Balancing the Right to Know With the Right for Privacy and Records Confidentiality
Balancing the right to know with the right of American public for the privacy and confidentiality of their personal information is a challenging enterprise, and it is reasonable to suggest that optimal solutions require careful analysis of the competing interests that are involved. Indeed, some proponents argue that the American public's right to know is embodied in the U.S. Constitution as a fundamental right, and these rights have been codified in various state and federal laws that extend to everyone by virtue of the Fourteenth Amendment. These issues have become even more complex in nature in recent years, though, following the passage of the Freedom of Information Act of 1966 and the Electronic Freedom of Information Act of 1996 which mandate expanded access to government records, especially those maintained in digital form and online. This paper provides a review of the relevant literature to develop a background and overview of these issues and a discussion concerning the controlling right to know legislation. An analysis of the implications of these laws for public administrators is followed by a summary of the research and important findings in the paper's conclusion.
Review and Analysis
Background and Overview
The so-called "right to know" has emerged in public health practice as a direct consequence of a number of high-profile incidents involving the deaths of employees and citizens as a result of unsafe business practices. Although there has been an effort to generally improve workplace conditions in the United States for the past century, these efforts gained momentum during the mid-20th century as unions and worker advocates called for more transparency on the part of employers concerning the risks that workers faced as a consequence of their employment. In this regard, Lambert, Soskolne, Bergum and Dossetor (2003) report that, "In practical terms, the right to know has emerged in both the community and the workplace from an obligation that people should be informed of the risks they face in their daily lives" (p. 133). In reality, it would seem apparent that the public has a right to know about these issues, but there are different ways of viewing this right that have different antecedents and outcomes. According to Lambert and his associates, on the one hand, "From the consequential perspective, disclosure of public and environmental health risks to the public depends on the expected or possible consequences" (2003, p. 134). On the other hand, though, these authors add that, "From a deontological perspective, the 'right to know' means that there is a 'duty' to communicate about all public health risks and consideration of the principles of prevention, precaution, and environmental justice" (Lambert et al., 2003, p. 134). These two perspectives are not necessarily mutually exclusive or at odds, but it is clear that there is much involved in balancing the public's right to know with individual privacy and national security interests that will vary from time to time and place to place. Irrespective of which view is used, both perspectives share the common goal of seeking to formulate optimal public laws, procedures and policies that provide as much access as possible and to encourage transparency in governmental operations and recordkeeping. In this regard, Foerstel (1999) advises that, "The role of the right to know in formulating government controls involves allocating scarce resources and facilities, providing mandatory access to the means of communication, or to compel disclosure" (p. 66). Despite the challenges that are involved, though, the FOIA is the law of the land by virtue of the controlling legislation discussed further below.
Controlling legislation for right to know laws exist at both the state as well as the federal level. In this regard, the editors of News Media and the Law report that, "In 1996, the federal Freedom of Information Act was amended to specifically cover electronic information. The federal law only applies to records that are held in federal agencies, but states often imitate the federal law in passing new state legislation" (p. 53). This assertion is congruent with the definition provided by Black's Law Dictionary (1991) which states that right to know laws are "federal and state legislation requiring disclosure by certain businesses (e.g., chemical manufacturers), to the public and to workers of information about hazardous substance in order that such persons might learn the full range of risks they face concerning their employment and living conditions" (p. 1326). At the federal level, the Freedom of Information Act (FOIA) protects the American public's right to know by guaranteeing them the right to access information published and/or maintained by the federal government (FOIA, 2012). The U.S. government's Web site for the FOIA states that, "Enacted in 1966, and taking effect on July 5, 1967, the Freedom of Information Act (FOIA) provides that any person has a right, enforceable in court, to obtain access to federal agency records, except to the extent that such records (or portions of them) are protected from public disclosure by one of nine exemptions or by one of three special law enforcement record exclusions" (2012, para. 1).
At present, subsection (a)(3) of the FOIA is the most commonly used part that requires disclosure of all records that are not made available pursuant to subsections (a)(1) or (a)(2), exempted from mandatory disclosure under subsection (b) or excluded under subsection (c), upon receipt of a proper FOIA request from any person (Botterman et al., 2001). According to Botterman and his associates, "Significantly, this does not allow withholding based on the purpose of the request or the identity of the person" (p. 39). The exemptions provided by subsection (b) of the FOIA are described in Table 1 below.
Exemptions to Disclosure Pursuant to the Freedom of Information Act
Added by the 1986 Freedom of Information Reform Act, this subsection establishes three special categories of law enforcement-related records entirely excluded from the FOIA to prevent unique types of harm. Subsection (c) permits an agency to deny requests for such records as if the records did not exist.
This subsection emphasizes that the Act was not intended to authorize new withholding of information, including from Congress. Individual Members of Congress possess the same rights of access as members of the public, but Congress as a body (or through its committees and subcommittees) cannot be denied access to information on the grounds of FOIA exemptions.
This subsection requires annual FOIA reports from each federal agency and an annual Department of Justice report on FOIA litigation and Department efforts (primarily through the Office of Information and Privacy).
This subsection defines "agency" to include nearly all executive branch entities and defines "record" to include information maintained in an electronic format.
This newly added subsection requires agencies to prepare FOIA reference guides describing their information systems and their processes of FOIA administration, which may assist potential FOIA requesters.
Source: Adapted from Botterman et al., 2001, p. 11
The Privacy Act of 1974 supplements the FOIA with respect to individuals' requests for records concerning themselves and stipulates additional privacy protections (Botterman, Bikson, Bosman, Cave, Frinking & De Pous, 2007). According to these authorities, "In 1976, Congress again limited disclosure exemptions by narrowing FOIA's incorporation of the disclosure prohibitions of other statutes. A technical change in 1978 updated provisions for administrative disciplinary proceedings, and the expedited court-review provision was repealed in 1984 by the U.S. Congress" (p. 10). The Freedom of Information Reform Act of 1986 subsequently expanded the law enforcement information exemption, added special law enforcement record exclusions and created a new fee and fee waiver structure (Botterman et al., 2007).
Like the presumption of innocence in courts of criminal justice, there is also a corresponding presumption of the public's right to know. For example, according to the FOIA coordinator for the National Security Archive, Will Ferrogiarro, "We assume the public has a right to know. We don't consider the FOIA to be the end all and be all of freedom of information. It's a tool, a useful tool, but our pursuit of information does not end with that statute. It's an access law fraught with all kinds of problems and difficulties, and it's at the mercy of the bureaucracy" (quoted in Foerstel, 1999, p. 66).
Calls for increased access to government information became even more pronounced during the Information Age when more and more government records were routinely transferred to digital formats and placed online (Halstuck & Chamberlain, 2007). According to Halstuck and Chamberlain, "In light of rapid advances in information technology, it is, therefore, increasingly important that public access to government-held information is ensured" (2007, p. 45). At first blush, gaining access to government records in the form in which they are maintained may seem simple enough, but the FOIA was specifically intended to prevent the transfer of such records to digital form in an effort to prevent access by the American public. In this regard, Halstuk and Chamberlain report…
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