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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
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