PRIVACY VERSUS PUBLIC ACCESS:
AN ANALYSIS OF HOW COURTS BALANCE
THESE COMPETING SOCIAL INTERESTS
WHEN GOVERNMENT RECORDS ARE COMPUTERIZED













by

Joey Senat, Ph.D.

Assistant Professor

School of Journalism and Broadcasting
Oklahoma State University
2413 Pawnee Crossing
Edmond, Ok   73034
405-744-8277/405-330-6365
[log in to unmask]












Submitted to
Law Division, AEJMC Convention
Kansas City: August 2, 2003






PRIVACY VERSUS PUBLIC ACCESS:
AN ANALYSIS OF HOW COURTS BALANCE
THESE COMPETING SOCIAL INTERESTS
WHEN GOVERNMENT RECORDS ARE COMPUTERIZED

When a political consultant requested a copy of the magnetic computer tape
Michigan State used to produce its student directory, university officials
refused, offering instead a copy of the directory when it was published or
an immediate printout of the data on the magnetic tape. Michigan courts
were left to resolve the issue: Did the computer format of the data pose an
invasion of privacy that warranted blocking access even though the same
information would be available to the public on paper? Three members of the
Michigan Supreme Court felt it did, reasoning that release of the students'
names and addresses on a computer tape "was a more serious invasion of
privacy than disclosure in a directory form" because "computer information
is readily accessible and easily manipulated."[1]
Three justices, however, disagreed, contending that no reasonable
expectation of privacy existed if the information sought was a computer
copy of a public record also available in paper. "We cannot accept the
conclusion that the Legislature intended to allow a public body to exempt
otherwise public records from disclosure by the simple expedient of
converting the public record from one form to another," Justice James Ryan
reasoned. "Surely such a result would exalt form over substance."[2]
The 3-3 deadlock let stand a lower court ruling denying public access to
the computer tape. It also demonstrated that the judicial balancing of
informational privacy and public access to government documents – a process
already subjective in nature – is exacerbated by the computerized format of
records.
This study explores how federal and state courts have struck the balance
between informational privacy and public access when the government records
involved are computerized. That is, this research examines how courts and
judges decide which of those competing social interests is paramount in
such situations. Even though courts have been balancing these concepts
since at least the 1970s, no other study has thoroughly examined these
decisions.
This study uses as its framework the rationales and criteria applied by
courts nationwide when the government records are ink and paper. In earlier
research, the author had identified six factors that courts used to balance
privacy and access rights.[3] The study at hand analyzed how
computerization of the requested information affected the way in which
those factors were applied and examined if judges' attitudes toward
technology, as reflected in the language of their written opinions,
influenced their decisions. That is, did they consider computers an
inherent threat to personal privacy or as useful tools in furthering public
access to government information?
To perform this analysis, an attempt was made to locate every published
judicial opinion in which a court balanced a request for computerized
government information against a claim of individual privacy. The
LEXIS-NEXIS Academic Universe[4] and Media Law Update[5] were searched for
target cases among the trial and appellate courts at the federal and state
levels, plus the District of Columbia, Puerto Rico and Virgin Islands.
Fifty-eight on-target cases were identified and examined. A key limitation
of this study results from the fact that many access-to-records cases are
settled at the trial court level and the majority of trial court decisions
are unpublished.[6] Another limitation is that for some cases the computer
element may not have been recognizable in the judicial opinion, resulting
in their exclusion from this research. Even so, this study provides the
most complete examination available of these cases.
In nearly all the cases analyzed, courts treated computerized information
in the same way that courts had treated paper documents. In most opinions,
courts made only passing references to the fact that the public records
were available in or had been requested in computer format. The research
also revealed that courts applied no new factors when weighing the
competing interests. In some cases though, the fact that the information
was in an electronic format influenced how the courts applied the six factors.
This research is important because it explains how courts arrive at these
decisions and, thus, provides a clearer understanding of the legal issues
for people seeking access to government records and for people seeking to
shield from general inspection personal information contained in those
records. This research also proposes ways to improve the method of
balancing these competing social interests when the government information
sought is maintained in a computer.

Review of the Literature
A search of the literature found three studies of how courts have balanced
individual privacy and public access to computerized government records.[7]
However, those authors did not purport to examine all such state and
federal cases, nor did they always analyze cases in detail, providing
instead only a cursory review of some holdings.
In 1990, Eve H. Karasik, in analyzing state court decisions involving
different types of personal information stored in computer databases,
examined "when it is normatively acceptable to disclose legitimately
obtained personal information stored in an automated database to strangers
without the subject party's consent."[8] She also examined the values of
disclosure and privacy in those cases and explored how courts viewed the
role of the computer. She did not study the available federal cases. In
1993, Sigman L. Splichal studied how computer privacy concerns – both
practical and philosophical – related to public and media access to
computerized government information.[9] In doing so, he analyzed in great
detail the U.S. Supreme Court's decision in Reporter's Committee[10] and
also surveyed some state court decisions regarding the issue of privacy and
disclosure in computerized government information. Neither Splichal nor
Karasik explained how they selected their cases, and it appears that they
did not choose all of the available cases. For example, though the studies
are separated by only three years, they examined only nine of the same
state cases. Karasik examined seven that were not touched upon by Splichal,
who discussed four not dealt with by Karasik. Neither study examined how
all the judges defined the rights of privacy and public access and where,
if at all, the courts found the legal bases for these rights. In the third
study, Martin Halstuk analyzed only seven U.S. Supreme Court opinions
involving privacy exemptions under the federal Freedom of Information Act.
He asked whether the Court had "fairly balanced the conflicting values of
access and privacy within the guidelines established by Congress in the
FOIA."[11]
        Because the authors did not analyze the same cases or ask the same
questions, it is difficult to find common points among their conclusions.
However, Karasik and Splichal did disagree over the willingness of state
courts to permit the release of personal information. Karasik said the
courts seemed reluctant to forbid disclosure even when the information was
requested for an expanded version of the purpose for which it had been
collected or for a greater number of people than originally expected.[12]
The courts did not even preclude disclosure intended for the requester's
personal gain, as opposed to a socially beneficial purpose, Karasik
said.[13] Splichal concluded, however, that state courts "generally have
been unpredictable" when they attempt to resolve disputes over information
held in government computers.[14]
        The studies also pointed out different principles used by the state courts
and by the U.S. Supreme Court in permitting or denying the release of
information. Karasik found that state courts permitted disclosure for
"informing the general public" about the activities of government and
showed a great deal of judicial deference to statutes that "permit
disclosure in support of the public's 'right to know.'"[15] However,
Splichal and Halstuk concluded that the U.S. Supreme Court in Reporter's
Committee had not followed what Congress intended with the FOIA – to
establish a philosophy of the fullest possible disclosure. Instead, they
said, the Court swung the balance in favor of privacy by broadly
interpreting the privacy interests and by narrowly interpreting the
public's interest in disclosure to knowing only about the performance of
agencies' statutory duties. Both men were particularly critical of the
Court's decision in Reporter's Committee, which Splichal said provided a
potentially powerful weapon to those who wish to shield government
information from scrutiny.[16] He noted that several courts have relied on
the Reporter's Committee opinion in limiting access to government-held
information on privacy-related grounds.[17]
        On the question of how courts viewed the computer, Splichal and Karasik
reached similar conclusions. Some courts, they said, supported withholding
some information just because it was stored in computers, even if the
information was not highly personal. State courts in that category, Karasik
said, "viewed the computer as a frightful Orwellian invader of the personal
realm."[18] Similarly, Splichal said, a "native fear of technology and the
danger it poses for individual freedoms resonates" in the Reporters
Committee opinion written by Justice Stevens.[19]
        Other state courts, however, ignored the computer aspect altogether or
discounted the computer's impact on the conflict. They "seem to view the
Orwellian cry of the computer as a mere ruse to restrict the flow of
information to the public," Karasik wrote.[20] According to Splichal,
courts in that category looked beyond the physical form of the information
and instead focused on its content.[21] They treated computerized records
the same as they would paper records and allowed the same level of access.[22]
        Karasik, though, found that some state courts also "championed the
computer's anonymity capability as a solution to the disclosure/privacy
problem." In other words, the computer's ability to mask identifiers was
used to allow access to records and still protect privacy by not connecting
the records to individuals.[23] What, if anything, though, did the courts
mean by privacy? Karasik concluded that the state cases "indicate that
privacy is a conglomerate of various interests inextricably linked to one's
sense of self" and "represent attributes which make people complete human
beings. Some of these interests are core, such as sexuality, and some are
more peripheral, such as personal identifiers. Yet, all of these values
seem to add up to what 'me' means and each individual should be sovereign
over this 'me.' " She also concluded that the cases "show how people fear
that data collection, storage and use will harm their 'me' or sense of
self."[24]
        To balance the conflicting interests of privacy and public access, Karasik
proposed a "normative case-by-case analysis" guided by a three-step inquiry
by the courts: (1) consider the disclosure value, or the societal value
placed upon the intended use of the requested information; (2) evaluate the
privacy value at stake by asking whether it involved a "purely bad thing"
that no disclosure value could challenge or a "hurt," which "could
be  subordinated to disclosure when society deemed disclosure more
valuable"; and (3) try to resolve the conflict by using the computer's
ability to redact identifiers and "remove the privacy concern  altogether
to satisfy society's interest in disclosure." If the computer could not be
used to resolve the conflict, Karasik said, then a court would have to
balance the two valued norms in each circumstance. Karasik conceded that
her approach would result in arbitrary ad-hoc balancing in which
"adjudicators are given much discretion to shape and select our society's
norms."[25]
        Splichal also proposed a model to define "a reasonable balance between
privacy and public access" when computerized government records are sought.
His model focused on "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."[26] In determining
the public good that could be derived from disclosure, he suggested
focusing on the purpose for which the information was requested. Splichal
proposed two circles of values, one supporting public access and the other
supporting privacy. Each circle had a core immutable value, followed by
rings of decreasing values that "tend to be more susceptible to societal
changes and more likely to yield to competing social values."[27] However,
similarly located rings in the two circles might not always contain
identically weighted values, he said. "Ultimately, effective balancing
would have to take into account all circumstances and would require, to
some extent, the subjective assignment of a privacy or access interest to a
particular ring."[28] In other words, Splichal said, "courts would have to
do what they have always done – reach the best solution given the
individual circumstances of the case."[29]
Karasik, Splichal and Halstuk found that some courts deny public access to
computerized records because of the perceived threat to individual privacy
while others are more willing to make electronic data available. These
studies, however, lacked depth. They examined only a few cases on the issue
and did not fully explore the factors influencing the courts that were
selected. This study, however, continues and expands scholarship in this
area by contributing a full analysis of how courts balance the conflicting
social interests of personal privacy and public disclosure when government
records are computerized.

How Courts Balance Informational Privacy And Public Access
To Computerized Government Records

Thirty years ago, a federal district judge conceded that even then
computers and electronic databases were "facts of present day life."[30]
"Courts can be no more effective than Canute in turning back the tide,"
wrote Judge Robert L. Carter. "It cannot be contended, at least not
seriously, that governmental use of this new technology is constitutionally
impermissible."[31] In 1990, the Fourth Circuit Court of Appeals
acknowledged that this technology has "provided society with the ability to
collect, store, organize, and recall vast amounts of information about
individuals."[32] This "information can be useful and even necessary to
maintain order and provide communication and convenience in a complex
society," the Fourth Circuit said.[33] At the same time, however, the
judiciary has recognized that "overzealous data collection and instant data
retrieval" pose threats to society.[34] The central problem for courts,
said Chief Justice John W. Fitzgerald of the Michigan Supreme Court, "is to
determine how the legal system can best insure [sic] that a proper balance
is struck between the traditional libertarian ideals embodied in the
concept of privacy and the immense social benefit that computer technology
offers."[35]
To understand how courts have attempted to achieve that proper balance,
this research begins by discussing where courts found legal bases for a
right of public access and a right of informational privacy in the
computerized records cases.

Legal Bases For Rights of Public Access And Privacy

Because the requests for computerized government records typically relied
upon public records statutes to claim a right of access, state and federal
courts relied foremost upon those statutes to determine if the right indeed
existed. For example, the New York Court of Appeals noted that state
legislators, in enacting that state's Freedom of Information Law, had
stated that "government is the public's business and that the public,
individually and collectively as represented by a free press, should have
access to the records of government in accordance with the provisions of
this article."[36]
In only one of the opinions analyzed did a court express concern that a
disclosure statute had not been written with computerized government
documents in mind. "The conceptual models of the Right-to-Know Law – the
minutes of public meetings, the tax assessor's books – do not seem readily
adaptable to the data collected in the information age," said the New
Jersey Supreme Court in 1992.[37] "We doubt that the Legislature intended
that all detailed information a modern computer-based system can generate
constitutes records 'required by law to be made, maintained or kept' under
the Right-to-Know Law."[38] The court barred disclosure to a newspaper of
county public officials' itemized telephone bills for office- and car-phone
lines to a newspaper.[39] The trial court had granted the disclosure,
concluding that the telephone bills were public records under the state's
Right-to-Know Law and that the newspaper's interest in reviewing the bills
outweighed any privacy rights of third parties.[40] A divided appellate
court had reversed, holding that the public officials' privacy interests
were protected by the New Jersey Constitution.[41] The supreme court, in
affirming the reversal, said it had to be shown "that the public need for
the identity of the parties called outweighs the governmental policies of
confidentiality in telephone communications and of executive
privilege."[42] The court said that while waiting for the legislative
bodies to clarify which records had to be disclosed and which were exempt,
"our traditions of openness and hostility to secrecy in government will
justly accommodate the concerns expressed here."[43] The court said, "Our
common-law standards provide a balanced consideration of the public need
for the numbers called and the need for confidentiality."[44]
Three years later, the New Jersey Supreme Court again relied upon the
common law in a disclosure case – this time, however, to find a right of
access to computerized records that the state's Right-to-Know Law did not
provide.  In Higg-A-Rella, Inc. v. County of Essex,[45] a company selling
municipal tax-assessment data to real-estate brokers, attorneys, and
appraisers had asked to copy a computer tape containing the tax-assessment
records of every municipality in the county.[46] County officials had
refused to provide the information on a computer tape even though they
readily provided the same information on paper and conceded that copying
the computer tapes would involve minimal time and expense.[47]
The trial court had barred the release, holding that the computer tapes
were not covered by the state Right-to-Know Law because county officials
were not required to maintain them.[48] The judge held that under the
common law right of access, the private commercial interest did not
outweigh the public officials' right to decide if and for how much they
wanted to sell the computer tapes because the government could sell the
tapes for profit just as the company intended to do.[49] In reversing the
trial court, however, the appellate court held that the legitimate
commercial interest warranted access under the common law.[50]
The New Jersey Supreme Court, in affirming the reversal, agreed that the
computer records were not available under the state Right-to-Know Law
because county officials were not required to maintain the computerized
records and because the definition of public records under the "narrowly
drawn Right-to-Know Law still does not entitle citizens to obtain computer
copies."[51] However, the court found that the company had a common law
right of access because the common law made available any records created
by public officials in the exercise of their duties. Under the common law,
the court noted, the person requesting the records had to establish an
interest in the subject matter and the right of access had to be balanced
against the government's interest in preventing disclosure.[52]
In declaring that the company could copy the computer tapes, the N.J.
Supreme Court said it was adapting the common law definition of public
record "to the information age incrementally."[53] In previously declaring
audiotapes to be public records under the common law but not the
Right-Know-Law, the court had said the definition of a common-law record
was not limited in scope just because it " 'was drawn from sources that
spoke in terms of traces of ink on paper.' Likewise, we find that in view
of rapidly advancing technological changes in storing information
electronically, computer tapes also can be common-law public records." [54]
However, even though the court had previously held that "the right to hand
copy common-law public documents translated directly into an equivalent
right to photocopy them," it was not saying in Higg-A-Rella that the right
to photocopy translated directly into an equivalent right to duplicate a
computer file. "Although hand copies and photocopies are effectively
similar, the same cannot be said of photocopies and computer copies," the
court reasoned.[55]
In balancing the competing interests under the common law, the court
concluded that the company's "legitimate for-profit enterprises"
represented a legitimate private interest in the material[56] and that
taxpayers had no expectation of privacy in the "very public"
information.[57] However, the N.J. Supreme Court emphasized that computers
could affect the right of access allowed under the common law, saying,
"[T]he traditional rules and practices geared towards paper records might
not be appropriate for computer records."[58] The court explained: "Those
new considerations must be factored into the common-law balancing test
between the State's interest in nondisclosure and the public's right to
access."[59]
In the cases analyzed, only one other court – the Kansas Supreme Court –
was called upon to interpret a common law right of access. In State ex rel.
Stephan v. Harder,[60] the Kansas Medical Society in its amicus brief had
contended that the state public records statute represented a codification
of the public's common-law right to inspect government documents and,
therefore, the state agency could require that the requester show proper
"motives" and "reasons" for wanting to examine records and could close the
records if disclosure was not in the public interest.[61] The Kansas
Supreme Court disagreed, holding that "the common-law restrictions on
public access to open records are inapplicable under the Kansas public
records inspection act."[62]
        Compared to the number of claims of a statutory right of access, courts
were called upon much less frequently to decide if a constitutional right
of access to computerized government records existed. In the only case
found to involve a claim under the federal Constitution, the court rejected
a newspaper's argument that it had a First Amendment right of access to
data from a statewide criminal justice information database. "It is well
settled … that 'there is no constitutional right to have access to
particular government information, or to require openness from the
bureaucracy. … The Constitution itself is neither a Freedom of Information
Act nor an Official Secrets Act,'" Delaware Superior Court Judge Haile
Alford said in 1999. "And, while release of the requested information may
be good, desirable or expedient, that should not be confused with what is
constitutionally commanded by the First Amendment."[63]
Requesters fared better when courts examined state constitutions for a
right of access to computerized information. An Illinois appellate court in
1988 ordered the release of computerized information regarding state
pension payments received by former members of the Illinois General
Assembly, noting that the state constitution declared, "'[Reports] and
records of the obligation, receipt and use of public funds of the State …
are public records available for inspection by the public.'"[64] A
Louisiana appellate court in 1979 granted a labor union access to a
computer printout of the names and addresses of city employees, in part
noting that the state constitution declared, "No person shall be denied the
right to . . . examine public documents, except in cases established by
law."[65] Fourteen years later, however, the Louisiana Court of Appeals
said the same constitutional provision did not create a right of access to
a "rap sheet" from the state's centralized, computer-based, criminal
information system.[66] The court held that the "rap sheet" was not a
public record under the constitution because of statutory exemptions and
because of a substantial privacy interest.
        It seems then from the analysis of the cases that the strongest claim for
a right of access to computerized government records comes from public
records statutes. Similarly, courts relied most often upon statutory
language to decide if a right of individual privacy existed in the
computerized information being requested. The statutory language was
usually from the exemptions to disclosure found in the access statute being
applied by the court. [67]
In some cases, though, courts looked to specialized privacy statutes. For
example, the Minnesota Supreme Court in 1978 noted that the state's Data
Privacy Act was enacted "to control the state's collection, security, and
dissemination of information in order 'to protect the privacy of
individuals while meeting the legitimate needs of government and society
for information.'"[68] The U.S. Supreme Court in 1989 similarly noted that
the Privacy Act of 1974[69] "was passed largely out of concern over 'the
impact of computer data banks on individual privacy.'"[70] The Court said
that although the Privacy Act contained an exemption for information
required to be disclosed under the Freedom of Information Act, "Congress'
basic policy concern regarding the implications of computerized data banks
for personal privacy is certainly relevant in our consideration of the
privacy interest affected by dissemination of rap sheets from the FBI
computer."[71]
        In several cases, courts did examine whether an individual right to
informational privacy existed under federal or state constitutions,[72] but
in only one case did a court consider whether such a privacy right was
protected by the common law.[73] In none of these cases did the fact that
the information was computerized influence the court's reasoning. In
effect, the courts treated computerized data no differently than paper
documents when determining if a constitutional or common law right of
privacy blocked the disclosure of government records.
        It seems clear, then, that battles over public access to computerized
government data and individual privacy begin in the chambers of Capitol
buildings nationwide because judicial weighing of these competing interests
is dependent upon the statutory language used by Congress and state
legislatures. This study now examines how courts ruling on access to
computer records applied the six factors considered by courts deciding
about ink-and-paper records.

Applying The Six Factors
        As had their counterparts faced with requests for paper documents, courts
faced with claims to computerized records recognized that individual
privacy and public access were competing interests that had to be weighed
against each other.[74] For example, the Kentucky Court of Appeals in 1994
relied upon a holding by its state supreme court two years earlier that
determining whether public disclosure of paper documents would constitute a
clearly unwarranted invasion of personal privacy entailed "'a comparative
weighing of antagonistic interests.'"[75] The Court of Appeals added, "As
the [Kentucky] Supreme Court noted, the circumstances of a given case will
affect the balance."[76]
However, in 1989, the U.S. Supreme Court, in its only case involving a
claim of individual privacy and public access to computerized government
records, approved a categorical balancing under the Freedom of Information
Act that would eliminate judicial subjectivity regarding certain categories
of records. Writing for the Court in Department of Justice v. Reporters
Comm. for Freedom of the Press, Justice Stevens noted that the lower
court's majority had "expressed concern about assigning federal judges the
task of striking a proper case-by-case, or ad hoc, balance between
individual privacy interests and the public interest in the disclosure of
criminal-history information without providing those judges standards to
assist in performing that task."[77] He concluded that "categorical
decisions may be appropriate and individual circumstances disregarded when
a case fits into a genus in which the balance characteristically tips in
one direction."[78]
In the case before the Court, a CBS correspondent and the Reporters
Committee for Freedom of the Press had sought the FBI computer "rap sheet"
compiled for Charles Medico, whose family company had been identified by
Pennsylvania authorities as "a legitimate business dominated by organized
crime figures" and which allegedly had "obtained a number of defense
contracts as a result of an improper arrangement with a corrupt
Congressman."[79] The rap sheets included "date of birth and physical
characteristics, as well as a history of arrests, charges, convictions, and
incarcerations of the subject"; the rap sheets were sometimes "incorrect or
incomplete and sometimes contain information about other persons with
similar names."[80]
Justice Stevens said the privacy interest in a rap sheet for a private
citizen "will always be high."[81] The Court held "as a categorical matter
that a third party's request for law enforcement records or information
about a private citizen can reasonably be expected to invade that citizen's
privacy, and that when the request seeks no 'official information' about a
Government agency, but merely records that the Government happens to be
storing, the invasion of privacy is 'unwarranted.'"[82]
In a concurring opinion, however, Justice Blackmun, joined by Justice
Brennan, disagreed with the Court's use of categorical balancing, calling
it "not basically sound."[83] He urged the Court to "leave the door open
for the disclosure of rap-sheet information in some circumstances."[84] For
example, he said, what if the rap sheet would disclose "a congressional
candidate's conviction of tax fraud five years before. Surely, the FBI's
disclosure of that information could not 'reasonably be expected' to
constitute an invasion of personal privacy, much less an unwarranted
invasion, inasmuch as the candidate relinquished any interest in preventing
the dissemination of this information when he chose to run for Congress."[85]
        The Court's approval of categorical balancing has been followed not only
by some lower federal courts[86] but also has been cited with approval by
some state courts.[87] Even so, this research found that courts deciding on
public access to computer copies of government records employed some or all
of the six factors that had been applied in cases involving paper documents:
1)      The nature and validity of the asserted privacy interest and the degree
of the invasion of that interest;
2)      The extent or value of the public's interest in disclosure;
3)      The purpose or objective of the requester seeking disclosure;
4)      The availability of the information from other sources;
5)      Whether the government had promised confidentiality; and
6)      Whether it is possible to redact personal information so as to limit the
breach of individual privacy.
This study will now address the factor for which computer technology made
the most difference – the individual's privacy interest.

The privacy interest at stake
        Just as when paper documents were at issue, courts considering access to
computer records typically began their balancing by determining the privacy
interest at stake. Most of them used a two-pronged approach in which they
decided if disclosure would constitute an invasion of privacy and, if so,
the degree or seriousness of that invasion. While only five of the courts
attempted to define privacy, one of them was the U.S. Supreme Court in its
Reporters Committee opinion. Writing for the Court, Justice Stevens
rejected the argument that Medico's privacy interest approached "zero"
because the information was available to the public elsewhere, calling that
a "cramped notion of personal privacy."[88] To describe informational
privacy, Justice Stevens relied upon a definition from Webster's Third New
International Dictionary[89] and definitions provided by two privacy
advocates – A. Breckenridge[90] and Arthur Westin.[91] All of these
definitions articulated a right of the individual to control the flow of
personal information.
        In the same case, the lower court – the U.S. Court of Appeals for the
District of Columbia – had used the same dictionary definition to come to a
different conclusion about the privacy interest at stake in a criminal
history compiled from public records, holding that the "ordinary meaning of
privacy suggests that [FOIA] Exemption 7(c) does not exempt records
consisting of information that is publicly available."[92]
It was the U.S. Supreme Court's description of privacy, however, that was
relied upon by the Arizona Supreme Court in 1998.[93] In holding that
broadcast journalists could not have access to a school district's computer
records containing teachers' dates of birth, the court said, "Although we
have never defined the meaning of privacy under the Public Records Law, the
[U.S.] Supreme Court, interpreting the FOIA, has stated that information is
'private if it is intended for or restricted to the use of a particular
person or group or class of persons: not freely available to the
public.'"[94] The Arizona court added that the U.S. Supreme Court in
Reporters Committee had "stated that the privacy interest encompasses 'the
individual's control of information concerning his or her person.'"[95]
Similar definitions had been used by supreme court justices in California
and Michigan prior to the Reporters Committee decision in 1989. In
Kestenbaum v. Michigan State University, Michigan Chief Justice John W.
Fitzgerald noted in 1982, "The concept of privacy is elusive. Social
scientists and legal scholars alike have struggled for a definition
expansive enough to include important concerns and yet narrow enough to be
workable."[96] He concluded, however, that "[a]s society has expanded and
distance contracted because of advances in communication and travel, the
right to privacy for many has become the ability to choose with whom and
under what circumstances they will communicate."[97]
In 1986, California Supreme Court Chief Justice Rose Elizabeth Bird noted
that the 1972 privacy amendment to the state constitution "protects the
right to informational privacy."[98] Quoting from an election brochure
argument supporting the amendment, Justice Bird wrote: "Fundamental to our
privacy is the ability to control circulation of personal information. …
This is essential to social relationships and personal freedom. The
proliferation of government and business records over which we have no
control limits our ability to control our personal lives."[99]
        Rather than defining the concept of privacy, most courts deciding on
access to computer records tended to evaluate the privacy interest at stake
based on the information's content and/or context. However, attitudes
toward computers played a key role in some cases. Judges viewed the
influence of computerized data on individual privacy very differently even
when faced with the same facts.
For example, the Michigan Supreme Court, in 1982, split over whether the
computer format for data affected the individual's reasonable expectation
of privacy.[100] The case began when Lawrence Kestenbaum requested a copy
of the magnetic computer tape that Michigan State University used to
produce its student directory. Kestenbaum wanted to develop a list from
which he could make mailings on behalf of political parties who would pay
him for that service. Michigan State officials refused to provide the tape,
offering instead a copy of the student directory when it was published or
an immediate printout of the information on the magnetic tape.
The trial court ruled that MSU could delete all the information on the tape
except the names and addresses of the students. The judge also ordered
Kestenbaum to use the information only for political mailings and to return
the duplicate tape after the election.[101] The court of appeals reversed,
finding that Kestenbaum was not entitled to the computer tape because
disclosure of the information would constitute an invasion of privacy.[102]
That decision was affirmed by an equally-divided Michigan Supreme Court.
Chief Justice Fitzgerald, joined by two other justices, concluded that the
release of names and addresses on a magnetic tape was a more serious
invasion of privacy than disclosure of the information in a paper
directory. He acknowledged that students could have opted out of being
included in the student directory. He also acknowledged that students who
did not opt out "should have known" that the information was available to
the public and could be changed to a computer form by anyone in the public
in order to compile mailing lists. "However, it does not follow that
students should have known that an efficient and intrusive computer mailing
system already was available to anyone for a nominal sum," he contended.
"In deciding whether to appear in or opt out of the directory, students
should not have been expected to consider the mechanics by which the
university published the information."[103]
In contrast, Justice James Ryan, joined by two other justices, disagreed
that students had any reasonable expectation that their information would
only be released in printed form.[104] He contended that no reasonable
expectation of privacy exists if the information sought is a computer copy
of a public record also available in paper. In other words, if access to
the paper record is not a violation of privacy, then access to a computer
copy of the same record is not a violation. "We cannot accept the
conclusion that the Legislature intended to allow a public body to exempt
otherwise public records from disclosure by the simple expedient of
converting the public record from one form to another," Justice Ryan
reasoned. "Surely such a result would exalt form over substance. The plain
language of the statute reveals a legislative intent to treat all
government 'writings' in the same fashion regardless of form."[105]
Courts in New Mexico, New Jersey and New York have used the same reasoning
as Justice Ryan. For example, the New Mexico Supreme Court in 1971 said,
"We fail to understand how it can be said the inspection and copying of
information contained on a printed and written affidavit of registration,
which is a public record, is proper, but the inspection and copying of this
identical information from the 'working master record' tape, which is also
a public record, constitutes an invasion of the privacy of the individual
named in and identified by this information."[106] The New Jersey Supreme
Court similarly held that municipal tax assessment records also available
in paper format did not create an expectation of privacy if copied on a
computer tape.[107]
However, the New Jersey court emphasized that its decision could not be
generalized to all cases in which computer copies of public records were
sought. "Instances may indeed arise in which . . . release of computer
tapes could trigger a high interest in confidentiality, even though the
same information is readily available on paper," said the court.[108] It
explained:
Release of information on computer tape in many instances is far more
revealing than release of hard copies, and offers the potential for far
more intrusive inspections. Unlike paper records, computerized records can
be rapidly retrieved, searched, and reassembled in novel and unique ways,
not previously imagined. For example, doctors can search for
medical-malpractice claims to avoid treating litigious patients; employers
can search for workers'-compensation claims to avoid hiring those who have
previously filed such claims; and credit companies can search for
outstanding judgments and other financial data. Thus, the form in which
information is disseminated can be a factor in the use of and access to
records.[109]

Of all the opinions analyzed for this study, only Justice Ryan's opinion in
Kestenbaum explicitly rejected the notion that computers automatically pose
a greater threat to privacy. He contended:
It is hard to take seriously the assertion that the advent of the modern
computer era poses a significant threat to the secrecy of one's name and
address. In the days of our forefathers, one's name and address were a
matter of general public knowledge. An individual's home may still be a
'castle' into which 'not even the king may enter', but nothing prevents the
king or anyone else from telling others whose castle it is, particularly
when the castle-dweller himself has voluntarily released that information
to the general public.[110]

        He said the "supposed protection of students' privacy gained by denying"
access to the computer tape was "both unfair and illusory." Justice Ryan
explained:
The denial is unfair because it penalizes only those groups or individuals
unable to afford the cost of converting the printed information into
magnetic tape form. This cost barrier is illusory in that any commercial
organization anticipating a return from its solicitation in excess of the
cost of creating the tape will have no deterrent whatsoever to putting the
information in a computer-readable format. In fact, the actual number of
unsolicited mailings to the student body might well increase, since the
company has every incentive to recoup its initial investment by selling or
renting the tape to as many groups or organizations as possible. The result
would be that commercial solicitations of the student body would be
feasible while political campaigns would be difficult, except perhaps for
the particularly affluent.[111]

Other judges, however, expressed the belief that computerized information
poses a greater threat to individual privacy than paper copies do. In
Kestenbaum, for example, Chief Justice Fitzgerald said, "Form, not just
content, affects the nature of information. Seemingly benign data in an
intrusive form takes on quite different characteristics than if it were
merely printed. The very existence of information in computer-ready format
may serve to motivate an invasion of privacy."[112]
Some courts were fearful of private databases of personal information
compiled in part from public records. For example, the Massachusetts Court
of Appeals in 1988 said privacy is threatened even when non-intimate
details about large numbers of people are placed in computer
databases.[113] "There is a negative public interest in placing the private
affairs of so many individuals in computer banks available for public
scrutiny," said the court.[114] It noted that a 1937 Massachusetts Supreme
Court decision declaring motor vehicle records open "was written in an era
prior to the advent of modern data processing technology which permits 'the
aggregation of pieces of personal information into large central data
banks.'"[115]
The possibility that data about children could be published worldwide on
the Internet was a key consideration of the Ohio Supreme Court in 2000 when
it denied public access to a computer database of government records.[116]
A copy of the electronic database for the Columbus Recreation and Parks
Department's photo identification program had been requested. The database
included the names, home addresses, family information, emergency contact
information, and medical history information of children who had received
photographic identification cards to use city pools and recreation
facilities. The trial court denied the request, holding that the database
was not a public record as defined by state law. The court of appeals
reversed the decision. The Ohio Supreme Court, though, held that the
database was not a public record because it represented personal
information collected by government that did not shed light on government
activities. However, the court also held that even if the database were a
public record, its disclosure would constitute an unwarranted invasion of
privacy. The Ohio Supreme Court said:
[A]ny perceived threat that would likely follow the release of such
information, no matter how attenuated, cannot be discounted. We live in a
time that has commonly been referred to as The Information Age.
Technological advances have made many aspects our lives easier and more
enjoyable but have also made it possible to generate and collect vast
amounts of personal, identifying information through everyday transactions
such as credit card purchases and cellular telephone use. The advent of the
Internet and its proliferation of users has dramatically increased, almost
beyond comprehension, our ability to collect, analyze, exchange, and
transmit data, including personal information.
      In that regard, it is not beyond the realm of possibility that the
information at issue herein might be posted on the Internet and transmitted
to millions of people.[117]

Because of the inherent vulnerability of children, the court said it was
"necessary to take precautions to prevent, or at least limit, any
opportunities for victimization." Therefore, the court said, it could not
"in good conscience" release the information.[118]
Other courts declared that computers pose a threat to privacy not just
because they provide current information but also because they overcome
practical obscurity by helping create life-long dossiers pieced together
from data previously scattered among far-flung sources. The U.S. Supreme
Court, for example, said in Reporters Committee that the privacy interest
in a computerized criminal rap sheet compiled by the FBI was "affected by
the fact that in today's society the computer can accumulate and store
information that would otherwise have surely been forgotten long before a
person attains age 80, when the FBI's rap sheets are discarded. … Plainly
there is a vast difference between the public records that might be found
after a diligent search of courthouse files, county archives, and local
police stations throughout the country and a computerized summary located
in a single clearinghouse of information."[119]
In contrast, the D.C. Circuit had rejected the argument that access to
Medico's computerized rap sheet should be denied because computers made the
records available too long. Wrote that court: "We see no principled basis
by which a court can determine that a crime is so 'minor' that information
regarding it, which a state considered significant enough to place on the
public record, is in reality of little public interest. Nor can we say that
an older public record has lost its public interest – old records may have
historical importance."[120]
Some state courts have adopted the Supreme Court's reasoning. The Louisiana
Court of Appeals in 1993, for example, relied upon the Reporters Committee
opinion when it declared the state's centralized, computer-based criminal
justice information system off limits to the public.[121] A year later, the
California Court of Appeals likewise relied upon Reporters Committee when
it denied access to computer tapes of a court system's compilation of
criminal offense information.[122]
Robert Westbrook, who operated a business selling criminal background
information to the public, sought monthly computer tapes of criminal
offense information from the Municipal Courts of Los Angeles County.
Specifically, he wanted the name, birth date and zip code of every person
against whom criminal charges were pending in those courts, plus the case
number, date of offense, charges filed, pending court dates, and
disposition. Westbrook told the trial court that without the computer
tapes, "he would have to travel to the 46 municipal court locations in the
county to obtain the  information. As a result, no one would be able to
afford what he would have to charge them for the information."[123] The
trial court declared as "nonsensical" the government's argument that
Westbrook could have some information on computer tape and the other
information only by traveling to each individual court to obtain it.[124]
The appellate court, however, overturned the trial court decision granting
Westbrook access to the information. The appellate court reasoned:
There is a qualitative difference between obtaining information from a
specific docket or on a specified individual, and obtaining docket
information on every person against whom criminal charges are pending in
the municipal court. If the information were not compiled in MCI,
respondent would have no pecuniary motive (and presumably no interest) in
obtaining it. It is the aggregate nature of the information which makes it
valuable to respondent; it is that same quality which makes its
dissemination constitutionally dangerous.[125]

The appellate court, fearing the power of computers to eliminate practical
obscurity, said Westbrook had "in his possession information from which he
can, over the years, compile his own private data base of criminal offender
record information."[126] "[T]he potential for misuse of the information is
obvious," the court said. "If, for example, the court ordered a record
maintained by a criminal justice agency to be sealed or destroyed because a
defendant had been found to be factually innocent of the charges, the
information would still be available for sale by [Westbrook]. The only
control on access to the information in [Westbrook's] possession would be
the price he places on it."[127]
The Colorado Supreme Court relied upon the reasoning in Reporters Committee
and Westbrook when it agreed in 1999 that computerized compilations of
courts records should be treated differently from individual case
files.[128] Requests for computer-generated bulk data containing court
records should be decided on a case-by-case basis, the court said. "Whether
bulk data should be released and to whom is a matter of important policy
that necessarily involves the balancing of individual privacy concerns,
public safety, and the public interest in fair and just operation of the
court system."[129]
The cases reviewed here indicate that at least some judges are more willing
to accept – without citing any social scientific support or evidence beyond
their own speculation – that computers and computerized information
threaten individual privacy more than paper records do.  The next question
to explore is whether courts believe computers contribute to the public
interest against which the privacy interest is balanced.

The public interests served by disclosure
Just as when paper documents were being requested, courts dealing with
computer records weighed against the individual's privacy interest the good
that disclosure would bring to the general public. In other words, the
determination of whether an invasion of privacy is unwarranted typically
depends upon the public interest at stake in the request. In Reporters
Committee, however, the U.S. Supreme Court narrowed the public interest
under the Freedom of Information Act to only disclosures of "[o]fficial
information that sheds light on an agency's performance of its statutory
duties."[130] Personal information in the hands of government that did not
shed light on the conduct of government would not meet that public-interest
standard. Writing for the Court, Justice Stevens said:
That purpose … is not fostered by disclosure of information about private
citizens that is accumulated in various governmental files but that reveals
little or nothing about an agency's own conduct. In this case -- and
presumably in the typical case in which one private citizen is seeking
information about another -- the requester does not intend to discover
anything about the conduct of the agency that has possession of the
requested records. Indeed, response to this request would not shed any
light on the conduct of any Government agency or official.[131]

Justice Stevens reasoned that disclosure of whether Medico had been
arrested or convicted would "tell us nothing directly about the character
of the Congressman's behavior. Nor would it tell us anything about the
conduct of the Department of Defense (DOD) in awarding one or more
contracts to the Medico Company."[132] While Medico's rap sheet conceivably
could provide details for a news story, he said, "this is not the kind of
public interest for which Congress enacted the FOIA." He explained:
[A]lthough there is undoubtedly some public interest in anyone's criminal
history, especially if the history is in some way related to the subject's
dealing with a public official or agency, the FOIA's central purpose is to
ensure that the Government's activities be opened to the sharp eye of
public scrutiny, not that information about private citizens that happens
to be in the warehouse of the Government be so disclosed.[133]

        In contrast, the U.S. Court of Appeals for the District of Columbia had
concluded in the same case that courts should consider "the general
disclosure policies of the statute."[134] The appellate court explained,
"Since Congress gave us no standards against which to judge the public
interest in disclosure, we do not believe Congress intended the federal
judiciary – when applying only Exemptions 6 and 7(c) of the Act – to
construct its own hierarchy of the public interest in disclosure of
particular information."[135]
The U.S. Supreme Court's reasoning, however, has been adopted by some state
courts determining the public interest under their respective public
records statutes. In 1993, for example, the Louisiana Court of Appeals,
noting that its statute was similar to the federal FOIA, held that the
policy behind its statute was "the public's right to be informed of what
our government is up to."[136] The court denied a request for an
individual's file in the state's centralized, computer-based criminal
justice information system.
In only three of the cases analyzed for this study did judges note that
computers can aid in the public's inspection of government records and,
therefore, in the disclosure what government is doing. In 1973, for
example, the New Hampshire Supreme Court reasoned that releasing computer
copies of real estate tax assessment records made more sense than
restricting disclosure to paper copies.[137] A Dartmouth College economics
professor conducting a tax study had sought computer copies of Manchester's
real estate tax assessment records, which included "ownership of the land,
whether it is rental property, property factors (topography, improvements,
trend of the district), type of occupancy, construction, computations as to
how the value was arrived at, and a sketch of the property."[138] The court
noted that examining the 35,000 field cards would take 200 man-days at a
cost of about $10,000[139] and then said, "The ease and minimal cost of the
tape reproduction as compared to the expense and labor involved in
abstracting the information from the field cards are a common sense
argument in favor of the former."[140]
In 1971, the New Mexico Supreme Court similarly held that the right to
inspect public records should "carry with it the benefits arising from
improved methods and techniques of recording and utilizing the information
… so long as proper safeguards are exercised as to their use, inspection,
and safety."[141] And in Kestenbaum, Justice Ryan of the Michigan Supreme
Court argued that public access to electronic records should not be denied
just because computer copies make the information more usable.[142] He
explained:
[T]o equate usefulness with intrusiveness is to turn the FOIA on its head.
A public body should not be allowed to thwart legitimate uses of public
information by releasing the information in a format difficult or expensive
to use. Releasing the requested names and addresses in handwritten form
would make it even more difficult to read and use the information; surely
that does not mean that a person requesting a printed copy can be given a
handwritten copy because the latter is less usable and therefore less
'intrusive'? Following that rationale would encourage a public body to meet
its FOIA requests with the response that the actual public document or
'writing' cannot be copied, but the agency will gladly produce the same
'information' in a 'less intrusive' form such as a foreign language, Morse
Code, or hieroglyphics.[143]

These judges were clearly in the minority, however, when they recognized
that computerized information can help the public learn about the actions
of government. Most of the courts seemed to place little value on the use
of computers to facilitate access to public records and, therefore, to
support a public interest in disclosure.
However, the computer format of the public records was very much on the
minds of at least some judges as they considered the private interests
actually – or potentially – served by the release of the documents.

The private interests served by disclosure
A number of federal and state courts considering claims to government
computer files reaffirmed the principle that any person is eligible to
request public records. In Reporters Committee, the U.S. Supreme Court held
that determining whether an invasion of privacy is warranted "cannot turn
on the purposes for which the request for information is made" and that
"the identity of the requesting party has no bearing on the merits of his
or her FOIA request. . . . As we have repeatedly stated, Congress 'clearly
intended' the FOIA 'to give any member of the public as much right to
disclosure as one with a special interest [in a particular
document].'"[144] The U.S. Court of Appeals for the District of Columbia
likewise had held the news media's interest in investigating a corrupt
congressman could not be considered because the statute made information
equally available to anyone.[145] "If a record must be released under FOIA
when requested by a news reporter for the purpose of publication, it must
be released upon request of an ordinary citizen," the court said.[146]
State courts in California,[147] Illinois,[148] Kansas,[149] Kentucky,[150]
Louisiana[151] and Massachusetts[152] used the same reasoning when ruling
on access to computer copies of public records. An Illinois court, for
example, noted that its state public records statute did "not require that
the persons requesting the information explain their need for that
information or their planned use of the information. The Act seeks to
achieve a highly desirable goal; namely, that the public knows how its tax
dollars are being spent."[153] A California court reasoned that the
requester's purpose could not be considered because "once a public record
is disclosed to the requesting party, it must be made available for
inspection by the public in general."[154]
However, a number of courts considered the private interest served by
disclosure, and five of them – including two in California – were hostile
to the commercial motivations of requesters.[155] In many of these cases,
the records probably would not have been requested had they been paper
files.[156] For example, the California Court of Appeals noted that the
entrepreneurial reason for seeking the records would not have existed had
the information not been in computer files.[157] In Westbrook v. County of
Los Angeles, the California Court of Appeals said that if the court records
were not kept in a computer system, the plaintiff would have had no
monetary motive for seeking them.[158]  "It is the aggregate nature of the
information which makes it valuable to respondent; it is that same quality
which makes its dissemination constitutionally dangerous," the court
said.[159] Under the penal code, the court said, a business selling
criminal background information to the public was only entitled to criminal
offense information compiled by a court if the company could show a
"compelling need."[160] The court found the information sought by Westbrook
to be part of the master record of "criminal offender record information,"
the dissemination of which was limited by the state penal code to public
officials and agencies entitled to receive it as part of their duties and
to others only "upon a showing of a compelling need."[161] In denying
access to the computerized court records, the court said Westbrook was not
authorized to receive the information and his desire to sell the
information did not qualify as a legally acceptable need to know the
information.[162]
Other courts discussed hypothetical private interests that could be better
served by computer records. In Higg-A-Rella, Inc. v. County of Essex, for
example, the New Jersey Supreme Court explained that computer records made
it easier for doctors to search medical-malpractice claims for patients
more likely to sue and for employers to identify job applicants who had
filed workers'-compensation claims.[163] The Ohio Supreme Court, in 2000,
worried that a government computer file of personal data about children
could be placed on the Internet and be used for criminal purposes.
While the computer format of records was not the explicit reason courts
devalued the private interests of some requesters, it certainly was a
consideration by those courts. The computer format was a key consideration
in courts' analysis of only one other of the six factors often utilized in
balancing access and privacy claims. The next section of this study
examines the role that computerized information played when some courts
considered whether to redact exempt information and allow disclosure of
non-exempt data.

The possibility of redacting personal information
This study found some courts supportive of redaction of personal
information when computer records were at issue.[164] For example, a
Connecticut trial court said the redaction of exempted names and addresses
from computerized Department of Motor Vehicle records would protect the
privacy of individual motorists and still allow the disclosure of important
information.[165] "Indeed," the judge said, "such sanitized information
could be the source of important statistics, useful for a variety of
legitimate purposes, without harming any of the interests protected by the
statute."[166] Courts in some states found that redaction was required by
statute.[167] For example, Illinois courts noted their state public records
statute requires any agency maintaining a record with exempt and nonexempt
data to separate the exempt material and disclose the rest of the
document.[168] Therefore, the Illinois Supreme Court said, "The mere
presence or commingling of exempt material does not prevent the district
from releasing the nonexempt portion of the record."[169]
Several courts recognized that compared to other record formats,
computerized data provide more protection for confidential information. For
example, the Minnesota Supreme Court in 1978 said, "Retrieving the data
from the computer rather than allowing access to the microfilm copies
protects the confidentiality of the patients since only the specific
information sought need be disclosed."[170] Illinois[171] and Kansas[172]
courts were willing to require governmental entities to create new computer
software if necessary to delete confidential information. The courts
required the requesters to pay for the special programs.
Illinois courts even ordered a school district to "scramble" computerized
data to further cloak identifying information.[173] Parents had sought
standardized California Achievement Test scores for students from certain
years, grades and schools within the school district; they did not ask for
the names or genders of the students.[174] The trial court had dismissed
the lawsuit, reasoning that disclosure would violate the students' privacy
and that a district status report supplied "sufficient information" to
satisfy the request.[175] The Illinois Court of Appeals and Illinois
Supreme Court ordered the school district to release the information after
first deleting the students' names and genders and then scrambling the
scores alphabetically.[176]
Illinois Supreme Court Justice Benjamin Miller disagreed with this
approach, however, saying he saw nothing in the public records statute
"which indicates that the legislature intended to impose a duty on public
bodies to use their computer capabilities to provide information in a form
that would make the material nonexempt. The act simply does not
differentiate between records stored in computers and those maintained
manually."[177]
Justice Miller also said he was not "convinced that such a distinction
would be advisable" because it would create a two-tier system for
disclosure that encouraged government agencies to keep documents in a paper
format with fewer disclosure requirements. He explained:
The recognition of a greater duty to modify exempt information that is
stored in computers than that which is stored manually would essentially
mean that public records maintained by computers would be subject to
broader disclosure requirements than manually kept records. Thus a
distinction between computer and manually maintained records may create an
incentive in public bodies to record certain types of information in
computer form and other types in manual form depending on how desirable its
disclosure to the public may be perceived. I do not believe that such
incentives are in the public interest.[178]

        Even so, courts seem more likely to accept redaction as a way to protect
confidential information while disclosing non-exempt data. Computers were
likely to be viewed as a useful tool in achieving that goal. In essence, a
computerized format for government records makes it easier for courts to
withhold private information while disclosing the remaining public data.

The remaining factors
For the remaining two factors that courts considered, it did not matter to
courts that computer copies of records had been requested. Courts weighed
these factors in the same ways that courts do when the records are made of
paper. For example, three courts considered whether alternate means of
obtaining the information reduced the need for the requested records to be
disclosed.[179] In each case, that factor was considered without any
discussion of computer copies versus hard copies of the information. The
key was simply whether the information itself was available elsewhere. For
example, the California Court of Appeals in 1999 decided that Mercury News
reporters seeking the identities of people who had complained to the city
about municipal airport noise had "alternative means of contacting and
interviewing the complainants other than by intruding on their privacy
through forced disclosure of their identities from government
records."[180] Reporters could canvass neighborhoods near the airport and
could contact complainants who had made their identities public by
appearing at city council meetings, joining an anti-airport noise group, or
by disclosing their names on the group's World Wide Web site, the court
said.[181]
Computers also were a non-issue in the consideration of whether an agency's
promise of confidentiality overrode a statutory duty to disclose public
records. The Arizona Court of Appeals in 1997 said a school district's
promise of confidentiality to teachers could not preclude the release from
computer databases of the names and birth dates for some 30,000
teachers.[182] "[I]f the promise of confidentiality were to end our
inquiry, we would be allowing a school district official to eliminate the
public's right under Arizona's Public Records Law," said the court. "We
cannot allow a school district to exempt public records from disclosure
simply by promising confidentiality."[183]

Summary, Conclusions and Recommendations
In 1965, the U.S. Senate Judiciary Committee recommended – in a report
accompanying what would eventually become the Freedom of Information Act –
a statute reflecting "a general philosophy of full agency disclosure."[184]
However, the committee noted that when a "broad philosophy of 'freedom of
information' is enacted into law, it is necessary to protect certain
equally important rights of privacy with respect to certain information in
Government files."[185] The committee elaborated:
It is not an easy task to balance the opposing interests, but it is not an
impossible one either. It is not necessary to conclude that to protect one
of the interests, the other must, of necessity, either be abrogated or
substantially subordinated. Success lies in providing a workable formula
which encompasses, balances, and protects all interests, yet places
emphasis on the fullest responsible disclosure.[186]

The U.S. Supreme Court has quoted this passage on at least two
occasions.[187]  It could hardly be argued, however, that in the last
thirty-eight years the Supreme Court, lower courts or even Congress has
provided a workable formula encompassing, balancing and protecting both the
public's access to government records and the individual's private
information contained in those documents. Instead, the legal landscape on
this issue has come to resemble more the one Justice Burger warned of in
1978: Hundreds of judges deciding ad hoc what is private and what is public
"according to their own ideas of what seems 'desirable' or
'expedient.'"[188] The subjectivity of the judicial decision-making has
intensified with the introduction of computers. In Kestenbaum v. Michigan
State University, for example, judges on the same court could agree that
government information should be publicly available in paper format; yet
based on no more than a difference in attitudes toward computers, they
formed opposite conclusions about the availability of electronic copies of
the same information.[189]
        The purpose of this research was to determine how federal and state courts
balance public access against personal privacy when government-held
information is sought in a computer format. In other words, how do trial
judges and appellate courts decide which of these competing interests is
paramount in such situations? And to what degree do judicial attitudes
toward computers affect this balancing? In the end, alternatives to the
current balancing approach are recommended to better protect truly private
information while ensuring public access to more government-held computer
records.
        To find its answers, this study began with an examination of the legal
bases for the rights being balanced by courts. It found that a request for
any type of government record typically relies upon a public records act,
making these statutes the basis for the vast majority of public records
lawsuits. In some cases, statutes such as the federal Privacy Act of 1974
provide the basis for a privacy claim intended to block disclosure. The
result is that courts typically rely upon statutes to determine the
interests in public access and informational privacy that are at stake and
how to balance them. To decide, therefore, if each right exists and which
should be paramount, courts are relying most frequently upon statutory
language, regardless of whether computer copies of government records have
been requested. This means judges are often interpreting the nuances of
statutory text, an endeavor that can be hindered by a muddy legislative
history. Under these circumstances, judges are left to create their own
mechanisms for balancing these competing interests.
        This research next examined the cases for the six factors previously
identified as being used by courts to balance privacy and public access to
ink-and-paper documents. It found that courts applied no new factors when
weighing the competing claims of privacy and public access to computer
records. In most of the computer-related cases studied, the computer format
of the government records received only a brief mention by the courts. When
computers were of importance to the judiciary, however, their presence was
more likely to tip the scales in favor of individual privacy and against
public access. Judges were more likely to treat computers as a threat to
privacy, not as a tool for the public to make use of records created and
maintained by its own government.
Only one judge explicitly rejected the assumption that computers
automatically pose a greater danger to privacy. Other judges simply
believed that computer files threaten individual privacy more than paper
records do. Simply put, they seem to fear the technology. In their view,
even benign data can become intrusive when placed in a computer because
such a format makes the information more usable by third parties. Computers
make it easier and cheaper to collect, store, manipulate and retrieve large
amounts of information. This leads to private databases of personal
information compiled from public records. Such databases pose a threat to
privacy by providing access to current information and by creating
life-long dossiers pieced from data previously scattered among far-flung
sources.
However, their fears and assumptions were turned into law without the
support of stronger evidence beyond the judges' own speculation, such as a
statistical analysis regarding the actual possibility of privacy-invading
actions by those who might obtain the information. Without a statutory
definition of informational privacy and a firmer set of guidelines to
follow, these judges are relying upon a "I-know-it-when-I-fear-it" approach
to determining the privacy interest at stake when computerized records are
involved.
For the purposes of evaluating potential privacy violations, courts have
taken seriously the computer's capability to accumulate, store, manage and
distribute great amounts of data. Yet few judges noted that those same
capabilities could help the public inspect government records and,
therefore, ultimately understand what the government is up to. Only three
times did judges see computers as a tool to help the public find out what
government is doing, which courts have generally considered to be the most
important public interest to be weighed against individual privacy. Courts
seem to be ignoring valuable traits of the computer that support this
public interest in disclosure.
At the same time, however, courts do not seem uninformed about what
computers can do. Judges are willing to use the computer to redact personal
information from government data and allow a limited disclosure. State
courts in Illinois and Kansas even required government bodies to create –
at the requester's expense – new computer software if necessary to delete
exempted data. Illinois courts even ordered government to "scramble"
alphabetized computer data to further disguise identifying information.
This study found that courts often ignored the fact that the requested
public records were in a computer-ready format. For the most part, judges
treated computer copies of government documents no differently than they
did paper copies. They applied the same factors in the same ways. However,
when computers were explicitly considered as part of the formula, the
balancing of these factors was clearly weighted in favor of privacy. Based
on their own reactions to the technology, some judges seemed more likely to
consider computers as a threat to privacy rather than a tool to help the
public learn about the actions of government. At best, the computer was
treated as a device for removing information from the public's grasp
because it made the redaction of data easier to accomplish.
For privacy advocates, these findings mean they are more likely to find an
ally on the bench when the battle over privacy and public access enters the
courtroom. For reporters and others in the public seeking access to
government records, these findings mean their battles should be waged in
Congress and state legislatures, where they can argue for statutes
articulating the same treatment for computer records as for paper ones.
Granted, relying upon legislative bodies is not a perfect solution. Telling
frightened constituents that their privacy will be safeguarded is a safer
route to re-election than explaining to voters the social value of
releasing their personal information on a computer disk to the media,
telemarketers and others that society holds in generally low regard.
However, the legislative arena allows a fuller hearing on the interests at
stake than does the presentation of narrowly tailored information to courts.
As the cases studied here have illustrated, judges often make ad-hoc
decisions based on the specific facts before them and their own speculation
or assumptions about computer technology, without considering the broader
implications of their rulings on the overall balance of individual privacy
and public access. This is not surprising given the nature of judicial
decision-making and the imperative that courts decide only concrete cases
and controversies. But decisions made and principles asserted on the basis
of the narrow facts of a specific case often are used in other cases,
eventually leading to the development of a broad rule. That broad rule,
however, may be the result of narrow and incomplete fact-finding and
unsupported assumptions.
Legislative bodies, however, with their greater fact-finding powers and
ability to address more than specific "cases and controversies," are in a
much better position to handle the tough questions of defining terms, both
conceptually and empirically. The legislative fact-finding process by its
nature invites the participation of a wide spectrum of interests, not just
those involved in a particular case or controversy (and those willing and
able to file amicus briefs). This means, though, that journalists and other
advocates of open government must play an active role by explaining to
legislators the importance of public access to computerized government records.
Through this legislative process, lawmakers should discard the definition
of informational privacy created by privacy advocates and adopted by some
courts. Their conceptualization should recognize that privacy is not an
absolute right of individual control and that not all personal information
is necessarily private. However, legislators should also establish clearly
defined categories of records and information, e.g., medical files and
Social Security numbers, considered confidential even in the hands of
government. This statutory language should be unambiguous, avoiding such
phrases as "similar files" or "unwarranted invasions of privacy."
Lawmakers should also explicitly recognize that the public interest served
by the disclosure of computerized records is more than educating the public
about government activities or exposing governmental wrongdoing. Gleaning
personal information about someone from government databases can serve more
than just "idle curiosity." Such information can help people make more
informed choices in a number of life-affecting decisions, such as selecting
a doctor, a child-care provider, a business partner or even a potential
spouse. Serving these individual interests provides a public good.
Legislative bodies should also reaffirm that "any person" does indeed mean
that anyone is entitled to obtain computerized government documents. The
purpose of the request, including for commercial gain, should not be an
obstacle. Criminal conduct facilitated by information from government data
should be punished accordingly, but access to those computer files should
not be cut off because someone might use the data for illegal purposes.
Statutory language should also clearly recognize access rights to
computerized records. In other words, statutes should specifically declare
that the format of the record has no affect on public access rights and
that requesters have the right to ask for the record in the format they choose.
        Of course, no piece of legislation can anticipate all the factual
scenarios that will arise, and no matter how specific, detailed and
concrete legislators try to make a statute, courts still will have to
interpret and apply it. However, as judges interpret and apply these
statutes, they should stop speculating about privacy violations that might
occur, recognize that computers not only can be used to invade privacy but
also to significantly enhance the free flow of needed information to the
public, and disregard the computer format of government records.
        If accepted by legislators and courts, these recommendations would help
courts be more consistent, predictable and balanced in weighing the
individual's privacy against the public's access to the government's
computer records.




[1]  Kestenbaum v. Michigan State Univ., 414 Mich. 510, 327 N.W.2d 783, 789
(1982) (Fitzgerald, C.J., opinion for affirmance).

[2]  Id. at 802 (Ryan, J., opinion for reversal) (citing Mich. Comp. Law §
15.232(e) (1982)).

[3]  Individual Privacy Versus Public Access: An Analysis of the Six
Factors Courts Use to Balance These Two Competing Social Interests,
presented to Law Division, Association for Education in Journalism and Mass
Communication Convention, Miami: August 7-10, 2002. The six factors are:
(1) The nature and validity of the asserted privacy interest and the degree
of the invasion of that interest; (2) The extent or value of the public's
interest in disclosure; (3) The purpose or objective of the requester
seeking disclosure; (4) The availability of the information from other
sources; (5) Whether the government promised confidentiality; and (6)
Whether it is possible to redact personal information so as to limit the
breach of individual privacy. Not every opinion addresses all six factors.
However, two or more are routinely used by courts in striking the
privacy-access balance.

[4]  http://web.lexis-nexis.com/universe. The LEXIS-NEXIS Academic
Universe's state and federal case databases were queried using the search
string "privacy and public record and computer or magnetic tape."
One-hundred and ninety-five hits were received. Of those, fifty-six were
determined to be on target because the courts were faced with competing
claims of privacy and access to information that the opinions clearly
indicated involved records in a computerized format. Cases dealing with
expungement of criminal records, sealing of court records, free press-fair
trial issues, claims of illegal search and seizure, common law invasion of
privacy torts, and discovery in civil and criminal trials were discarded.

[5]  http://www.rcfp.org/news/. Media Law Update is a biweekly newsletter
published by the Reporters Committee for Freedom of the Press and covers
legal issues of interest to journalists. The site was queried using the
search string "privacy and public record and computer or magnetic tape."
This search located two cases not previously identified by the search of
the LEXIS-NEXIS Academic Universe databases.

[6]  Whenever possible, information about unpublished decisions was
obtained from appellate court decisions if they discussed the lower court
opinions in sufficient detail. It is recognized that relying on appellate
court summaries raises problems related to thoroughness and bias.
Nonetheless, these summaries had to be included to obtain the most complete
picture of judicial treatment of claims of privacy and access rights to
government records.

[7]  Eve. H. Karasik, A Normative Analysis of Disclosure, Privacy, and
Computers: The State Cases, 10 Computer/L. J. 603 (1990); Martin Halstuk,
Blurred Vision: How Supreme Court FOIA Opinions on Invasion of Privacy Have
Missed the Target of Legislature Intent, 4 Comm. L. & Pol'y 111 (1999); and
Sigman L. Splichal, The Impact of Computer Privacy Concerns on Access to
Government Information (1993) (Ph.D. dissertation, University of Florida).
See also Splichal,  The Evolution of Computer/Privacy Concerns: Access to
Government Information Held in the Balance, 1 Comm. L. & Pol'y 203 (1996).

[8]  Karasik, supra note 7, at 604.

[9]  Splichal, supra note 7, at 23.

[10]  Department of Justice v. Reporters Comm. for Freedom of the Press,
489 U.S. 749, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989).
[11]  Halstuk, supra note 7, at 113.

[12]  Karasik, supra note 7, at 605-6.

[13]  Id. at 617.

[14]  Splichal, supra note 7, at 227.

[15]  Karasik, supra note 7, at 614.
[16]  Splichal, supra note 7, at 12.

[17]  Id. at 206.

[18]  Karasik, supra note 7, at 633.

[19]  Splichal, supra note 7, at 228.

[20]  Karasik, supra note 7, at 630.

[21]  Splichal, supra note 7, at 216.

[22]  Id. at 220.

[23]  Karasik, supra note 7, at 630.

[24]  Id. at 626.

[25]  Karasik, supra note 7, at 632.

[26]  Splichal, supra note 7, at 19.

[27]  Id. at 250, 252-64  (Relative Privacy Values: Core Value, a person's
innermost thoughts, feelings, and sentiments; 2nd Ring, intimate
information, the disclosure of which could lead to some kind of harm to an
individual; 3rd Ring, personal information open to the individual's
friends; 4th Ring, personal information that people give up as part of
their day-to-day interaction with society, much of which becomes part of
the public record or is publicly available from other sources; 5th Ring,
personal information freely disclosed to government or business with little
expectation of privacy or fear of harm.
        Relative Public Access Values: Core Value, information essential for
society to understand and assess the workings of government; 2nd Ring,
information not directly about government but that contributes to an
understanding of government or facilitates the political process; 3rd Ring,
information not directly about government but that would facilitate an
understanding of social or other issues that collectively contribute to the
process of self-governance; 4th Ring, information that individuals could
add value to and disseminate in such a way as to benefit society; 5th Ring,
information sought for personal reasons; and 6th Ring, information sought
for profit reasons alone.).

[28]  Id. at 252.

[29]  Id. at 267-8.

[30]  Roe v. Ingraham, 357 F. Supp. 1217, 1222 (S.D.N.Y. 1973).

[31]  Id.

[32]  Walls v. City of Petersburg, 895 F.2d 188, 194-95 (4th Cir. 1990).

[33]  Id.

[34]  Roe v. Ingraham, 357 F. Supp. at 1222. ("I recognize the dangers in a
society which permits the government to know the intimacies of its
citizens' lives and especially the consequences to those people against
whom such information is maliciously or malevolently used. And I realize
the potential for individual harm consequent upon errors of fact becoming
imprinted upon unforgiving tapes.") See also Walls v. City of Petersburg,
895 F.2d 194-95 ("[W]e need to be ever diligent to guard against misuse.").

[35]  Kestenbaum v. Michigan State Univ., 327 N.W.2d 783, 789 (Mich.
1982)(Fitzgerald, C.J., opinion for affirmance)(citing Arthur Miller,
Personal Privacy in the Computer Age: The Challenge of a New Technology in
an Information-Oriented Society, 67 Mich. L. Rev. 1089, 1222 (1969)).

[36]  Federation of New York State Rifle & Pistol Clubs, Inc. v. New York
City Police Dep't, 535 N.E.2d 279, 280 (N.Y. 1989) (quoting Freedom of
Information Act, N.Y. Pub. Off. Law § 84 (McKinney 1989)). See also
Department of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S.
749, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989) (citing Freedom of Information
Act, 5 U.S.C. § 552 as amended (1966)); Scottsdale Unified Sch. Dist. No.
48 of Maricopa County v. KPNX Broadcasting Co., 937 P.2d 689, 693 (Ariz.
Ct. App. 1997) ("The Public Records Law 'evinces a clear policy favoring
disclosure.'" (quoting Carlson v. Pima County, 687 P.2d 1242, 1245 (Ariz.
1984))); Background Info. Servs. v. Office of the State Court Adm'r, 980
P.2d 991, 993 (Colo. Ct. App. 1999) ("The General Assembly has declared in
the Open Records Act that, with certain specified exceptions, it is 'the
public policy of this state that all public records shall be open for
inspection by any person at reasonable times.'" (quoting Colo. rev. Stat. §
24-72-201 (1999))); Maher v. Freedom of Info. Comm'n., 472 A.2d 321, 324-25
(Conn. 1984) (state agency bound "to maintain its records as public records
available for public inspection unless these records fall within one of the
statutory exemptions to disclosure" (quoting Freedom of Information Act,
Conn. Gen. Stat. § 1-19 (1984))); Lexington-Fayette Urban County Gov't v.
Lexington Herald-Leader Co., 941 S.W.2d 469, 470, 25 Media L. Rep. (BNA)
1759 (Ky. 1997) (Kentucky Open Records Act "articulates public policy as
favoring the free and open examination of public records even though such
may cause embarrassment or inconvenience to public officials and others."
(citing Ky. Rev. Stat. Ann. § 61.882(4) (Michie/Bobbs-Merrill 1992)));
Ellerbe v. Andrews, 623 So. 2d 41, 43 (La. Ct. App. 1993) ("The public has
the right to examine public records." (citing La. Rev. Stat. Ann. § 44:1 et
seq. (West 1992))); Mager v. State, 595 N.W.2d 142, 148 n.22 (Mich. 1999)
("It is the public policy of this state that all persons, except those
persons incarcerated in state or local correctional facilities, 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 public employees, consistent with this act." (quoting Freedom
of Information Act, Mich. Comp. Laws § 15.231 et seq. (1999))).

[37]  North Jersey Newspapers Co. v. Passaic County Bd. of Chosen
Freeholders, 127 N.J. 9, 16, 601 A.2d 693, 19 Media L. Rep. 1962 (1992).

[38]  Id. at 15.

[39]  Id. at 12. For long-distance and car-phone calls, the telephone bills
included "the telephone number called; the date, time, and length of the
call; and the charge for the call."

[40]  Id.

[41]  North Jersey Newspaper Co. v. Passaic County Bd. of Chosen
Freeholders, 584 A.2d 275, 277-78 (N.J. Super. Ct. App. Div. 1990) (citing
N.J. Const. art. I, § 7).

[42]  127 N.J. at 11.

[43]  Id. at 17.

[44]  Id. at 16.

[45]  660 A.2d 1163 (N.J. 1995).
[46]
  Id. at 1166. For each parcel of land, the information included: "1)
street address and block and lot numbers; 2) brief description, including
lot size and use; 3) assessed value, broken down into land and
improvements; 4) whether the parcel is subject to farmland assessment, tax
abatement, or any charitable or statutory tax exemption; 5) name and
address of the owner, if different from the address of the parcel; and 6)
if residential, whether the owner is entitled to a deduction or exemption
as a senior citizen, veteran, disabled veteran, or surviving spouse of a
person in one of those categories." Id.

[47]  Id.

[48]  Higg-A-Rella, Inc. v. County of Essex, 628 A.2d 392, 394 (N.J. Super.
Ct. Law Div. 1993).

[49]  Id. at 397 ("The computer tapes represent a tremendous amount of data
entry at taxpayer expense. I see no reason why [county officials] should
not decide whether they wish to sell it, and at what price.").
[50]
  Higg-A-Rella, Inc. v. County Of Essex, 647 A.2d 862, 866 (N.J. Super. Ct.
App. Div. 1994).

[51]  660 A.2d at 1168.

[52]  Id. at 1168-69.

[53]  Id. at 1170.

[54]  Id. at 1169. "The essence of the common-law is its adaptability to
changing circumstances." (quoting Atlantic City Convention Ctr. Auth. v.
South Jersey Publishing Co., 135 N.J. 53, 64 (1994)).

[55]  Id. at 1170.

[56]  Id. at 1169.

[57]  Id. at 1170. "The lists contain simple, non-evaluative data that have
historically been available to the public, and that do not give rise to
expectations of privacy."

[58]  Id. at 1171.

[59]  Id.

[60]  641 P.2d 366, 8 Media L. Rep. (BNA) 1891 (Kan. 1982).

[61]  Id. at 375.

[62]  Id. ("The Kansas act places no burden on the public to show a need to
inspect and requires no particular motives or reasons for inspection. It
declares that all legally required records 'shall . . . be open for a
personal inspection by any citizen . . . .' It gives the custodian no
discretion and no choice; it imposes a duty upon the custodian, and
subjects him or her to stringent penalties for noncompliance." (quoting
Kan. Stat. Ann. § 45-201 et. seq. (1976))).

[63]  Gannett Co. v. Delaware Criminal Justice Info. Sys., CA No.
98C-03-305, 1999 Del. Super. LEXIS 325, at *21-22 (Del. Super. Ct. 1999)
(quoting Houchins v. KQED, Inc., 438 U.S. 1, 3 (1978)).

[64]  Hamer v. Lentz, 525 N.E.2d 1045, 1048 (Ill. Ct. App. 1988) (quoting
Ill. Const. art. VII, § 1(c) (1970).

[65]  Webb v. City of Shreveport, 371 So. 2d 316, 5 Media L. Rep. (BNA)
1729 (La. Ct. App. 1979) (quoting La. Const., art. 12, § 3), writ denied,
374 So. 2d 657 (La. 1979).

[66]  Ellerbe v. Andrews, 623 So. 2d 41, 43 (La. Ct. App. 1993).

[67]  See, e.g., Scottsdale Unified Sch. Dist. No. 48 of Maricopa County v.
KPNX Broadcasting Co., 937 P.2d 689, 693 (Ariz. Ct. App. 1997) (a qualified
right of disclosure under the state public records law as evidenced by the
numerous statutory exemptions); Pantos v. San Francisco, 198 Cal. Rptr.
489, 492, 10 Media L. Rep. (BNA) 1279 (Cal. Ct. App. 1984) ("Where there is
no contrary statute or public policy, the right to inspect public records
must be freely allowed."); Maher v. Freedom of Info. Comm'n., 472 A.2d 321,
324-25 (Conn. 1984) (state agency bound to maintain its records available
for public inspection unless the records fall within one of the statutory
exemptions to disclosure);  State ex rel. Stephan v. Harder, 641 P.2d 366,
368, 8 Media L. Rep. 1891 (Kan. 1982) (noting statutory exemptions for
juvenile records, adoption records, records of the birth of illegitimate
children, and any other records specifically closed by law or by directive
authorized by law); Lexington-Fayette Urban County Gov't v. Lexington
Herald-Leader Co., 941 S.W.2d 469, 470, 25 Media L. Rep. (BNA) 1759 (Ky.
1997) (noting an exemption in the state Open Records Act for "personal
privacy"); and Industrial Found. of the South v. Texas Industrial Accident
Bd., 540 S.W.2d 668 (Tex. 1976) (all persons are entitled to complete
information regarding the affairs of government "unless otherwise expressly
provided by law").

[68]  Minnesota Medical Ass'n v. Minnesota Dep't of Pub. Welfare, 274
N.W.2d 84,87, 4 Media L. Rep. (BNA) 1872 (Minn. 1978) (quoting Minn. Stat.
§ 15.169, subd. 3(3) (1978)).

[69]  5 U. S. C. § 552a (1982 ed. and Supp. V).

[70]  Department of Justice v. Reporters Comm. for Freedom of the Press,
489 U.S. 749, 766-67, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989) (quoting H. R.
Rep. No. 93-1416, p. 7 (1974)).

[71]  Id.

[72]  Patterson v. State, 985 P.2d 1007, 1015 (Alaska App. 1999) (citing
Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977)). "The
Supreme Court also recognizes an individual's interest in non-disclosure of
personal matters. This interest in non-disclosure is recognized in other
cases and has been described as a right of confidentiality." Id. at 1017
(citing Alaska Const. art. I, § 22); Westbrook v. County of Los Angeles, 32
Cal. Rptr. 2d 382, 387 (Cal. Ct. App. 1994), review denied, 1994 Cal. LEXIS
5772 (Cal. 1994). "The state constitutional right of privacy extends to
protect defendants from unauthorized disclosure of criminal history
records."; Webb v. City of Shreveport, 371 So. 2d 316, 317, 5 Media L. Rep.
(BNA) 1729 (La. Ct. App. 1979), writ denied, 374 So. 2d 657 (La. 1979)
(citing La. Const. art. 1, § 5). "Every person shall be secure in his
person, property, communications, houses, papers, and effects against
unreasonable searches, seizures, or invasions of privacy. No warrant shall
issue without probable cause supported by oath or affirmation, and
particularly describing the place to be searched, the persons or things to
be seized, and the lawful purpose or reason for the search. Any person
adversely affected by a search or seizure conducted in violation of this
Section shall have standing to raise its illegality in the appropriate
court."; Tobin v Civil Service Comm, 331 N.W.2d 184, 191 (1982) (disclosure
would not violate the employees' federal or state constitutional right to
privacy); North Jersey Newspaper Co. v. Passaic County Bd. of Chosen
Freeholders, 584 A.2d 275, 277-78 (N.J. Super. Ct. App. Div. 1990) (citing
N.J. Const. art. I, § 7); State ex rel. The Beacon Journal Publishing Co.
v. Bodiker, 1999 Ohio App. LEXIS 3191 (1999); State ex rel. Beacon Journal
Publishing Co. v. City of Akron, 640 N.E.2d 164, 23 Media L. Rep. (BNA)
1225 (Ohio 1994) (disclosure would violate the employees' federal
constitutional right to privacy); and Industrial Found. of the South v.
Texas Industrial Accident Bd., 540 S.W.2d 668, 679 (Tex. 1976) ("effective
protection of the fundamental 'zones of privacy'" outlined by the Supreme
Court by the mid-1970s implied "a concomitant right to prevent unlimited
disclosure of information held by the government which, although collected
pursuant to a valid governmental objective, pertains to activities and
experiences within those zones of privacy").

[73]  Tobin v Civil Service Comm, 331 N.W.2d 184, 190-91 (Mich. 1982)
(release of magnetic tape including the names and home addresses of all
classified civil service state employees to labor unions did not violate a
common-law right of privacy).

[74]  See, e.g., Family Life League v. Department of Pub. Aid, 478 N.E.2d
432, 434 (Ill. App. Ct. 1985). "The decision in this case requires a
delicate balance between two competing rights: (1) the statutory right of
the people to full and complete disclosure regarding the affairs of their
government and (2) the constitutionally protected right of individuals to
privacy in regard to their personal affairs which is inherent in the Bill
of Rights and which is expressly provided for in our Illinois Constitution.
Plainly, neither right can be subjugated to the other right without doing
violence to the precepts vital to a free society."

[75]  Zink v. Commonwealth,  902 S.W.2d 825, 828 (Ky. Ct. App. 1994)
(quoting Kentucky Bd. of Examiners of Psychologists v. Courier-Journal &
Louisville Times Co., Ky., 826 S.W.2d 324, 327 (1992)).

[76]  Id. (quoting 826 S.W.2d at 328).

[77]  Department of Justice v. Reporters Comm. for Freedom of the Press,
489 U.S. 749, 776, 109 S. Ct. 1468, 103 L. Ed. 2d 774 (1989).

[78]  489 U.S. at 776.

[79]  Id. at 757.

[80]  Id. at 751.

[81]  Id. at 780. "When the subject of such a rap sheet is a private
citizen and when the information is in the Government's control as a
compilation, rather than as a record of 'what the Government is up to,' the
privacy interest protected by Exemption 7(C) is in fact at its apex while
the FOIA-based public interest in disclosure is at its nadir."

[82]  Id.

[83]  Id. (Blackmun, J., concurring).

[84]  Id. at 781.

[85]  Id. at 780.

[86]  See, e.g., Reed v. N.L.R.B., 927 F.2d 1249, 1252 (D.C. Cir. 1991).
"[T]he balancing test we are instructed to administer contains no room for
individualization or consideration of specific circumstances."
[87]
  See, e.g., State ex rel. McCleary v. Roberts, 725 N.E.2d 1144, 1147 (Ohio
2000).

[88]  489 U.S. at 762-63.

[89]  Id. at 763-64 ("According to Webster's initial definition,
information may be classified as 'private' if it is 'intended for or
restricted to the use of a particular person or group or class of persons:
not freely available to the public.'") (quoting Webster's Third New
International Dictionary 1804 (1976)).

[90]  Id. at 764 n.16 ("Privacy, in my view, is the rightful claim of the
individual to determine the extent to which he wishes to share of himself
with others. . . . It is also the individual's right to control
dissemination of information about himself.") (quoting A. Breckenridge, The
Right to Privacy 1 (1970)).

[91]  Id. ("Privacy is the claim of individuals . . . to determine for
themselves when, how, and to what extent information about them is
communicated to others.") (quoting A. Westin, Privacy and Freedom 7 (1967)).

[92]  Reporters Comm. for Freedom of the Press v. Department of Justice,
816 F.2d 730, 738 (D.C. Cir. 1987) (quoting Webster's Third New
International Dictionary 1804 (1976)), modified, 831 1124 (D.C. Cir. 1987)
(exemption 7 (c) provides protection for various law enforcement records).

[93]  Scottsdale Unified Sch. Dist. No. 48 Of Maricopa County v. KPNX
Broadcasting Co., 955 P.2d 534 (Ariz. 1998).

[94]  Id. at 538 (quoting Reporters Comm., 489 U.S. at 763-64).

[95]  Id. (quoting 489 U.S. at 763).

[96]  327 N.W.2d 783, 785 (Mich. 1982) (Fitzgerald, C.J., opinion for
affirmance).

[97]  Id. at 786.
[98]  Perkey v. DMV, 721 P.2d 50, 58 (Calif. 1986).

[99]  Id.

[100]  Kestenbaum v. Michigan State Univ., 327 N.W.2d 783 (Mich. 1982).

[101]  Id. at 784.

[102]  Kestenbaum v. Michigan State Univ., 294 N.W.2d 228 (Mich. Ct. App.
1980).

[103]  327 N.W.2d at 789.

[104]  Id. at 802 (Ryan, J., opinion for reversal).

[105]  Id. (citing Mich. Comp. Law § 15.232(e) (1982)).
[106]  Ortiz v. Jaramillo, 483 P.2d 500, 502 (N.M. 1971). See also Szikszay
v. Buelow, 436 N.Y.S.2d 558, 563 (N.Y. Sup. Ct. 1981) (because the property
assessment roll is open to public inspection in paper format, copying of
computer tape including the same information is not an unwarranted invasion
of privacy).

[107]  Higg-A-Rella, Inc. V. County Of Essex, 660 A.2d 1163, 1170 (N.J.
1995). See also Higg-A-Rella, Inc. v. County Of Essex, 647 A.2d 862, 865
(N.J. Super. Ct. App. Div. 1994) ("no privacy interest exists because the
exact records are freely available on paper instead of magnetic tape").

[108]  660 A.2d at 1170.

[109]  Id. at 1171.

[110]  327 N.W.2d at 796 n.18 (quoting Rowan v United States Post Office
Dep't, 397 U.S. 728, 737, 90 S. Ct. 1484, 25 L. Ed. 2d 736 (1970)).

[111]  Id. at 801.

[112]  327 N.W.2d at 789 (relying upon Arthur Miller, Computers, Data Banks
and Individual Privacy: An Overview, 4 Colum. Hum. Rts. L. Rev. 1, 10
(1972), in which Miller said, "Even if the cost of securing access to
computerized information is higher than the cost of dredging out the
information in a more traditional form of record, the centralized quality
and compactness of a computerized dossier creates an incentive to invade it
because the payoff for doing so successfully is much larger.").

[113]  Doe v. Registrar of Motor Vehicles, 528 N.E.2d 880 (Mass. App. Ct.
1988).

[114]  Id. at 425.

[115]  Id. at 421-22 (quoting Special Legislative Commission on Privacy,
First Interim Report, 1975 House Doc. No. 5417, at 15, and at 10).

[116]  State ex rel. McCleary v. Roberts, 725 N.E.2d 1144 (Ohio 2000).

[117]  Id. at 1149.

[118]  Id.

[119]  Department of Justice v. Reporters Comm. for Freedom of the Press,
489 U.S. 749, 771, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989).

[120]  Reporters Comm. for Freedom of the Press v. Department of Justice,
816 F.2d 730, 741 (D.C. Cir. 1987).

[121]  Ellerbe v. Andrews, 623 So. 2d 41 (La. Ct. App. 1993).

[122]  Westbrook v. County of Los Angeles, 32 Cal. Rptr. 2d 382 (Cal. Ct.
App. 1994), review denied, 1994 Cal. LEXIS 5772 (Cal. 1994).

[123]  Id. at 383.

[124]  Id. at 384.

[125]  Id. at 387.

[126]  Id. at 384.

[127]  Id. at 387.

[128]  Office of the State Court Adm'r v. Background Info. Servs., 994 P.2d
420 (Colo. 1999).

[129]  Id. at 429-30.

[130]  489 U.S. at 772.

[131]  Id.

[132]  Id. at 774.

[133]  Id.

[134]  831 F.2d at 1126.

[135]  Id.

[136]  Ellerbe v. Andrews, 623 So. 2d 41, 44-45 (La. Ct. App. 1993)
(relying upon Department of Justice v. Reporters Comm. for Freedom of the
Press, 489 U.S. 749, 109 S. Ct. 1468, 103 L. Ed. 2d 744 (1989)).

[137]  Menge v. City of Manchester, 311 A.2d 116 (N.H. 1973).

[138]  Id.

[139]  Id. at 118.

[140]  Id. at 119.

[141]  Ortiz v. Jaramillo, 483 P.2d 500, 501 (N.M. 1971).

[142]  327 N.W.2d 783, 802 (Mich. 1982) (Ryan, J., opinion for reversal).

[143]  Id.

[144]  489 U.S. at 771 (quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132,
149 (1975)).

[145]  816 F.2d at 741.

[146]  Id. at 742.

[147]  See City of San Jose v. Superior Court Of Santa Clara County, 74
Cal. App. 4th 1008 (Cal. Ct. App. 1999).

[148]  See Family Life League v. Department of Pub. Aid, 493 N.E.2d 1054
(Ill. 1986).

[149]  See State ex rel. Stephan v. Harder, 641 P.2d 366, 8 Media L. Rep.
(BNA) 1891 (Kan. 1982).

[150]  See Zink v. Commonwealth,  902 S.W.2d 825 (Ky. Ct. App. 1994).

[151]  See Webb v. City of Shreveport, 371 So. 2d 316, 5 Media L. Rep.
(BNA) 1729 (La. Ct. App. 1979), writ denied, 374 So. 2d 657 (La. 1979).

[152]  See Doe v. Registrar of Motor Vehicles, 528 N.E.2d 880 (Mass. App.
Ct. 1988).

[153]  Family Life League v. Department of Pub. Aid, 493 N.E.2d 1054,
1057-58 (Ill. 1986).

[154]  City of San Jose v. Superior Court Of Santa Clara County, 74 Cal.
App. 4th 1008, 1018 (Cal. Ct. App. 1999).

[155]  See Westbrook v. County of Los Angeles, 32 Cal. Rptr. 2d 382 (Cal.
Ct. App. 1994), review denied, 1994 Cal. LEXIS 5772 (Cal. 1994); Pantos v.
San Francisco, 198 Cal. Rptr. 489, 10 Media L. Rep. (BNA) 1279 (Cal. Ct.
App. 1984); Zink v. Commonwealth,  902 S.W.2d 825 (Ky. Ct. App. 1994);
Kestenbaum v. Michigan State University, 294 N.W.2d 228 (Mich. Ct. App.
1980); and Doe v. Registrar of Motor Vehicles, 528 N.E.2d 880 (Mass. App.
Ct. 1988).

[156]  See, e.g., Kestenbaum v. Michigan State Univ., 327 N.W.2d 783 (Mich.
1982), in which an entrepreneur requested a computer copy of the student
directory in order to make mailings on behalf of political parties;
Higg-A-Rella, Inc. v. County of Essex, 660 A.2d 1163 (N.J. 1995), in which
a company selling municipal tax-assessment data to real-estate brokers
sought a computer tape containing the tax-assessment records of every
municipality in the county; and State ex rel. McCleary v. Roberts, 725
N.E.2d 1144 (Ohio 2000), in which the plaintiff sought a copy of the
computer database of children who used city pools and recreation facilities.

[157]  Westbrook v. County of Los Angeles, 32 Cal. Rptr. 2d 382 (Cal. Ct.
App. 1994), review denied, 1994 Cal. LEXIS 5772 (Cal. 1994).

[158]  Id. at 387.

[159]  Id.

[160]  Id. at 384-85 (citing Penal Code §13300, subd. (c)).

[161]  Id.

[162]  Id. at 386.

[163]  660 A.2d 1163, 1171 (N.J. 1995).

[164]  See City of San Jose v. Superior Court Of Santa Clara County, 74
Cal. App. 4th 1008 (Cal. Ct. App. 1999); Kozlowski v. Freedom of Info.
Comm'n, 1997 Conn. Super. LEXIS 2000 (Conn. Super. Ct. 1997); and Minnesota
Medical Ass'n v. Minnesota Dep't of Pub. Welfare, 274 N.W.2d 84, 4 Media L.
Rep. 1872 (Minn. 1978).

[165]  Kozlowski v. Freedom of Info. Comm'n, 1997 Conn. Super. LEXIS 2000
(Conn. Super. Ct. 1997).

[166]  Id.

[167]  See, e.g., State ex rel. Stephan v. Harder, 641 P.2d 366, 8 Media L.
Rep. 1891 (Kan. 1982).

[168]  See Bowie v. Evanston Community Consol. Sch. Dist. No. 65, 538
N.E.2d 557 (Ill. 1989) (citing Ill. Rev. Stat. ch. 116, par. 208 (1985));
Hamer v. Lentz, 547 N.E.2d 191, 17 Media L. Rep. (BNA) 1268 (Ill. 1989);
and Hamer v. Lentz, 525 N.E.2d 1045 (Ill. Ct. App. 1988).

[169]  Bowie v. Evanston Community Consol. Sch. Dist. No. 65, 538 N.E.2d
557, 560 (Ill. 1989).

[170]  Minnesota Medical Ass'n v. Minnesota Dep't of Pub. Welfare, 274
N.W.2d 84, 86 n.1, 4 Media L. Rep. (BNA) 1872 (Minn. 1978).

[171]  See Hamer v. Lentz, 547 N.E.2d 191, 195, 17 Media L. Rep. (BNA) 1268
(Ill. 1989); and Family Life League v. Department of Pub. Aid, 493 N.E.2d
1054, 1058 (Ill. 1986).

[172]  State ex rel. Stephan v. Harder, 641 P.2d 366, 378-79, 8 Media L.
Rep. (BNA) 1891 (Kan. 1982).

[173]  Bowie v. Evanston Community Consol. Sch. Dist. No. 65, 538 N.E.2d
557, 561 (Ill. 1989) ("[W]here, as here, individual identifying information
can be redacted and the record scrambled, preventing a clearly unwarranted
invasion of personal privacy, the record must be disclosed."); and Bowie v.
Evanston Community Consol. Sch. Dist. 65, 522 N.E.2d 669, 673 (Ill. Ct.
App. 1988).

[174]  538 N.E.2d at 558.

[175]  Id. at 559.

[176]  Bowie V. Evanston Community Consol. Sch. Dist. 65, 522 N.E.2d 669,
673 (Ill. Ct. App. 1988). (Deletion of students' names and sexes and the
scrambling of the alphabetical order of their scores would make their
identification virtually impossible, notwithstanding the disclosure of
their race.")

[177]  538 N.E.2d 557, 563 (Ill. 1989) (Miller, J., dissenting).

[178]  Id. at 563-64.

[179]  Scottsdale Unified Sch. Dist. No. 48 Of Maricopa County v. KPNX
Broadcasting Co., 955 P.2d 534, 540 (Ariz. 1998); City of San Jose v.
Superior Court of Santa Clara County, 74 Cal. App. 4th 1008, 1025 (Cal. Ct.
App. 1999); and Kestenbaum v. Michigan State University, 294 N.W.2d 228,
235 (Mich. Ct. App. 1980).

[180]  City of San Jose v. Superior Court of Santa Clara County, 74 Cal.
App. 4th 1008, 1025 (Cal. Ct. App. 1999).

[181]  Id.

[182]  Scottsdale Unified Sch. Dist. No. 48 of Maricopa County v. KPNX
Broadcasting Co., 937 P.2d 689, 691-92 (Ariz. Ct. App. 1997).

[183]  Id.

[184]  S. Rep. No. 813, 89th Cong., 1st Sess., at 3 (1965).

[185]  Id.

[186]  Id.

[187]  Department of Air Force v. Rose, 425 U.S. 352, 372-73 n.9 (1976);
and EPA v. Mink, 410 U.S. 73, 80 (1973).

[188]  Houchins v. KQED, 438 U.S. 1, 14 (1978). "There is no discernible
basis for a constitutional duty to disclose, or for standards governing
disclosure of or access to information. Because the Constitution affords no
guidelines, absent statutory standards, hundreds of judges would … be at
large to fashion ad hoc standards, in individual cases, according to their
own ideas of what seems 'desirable' or 'expedient.'"

[189]  327 N.W.2d 783 (Mich. 1982).