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Who wants to know?

By Lady Liberty
web posted November 29, 2004

The other day, I got a phone call from a friend of mine. She was angry and upset that her husband's name had been published in our local newspaper as being one of several candidates for a city job opening, and she was looking for recourse.

"What if," she fumed, "his current employer sees that he's looking for another job? Couldn't he be fired?"

Yes, he could be. Although every employer must understand that employees may look for other positions that offer a better location, higher salary, more extensive benefits, or greater satisfaction, companies invest time and money in training and retaining their workers. Many may want to find some way to cut their losses if they know someone is looking to go elsewhere. A few might vent their own sense of betrayal with a retaliatory termination. And in a right-to-work state like the one in which I happen to currently live, employers need no cause whatsoever to sever employment if they choose to do so.

"Why would the newspaper publish something like that?" she raged.

Well, they'd publish it because that particular position with the city is one that has a significant effect on local residents and businesses. Business owners want to know more about the men and women with whom they'll potentially be working in the near future; residents are all too well aware of problems with past employees in that position and are looking for someone who won't present similar difficulties. In short, the newspaper publishes information like that not merely because of some public "right to know," but because of some justifiable public interest as well.

"The city should have never released those names to the press!" she argued.

Forget for a moment whether it was responsible to release a list of those under consideration for the position at this relatively early stage of the process, and consider something more salient to the point: the city had no choice but to release those names when it was asked by the newspaper. The applications, and thus the applicants, are a matter of public record.

It's ironic that I should be having this conversation during the very same month that a panel put together by the Florida State Supreme Court was considering just how much public record data should be made public via the Internet.

About a year ago, the Florida Supreme Court ordered a moratorium on posting information online until provisions for privacy could be made. In testimony before panel members, newspapers in particular were adamant that all of the information should be readily available. According to a report in the Palm Beach Post, one attorney who represented a number of newspapers told the panel that everything should be open and accessible unless the release of a record "will cause some public harm." Well, what about records that cause unwarranted individual harm?

Meanwhile, The Ledger reported that one editor told the panel that online records were accessible to more people, and that "the more open, the better." (At the time I first read this, I suggested that the editor's Social Security number be promptly put on display on the newspaper's web site just to see how much better it is to be more open.)

While newspapers offered pertinent examples of investigations they'd conducted electronically which might have been too time-consuming to perform otherwise, the panel wasn't so easily swayed. In one instance, a panel member reportedly asked a lawyer how journalists would deal with such sensitive matters as unfounded allegations of child abuse in a divorce case, or graphic photographs of a victim used as evidence in a murder trial. While I never would have trusted for a moment to the discretion of reporters or news outlets, the lawyer's answer was even more disheartening than such weak promises. He told the panel that "people should not have an expectation of privacy when they turn to the courts with a dispute."

One of the suggestions from those testifying before the panel was to review records on a case-by-case basis to see if there was any truly private information that should be redacted from the records before they're uploaded to the Internet. But given the thousands of records generated by everything from simple filings of licenses, to court motions and exhibits, to sentencing investigations and more, individual record review is simply not feasible.

Another suggestion was that signs be posted in county clerk offices that warn those filing paperwork that the information will be posted on the Internet. But that, in effect, tells people that they either need to forfeit all privacy or that they have no legal recourse in whatever matter it is that's brought them to the courts in the first place.

Also testifying before the Florida panel were data-miners. It should come as no surprise that they were also in favor of as much information as possible being made available online. In fact, one of the articles cited above noted that only two of all of those testifying were actually against such extensive publication of the records. But after two days of testimony heavily weighted in favor of making the records available to anyone with a computer and an Internet connection, the panel refused to lift the moratorium. With the promise of an immediate appeal of the decision, one lawyer grumbled that "the fairly low risk of having sensitive information released on the Internet is the price we pay in a democracy."

The truth is that there is -- and there must continue to be -- some transparency of government's inner workings in order for the press to do its job as the guardian "fourth estate," and for us to do our jobs as responsible citizens. But the attorney who talked about "fairly low risk" is wrong. The fact that data miners showed up at the panel hearings is in and of itself telling us without doubt that such information is being used for commercial purposes (it doesn't help that some states, including my own, actively sell certain information themselves). And previous news stories have reported that those with more nefarious purposes are also using online court records for such criminal endeavors as identity theft.

One consistent thread running through the Florida testimony was that the online records should match in completeness the paper records held by the court. After all, said the lawyers and reporters, if one could go to the courthouse and obtain information, that same information should be available via other public venues. And they have a point. But far from telling us that Internet records should be as extensive as paper records, that tells us instead that more care needs to be taken with the paper records as well.

Is there a public right to know? Yes, beyond a shadow of a doubt, there is. But while we have every right to know that our neighbor is a rapist, our employee is an embezzler, or even the average value of the other homes on our block as we prepare to sell our own, there are other things we just as obviously don't need to know.

We don't need to know the neighbor's Social Security number (arrest records almost universally contain that information these days as do most divorce records, and that information is all too frequently misused largely because it's become so readily available). It's not germane to our real estate research to get the specific layout of area homes (there have been documented cases where thieves have used such information to case their next hits). It's certainly none of our business to see the details of autopsy results (which typically report far more than the mere cause of death) or the graphic nude photographs of an unfortunate accident or murder victim (the police have traditionally withheld some crime details as an added hedge to ensure the right perpetrator is charged with a crime, and the public hasn't complained that it's not been wholly informed in those cases).

A little common sense would go a long way where public records are concerned. Unfortunately, neither the press nor the government has, in general, exhibited that attribute in any quantity. Florida's efforts are a surprisingly hopeful start in that direction. They are, however, not enough. As many states and counties wrestle with getting their records converted into digital formats and uploaded onto government web sites, there will never be a better time for every state to consider how it will handle this important and sensitive matter. (Some counties in Florida have come to what I consider a workable compromise. Complete electronic records are available, via free subscription, to those entitled to the completeness, e.g. attorneys, law enforcement, etc.) As a direct result of the debate concerning electronic records, the opportunity to reconsider the extent of unrestricted access to full paper records is also presenting itself for consideration.

I'm personally appalled by the opinion of some that I must forfeit, without reservation, highly confidential data to a broadly public venue -- data which could cause substantial problems for me if it were misused -- just to get my day in court. Neither do I accept that such a grievous violation of privacy is the price for living in a democracy. George Bernard Saw said instead that "Liberty requires responsibility." He added (rightly, I think) that "That is why most men dread it."

If public officials and citizens alike step forward to take some real responsibility now, we can avoid the responsibilities we'll face later when we'll be eventually be forced to attempt to put the cat back in the bag. As both a cat owner and a student of government in history, I can tell you the latter isn't going to happen without a whirlwind of screeching protest as well as some significant pain and bloodshed.

Lady Liberty is a graphic designer and pro-freedom activist currently residing in the Midwest. More of her writings and other political and educational information is available on her web site, Lady Liberty's Constitution Clearing House, at http://www.ladylibrty.com. E-mail Lady Liberty at ladylibrty@ladylibrty.com.

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