Technology brings new issues to FOI

Information can be more accessible on the Internet, but that accessibility raises privacy and national security issues that could lead to more restrictions

By Sue Hale

Many journalists have been gleefully jumping into the pool of government databases made more accessible by the Internet and a proliferation of software that manipulates and increases storage of records.

But, we’re not swimming for free and there is a real risk of records “pools” being closed or at least restrictions being imposed on who can use them.

Last fall, the research subcommittee of ASNE’s FOI Committee started work to determine how commercialization of public records is affecting the ability of journalists to gather information. We discovered that commercialization was only one avenue where access was being threatened.

For example, a group of state attorneys general were planning in late January to tell Congress not to pull the rug out from under state privacy laws. Such laws determine how much information is made available through state government databases and at the present time, those laws vary from state to state.

So far, we can summarize what we have learned as follows:

• Privacy concerns may stimulate overreaction in cutting off the flow of information.
• National security concerns are threatening restrictions not only in public records held electronically but also in the more traditional methods of keeping records.
• There is a lack of statutory provisions governing public records access when third-party contractors take over government functions such as operating prisons or providing school bus service.
• And finally, what we were actually looking at, is the government’s desire to produce revenue with commercialization of records may severely restrict the public’s right to access records due to inability to pay the fees.

Technology vs. privacy

Technology is not the root of all evil but it is the underlying reason those who worry about privacy or national security have more to worry about.

Personal information is a highly desirable commodity and is used by people in marketing to target advertising or even develop new products.

Private companies are now heavily invested in technology that keeps track of consumer behavior, information being used by retail, medical, insurance and banking sections. Government agencies are adopting this technology for uses from geographic information systems for municipal mapping to sophisticated computers for docket management at the county court. With these uses, government-held information about individuals might be included.

Adding to privacy concerns is the fact that commercial database services that use a combination of public records, publicly available information and proprietary data, have been largely self-regulating. The data warehousing market is expected to grow from $10.9 billion in 1999 to $27.6 billion in 2003.

Journalists have been among the first to sign up with database companies to mine for information. In an article in the San Jose (Calif.) Mercury News (Sept. 24, 2000), Dan Gillmor wrote, “We use it more responsibly than others, I’m confident. But that only dodges some bigger questions — such as whether it’s proper for personal data to be so open in the first place. …”

National security

While legislators contemplate the privacy concerns of their constituents, the federal government is involved in a number of initiatives to restrict and control the flow of information concerning the nation’s infrastructure because of security concerns.

Perhaps most illustrative of the strength of national security arguments in efforts to restrict access to electronic information is the Chemical Safety Information, Site Security and Fuels Regulatory Relief Act. The law was enacted in 1999 to prevent the Environmental Protection Agency from posting on the Internet worst-case scenario reports from 30,000 chemical facilities across the nation.

Federal officials were able to persuade Congress that terrorists and criminals might use the information to identify sites vulnerable to sabotage. Even though that threat was speculative, hundreds of deaths and thousands of injuries have resulted from accidents at these sites that public awareness requirements were designed to prevent.

The law erased provisions of the 1990 amendment to the Clean Air Act requiring the government to make risk management plans containing the worst-case scenarios available to citizens to alert them to possible hazards in their communities. The reports do not contain security information, storage tank locations, classified information, or clues as to how a release of chemicals could be triggered. Nevertheless, the law exempted the reports from FOIA, overrode provisions of the Electronic FOIA and pre-empted state FOI laws.

Third party contractors

Complicating the access question is government agencies contracting for third-party operation of various services. The responsibility of third-party contractors to abide by openness laws is periodically addressed in various court cases across the country but without any definitive rulings to date that can be universally applied. In some cases, third-party contractors are even more reluctant to release information even though technology has given them the ability to easily do so.

A case in New Jersey ruled a computer spreadsheet prepared by a consultant for a hospital district was not subject to the state’s openness laws because it was not a record required to be kept under state law.

Last fall in Oklahoma, a private company operating a county jail refused to release documents and photos of juveniles who had been charged as adults although state law allows for the release of that information. There is also a statute that says any state laws governing jails shall apply to jail properties operated by a private prison contractor. The contractor, however, was (and still is) refusing to release the information for fear of liability and does not consider its operation covered by state law.

Then we move to the issue of governments wanting to profit from the data they possess.

Griff Palmer, former database editor at The Daily Oklahoman, Oklahoma and now at the San Jose Mercury News, analyzed Oklahoma state revenue records and found the Oklahoma election board was realizing thousands of dollars a year in revenue from sale of voter registration and history data to private vendors and political candidates. The election board also wanted to charge news media the same commercial fees.

The Oklahoma attorney general’s office told the election board it had to adhere to the direct cost provisions of the state’s open records act. Election board officials had a bill drafted called the “Voter Privacy Protection Act” that declared voter registration data not subject to the state’s openness laws and made it a misdemeanor for anyone but the state election board to provide copies of the data to anyone. The bill passed the state Senate but was killed in the state House.

While usually prohibiting large fees for sale of data by state agencies, many state statutes allow such fees to be charged by county agencies. California statutes have provisions that allow assessors to charge for essential public records.

The Santa Clara County Assessor’s Office, for example, prices its assessment database at $40,000 per copy.

Our committee included some research into what other countries are doing with public records. We have discovered that debates rage over the same issues we confront in the United States. Foremost have been the dual challenges of privacy protection and the Internet.

Both abroad and here, concerns are being raised over archiving e-mail sent by government officials and the use of highly sophisticated storage and retrieval programs that aid in the development of everything from the county fair promotion brochure to the full government budget calculations.

So, do we have a conclusion on how all this is affecting what we do? To date, our conclusion is that all of these innovations to methods of access are both a blessing and a curse. As to which is which, it depends on what information you are looking for and where you live.

What is most important is that legislation continues to be introduced and passed on state and federal levels that can have far reaching consequences to our ability to gather information. It is critical that we are not lured into being passive because we have the financial resources to overcome almost any cost limits to access to extensive database information. The public doesn’t have those resources. And after all, it’s the public’s right to know we are here to protect.

Full reports on what we have discovered will be available at ASNE’s convention in April.

Hale is the executive editor of The Daily Oklahoman, Oklahoma City.

Contributors to this article include Tonda Rush, president and CEO of the National Newspaper Association.; Terry Maguire, new media consultant and general counsel to the World Association of Newspapers; Paul McMasters, ombudsman for The Freedom Forum and Paul Monies, committee research intern and student at the University of Missouri.