American democracy is a conspiracy of special interests against the general interest, but every special interest thinks that it is the general interest. Michael Kinsley, Washington Post, February 20, 2005.
Media attention to open government issues has always tended to veer toward getting the interviews and opening the books when the spotlight is on an individual by whom or about whom information is either disclosed or withheld. We love to hear and talk about people more than issues or cold, inert information. Just as important, the tension between proponents or privacy and supporters of transparency makes good copy.
Clashes between privacy and open government are everywhere in the media these days, leaving confusion and concern on the minds of many Minnesotans. As one of those trying to unravel the issues I recently revisited a paper I had filed years ago. Entitled “Caught in the Middle: Access to State Government Records in the United States, the paper was presented by Richard Pearce-Moses at the Japan-U.S. Archives Seminar in May 2007. At the time Pearce-Moses was Director of Digital Government Information at the Arizona State Library, Archives and Public Records. In this highly charged privacy/transparency environment, it’s worth a re-read.
Pearce-Moses defines his basic argument at the outset:
What is the value of archives if not to provide access to information? Why spend time and effort collecting and organizing records if no one will ever use them? Access to information is a cornerstone of the archival profession. At the same time, archivists recognize and respect individuals’ and corporations’ rights to privacy, as well as legal restrictions on access to records in their custody. The irony for public archives is that, at least in English, the word public embraces two contradictory senses: the records are public, in the sense they are of the people, but they are necessarily public, as some are confidential.
He is quick to remind the reader of the clear distinction between the requirement of government to preserve the record and the lack of parallel responsibility on the part of corporations and private individuals.
The legal aspect of access Pearce-Moses defines as Protecting the Government’s Interests vs Privacy. The practical application of the law, he notes, usually focuses on “records”, including all books, papers, maps, photographs, machine readable materials, or other documentary materials, regardless of physical form or characteristics.” The word “all”, he says, “incompasses a lot of material.” The question itself has significant implications when it relates to states’ providing for inspection of public records.
Courts, he writes, have routinely held that access to records is subject to reasonable rules and regulations to avoid disruption of regular business. However, the agency and the individual or organization making the request may have different ideas as to what they consider to be unreasonable disruption.
The thorny issue often lies in the area of definitions of information, records, and public records – an increasingly cloudy area that has loomed for a couple of decades. Exploding technology has become a staggering challenge to Deciders in today’s tsunami of tools that few have or take the time to consider in the longer term.
Neither bilateral nor ad hoc thinking is sufficient. It will not suffice to tweak old models. This paper reminds me of just how essential it is for the concerned parties, including the public, to drop the cudgels and come to grips with the fact that we must reframe the very issues of the public right to privacy and the public right to know. The processes that protect those rights must flow from not dictate policy.