Public record versas evasion of privacy

New privacy laws must permit valuable uses of public records

When obtaining consent from a minor, it is essential that a student journalist take extra precautions to insure that the minor is fully informed of what is taking place.

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While most minor high school students probably can provide valid consent, most elementary-aged children, because of their immaturity, probably cannot. Skip to content. In order to succeed in this kind of lawsuit, the person suing must show that the information was: sufficiently private or not already in the public domain, sufficiently intimate, and highly offensive to a reasonable person. Printing the Names of Minors In the unanimous decision, Smith v. False light A false light claim can arise anytime you unflatteringly portray -in words or pictures- a person as something that he or she is not.

Intrusion Intrusion is a claim often based on the act of news gathering.

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Secret Surveillance: using bugging equipment or hidden cameras. The laws vary by state but as a general rule reporters can legally photograph or record anything from a public area, such as a sidewalk, but they cannot use technology to improve upon what an unaided person would be able to see or hear from that public place. Misrepresentation: invalid or exceeded consent. Undercover reporting is not necessarily an invasion of privacy as long as the disguise is not used as a means to trespass or engage in an activity that would not otherwise be allowed.

For example, it would not be an intrusion for a minority student reporter to pose as a potential pledge to investigate a story about racial discrimination inside a fraternity. The reporter has a right to pledge whether he is serious about it or not. Consent as a defense With all four forms of invasion of privacy, consent is a valid defense.

Can a minor give valid consent? What can be done to mitigate the negative consequences of making public records containing personal information available on the Internet and from other electronic services? Governments are not likely to make the decision to keep such records off the Internet altogether. Indeed, they should not. The public policy reasons for making public records available electronically are irrefutable - promoting easier access to government services as well as opening government practices to the public and fostering accountability.

But there are several approaches government agencies and court systems can take to minimize the harm to individuals when sensitive personal information is to be posted on the Internet while at the same time promoting government accountability. As above, many of the following points pertain to court files.


Examining the public policy objectives of online records. Government agencies and courts must ask themselves what public policy objectives they are accomplishing by making records available on the Internet, particularly those containing personal information. Would there be a way to limit the amount of personally identifiable information posted on the Net without undermining the public policy purpose of making records accessible on the agency's website?

I suggested in point 1, for example, that courts can choose to post only the case indexes on the Internet rather than the full-texts of files.

I have yet to hear a reasonable explanation for the public policy purpose of posting, for example, the full-text files of divorce records online, complete with the gruesome details of failed marriages. Wouldn't the purpose of notifying society that the marriage between the stated parties has ended as of the specified date be sufficient detail to be posted online?

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Another example of restricting online access to certain personal information is already in practice regarding property tax assessor files. The San Diego County California Assessor decided to not post the names of property holders on its web site.

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Rather, users must seek property valuation data by searching under the address of the property. The primary use of this file, after all, is to determine the taxable value of property and to check that similar property is taxed at the same rate. Name searches are not possible via the web site, and indeed are not necessary to ensure the policy objective that property is being assessed fairly. The process of analyzing the public policy purposes of certain government records being public and others not is long overdue.

Now that courts and government agencies are grappling with the decision to post their records online is an ideal time to engage in this analysis. Why are Medicare records confidential? Why are tax documents not available to the public? Why are other types of government records considered public?

Which records need to be public in order to promote such policy objectives as government accountability? Which records should not be released to anyone without the individual's consent? For certain types of records, can public access be limited to just the key elements of the records in order for the public policy objective of government accountability to be achieved? These questions must be answered in order to make rational decisions about posting public records containing personal information on the Internet. Restrictions on access.

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Courts and other government agencies can restrict or control access to records in order to protect particularly sensitive personal information. He cites numerous cases and provides an extensive analysis of the applicability of the Constitution to make his arguments, a full discussion of which is beyond the scope of this presentation. In Solove's words:. Thus, personal information is regulated by a bewildering assortment of state statutory protections which vary widely from state to state.

This chaotic state of affairs is troublesome in an Information Age where information so fluidly passes throughout the country and is being made more widely available by the Internet and through private companies.

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The privacy protection that currently exists for public records is largely designed for a world of paper records and has been slow to adapt to an age where information can be downloaded from the Internet at the click of a mouse. Public records contribute to this privacy problem because they enable the creation of a dossier of personal information about individuals. The problem is that, often without the individual's knowledge or consent, the information is then used for a host of different purposes.

Of course, we must rethink what information belongs in public records.

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New privacy laws must permit valuable uses of public records identify consumers likely to be interested in a given product or service. whose disclosure would “constitute a clearly unwarranted invasion of personal privacy. on contraception2 and abortion,3 by the tort of invasion of privacy in the context of various records is an issue that far predates the Internet or the cluster of.

But we must also regulate the uses of our digital biographies. Government is not doing enough to protect against the uses of the information that it routinely pumps into the public domain. Solove goes on to analyze several prominent court cases and to offer arguments as to why government agencies can restrict or control access in order to protect personal privacy:.

Public record information is part of this largesse, and the most recently decided unconstitutional condition cases suggest that the government can impost certain conditions on how this information is used before it makes it available to the public. By making access conditional on accepting certain responsibilities when using data - such as using it for specific purposes, not disclosing it to others, and so on - certain functions of transparency can be preserved at the same time privacy is protected. Anonymizing and aggregating data.

To flesh out the previous point, in certain situations access to court and government agency records can be accomplished by providing them in aggregate form with personal identifying information left out, or by enabling full access under special confidentiality agreements with the court or agency. The result would be to anonymize the information that is ultimately made available to the public via news stories or academic treatises.

Investigative reporters or academic researchers might want to analyze trends in certain types of court cases, for example, divorces. They should have the ability to apply to the court for full access to these files, but should be required to enter into a confidentiality agreement with the court to not publish personal identifying information and not to share that information with others.

Other requests for broad-based access might be fulfilled by the court or government agency by providing aggregate data with personally identifying information removed. Rules of court see point 3 above must include provisions enabling access to multiple files for research and investigative purposes, while at the same time protecting the privacy of those individuals named in the records.

The preceding recommendations pertain primarily to court and government agency records.

California Penal Code Section 647(j) PC: Invasion Of Privacy

We must also examine those professions that use public records information, namely information brokers and private investigators. Regulating the information broker industry. The information broker industry must be regulated.

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At present, information brokers purchase public records from local, state, and federal government agencies and repackage them for sale to subscribers. They add data files from commercial data sources such as credit reports and consumer survey data. Virtually anyone can obtain access to these files, although many information brokers claim they limit access to professions such as private investigators, attorneys, law enforcement, media, debt collectors, landlords, and employment background checkers.

However, the effectiveness of such self-regulation is limited at best.