. See generally Louise M. Benjamin, "Privacy,
Computers, and Personal Information: Toward Equality and
Equity in an Information Age," 13 Comm. & the L. 3-16 (June
1991); C. Dennis Southard IV, "Individual Privacy and
Governmental Efficiency: Technology's Effect on the
Government's Ability to Gather, Store, and Distribute
Information," 9 Computer/L. J. 359 (Summer 1989); Fred W.
Weingarten, "Communications Technology: New Challenges to
Privacy," 21 J. Marshall L. Rev. 735 (1988); Donsia Renee
Strong, "The Computer Matching and Privacy Protection Act of
1988: Necessary Relief from the Erosion of the Privacy Act
of 1974," 2 Software L. J. 391 (Summer 1988).


45. Reporters Committee at 763.








31

46. Forsham v. Harris, 445 U.S. 169, 183 (1980).

47. Western Services, Inc. v. Sergeant School District
No. RE-33J, 719 P.2D 355, 358 (Colo. App. Jan. 2, 1986).
















CHAPTER TWO
THE DEVELOPMENT OF SOCIAL AND
LEGAL THEORIES SUPPORTING PRIVACY
AND PUBLIC ACCESS TO GOVERNMENT INFORMATION

The public's "right to know"l about the business of

government and individuals' "right to be let alone"2 are

fundamental to American society, each firmly anchored in the

mores and values that have guided the development of the

nation. But these rights are not mutually exclusive. The

rights of the public and media to know about government

through access to the information it gathers--derived from

historical and twentieth century philosophical principles of

a free press and a self-governing democracy--are not

absolute. Neither are the rights of individuals to be

shielded from unwanted intrusions into their personal

affairs. Each of these rights, which the Supreme Court has

recognized are "plainly rooted in the traditions and

significant concerns of our society,"3 on occasion imposes

limits on the other, and at times they come into conflict as

the news media go about the task of informing the public

about matters of concern.

This chapter charts the development of a free press in

self-governing American society with its need for access to

government information, and the development of the concept










of personal privacy. It highlights the legal,

philosophical, and historical roots of each. The chapter

shows how rights of access and privacy have clashed from

time to time because of social, economic, and technical

change, causing friction between legitimate free-press and

personal-privacy interests. The chapter concludes by

introducing the most recent social and technological

developments that have brought privacy and access into

conflict--the government's use of computers and its

burgeoning need for personal information to make policy and

provide benefits to citizens. Subsequent chapters will

explore legislative and judicial concerns about the effects

of computers on privacy and how such concerns threaten

public and media access to the information government uses

to make decisions.

A Right of Privacy

U.S. Supreme Court Justice Arthur Goldburg, in an

attempt to explain the origin and dimensions of a right of

privacy, has suggested a fruitful approach for assessing

society's values. In his concurring opinion in Griswold v.

Connecticut in 1965, a case that fashioned a constitutional

right of privacy, Justice Goldburg concluded that privacy

was among those unenumerated rights retained by the people

under the Ninth Amendment to the Constitution.4 The Ninth

Amendment states that the failure of the Constitution to

recognize a particular right does not mean that no such










right exists; rather, the amendment concludes that

important rights not mentioned in the document are assumed

to be retained by the people. To determine whether a

particular right was among those retained by the people

under the Ninth Amendment, Justice Goldburg reasoned that it

was necessary to look at it in the social and political

context of the American experience. He said that one "must

look to the tradition and [collective] conscience of our

people [and at] .the totality of the constitutional

scheme under which we live."5

Without passing judgment on Justice Goldburg's Ninth

Amendment rationale for a constitutional right of privacy,

the following discussion of access and personal privacy

attempts to use his basic approach to explore the traditions

and conscience of the nation within "the constitutional

scheme under which we live." In doing so, the discussion

traces the development of a right of privacy under common

law, the unwritten law based on custom or court decision;

constitutional law; and statutory law. It is hoped that

this discussion, along with subsequent study of cases, laws

and political theories supporting a right of access to

government information, will provide a framework within

which to explore the ongoing tension between computers and

personal privacy and how this conflict affects public and

media access to government information.










Privacy as a Social Value

The seeds of privacy can be traced to the beginning of

the Judeo-Christian era in the biblical book of Genesis.

Ever since the story of Adam and Eve, who were shamed in the

eyes of God and took refuge behind fig leaves, modesty has

been a basic social and religious value integral to the

modern concept of privacy. After Adam and Eve defied God

and ate from the tree of knowledge, "the eyes of both were

opened, and they knew they were naked." Genesis further

noted that "God made for Adam and his wife coats of skins,

and clothed them."6 Modesty has played a central role in

the development of various cultures in the millennia since

Adam and Eve stepped from the Garden of Eden into a world

governed by human nature.7

A concept of privacy, though never expressed as it is

understood today, was not unknown in English common law, the

legal system dominant in colonial America and later adopted

by the fledgling nation. English common law cases dating

back to the Norman conquest recognized a value resembling

privacy in property rights of individuals.8 The case of

Pope v. Curl in 1741 illustrates the approach the English

common law followed. To resolve the case, the House of

Lords, England's highest court, applied a property-rights

doctrine to protect the contents of individuals' personal

letters from unauthorized publication by others.9 This case

was important to development of privacy in American










jurisprudence because it acknowledged a property right in

individuals' retention and control of personal ideas

contained in letters sent to others, not only in the letters

themselves.

In the development of American social and legal values,

the basic characteristics that embody the modern legal

concept of privacy predate the American Revolution.

Philosopher John Locke, whose writings influenced the

libertarian sentiments of the Founding Fathers' generation,

argued that government had a duty to protect certain

fundamental rights, such as life, liberty, and property.10

These "inalienable rights" would find expression in the

Declaration of Independence, the Constitution, and the Bill

of Rights, and the Supreme Court almost 200 years later

would glean from the fundamental concept of liberty a

constitutional right of privacy.11

John Adams, writing in his diary during the nation's

formative years, extolled the virtues of privacy when he

reasoned there was some personal information about which

"others have not a Right to Know." Adams, who would become

the nation's second president, maintained individuals should

dissimulate--or protect their feelings or motives--because

such information in the wrong hands could result in personal

harm. Said Adams,

The first Maxim of worldly Wisdom, constant
Dissimulation, may be good or evil, as it is
interpreted. If it means only a constant
concealment from others of such of our Sentiments,










Actions, Desires, and Resolutions, as others have
not the Right to Know, it is not only lawful but
commendable because when these are divulged, our
Enemies may avail themselves of the Knowledge of
them. Things that ought to be communicated
to some of our Friends, that they may improve them
to our Profit or Honour or Pleasure, should be
concealed from our Enemies, and from indiscreet
friends. This kind of Dissimulation, which
is no more than Concealment, Secrecy, and Reserve,
or in other words, Prudence and Discretion, is a
necessary Branch of Wisdom.12

In his book Privacy in Colonial New England, historian

David H. Flaherty explored the precursors of modern privacy,

which he found evident during the American colonial

experience. These precursors include such concepts as

solitude, intimacy, anonymity, and reserve.13 Flaherty

observed that although a right of privacy as a legal

doctrine evolved slowly in Western culture, its underlying

values were expressed in colonial customs and in the courts.

Colonial courts, he suggested, protected privacy values

indirectly by enforcing laws against trespass or physical

intrusions, by limiting government searches and seizures, by

hearing defamation cases, and by recognizing privileged

communications between wives and husbands.14 Ironically, as

Flaherty pointed out, there was little physical privacy--in

the modern sense--within most homes and public inns. Homes

often lacked individual sleeping quarters, and families

congregated in common beds. Communal sleeping arrangements

also were a common feature in public accommodations.

Flaherty noted that the concept of informational privacy was

officially recognized during Benjamin Franklin's tenure as










postmaster general before the American Revolution. During

this time, postmasters were required to swear an oath that

they would not "wittingly, willingly, or knowingly open or

cause, procure, permit, or suffer to be opened any

letter or letters which shall come into their hands."15

Flaherty also maintained that values supporting privacy

during the colonial period were instrumental in the

formulation of the First, Fourth, Fifth and Ninth amendments

to the U.S. Constitution.16

Values underlying privacy were apparent as the

Revolutionary War drew near, and played a central role in

the colonists' growing hostility toward British rule. In

1761, Boston lawyer James Otis, speaking out against the

practice of general searches by the colonial rulers, noted,

"Now one of the most essential branches of English liberty,

is the freedom of one's own house. A man's house is his

castle; and while he is quiet he is as well guarded as a

prince in his castle."17

On the eve of the Revolutionary War, each colony drew

up a list of grievances against the British authorities.

Atop each list was concern about general warrants, which

authorized government officials to search premises at will,

without first presenting evidence of a specific violation of

the law. After the colonies won independence, James

Madison, the major proponent of a Bill of Rights spelling

out individual liberties, introduced a proposal during the










Constitutional Convention in 1789 to limit the scope of

government searches. He argued that a Bill of Rights to the

Constitution was necessary to ensure, among other things,

that the new government could never attempt to enforce

general search warrants, so loathed by the colonies before

independence.18 Madison's proposal, which established "the

right of the people to be secure against unreasonable

search and seizures," was later adopted as the Fourth

Amendment.19

Values supporting privacy also found expression in the

writings of nineteenth-century philosopher John Stuart Mill,

whose works were widely read in the United States. In

Mill's influential work On Liberty, he argued the government

should have no say in certain kinds of personal conduct,

absent a compelling social interest, such as preventing harm

to others. Expounding on this concept of personal

"liberty," Mill wrote,

The sole end for which mankind are warranted,
individually or collectively, in interfering with
the liberty of action of any of their number is
self-protection. That is the only purpose for
which power can be rightfully exercised over any
member of a civilized community, against his will,
is to prevent harm to others. The only part
of conduct of anyone for which he is amenable to
society is that which concerns others. In the
part which merely concerns himself, his
independence is, of right, absolute.20

Privacy as a Legal Concept

While Flaherty documented the existence of the

components of privacy during the nation's formative years,










privacy as an identifiable legal concept remained only an

undercurrent in the common law during the nation's first

century. Legal concerns related to privacy developed

slowly, in large part because of the agrarian nature of

society. People were relatively few and far between, and

this measure of physical distance reduced the potential for

unwanted contacts and physical intrusions and the need for

legal solutions. Yet, court cases reflecting privacy

concerns did surface in the common law. One nineteenth-

century case worth mentioning because of its unusual facts

is Demay v. Roberts.21 The case, decided by the Michigan

Supreme Court, arose when a doctor took an untrained

assistant with him to help deliver a baby. The parents sued

when they learned the assistant was not medically trained;

they claimed their privacy had been compromised. The court

agreed, holding that the mother had a "legal right to the

privacy of her apartment at such a time."22

The demographics of agrarian American shifted

dramatically as the American industrial revolution hit full

stride. Technological developments such as the steam engine

led to the growth of manufacturing-based cities populated by

factory workers. Physical distance separating individuals

and families shrank as people moved to the cities to work in

the factories or immigrated to the growing nation in search

of opportunity. In the crowded cities, the natural barriers

of time and space common to agrarian settings no longer










insulated individuals from unwanted contacts and

intrusions.23 Between 1870 and 1900, the population of the

United States doubled and the number of urban residents

tripled.24

Dramatic technological developments during the

nineteenth century that threatened personal privacy are

traced by Alan F. Westin in Privacy and Freedom, a

comprehensive study of privacy-related issues.25 As Westin

noted, "Three technological developments in the late

nineteenth century altered the balance between personal

expression and third-party surveillance that had prevailed

since antiquity."26 These innovations included the

microphone and the telephone in the 1870s, the Kodak camera

with its potential for "instantaneous photographs" in the

1880s, and the dictograph recorder in the 1890s.

In 1877, The New York Times expressed concern about the

effect of new technology on privacy. In one of several

editorials about privacy the newspaper would write in the

coming years, the Times took issue with the telephone--a

"nefarious instrument" with its "vast capabilities for

mischief" that promised to rob individuals of their personal

privacy.27 Responding to a decision by the city to allow

telephone wires to be attached to city lampposts, the Times

cautioned,

Every confidential remark made to a lamp-post by a
belated Democratic statesman could be reproduced
by a telephone connected with any other lamp-post.
Men who had trusted to friendly lamp-posts,










and embraced them with the utmost confidence in
their silence and discretion, would find
themselves shamelessly betrayed, and their
unsuspecting philosophies literally reported to
their indignant families.28

While technological innovations led to growth of

populous industrial cities and such privacy-altering

inventions as the telephone, other innovations--in the form

of high-speed newspaper presses and advanced photography--

spawned an aggressive new kind of journalism, a distant

cousin of the Colonial and Revolutionary printers who

catered to the well-read and politically astute of society.

New printing processes could produce newspapers quickly and

cheaply, and a new kind of journalism developed that often

directed its content at the baser instincts of the swelling

numbers of city dwellers. A new breed of mass newspaper

reader, not so interested in the complexities of politics

and other public issues, sought more information about the

misdeeds and travails of others. This new kind of

readership, coupled with the ability of journalists armed

with cameras to intrude into areas previously shielded by

lack of technology, sometimes brought newspaper practices

and privacy concerns into conflict. This conflict created

new social and legal issues to be sorted out, such as the

rights of individuals to choose not to appear on the pages

of local newspapers.29

In 1890, a pair of former law partners and Harvard Law

School classmates took issue with the newspaper practices










and new technologies of the day. Louis Brandeis and Samuel

D. Warren, uppercrust Boston lawyers, penned "The Right to

Privacy" for the Harvard Law Review.30 The seminal article

would steer the concept of a legal right of privacy toward

the mainstream of American jurisprudence. Attempting to

document a climate of journalistic excesses and abuses of

privacy, the article stated somewhat hyperbolically that

"Instantaneous photographs and newspaper enterprise have

invaded the sacred precincts of private and domestic life;

and numerous mechanical devices threaten to make good the

prediction that 'what is whispered in the closet shall be

proclaimed from the house-tops.'"31

Brandeis and Warren argued that individuals possessed

certain intangible attributes, such as sentiments and

intellect, over which they exercised rights akin to those

governing personal property. The authors identified these

rights in what they viewed as analogous laws on breach of

trust, assault, copyright, and defamation, among others.

The article arguably achieved its aim of bringing privacy

into the legal arena.32 In 1891, soon after "The Right to

Privacy" was published, the New York Supreme Court addressed

the "novel" issue of personal privacy. Said the court, "It

is true that there is no reported decision which goes to

this extent in maintaining the right of privacy, and in that

respect this is a novel case."33










The case, Schuyler v. Curtis, arose when the family of

a prominent woman filed a suit against a private

organization, challenging its plans to erect a life-size

statue in her memory. The family argued that the woman had

never been a public personality and that the statue

constituted an invasion of privacy. The court, noting the

case before it was a test case for the right of privacy,

rejected the family's claim. But the court stopped short of

fully exploring the privacy issue. Important to the court's

analysis was the fact the subject of the statue was dead.

The court noted that, whatever right of privacy the woman

had, it followed her to the grave. The extent to which a

living person might have asserted a legally enforceable

privacy right was not explored.

In some early privacy cases, courts showed a

willingness to consider the interests of the press. For

example, in 1902 the New York Court of Appeals, the state's

highest court, refused to recognize a distinct right of

privacy in Roberson v. Rochester Folding Box Co.34 The case

began when the family of a young girl sued the Franklin

Mills Company for using a photograph of the girl without

permission in an advertisement for the company's flour. The

advertisement referred to the girl as "The Flour of the

Family" and was posted in various public places. The family

claimed invasion of privacy and argued that the

advertisement caused the girl to be "greatly humiliated by










the scoffs and jeers of persons who recognized her face and

picture."35

The court, while sympathetic to the girl's predicament,

nonetheless refused to recognize a legal remedy for an

injury that was not physical. The court expressed concern

that recognizing the claim might trigger similar lawsuits

that would clutter the courts and place unreasonable burdens

on the press. The girl's plight and controversy surrounding

the court's action was not lost on the New York Legislature.

In response, the legislature adopted a law creating a civil

remedy for the use of a person's name or likeness for

commercial purposes without consent.36

While the New York court was unwilling to recognize a

legal right of privacy, the Georgia Supreme Court not long

afterward reached the opposite result in a similar case. In

Pavesich v. New England Life Insurance Co., Georgia's high

court became the first to recognize unauthorized commercial

use of one's identity as a violation of the person's right

of privacy.37 The Georgia opinion prompted Louis Brandeis to

write that he was encouraged to see that privacy as a

distinguishable legal right was being recognized by the

courts.38

In addition to promoting privacy as a legal doctrine,

the article by Brandeis and Warren in the Harvard Law Review

also may have helped elevate the right of privacy to the

level of public discourse. In 1902, The New York Times took










issue with the new photographic technology, which no longer

required a willing subject to sit motionless to be

photographed. The newspaper complained in an editorial,

echoing the concerns of Brandeis and Warren, that "'kodakers

lying in wait' to photograph public figures had become a

'wanton' invasion of privacy that demands legal control."39

While the Brandeis and Warren article arguably nudged

the issue of a right of privacy onto the social and legal

stage, the development of a unified legal theory supporting

a right of privacy remained elusive. In the following

decades, the legal contours of privacy developed piecemeal

and with many variations.

Seventy years after "The Right to Privacy" proposed a

separate legal remedy for invasion of privacy, William

Prosser summarized the extent of common law development of

the privacy tort in the California Law Review. The 1960

article, titled simply "Privacy,"40 dealt only with tort law

and not with the constitutional question of government

interference in private matters. After reviewing some 200

privacy-related cases, Prosser identified four separate

torts--or breaches of duties imposed by society that

resulted in harm to another individual. They were

disclosure of embarrassing private facts about individuals;

appropriation, or the use of a person's name or likeness

without permission; false light, the intentional

dissemination of highly offensive false publicity about










another; and intrusion, the physical or technological

violation of an individual's privacy.

Prosser, an authority on tort law and author of a

seminal treatise on the subject, further defined the private

facts tort as publicity of a private matter that would be

highly offensive to a reasonable person and not of

legitimate public concern.41 Prosser's definition,

especially its reference to matters of "legitimate public

concern," highlights the factors courts traditionally have

weighed in balancing personal privacy with the media's right

to publish some kinds of personal information. Implicit in

the definition is that a legitimate public interest in

personal information could overcome privacy rights, even

when disclosure would offend most people. The privacy-public

interest balancing suggested by Prosser's definition is

addressed more thoroughly in subsequent discussions of

statutory privacy and court cases attempting to strike such

a balance.

Constitutional Privacy

While common law privacy developed gradually in America

over more than two centuries, explicit Supreme Court

recognition of a constitutional basis for personal privacy

occurred only in recent decades, beginning with the landmark

case Griswold v. Connecticut in 1965.42 Unlike the common

law tort, which gives individuals the right to sue other

individuals or entities for violations of their privacy, a










constitutional right of privacy protects individuals from

actions by the federal government and the states.

The Supreme Court's recognition of constitutional

privacy can be broken down into four general categories:

privacy from unwarranted intrusions, privacy of association,

privacy in making intimate decisions, and privacy in

controlling personal information. The first category

involving Fourth Amendment cases of physical and electronic

intrusion is well developed. The second and third

categories also are reasonably well developed. They are

associational privacy, or the freedom from interference or

constraints on relationships with groups or individuals, and

decisional privacy, or freedom from government interference

in intimate personal decisions. The fourth area in which

the Supreme Court has recognized a constitutional privacy

interest is less developed. It concerns informational

privacy, or rights of individuals to control information

about themselves. It imposes a duty on government to

protect the privacy rights of individuals on whom it

gathers, keeps, or disseminates information.

Freedom from Unwarranted Intrusion

The first and oldest judicial recognition of privacy

involves search and seizure cases implicating the Fourth

Amendment, usually resulting from physical intrusion. The

1886 case Boyd v. United States is illustrative.43 In Qoyd,

the Court said the Fourth Amendment search and seizure










provision voided a federal statute that required importers

to relinquish business records for seized goods or forfeit

the goods. The opinion, which expressed privacy values the

Court would expound on over the next 100 years, said, "It is

not the breaking of [an individual's] doors and the

rummaging of his drawers that constitutes the essence of the

offense; but it is the invasion of the indefeasible right of

personal security, personal liberty and private property."44

The Court has recognized privacy as freedom from

unwarranted intrusion in a number of other Fourth Amendment

cases. During the twentieth century, several Supreme Court

cases involving Fourth Amendment claims addressed threats to

personal privacy made possible by new technologies--a theme

introduced in the latter decades of the nineteenth century.45

Thirty-eight years after publication of "The Right to

Privacy" in the Harvard Law Review, Louis Brandeis, by then

a U.S. Supreme Court justice, took issue with the majority

of the court's upholding of the government in a telephone

wiretapping case. In his oft-quoted dissenting opinion in

Olmstead v. United States, Justice Brandeis said,

The makers of our Constitution undertook to
secure conditions favorable to the pursuit of
happiness. They conferred, as against the
government, the right to be let alone--the most
comprehensive of rights valued by civilized men.
To protect that right, every unjustifiable
intrusion by the government on the privacy of the
individual .must be deemed a violation of the
Fourth Amendment.46










In another Fourth Amendment case a dozen years later,

Justice Murphy took up Brandeis' argument that Olmstead had

been wrongly decided. In Goldman v. United States, a case

involving the surreptitious use of an electronic listening

device by government agents, Justice Murphy launched the

concept of privacy into the technological age. He conceded

that no physical intrusion or search had taken place. But

he warned, "Science has brought forth far more effective

devices for the invasion of a person's privacy than the

direct and obvious methods of oppression which were detested

by our forebears and which inspired the Fourth Amendment."47

The court underscored the privacy value embodied in the

Fourth Amendment in the landmark case of Mapp v. Ohio. The

case established the exclusionary rule, which made evidence

obtained during an unlawful search inadmissible in courts.48

The court held that

Having once recognized the right of privacy
embodied in the Fourth Amendment is enforceable
against the states and that the right to be secure
against rude invasions of privacy by state
officers is, therefore, constitutional in origin,
we can no longer permit that right to remain an
empty promise.49

Associational Privacy

The Supreme Court has invoked the First Amendment's

free speech and free association clauses to carve out a

right of associational privacy. The Court first applied a

First Amendment rationale to protect a privacy relationship

in the 1958 case NAACP v. Alabama ex rel. Patterson.50 The










National Association for the Advancement of Colored People

challenged a court order that the civil rights organization

turn over to the state of Alabama its membership rolls. The

NAACP argued that such information might be used to

intimidate members and, consequently, discourage membership.

Writing for the unanimous court, Justice Harlan said the

Court "has recognized the vital relationship between

freedom to associate and privacy in one's association .

particularly where a group espouses dissident beliefs."51

Two years later, the Court again addressed the issue of

associational privacy. In Shelton v. Tucker, the court

narrowly struck down an Arkansas statute requiring

schoolteachers to disclose all organizations to which they

belonged, or contributed, during the previous five years.

The Court was concerned that public access to records of

teacher affiliations might lead to the harm of teachers who

listed controversial or unpopular organizations.52 As the

Tucker opinion shows, the Court at least to some degree

agreed with John Adams' assertion that there are some

matters about which "the public has not the Right to Know."53

These associational privacy cases are also important to the

access-privacy discussion because the Court recognized the

potential for serious harm to individuals who lose control

of personal information about themselves. This recognition

will become more apparent in subsequent discussion of

informational privacy cases.










Decisional Privacy

Many of the Supreme Court's first forays into the

uncharted waters of constitutional privacy occurred before

the turn of the century in cases that focused on the

"liberty" rights of individuals in making certain kinds of

economic decisions.

The 1897 case Allgeyer v. Louisiana54 presaged reasoning

the court would apply in decisional privacy cases more than

a half century later. In Allgever, the Court struck down a

statute that limited the authority of insurance companies to

enter into certain contracts.55 The court held that the

"liberty" interest protected by the Fourteenth Amendment due

process clause "means not only the right of the citizen to

be free from physical restraint" but also from government

interference in individual decisions.56

The Supreme Court reached a similar result in the 1923

case Meyer v. Nebraska when it overturned the conviction of

a teacher who taught a foreign language to schoolchildren in

violation of a state statute.57 The case was decided in the

lower courts on the premise that the courts should protect

the economic freedom of private schools. However, the issue

as the Supreme Court posed it was one of freedom of inquiry

and thought. Again, the Court noted that "liberty" meant

more than "merely freedom from bodily restraint but also the

right of individuals generally to enjoy those










privileges long recognized at common law as essential to the

orderly pursuit of happiness by free men."58

In the 1925 case Pierce v. Society of Sisters, the

Supreme Court applied the reasoning of Meyer to void a

statute requiring children to attend public schools. The

Court said the statute interfered with the "liberty of

parents and guardians to direct the upbringing and education

of children under their control."59 Under this reasoning, a

government cannot interfere with parents' decisions about

whether their children will attend public or private

schools. However, once the parents opt for the privilege of

sending their children to public schools, the freedom of

choice diminishes dramatically.

The Supreme Court has articulated its strongest

recognition of a constitutional right of privacy in more

recent decisional privacy cases, those involving freedom of

choice in intimate personal decisions. The Court's clearest

articulation of a right of decisional privacy came in

Griswold v. Connecticut, a 1965 case that struck down a

statute that made it a crime for anyone, including married

people, to use contraceptives.60 In Griswold, the court held

that the statute intruded on the intimate relationship of

married couples and violated a "zone of privacy created by

several fundamental constitutional guarantees."61

The rationales for voiding the statute varied, but six

justices agreed it violated the due process clause of the










Fourteenth Amendment by interfering in couples' intimate

decisions on whether or not to use contraceptives. Specific

mention of a right of privacy appears nowhere in the

Constitution or the Bill of Rights. However, Justice

Douglas, writing the primary opinion for the Court, found

justification for a constitutional right of privacy in the

"penumbra" of rights associated with the First, Third,

Fourth, Fifth, and Ninth amendments. Justice Douglas said

that "specific guarantees in the Bill of Rights have

penumbras, formed by emanations that give them life

and substance."62

In a concurring opinion, Justice Harlan provided

another rationale for a right of privacy that recognized

that privacy concerns at times must be balanced with broader

societal demands. Relying on his dissent in an earlier

case, Poe v. Ullman, he concluded that the Connecticut

statute violated privacy values "implicit in the concept of

ordered liberties."63 Harlan, looking back at how the Court

historically had attempted to balance personal liberties

with other societal values, reasoned,

Due process has not been reduced to any
formula. The best that can be said is that
through the course of the Court's decisions it has
represented the balance which our Nation, built
upon the postulates of respect for liberty of the
individual, has struck between that liberty and
the demands of organized society.64

In 1973, the court underscored the right of individuals

to make intimate decisions in Roe v. Wade, a controversial










case involving a woman's right to decide whether to have an

abortion.6s In Roe, as in Griswold before it, the Court held

the government to a standard of strict scrutiny when

government attempted to interfere in intimate decisions.

Under the strict scrutiny standard, the government must show

a compelling interest in regulating a particular activity

and that the means of regulating the activity are narrowly

tailored to achieve the interest.

Informational Privacy

The most recent privacy concept recognized by the

Supreme Court is informational privacy. Concerns about

privacy have been raised in several cases addressing

government use of computers to gather, store, and

disseminate information about private individuals. The

Supreme Court's approach to informational privacy is

discussed briefly below and will be explored in more depth

in Chapter Four, which focuses on how courts have dealt with

both practical questions and public policy issues related to

privacy and access to information held in government

computers.

Concern about the impact of new information processing

technologies on privacy was first expressed on the Supreme

Court in 1976 by Justice William Brennan in a dissenting

opinion in United States v. Miller.66 The Miller majority

held that an individual did not have a constitutional

privacy interest in personal information voluntarily given










to a bank, because the information had become a part of the

bank's business records. Justice Brennan, signaling a

growing concern on the Court about the threat of information

technology to personal privacy, cautioned, "Development of

photocopying machines, electronic computers and other

sophisticated instruments have accelerated the abilities of

government to intrude into areas which a person normally

chooses to exclude from prying eyes and inquisitive minds."67

A year later, in Whalen v. Roe, the court acknowledged

a right of information privacy in an opinion that said a New

York state practice of compiling and storing in a computer

certain prescription drug records on individuals did not

violate their constitutional right of privacy.68 Central to

Justice Stevens' majority opinion were the "strong security

provisions" imposed by the state to ensure privacy.69 Said

Justice Stevens, "We are not unaware of the threat to

privacy implicit in the accumulation of vast amounts of

personal information in computerized data banks or other

massive government files."70

Justice Brennan, in a concurring opinion echoing

concerns about the threat of computers to privacy, noted

prophetically, "The central storage and easy accessibility

of computerized data vastly increases the potential for

abuse of that information, and I am not prepared to say that

future developments will not demonstrate the necessity for

some curb on such technology."71










After Whalen v. Roe, several informational privacy

cases reached the U.S. Courts of Appeals, but none reached

the Supreme Court until United States Department of Justice

v. Reporters Committee for Freedom of the Press in 1989.72

In Reporters Committee, decided almost a century after

Brandeis and Warren first took issue with the encroachment

of technology on personal privacy, the Supreme Court

apparently deemed that "the necessity of some curb" on

modern computer technology was in order.

The case stemmed from a Freedom of Information Act

request to the Federal Bureau of Investigation for

computerized criminal history records that had been compiled

from public records. In upholding the FBI's denial of the

request, Justice Stevens reasoned,

the issue here is whether the compilation of
otherwise hard-to-obtain information alters the
privacy interests 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 the courthouse
files, county archives, and local police stations
throughout the country and a computerized summary
located in a single clearing house of
information.73

In his discussion of the case, Justice Stevens also

adopted a definition of privacy that included the control by

individuals of personal information about themselves.74 The

implications for public and media access as a result of the

Reporters Committee reasoning, and subsequent cases based on

that reasoning, will be explored in Chapter Four, along with










state cases that reflect concerns about the privacy threat

of computerized information.

Legislative Recognition of a Right to Privacy

While the concept of informational privacy has been

embraced by the Supreme Court, the clearest statements of

privacy rights in information collected by the government

have come through the legislative process. Most of the

legislative concern has been in response to the growing use

of computers by government. The evolution and dimensions of

that legislative interest will be discussed in detail in

Chapter Three. At this juncture, legislative privacy

concerns are outlined briefly.

When Congress passed the Freedom of Information Act in

1966, it recognized that the accumulation of personal

information by government threatened personal privacy. Two

exemptions to the FOIA specifically shield personal privacy

interests in government information. Exemption 6, which

covers medical, personnel and "related" records,75 and

Exemption 7, which covers criminal history records,76

acknowledge expectations of privacy in varying degrees.

When information requesters have challenged agencies that

have denied access under these exemptions, courts have

attempted to balance privacy interests with the public's

interest in disclosure of such information. However, the

Supreme Court in Department of Justice v. Reporters

Committee for Freedom of the Press has greatly narrowed what










constitutes a public interest in disclosure.77 The

ramifications of the 1989 opinion in Reporters Committee are

discussed in Chapter Four.

Other exemptions also recognize privacy-like interests

in business-related information held by government.

Exemption 4 shields from disclosure confidential business

information that agencies collect pursuant to their

statutory duties.78 Similarly, Exemption 8 protects certain

banking records79 and Exemption 9 protects valuable

geological and geophysical information about oil and gas

wells.80

Lastly, Exemption 3 covers information declared

confidential by other statutes.81 Several agencies have

attempted to apply this exemption to the Privacy Act of 1974

as grounds for withholding information.a2 These attempts

prompted Congress to pass legislation specifically excluding

the Privacy Act from Exemption 3 status.83

The threat of computers to personal privacy first

caught the attention of Congress in the 1960s, when

congressional subcommittees held hearings on the possible

development of a National Data Center, or centralized

computerized data bank to pool information from various

federal agencies. Several hearings were held on the

National Data Center proposal and related technology issues

throughout the 1960s, as the federal bureaucracy ballooned

with President Lyndon Johnson's Great Society social










programs and the Vietnam war effort.84 Proponents of a

National Data Center pointed out the need for efficiency and

enhanced decision making in the burgeoning bureaucracy.

Opponents saw a centralized computer system as a serious

threat to personal privacy and alluded to George Orwell's

"Big Brother."85

At a hearing in 1966, Representative Frank Horton of

New York suggested that the very size and inefficiency of

the federal bureaucracy held certain advantages for

citizens.

One of the most practical safeguards .of
privacy is the fragmented nature of present
information. It is scattered in little bits and
pieces across the geography of years of life.
Retrieval is impractical and often impossible. A
central data bank completely removes this
safeguard.86

Concern about the threat of government computers

expressed at various congressional hearings,87 underscored by

the abuses of the Nixon administration during the Watergate

era, ultimately led to passage of the Privacy Act of 1974.88

The act recognized privacy as a fundamental right protected

by the Constitution and threatened by widespread collection

and dissemination of personal information by federal

agencies. The act also recognized the positive role of

computer technology in efficient government but sought to

balance those positive aspects with the potential for abuse.

Since passage of the Privacy Act, Congress has

responded to the new information technologies by passing










numerous measures to regulate the collection, distribution,

and access to personal information held by the government.89

Most recently, Congress passed the Computer Matching and

Privacy Act of 1988 to put limitations on federal agencies'

ability to share personal information via computers.90

A Right of Access to Government Information

When the Founding Fathers gathered in Philadelphia more

than 200 years ago to sort out differences endangering the

tenuous union, they met in private. With an agenda that

included potentially divisive issues, the Founders

apparently believed secrecy more accommodating to the needs

of the infant nation than the rigors of public debate. Self-

preservation seemed paramount.91

Yet, this seemingly inauspicious beginning for a theory

of access to the public's business belies the sentiments

expressed in numerous writings by those instrumental in the

American Revolution and by those who steadied the nation as

it took its first unsure steps. A recurring theme was that

the government served the people, that it existed only with

the knowledge and consent of those governed. As James

Madison, a dominant force behind the Bill of Rights, noted,

"If we avert to the nature of Republic Government, we shall

find that the censorial power is in the people over

government, and not in the Government over people."92 From

writings such as Madison's evolved a theory of democratic

self-governance by an informed electorate, with a free and










vigorous press as a fundamental instrument in that process.

This section looks at the development of the principle that

the government's business is the people's business and that,

as a result, the people have a fundamental right of access

to that process and to information and records related to

it. It explores the philosophical principles that gave rise

to the values of free expression and a free press that

influenced the Founding Fathers and how those values helped

mold the new nation. It also traces the growth of values

supporting access to government information that is integral

to the contemporary concept of a self-governing society. In

addition, the section looks at how the courts have viewed a

right of access from a constitutional perspective and at how

access has been incorporated into positive law through the

legislative process.

Toward a Theory of Self-Governance

The free speech and free press clauses of the First

Amendment to the U.S. Constitution and the concept of a

well-informed, self-governing society grew from seeds

planted more than a century before by English social and

political philosophers. These philosophers wrote of the

need to write and speak without government interference, of

the importance of such freedoms within a society. These

seeds would put down roots before and during the American

Revolution and would flourish in the words of the Founding










Fathers, even if their actions sometimes seemed inconsistent

with their words.93

Libertarian Underpinnings

By most accounts, the genesis of libertarian thought

was in the English poet John Milton's essay Aeropagitica in

1644, with its ritualistically quoted passage: "Give me

liberty to know, to utter, and to argue freely according to

conscience, above all liberties."94 In Aeropagitica, Milton

railed against government attempts to suppress his earlier

writings that called for changes in the divorce laws that

locked him in an unwanted marriage. Milton argued that

government licensing of printers impeded the free flow of

information and ideas, a process essential to the betterment

of life and society. Milton said that people were capable

of judging ideas and information for what they were worth,

that in the process of sorting the good from the bad, truth

would prevail. Said Milton, "And though all the winds of

doctrine were let loose to play upon the earth, so Truth be

in the field .Let her and Falsehood grapple; who ever

knew Truth put to the worse, in a free and open encounter."95

Rivaling Milton as a philosophical influence on the

libertarian sentiments of the Founding Fathers' generation

was John Locke, who maintained that governments have a duty

to protect certain fundamental rights of citizens, such as

life, liberty, and property. Compared to Milton, Locke held

a radically different concept of the role of truth in public










discourse. While Milton focused on the tyranny and futility

of suppression and in the belief that truth ultimately would

triumph, Locke viewed truth as essentially unknowable.96 He

said people should be skeptical of their own opinions since

they could never know for certain whether they were correct.

Since knowledge was so frail and truth unknowable, Locke

argued, it would be best to put all ideas before the public.

Said Locke,

We should do well to commiserate our mutual
ignorance, and endeavor to remove it in all the
gentle and fair ways of information, and not
instantly treat others ill or obstinate and
perverse because they will not renounce their own
and receive our opinions, or at least those we
would force upon them, when it is more probable
that we are no less obstinate in not embracing
some of theirs. For where is the man that has
uncontested evidence of the truth of all that he
holds, or of the falsehood of all he condemns; or
can say, that he examined to the bottom all of his
own and other men's opinions?97

Locke also argued that individuals enter society freely and

as a matter of choice. Consequently, the government may

exercise control over individuals only with their consent.

All power to make laws resides with the citizenry, and only

through the delegation of that power to the state may the

state act.98

Later essays of Englishmen John Trenchard and Thomas

Gordon, writing under the pseudonym "Cato," also were a

significant force behind the propagation of libertarian

thought in colonial America. The essays were reprinted










widely in the colonial press and were popular reading. Said

Cato,

That men ought to speak well of their Governors,
is true, while their Governors deserve to be well
spoken of; but to do public Mischief, without
hearing of it, is only the Prerogative of Felicity
and Tyranny; A free People will be shewing that
they are so, by the freedom of speech."

Building on the Revolutionary Experience

The words of Milton, Locke, and Cato resonated through

the colonists' revolutionary rhetoric as they became

increasing alienated under British rule. Locke's notion of

the fundamental rights of individuals rings out in the

Declaration of Independence, and the values of life, liberty

and property pervade the Bill of Rights. The belief that

free speech and a free press served as an essential check on

the powers of government also found eloquent expression in

the writings of those who shaped the new democracy.

Thomas Paine, whose Common Sense on the eve of the

American Revolution helped draw waffling patriots into the

revolutionary fold, expounded on the benefits of a

representative democracy and the need for a full public

accounting of government actions. Paine later wrote,

In the representative system, the reason for
everything must publicly appear. Every man is a
proprietor in government, and considers it a
necessary part of his business to understand. It
concerns his interest because it affects his
property. He examines the costs, and compares it
with the advantages; and above all, he does not
adopt the slavish custom of following what in
other governments are called leaders.i00










James Madison, the major proponent of the Bill of

Rights, amplified the virtue of an informed society.

Although writing about the role of information in the

context of education, his premise suggests a parallel lesson

for democratic society in general. He cautioned, "A popular

government without popular information or the means of

acquiring it, is but a prologue to a farce or a tragedy, or

perhaps both."101

Thomas Jefferson, writing in 1823, years after the

tumult of the Revolution and the stressful period

immediately following, cast himself "into the ranks of the

most advanced libertarians [with] his final testament

on freedom of the press--a reflex of the best Enlightenment

theory."102 Drawing on his own experience and observations,

and on the collective wisdom of the libertarian

philosophers, Jefferson described the press as a conveyer of

information about the workings of government and as a

stabilizing force in the rough-and-tumble of democratic

society:

This formidable censor of the public
functionaries, by arraigning them at the tribunal
of public opinion, produces reform peaceably,
which must otherwise be done by revolution. It is
also the best instrument for enlightening the mind
of man, and improving him as a rational, moral
being.103

Interestingly, even as Jefferson saw a free and

vigorous press as a cornerstone of democracy, he did not

view the press as free from "liability for personal










injuries." And at one point, not long after the expiration

of the controversial Sedition Act in 1801, he suggested that

the states should keep an unruly "Tory" press in check.

Writing to Governor Thomas McKean of Pennsylvania, Jefferson

opined that state restraints on the press might have a

"wholesome effect in restoring the integrity of the presses

. [and would] place the whole band more on their

guard. "104

During the century that followed the American

Revolution, when free speech and free press rhetoric

flourished and strengthened the values underlying the First

Amendment, another influential political philosopher would

add to the theory that truth must have its day. John Stuart

Mill acknowledged the value of free expression advanced by

the earlier libertarian philosophers but discounted the

argument that truth, given an opportunity, would always

prevail. Mill, an ardent critic of American slavery, noted

that truth frequently was suppressed and that its only

chance to succeed lay in the right of free expression.105

Mill also wrote about the concepts underlying a democratic

society. Of the role of the individual in representative

government, he suggested that government derives its

authority from the governed; no democratic government would

succeed without citizens willing to abide by certain rules

and to do what was necessary to preserve it.106 The

foundation for such a society, Mill argued, was the










existence of powerful ideas and the ability of the majority

to persuade others of their correctness.107

Twentieth Century Legal Theory

The principles of the early libertarians and the words

of the Founding Fathers and others regarding free expression

and a free press lay the foundation for twentieth century

legal theory and social philosophy supporting the role of a

free and vigorous press in American society and its need for

public information. Woodrow Wilson, in the first year of

his presidency in 1913, eloquently expressed the sentiments

of the nation's founders that government prospered only with

the knowledge and consent of the people:

Whenever any public business is transacted,
wherever plans affecting the public are laid, or
enterprises touching the public welfare, comfort
or convenience go forward, wherever political
programs are formulated, or candidates agreed on,
over that place a voice must speak, with the
divine prerogative of a people's will, the words:
"Let there be light."108

The twentieth century concept of free expression was

brought into focus in the second decade of the new century

as it faced a severe test at a time when fears of social

revolution dominated the legal and political establishments.

In 1919, amid the post-World War I social and

political tumult in the United States over the Bolshevik

revolution in Russia, U.S. Supreme Court Justice Oliver

Wendell Holmes carried Milton's notion of free speech into

the twentieth century discourse through the American free

enterprise metaphor of the marketplace. The occasion was










the Supreme Court's opinion in Abrams v. United States,

which upheld criminal convictions under the newly enacted

Espionage Act.109 The defendants were convicted of

distributing materials critical of the United States' war

effort that encouraged "disaffection, sedition, riots, and

even revolution."l10 The offending pamphlets, tossed from

windows to passers-by, criticized the United States'

decision to send troops to aid the czar during the

revolution. In a dissenting opinion, Holmes took up the

libertarian standard of free expression to reject the

majority reasoning upholding the convictions based on words,

not deeds. He argued for "free trade in ideas," even those

we "loathe and believe to be fraught with death." Holmes

said the "best test of truth is the power of the thought to

get itself accepted in the competition of the market.""'

Holmes' notion of "the free trade of ideas" was often quoted

by legal and political scholars when free speech was in

question, and the importance of a free press in the

marketplace of ideas became a rallying cry in the First

Amendment lexicon.

In 1927, Justice Louis Brandeis, a dominant judicial

force behind the notion of a fundamental right of privacy,

argued with equal force for unfettered free expression

limited only by the need "to protect the state" from "clear

and imminent danger."112










In a concurring opinion in Whitney v. California,

Justice Brandeis denounced a California syndicalism law as a

threat to the fundamental principles of an informed, self-

governing democracy, on which the nation was founded. He

noted,

Those who won our independence believed that
the final end of the state was to make men free to
develop their faculties, and that in its
government the deliberative forces should prevail
over the arbitrary. They value liberty as both an
end and as a means. They believed that
freedom to think as you will and to speak as you
think are indispensable to the discovery and
spread of political truth that public
discussion is a political duty; and that this
should be a fundamental principle of the American
government. Believing in the power of reason
as applied through public discussion, they
eschewed silence coerced by law--the argument of
force in its worst form. Recognizing the
occasional tyrannies of governing majorities, they
amended the Constitution so that free speech and
assembly would be guaranteed.113

The majority of the Court soon amplified this theme.

In the 1931 case Stromberg v. California, the Court said

that the First Amendment ensured "the opportunity for free

political discussion to the end that government may be

responsive to the will of the people and that changes may be

obtained by lawful means."114 The role of a free press in

the process of democratic self-governance was best

articulated by Alexander Meiklejohn. Writing some 300 years

after John Locke, Meiklejohn rejected the idea that freedom

of speech derived solely from the natural law or rules of

reason espoused by the Enlightenment philosophers. Rather,

the venerable scholar anchored his theory of free expression










in the very nature of a self-governing democracy.

Meiklejohn reasoned that the "principle of free speech

springs from the necessity of the program of self-

government. It is a deduction from the basic American

agreement that public issues shall be decided by universal

suffrage."ii5 He said the First Amendment's protections for

the practice of self-government are to ensure that the

public retains control over government in the process of

self-governance. He would have afforded absolute protection

for expression about issues of self-governance because, he

said, citizens need to gather and share information and

opinions about their government to participate intelligently

in the democratic process.1i6

Legal scholar Thomas Emerson couched Locke's principles

of natural rights in the modern theory of self-

actualization. The theory of self-actualization established

an ascending hierarchy of essential needs to individuals in

society. At the bottom were basic physical needs, such as

food and shelter; at the top were the psychological needs of

individuals to realize their full potential--or to be self-

actualized.117 Emerson saw free speech and expression as

essential to attainment of these higher needs. To Emerson,

free expression was the embodiment of "the widely accepted

premise of Western thought that the proper end of man is the

realization of his own character and potentialities as a

human being."1is










Legal scholar Vincent Blasi offers another rationale

for a strong, free press in American society. Echoing the

sentiments of Paine and Jefferson that a free press as a

"formidable censor of public functionaries" was essential to

a democracy, he contends that a strong, free press is the

most effective--if not the only effective--check on the

potential abuse of power by government. Blasi accepts both

Locke's argument for free expression based on fundamental

rights and Meiklejohn's theory of self-governance. But he

also casts the press--particularly the large, influential

press--in another essential role as the only viable check on

the equally powerful government.119

Blasi's arguments reflect those espoused by former

Supreme Court Justice Potter Stewart, who saw in the First

Amendment a "structural provision" giving the press rights

separate and distinct from those of free speech. In a 1970

address at Yale Law School titled "Or of the Press," Stewart

rejected the view that the press should be only a neutral

forum in the "marketplace of ideas." The press was not

merely a vehicle for the balanced discussion of diverse

ideas, he said. "Instead, the free press meant organized,

expert scrutiny of government," Stewart said.o20 Implicit in

both Meiklejohn's First Amendment theory of self-governance

and Blasi's theory of the press as a fundamental check on

government excess is the need for public and media access to

the information government uses in decision making.










While freedom of the press and the implied importance

of access to information have found solid support in the

American experience, the legal parameters of press freedoms

and a right of access have been shaped by legislatures and

the courts. This development occurred at three levels. The

first is the common law, where the notion of access to

public information evolved through the daily application of

laws and customs to resolve disputes and issues. The second

is constitutional law. Constitutional analysis was

triggered when the press asserted First Amendment rights to

keep the public informed about the business of government.

The third is statutory law, or positive laws enacted by

legislatures recognizing varying degrees of a right of

access.

A Common Law Right of Access

A legal concept of public access to government

information developed within the common law. This concept

initially was based on the personal interests of individuals

in specific information, not on the premise that the public

had a general right to inspect public records. Usually,

access under the common law involved records sought during

litigation. A Kentucky court summed up the early status of

common law access:

[T]here is no common law right in all persons
to inspect public documents or records; and that
right, if it exists, depends entirely on the
statutory grant. But every person is
entitled [to inspect public records] .
provided he has an interest therein which is such










as would enable him to maintain or defend any
action for which the document or record sought can
furnish evidence of necessary information.121

Eventually, however, some courts began to expand the

kinds of interest that would warrant access to public

information. In 1903, for example, the state of Tennessee

recognized a general taxpayers' interest in records

concerning the financial condition of city government.122 In

some jurisdictions, courts have abandoned entirely interest

tests for access to public records.123 Despite the

willingness of some jurisdictions to recognize a broad-based

public right under the common law, the most effective tools

for access continue to be statutory. The statutory

dimensions of public access will be discussed in a later

section of this chapter.

Access and the Constitution

Acknowledging the important role of the press as

primary sources of information in a self-governing society,

the Supreme Court has recognized the constitutional right of

the press to publish information it gathers about public

issues.124 But the Court has not articulated a First

Amendment right of the press to obtain information that the

government gathers, creates, or possesses outside the

limited area of court proceedings. One jurist has likened

the press without a right to gather and publish news to a

"river without water."l25










This section looks at how the Supreme Court has viewed

the right of the media to gather and publish news from a

First Amendment perspective and at the implications various

cases have for the flow of information in a self-governing

society.

Before 1925, the First Amendment had functioned only as

a limitation on actions of the federal government. But in

that year, the Supreme Court first applied the First

Amendment to actions of a state in a case that upheld a

conviction based on the distribution of revolutionary

literature. In Gitlow v. New York, the Court said that

First Amendment rights protected from abridgment by Congress

were "among the fundamental personal rights and 'liberties'

protected by the due process clause of the Fourteenth

Amendment from impairment by the states."126 This selective

application of certain parts of the Bill of Rights to the

states through the Fourteenth Amendment is known as

incorporation.127

Since Gitlow, numerous cases have applied the First

Amendment to affirm the roles of free speech and a free

press in American society. For example, in 1931, the

Supreme Court issued a landmark opinion in Near v. Minnesota

that held prior restraints against the press were

impermissible in all but the most extreme of

circumstances.128 More important to the development of a

theory of access, however, are cases in which the Supreme










Court has addressed the rights of individuals to receive

information and the rights of the public and the press to

have access to government proceedings and information held

by the government.

A right of the public to know about the workings of

government, as such, is not stated in the U.S. Constitution.

But the framers of the Constitution did include provisions

for making government accountable to the people. The

Constitution, in general terms, requires the legislative and

executive branches of government to report regularly about

their activities. Both Houses of Congress must keep and

publish a "journal of its proceedings"129 but may decide

for themselves what might "require secrecy" and be

withheld.130 Congress also is required to "publish from time

to time a regular Statement and Account of the

Receipts and Expenditures of all public Money."131

Similarly, the president is required to report to Congress

"Information of the State of the Union."132 While these

requirements for government accountability seem limited by

modern access standards, they, nonetheless, reflected the

fundamental principle that government should not function in

secret or withhold information without good cause. Indeed,

the fact the Constitution gives Congress the authority to

determine what might "require secrecy" presupposes secrecy

is the exception rather than the rule. Too, the limited

expression of openness in the Constitution perhaps reflected










the realities of communications during the nation's

formative years. The movement of information, even urgent

information, was measured in terms of weeks and sometimes

months; in times of war, battles were sometimes fought

before word of an armistice could reach the battlefield.

The Right to Receive Information

The Supreme Court has never recognized a constitutional

right of access to government information, or a right to

gather information, on a par with the right to publish

without prior government interference. The press may

publish what it gathers, but government has no affirmative

duty to facilitate the newsgathering process. The Court,

however, has been more receptive to the rights of the public

to receive information.

The Supreme Court has specifically recognized the

rights of individuals to receive information in several

cases. Perhaps, the first is Grosjean v. American Press

Co., a 1936 case involving a challenge to a state tax that

affected only large-circulation publications. A unanimous

court struck down the tax as a violation of the First

Amendment. The Court said a free press is a vital source of

information and that "informed public opinion is the most

potent of all restraints upon misgovernment."133 The Court

said First Amendment freedoms went "to the heart of the

natural right of the members of an organized society, united

in their common good, to impart and acquire information










about their common interests."134 The Court concluded that

the Louisiana tax would "limit the circulation of

information to which the public is entitled by virtue of

constitutional guarantees."'135

In 1969, the Supreme Court again recognized the

public's right to receive information. In a broadcast

regulation case involving the Federal Communications

Commission's Fairness Doctrine, Red Lion Broadcasting Co. v.

FCC, the Court held that broadcasters, who operated under a

government license, may be compelled to grant individuals

the right to reply on the air to political editorials and

personal attacks. The Court recognized that government-

regulated broadcasters had First Amendment rights but

concluded that, on balance, the First Amendment rights of

broadcast audiences to receive information were paramount.

Interestingly, the court reasoned that broadcasters, by

virtue of their license relationship with the government,

had an affirmative duty to facilitate public access to

information and ideas--a concept the Court has never imposed

on government itself.136 Neither has the Court imposed on

the print media an affirmative duty to provide access to

different points of view.137

The Court also recognized the public's First Amendment

right to receive information--even commercial information--

in Virginia State Board of Pharmacy v. Virginia Citizens

Consumer Council. Inc.138 The Court struck down a state










statute barring pharmacists from advertising prescription

drug prices. The Court's opinion focused on the public's

strong interest in access to commercial information.139 Such

information, the Court reasoned, was essential if citizens

were to make thoughtful consumer choices that, in the

aggregate, could affect political issues such as the

allocation of resources. "To this end, the free flow of

commercial information is indispensable," the opinion

stated. 140

The Court applied the First Amendment to the receipt of

political information in First National Bank v. Bellotti,

when it struck down a state law forbidding political

advocacy by corporations. The Court reasoned that the

public's right to receive political information is not

diminished by the corporate identity of the speaker. The

Court said the First Amendment's role was not only to foster

individual expression but also to afford "the public access

to discussion, debate, and the dissemination of information

and ideas."141 The Court rejected the argument that "the

relative voice of corporations" might drown out other less

powerful speakers on controversial public issues. Instead,

the Court said that in a democracy the public must choose

among messages, whether the speaker be weak or strong.142

A Right of Access to Government Information

While the Court has recognized the right of individuals

to receive information from willing speakers, the question










of the public's and the media's constitutional right of

access to government-held information is more problematic.

Some cases, however, have implied at least a limited right

of access to government functions and records. In Branzburg

v. Hayes, the Court acknowledged that "without some

protection for seeking out the news, freedom of the press

could be eviscerated."143 But on a 5-4 vote, the Court

rejected a special privilege for news reporters not to have

to testify before grand juries. In Branzburg, three

journalists argued that if they were forced to reveal names

of confidential sources, to whom they had pledged

confidentiality, news organizations would lose their

credibility. Too, sources would cease to come forward, and

society might be deprived of important information, they

said. Justice Powell, who joined the majority opinion as

the key fifth vote, stated in a concurring opinion that any

claim of press privilege should be weighed on a case-by-case

basis, thus recognizing at least the possibility that in

some circumstances the press might warrant special

consideration.144 Powell's reasoning, when combined with the

rationale of the dissenting justices, led many appellate

courts during the 1980s to recognize a limited First

Amendment newsgathering right for journalists with respect

to protecting confidential sources, at least in cases not

involving grand juries.145










In a pair of cases dealing with access to prisoners and

prisons, the Court has said the press had no greater right

of access to government information than any other members

of the public. In Pell v. Procunier146 and Saxbe v.

Washington Post Co.,147 cases heard jointly, the Court upheld

federal regulations restricting press interviews with

prisoners. Important to the Court's analysis, however, was

that access to prisons was traditionally restricted and

therefore the media were not being singled out. Writing for

the majority, Justice Stewart said the press was free to

gather what it can and to publish what it knows. But,

Stewart said,

This autonomy cuts both ways. The press is
free to do battle against secrecy and deception in
government. But the press cannot expect from the
Constitution any guarantee that it will succeed.
There is no constitutional right to have access to
particular government information, or to require
openness from the bureaucracy.148

In Pell and Saxbe, Justice Douglas, writing for the

three dissenters, argued that the press should have a right

of access greater than the public generally. He said the

press, as a vehicle for the transmission of ideas and

information, held a "preferred position in our

constitutional scheme" and that the public's "right to know

is crucial to the governing powers of the people."149

While the Supreme Court has said the public and media

have no right of access to prisons, it has held that the

First Amendment requires criminal trials to be open. In










Richmond Newspapers v. Virginia, the Court said criminal

trials "must be open to the public" absent an overriding

competing interest, even when a defendant wanted the trial

closed.150 In a plurality opinion, Chief Justice Burger

engaged in a historical as well as a First Amendment

analysis. He noted that trials in England and in this

country had historically been public affairs. The chief

justice cited English customs dating to before the Norman

Conquest that gave rise to the jury system. When cases were

brought before courts, freemen of the community were

required to attend and render a judgment. In reasoning that

could apply equally to access to all forms of government

proceedings, he noted,

This is no quirk of history; rather, it has
long been recognized as an indispensable
attribute of the Anglo-American trial. It
gave assurances that the proceedings were
conducted fairly to all concerned, and it
discouraged perjury, the misconduct of
participants, and decisions based on secret bias
or partiality.151

He also noted the therapeutic value of open proceedings

and the importance of such openness in ensuring confidence

in the process of government. "People sensed from

experience and observation that, especially in the

administration of criminal justice, the means used to

achieve justice must have the support derived from public

acceptance of both the process and the results."152 The

chief justice echoed Thomas Jefferson's notion that exposing

government actions in the "tribunal of public opinion"










diffused emotions and led to peaceable reforms. He observed

that openness provided an "outlet for community concern,

hostility, and emotion," and that without knowledge the

system was working, "natural human reactions of outrage and

protest are frustrated and may manifest themselves in some

form of vengeful 'self-help,' as indeed they did regularly

in the activities of vigilante 'committees' on the

frontiers."'53 He pointed out that people do not demand

infallibility from their institutions, but that "it is

difficult for them to accept what they are prohibited from

observing. "154

After outlining the need for openness in government--at

least in court proceedings--the chief justice turned his

attention directly to the special role of the press as a

surrogate for the people. He noted that while the First

Amendment right to assemble in public places and to attend

trials covers the public generally, the press acts as a

stand-in for the public; therefore, without press access,

public access is diminished.

It is not crucial whether we describe this
right to attend criminal trials to hear, see, and
communicate observations concerning them as a
"right of access," or a "right to gather
information," for we have recognized that "without
some protection for seeking out the news, freedom
of the press could be eviscerated." The explicit,
guaranteed rights to speak and publish concerning
what takes place at a trial would lose much
meaning if access to observe the trial could, as
it was here, be foreclosed arbitrarily.155










Chief Justice Burger also made quick work of the

argument that there was no right of public access to court

proceedings because no such right was spelled out in the

Constitution. He pointed out that during the debate over

whether the Constitution should have a Bill of Rights, it

was made clear that just because the Constitution did not

grant a particular right, this did not mean no such right

existed. In words that could bolster an argument for an

implicit First Amendment right of access to government

information modeled along the lines of reasoning supporting

a constitutional right of privacy, he noted,

Notwithstanding the appropriate caution
against reading into the Constitution rights not
explicitly defined, the Court has acknowledged
that certain unarticulated rights are implicit in
enumerated guarantees. For example, rights of
association and of privacy, the right to be
presumed innocent and the right to be judged by a
standard of proof beyond a reasonable doubt in a
criminal trial, as well as the right to travel,
appear nowhere in the Constitution or Bill of
Rights. Yet these important but unarticulated
rights have nonetheless been found to share
constitutional protection in common with explicit
guarantees .fundamental rights, even though
not expressly guaranteed, have been recognized by
the Court as indispensable to the enjoyment of
rights specifically defined.156

Justice William Brennan, author of the Court's landmark

1964 libel opinion in New York Times v. Sullivan, concurred

with the result in Richmond but focused on the "structural

role" the media play in the American system of self-

government. Alluding to Alexander Meiklejohn's theory of

democratic self-governance, Justice Brennan reasoned that










the First Amendment was meant to do more than protect free

communication for its own sake. Rather, he said,

Implicit in this structural role is not only
"the principle that debate on public issues
should be unhibited, robust and wide-open," but
the antecedent assumption that valuable public
debate--as well as other civic behavior--must be
informed. The structural model links the First
Amendment to that process of communication
necessary for a democracy to survive, and thus
entails solicitude not only for communication
itself, but for the indispensable conditions of
meaningful communication.157

For communication to be meaningful in a self-governing

society, Justice Brennan concluded, public and press access

to government information are essential. In words that

anticipated his approach to the access/privacy conflict that

would arise over the government's growing use of computers,

he said, "Our decisions must therefore be understood as

holding only that any privilege of access to governmental

information is subject to a degree of restraint dictated by

the nature of the information and countervailing interests

in security and confidentiality."158 (Emphasis added.)

In a separate concurring opinion, Justice Stevens

termed Richmond "a watershed case" and suggested that "for

the first time the court unequivocally holds that an

arbitrary interference with access to important information

is an abridgment of the freedom of speech and of the

press."159 In the wake of Richmond, some legal scholars

shared Justice Stevens' position, suggesting that the

opinion cast the First Amendment as a sword with which to










"secure information from a reluctant government."160 While

increased access has occurred in other trial-related

areas,161 pronouncements that Richmond was "a watershed

case," signaling a significant shift in access doctrine

proved exaggerated.162

Statutory Access to Government Information

If the Supreme Court has been reluctant to recognize a

First Amendment right of access to government information

beyond the courts, Congress has been willing to enact

legislation opening federal regulatory agencies to public

scrutiny. But statutory recognition of a public right of

access to government information is a relatively new

phenomenon that developed in the two decades following World

War II.

In 1946, Congress enacted the Administrative Procedures

Act,163 which recognized the public character of government

records gathered and kept by federal executive agencies.

But the act's inexact language, which allowed agencies to

determine what information "requiring secrecy in the public

interest" should be exempt from disclosure, provided a

loophole that led to widespread, arbitrary withholding. The

act, in effect, became more of a withholding statute. During

this post-World War II period, proponents of access to

government information were given a boost when the

government issued the Hoover Study Report, which led to

passage of the Federal Records Act of 1950.164










As the 1950s unfolded, press organizations and other

advocates of open government began a push to open up federal

executive agencies, which had increased the level of secrecy

as the Cold War and the threat of communism took hold. In

one effort to promote access, the American Society of

Newspaper Editors commissioned a report on the customs, law,

and legislation dealing with access to government

information. The result was The People's Right to Know, a

book promoting access by media lawyer Harold Cross.165 Cross

began the seminal study about access to government

information with this statement:

Public business is the public's business.
The people have a right to know. Freedom of
information is their just heritage. Without that
citizens of a democracy have but changed their
kings. Citizens of a self-governing society
must have the legal right to examine and
investigate the conduct of affairs, subject only
to those limitations imposed by the most urgent
public necessity.166

Cross concluded that the solution to the problem of

access to government information lay with the legislative

process:

Congress is the primary source of relief.
The time is ripe for an end to ineffectual
sputtering about executive refusals of access to
official records and for Congress to begin
exercising its function to regulate freedom of
information for itself, the public and the
press.167

Despite Cross' call on Congress for relief, the

"ineffectual sputtering" would continue for a while.

Shifting of political fortunes, however, would soon provide










an important nudge. In 1955, President Dwight Eisenhower

was elected to a second term. But while the Republican won

the White House, the majority in the House of

Representatives swung to the Democrats, and along with

majority-party status came committee chairmanships.

Congress had become increasingly concerned about its

inability to pry information from Republican-controlled

executive agencies. Various committees, now under

Democratic leadership, provided forums for a public access

debate. 168

In 1955, California Congressman John Moss began

hearings on the access issue that would continue for some 10

years. The work of the Moss Committee, along with that of

other access advocates such as Cross and Ralph Nader,169

culminated in 1966 with passage of the federal Freedom of

Information Act. When President Lyndon Johnson signed the

legislation, he observed that "a democracy works best when

the people have all the information that the security of the

nation permits."170 The purpose of the act, according to the

Senate report on the legislation, was to close loopholes in

the Administrative Procedures Act and to foster "a general

philosophy of full agency disclosure."171 The Supreme Court

later put its imprimatur on this goal in an FOIA-related

opinion. "The basic purpose of the FOIA is to ensure an

informed citizenry, vital to the functioning of a democratic










society, needed to check against corruption and to hold the

governors accountable to the governed," the Court stated.172

Under the FOIA, all agency records must be disclosed

unless specifically exempted. The act places the burden on

the agency to justify withholding. While the FOIA's purpose

is "full agency disclosure," it also contained nine

exemptions that recognized competing social values.173

Several of these exemptions, discussed in a previous

section, specifically attempt to balance the public's right

to know with the privacy interests of individuals on whom

the government keeps information.

In addition to access to records, Congress also has

passed "Government in the Sunshine" legislation requiring

some 50 federal agencies, boards, and commissions to open

most of their meetings to the public.174

State Access to Government Records

Legislative recognition of a public right of access to

information is not limited to the federal government.

Before 1940, only 12 states had substantial public access

statutes.175 By 1992, all 50 states and the District of

Columbia recognized the public's right of access to

government records.176 The state statutes vary in the degree

of openness allowed and the definition of public records.

Some provide access to a narrow range of records, such as

records required to be kept by state law; others take a

sweeping view of access, opening all records pertaining to










any aspect of state business. Perhaps, the preamble to the

Indiana Open Records Law best sums up the thrust of most

state access legislation:

A fundamental philosophy of the American
constitutional form of representative government
is that government is the servant of the people
and not their master. Accordingly, it is the
public policy of that state that all persons are
entitled to full and complete information
regarding the affairs of government and the
official acts of those who represent them as
public officials and employees.177

Privacy and Access in Conflict

The foregoing discussion of the values supporting a

right of privacy and values supporting public access to

government information suggest both are well-grounded in the

American experience.

Where core privacy values have been involved, such as

those involving unlawful searches, intimate personal

decisions, or freedom of association, the Supreme Court has

demanded government show a compelling interest before

infringing on those values. In informational privacy cases,

the Court also has imposed constitutional limitations on

government. At the very least, the Court has recognized

that when government gathers and stores personal information

about individuals, it has a concomitant duty to ensure the

privacy of that information. When private information is

held in government computers, the Court requires government

place a high priority on the security of such information

systems. Exactly how privacy is defined remains a problem.










In legislation, Congress also has clearly recognized the

privacy rights of individuals who relinquish personal

information to the government, most prominently the Privacy

Act of 1974. A major factor in the Privacy Act and much

subsequent legislation resulted from concerns about the

threat of computers to personal privacy.

While privacy is a core societal value, the right of

the public and the press to government information,

likewise, is at the core of the process of democratic self-

governance. Although the Supreme Court has held that a

general right of access lacks the constitutional dimension

of the right of privacy, the values underlying the public's

right to know about government are no less fundamental and

are deeply embedded in the American experience. The value

of an informed electorate is rooted in the nation's drive to

independence and has been articulated in many ways during

more than two centuries. The legitimate role of access to

information has been recognized as a core social value by

Congress, which in a democratic society reflects the will of

the people.

These important values at times conflict, as the public

and press seek information, sometimes containing private

data, about how government goes about the people's business.

At times, one right or the other must yield in the interest

of society. Chapter Three will look at how Congress and the

courts have attempted to balance these interests, at a time