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Privacy and Public Records

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Introduction

Public records are materials that are open to inspection by any person. The definition of what records are public varies depending on state and federal law. The definition may include government contracts with businesses, birth, marriage, and death records, court files, arrest records, property ownership and tax information, minutes of meetings of government entities, driver's license information, occupational licenses, and Securities and Exchange Commission filings.

Many of these public records contain individuals' personal information. This personal information is required to be divulged when citizens interact with state or federal bureaucracies for the purpose of administering voting, public benefits, and privileges. However, once a record becomes public, there is generally no restriction on the purpose for which the personal information contained within the record is used. The availability of this information without restriction on use exposes individuals to risks and annoyances:

As a society, we need to reevaluate how the personally identifiable information contained within public records can be used. Clearly, a free society demands a robust right of access to public records in order to assure accountability of public officials and government. This robust right must facilitate citizen access to records, not just access to those with resources and expertise in obtaining government records. A system must be established that ensures legitimate uses--journalistic, historical, and educational--of public records while still preserving privacy protections for personal information.

Court Records

In Fall 2000, the Administrative Offices of the United States Courts (AOUSC) requested comments from the public on its plans to provide remote electronic access to federal court files. With few exceptions, courts files are considered public and there are no legal barriers to their dissemination or to the dissemination of the personal information within the files.

While court files always have been public, they were considered to enjoy "practical obscurity." That is, the records were stored in such an inaccessible fashion that only the determined and resourceful could obtain them. To this day, most records probably are stored at the local level on different types of media (paper, magnetic tape) and are indexed with varying degrees of accuracy and usefulness.

Court files contain a wealth of personal information. For instance, bankruptcy filings, which are required by statute to be public, contain personal identifiers and detailed information on the petitioner's assets. Civil case files may contain medical information and detailed information on spousal infidelity and abuse. Criminal case files may contain presentencing reports and the identity of officers and witnesses in criminal investigations.

The AOUSC recognized that remote electronic access to this information could result in invasions of privacy and in security risks to witnesses and litigants. Accordingly AOUSC requested comments from the public on civil, criminal and bankruptcy case files.

EPIC filed comments with AOUSC and testified to a committee of the Judicial Conference on the privacy issues implicated by remote electronic access to case files. The challenge was to formulate a scheme that guarantees robust access to public records while also preventing unwarranted invasions into the personal matters of litigants and witnesses. To reach this goal, EPIC commented that in the context of civil case files, personal identifiers should be redacted. In the context of criminal case files, sensitive information such as pre-indictment documents, presentence reports, plea agreements, and unexecuted warrants should not be available to the public. Last, in the context of bankruptcy files, EPIC commented that personal identifiers should be collected on a separate form that was not available to the public.

Overall, more than 250 comments were received by the AOUSC, and the body released a policy in September 2001 that included important provisions for the protection of personal information. These included the redaction of personal identifiers in civil and bankruptcy cases, a delay in providing remote electronic access to criminal files, and Social Security cases were excluded from electronic access.

The AOUSC recommendation on electronic access to case files only applies to the federal courts. The states have different laws and policies on what court files are public and the extent to which they are available electronically.

In 2002, the National Center for State Courts requested comments on a model policy for public access to court records. State court records are more likely to contain information that could be stigmatizing. Family court issues, mental health cases, and domestic abuse cases are all handled in state courts.

In April 2002, the New York State Court system created a committee to study public access to court records.

Voter Profiling

The government compels citizens to divulge certain information before participating in democratic processes. For instance, for purposes of voting registration, citizens have to provide their identity and address. Some districts also collect information on party affiliation. If a citizen donates over $200 to a candidate or political party, the citizen must provide name, address, and employment information under federal fundraising rules. This information is often in the public record, and may not be protected by use limitations or other Fair Information Practices.

This personal information often is used to build complex profiles of citizens and their likely voting behaviors. Aristotle, a company that creates voter profiling software, sells databases of voter information that includes name, address, phone number, donation history, and party affiliation. The company also sells tools to track voter correspondence with elected officials.

Public Records and Law Enforcement

A number of commercial profilers sell public records information to government law enforcement agencies. An April 13, 2001 article in the Wall Street Journal reported that profiling company ChoicePoint provided personal information to at least thirty-five government agencies. EPIC has filed a series of Freedom of Information Act requests to determine the nature and amount of information sold to government. To date, EPIC has determined that ChoicePoint has several multi-million dollar contracts with law enforcement agencies to sell personal data. In addition, Experian, a credit reporting agency, sells personal information to government agencies for law enforcement purposes.

In January 2002, EPIC filed suit in Federal District Court to compel agencies to respond to the FOIA request for documents on ChoicePoint and Experian.

Profiling data is sometimes abused by law enforcement agents. In January 2001, a 12-year veteran of the Drug Enforcement Agency, Emilio Calatayud, was charged with selling personal information from police databases. Calatayud made thousands of dollars by selling the personal information to private investigators from the National Crime Information Center (NCIC), California Law Enforcement Telecommunications System (CLETS), and the Narcotics and Dangerous Drug Information System (NDDIS) databases. On the first day of this trial in February 2002, the DEA agent skipped bail and is at large.

In January 2002, a New York Jury awarded $450,000 in damages to an individual who lost a job opportunity because his profile contained a false criminal conviction. In that case, the judge found that ChoicePoint either intentionally maintained substandard procedures for verifying accuracy of data or should have known that its procedures were substandard under the Fair Credit Reporting Act. Obabueki v. IBM, 145 F. Supp. 2d 371 (2002).

In April 2002, private-sector profilers met to discuss how they could compile consumer information for terrorist risk profiling and sell it to the government. That meeting, organized by the Center for Information Policy Leadership (CIPL), was attended by a number of companies that are attempting to sell their marketing products for anti-terrorism purposes.

In May 2002, FBI agents Lynn Wingate and Jeffrey Royer were indicted on fraud charges relating to use of government databases. The FBI agents allegedly used their access to agency databases to provide information on companies for stock manipulation purposes. One agent allegedly searched the NCIC database and used information contained within it to smear a company executive and lower stock prices. Both allegedly used confidential FBI databases to monitor government investigations of the other stock manipulators.

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Last Updated: October 23, 2007
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