Balancing the Right to Know With the Right for Privacy or Records Confidentiality

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

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.

Table 1

Exemptions to Disclosure Pursuant to the Freedom of Information Act

Exemption

Description

Subsection (c)

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.

Subsection (d)

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.

Subsection (e)

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).

Subsection (f)

This subsection defines "agency" to include nearly all executive branch entities and defines "record" to include information maintained in an electronic format.

Subsection (g)

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 that, "Congress passed the Electronic Freedom of Information Act of 1996 (EFOIA) to solve problems of access by making clear that the Freedom of Information Act applies equally to records in computerized formats as well as to records in paper and other conventional forms" (2007, p. 46).

In addition, the FOIA also requires federal agencies to publish a wide range of government documents online (Halstuck & Chamberlain, 2007). The origins of the EFOIA can be traced to a single observation contained in a Senate committee report dating to 1974 that cautioned innovations in computerized recordkeeping were introducing profound changes in how and where information was maintained and suggested that these trends would have significant implications for public administrators in the future (Halstuk & Chamberlain, 2007). These observations proved accurate and the U.S. Congress responded, albeit slowly, by passing the Electronic Freedom of Information Act. According to Halstuck and Chamberlain, "Federal agencies have used computers to store government records and conduct the business of government more efficiently since the 1970s. But it was not until Congress approved the Electronic Freedom of Information Act Amendments of 1996 (EFOIA) that the federal government attempted to harness the power of new technology not only to streamline government but also to enhance the public's right to know" (2007,. p. 46).

The EFOIA served to clarify that the Freedom of Information Act of 1966 was applicable to agency records that were stored electronically. To help ensure that the public's access to government records was not diminished because of these trends in computerized recordkeeping, the EFOIA included guidance that electronic records were no different from print media. In this regard, Halstuck and Chamberlain note that, "These electronic provisions were necessary to enforce FOIA compliance because for years federal agencies had withheld computerized information on the grounds that such materials did not fall under the FOIA's disclosure requirements" (p. 46). Just as importantly, the EFOIA underscored the responsibility of government agencies to provide digital copies of computerized records that were maintained in that form. As Halstuck and Chamberlain point out, "Furthermore, in instances when agencies did comply with requests for electronically recorded information, they often released paper printouts of computerized information and databases, sometimes numbering thousands of pages, rather than provide databases or digital copies of the information" (2007, p. 46).

Clearly, public administrators wield enormous power in overseeing who is allowed access to government records and how responses to requests for information pursuant to the EFOIA are handled. For example, public administrators maintaining voter registration data in digital form may chose to selectively grant requests for this data in digital form to political parties they are affiliated with while denying the same access to other political parties. For instance, a Democratic public administrator could refuse to provide a Republican Party request for voter registration information in digital form to force them to reenter tens of thousands or even millions of datasets manually at enormous expense while choosing to grant such a request from the Democratic Party.

To avoid this type of arbitrary and capricious response on the part of public administrators, the EFOIA establishes the responsibilities of public agencies for access and how this access is administered, and mandates that the U.S. government be proactive in the process. In this regard, Halstuck and Chamberlain add that, "Along with improving agency responsiveness to FOIA requests for computerized data, the EFOIA requires agencies to publish on the Internet certain information about governmental operations such as agency annual reports, statements of agency rules and policy, agency adjudicative opinions, and FOIA handbooks" (p. 46). One of the fundamental rights guaranteed by the First Amendment is the right to petition the government for redress of grievances, and it is clear that the public needs access to government records in order to remain aware of what needs to be redressed. In this spirit, the EFOIA requires an affirmative approach to the disclosure of government records. According to Halstuck and Chamberlain (2007), "The rationale behind this affirmative disclosure provision is to provide automatic public access to basic information about how federal agencies operate and to guard against the development of agency 'secret law' known only to agency officials, not the members of the public who deal with the agencies" (p. 47). This point is also made by Vladeck (2008) who maintains that the right to know requires affirmative steps by government agencies to "publish and withhold not." According to Vladeck:

Taken together, these statutes appear to provide a comprehensive right of access to information generated by the federal government or acquired by the federal government from private parties and state and local governments. The most far-reaching of these statutes, FOIA, forms the backbone of our nation's right-to-know legal regime. It embodies the ideal that information is the lifeblood of democracy. To animate that ideal, FOIA gives 'any person' a right to obtain, simply by asking for it, 'any record' in the possession and control of a federal agency, government corporation, or other federal entity, subject to certain exemptions set forth in the Act. (p. 1788).

Even the most proactive public administrators, though, may be faced with technological or administrative constraints that prevent them from fulfilling the mandate of the EFOIA. According to Halstuck and Chamberlain, "The Electronic Freedom of Information Act may not hold all the answers to safeguarding access to government information as the digital age unfolds. The rapid development of information technology, particularly the dramatic and mushrooming growth of the Internet, will continue to prompt novel questions about public access to government-held information" (2007, p. 47). Many public administrators, though, may lack the expertise or other resources needed to achieve the mandates of the EFOIA, while bureaucratic complacency and sheer ineptitude likely play a role in some cases.

As noted above, the arbitrary and capricious withholding of government records can result in unfair advantage or denial of the right to know for selected groups or individuals and, as stakeholders, the American public is fully involved whether they realize it or not. In this regard, Halstuck and Chamberlain conclude that, "Nonetheless, the EFOIA remains the controlling federal statute on this topic. And access issues hold important implications for the news media, public interest groups, scientists, scholars, and others engaged in research activities" (2007, p. 47).