Personal Privacy in an Information Society. Freedom of Information and Privacy


The second competing societal value the Commission identified is freedom of information. In enacting the Freedom of Information Act (FOIA) in 1966,13 and strengthening it eight years later, the Congress gave expression to society's strong interest in opening the records of Federal government agencies to public inspection. The FOIA, to be sure, allows for exceptions from the general openness rule which an agency may invoke for certain information pertaining to national defense and foreign policy, law enforcement, individuals, internal agency deliberations, trade secrets, and information specifically declared confidential by other statutes. The withholding of exempt records, however, is subject to administrative and judicial review. Most of the States have enacted their own FOIA statutes in one form or another. Other statutes, both Federal and State, open meetings of certain governmental bodies to the public. The legal actions brought to test these statutes have shown the courts to be generally sympathetic to broadening public access to government records and deliberations, and, of course, journalists are natural advocates of full access and disclosure. Altogether, the presumption against secrecy in decision making and record keeping by government agencies is now firmly established.

The Commission has recommended the continuation of restrictions on the disclosure of specific records about individuals maintained by government agencies. While this recommendation may seem to conflict with the principle of freedom of information and openness, the Commission firmly believes that it is compatible with those principles and, indeed, that they are complementary aspects of a coherent public policy concerning public records.

In the Federal government, adjustments between freedom of information policy and confidentiality policy are made at two levels. At the first of these levels, the Federal FOIA makes adjustments by incorporating several statutes which, with particularity, direct that specific records be withheld from the public. The Federal FOIA does not require the disclosure of matters that are:

specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the matter be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld. [5 U.S. C 552(b)(3) (1976)]

Tax returns and the responses of individual households to Census Bureau inquiries fall into this category. The Commission believes that it is preferable for the Congress to create this sort of explicit confidentiality policy than for government administrators to decide when such records should or should not be disclosed.

The second level at which freedom of information and privacy interests relate becomes apparent when a Federal agency receives a legitimate Freedom of Information Act request for access to a record about an individual and finds that the record is subject to the Privacy Act of 1974. When the two Acts are read together any disclosure of a record about an individual in a system of records as defined by the Privacy Act to any member of the public other than the individual to whom the record pertains is forbidden if the disclosure would constitute a "clearly unwarranted invasion of personal privacy." The reverse obligation also holds: even though a record is about an individual, it cannot be withheld from any member of the public who requests it if the disclosure would not constitute a clearly unwarranted invasion of personal privacy. The courts are the final arbiters of which disclosures do or do not meet the unwarranted-invasion test and over the years they have established certain types of recorded information which must be disclosed without question. Two examples are Civil Service grades of Federal employees, and the names of persons who have participated in elections supervised by the National Labor Relations Board.

For government, the Commission believes that the policy of combining explicit legislation for particular types of records with a general standard to be applied in all other cases is an appropriate way to balance the freedom of information interests and confidentiality interests. As Chapter 13 explains, the combination does not lead to resolution of difficult cases overnight, but it does create a framework within which the conflicts between the two competing though compatible interests can be resolved.

The general concept of freedom of information has no currency in the private sector. Issuers of regulated securities must publicly disclose particular items of information about the individuals who control or manage companies, but organizations in the private sector by and large have no affirmative obligation to disclose their records about individuals to the public. They may be required to disclose such records to government agencies for a variety of reasons, as described in Chapter 9, but in many cases government is prohibited from subsequently disclosing that information to the public. Thus, in the private sector there is no freedom of information policy to conflict with a confidentiality of records policy.

Indeed, the Commission believes that in most instances the persuasive power of an active press can be relied on to work out a proper adjustment between the right to privacy and the freedom of information principle as it applies to public disclosure of information in records about individuals maintained by private-sector organizations. However, the Commission also believes that the individual needs some limited control over the public disclosure of particular types of information about him. An individual should be able to limit the public disclosure of credit, insurance, medical, employment, and education record information about himself. In these areas, the Commission has recommended for the individual an assertable interest so that he can have a role in determining whether information about him should be publicly released. In fact, as to certain identifying information referred to as directory information, the Commission's recommendations recognize the general practice of public disclosure in such areas as employment, medical care, and education. Thus, reporters should be able to continue to find out who is in what hospital, who is employed by what firm, and who is enrolled in what school.

The Commission's recommendations, with one exception, do not limit or affect the ability of the press to request or obtain information. The area of medical records is the one area where the Commission not only recommends a duty on the record keeper to respect an individual's expectation of confidentiality but also suggests that it be made a crime to seek such information through misrepresentation or deception. Specific abuses by persons seeking medical-record information for use in adversary situations have led the Commission to conclude that such a recommendation is necessary. In all other cases, the Commission's recommendations do- not limit or affect the ability of the press to request or obtain information. These balances are difficult to strike and the Commission has attempted to establish mechanisms for doing so rather than recommend specific disclosure prohibitions.