Freedom of Information Acts and Privacy Exemptions
Limits on access to personal data contained in government-managed files are increasing. Courts and legislators cite heightened concern for personal privacy to justify sealing information that once was public.
This may be a reaction to the explosion of information readily available in computer databases. The government is capturing much more information about individuals than ever before.
Privacy advocates assert that the risk of invasion of privacy is greater if identifiable information is easily retrieved from computers. The Internet has already become a source for information that once would have been available only through reviewing voluminous paper files located in a government office.
As the private sector finds new ways to obtain information about individuals and to use that information for commercial purposes, a reaction has taken place. One manifestation has been an increase in litigation to establish the parameters of access to personally identifiable information in government files.
Every state, as well as the federal government, has a freedom of information act and open meetings law. Generally, these acts guarantee access to government records and meetings, subject to certain exemptions. Each is a valuable tool for journalists and others who want to know what their government is doing. For example, after interviewing rape victims named in police logs, San Francisco Examiner reporter Candy Cooper reported that calls to police for help from rape victims in Berkeley were more likely to be investigated than calls emanating from drug- and crime-infested neighborhoods in Oakland.
But in enacting these laws, legislatures also decided that secrecy is sometimes necessary to protect the privacy of individuals. Exemptions from the presumption of openness were designed to balance the public's right to know against other competing interests.
Freedom of information laws try to balance the public's right to know and the individual's right of privacy. They typically do not specify how to do so, leaving the courts to reconcile these interests on a case-by-case basis. Increasingly, state and federal courts appear to favor privacy interests over openness to the detriment of newsgathering efforts by reporters, as the following cases illustrate.
FEDERAL FREEDOM OF INFORMATION ACT
The federal Freedom of Information Act (FOI Act) contains two exemptions that allow an agency to withhold information if it concludes that release would invade the privacy of individuals. Exemption (b)(6) protects "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." (5 U.S.C. 552(b)(6)) Exemption (b)(7)(C) applies to "records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information . . could reasonably be expected to constitute an unwarranted invasion of personal privacy." (5 U.S.C. 552(b)(7)(C))
Once an agency decides that the release of information might implicate privacy concerns, it applies a courtdefined balancing test: does the public interest in disclosure outweigh the privacy interest that would be violated by disclosure?
Since the FOI Act was passed in 1966, the Supreme Court has chosen privacy over openness numerous times.
A 1989 decision skewed the balance in favor of privacy. In that case, the Court held that federal agencies may withhold "rap sheets" - compilations of arrests, indictments, convictions or acquittals - on private citizens, even though the information is public at its original source. The Court, narrowly interpreting "public interest," held that those seeking personally identifiable information from government records must show an intent to use the information to examine the workings of the government. (Department of Justice v. Reporters Committee for Freedom of …
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Publication information: Article title: Freedom of Information Acts and Privacy Exemptions. Contributors: Not available. Magazine title: News Media and the Law. Volume: 22. Issue: 2 Publication date: Spring 1998. Page number: P6+. © Reporters Committee for Freedom of the Press Fall 2008. Provided by ProQuest LLC. All Rights Reserved.
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