Use of public record databases in newspaper and television newsrooms.

• Author: Barnett, Brooke
• Position: Statistical Data Included

1. INTRODUCTION

   The right of access to public record information can be found in the statements of this country's Founders,(1) state and federal statutes,(2) and decisions of the Supreme Court.(3) A growing trend favoring privacy protection, manifested most recently in the federal 1994 Driver's Privacy Protection Act ("DPPA")(4) and its 1999 amendments,(5) poses a serious threat to First Amendment interests and threatens to substantially harm journalists. Surprisingly little effort has been expended, however, to determine the amount and nature of journalists' use of electronic public records, or to understand the full extent of harm threatened by recent privacy enactments.

   The study on which this Comment is based systematically investigated journalists' use of public record databases. The study combined in-depth interviews and survey research to produce a more complete view of how journalists use these databases in television and newspaper stories and what they will lose if access to public record databases is substantially reduced or eliminated. Part II provides a brief overview of the history of public access to government records and the current privacy debate. Part III describes the survey methodology and presents the results. This Comment concludes that reporting and developing socially significant stories depends on access to public records. If legislatures restrict that access, not only would some stories prove more difficult or expensive to report, or be reported less completely, accurately, or quickly, but reporters would miss altogether those stories that result from routine searching of public records--so-called "enterprise stories." Given that enterprise stories often involve politics, government abuse, crime, safety violations, and other matters of exceptional public importance, the ultimate effect of restricting access to public records would impact not only journalists, but also the public at large.

2. THE HISTORY OF PUBLIC ACCESS AND THE CURRENT PRIVACY DEBATE

   1. Traditional Access to Public Records

      The democratic process relies on open access to government records. An informed citizenry is crucial to a functioning democratic government, and access to information about the workings of the government is key to that process. As James Madison wrote: "Knowledge will forever govern ignorance: And people who mean to be their own Governors, must arm themselves with the power which knowledge gives."(6) In addition, the American system of free expression relies upon access to information, as First Amendment theorists such as Thomas Emerson, Alexander Meiklejohn, and Vincent Blasi have repeatedly noted.(7)

      The Supreme Court has explicitly recognized a right of access for the public to attend trials or obtain access to other judicial information,(8) and has implicitly identified a right of access to other government information.(9) Extrajudicial statements have further supported expansion of the right of access. Justice Potter Stewart wrote that the Constitution is "neither a Freedom of Information Act nor an Official Secrets Act."(10) Justice White wrote in Branzburg v. Hayes that "without some protection for seeking out the news, freedom of the press could be eviscerated."(11)

      The prevalence of federal and state access statutes may have influenced the Supreme Court to refrain from recognizing a constitutional right to access public record information outside of the context of trials and related documents. Federal access laws developed after World War II, beginning with the Administrative Procedures Act of 1946,(12) which was amended in 1966 to include the Freedom of Information Act ("FOIA").(13) The FOIA mandates that all government information generated by executive branch agencies must be disclosed, except for material fitting within nine specified exemptions, such as matters of national security, law enforcement, or personal privacy.(14) The exemptions reflect the presumption in favor of disclosure, however, whereas nondisclosure is permissive, not mandatory.(15) The agency retains discretion to opt for nondisclosure, based on its assessment of the privacy risk. Today, every state has some type of open public record law.(16)

      The sweeping openness of public records, however, is beginning to change. Access rights derive from statutes, and legislatures frequently amend the laws, sometimes to benefit certain interest groups or to protect privacy interests. State legislatures, in the past year alone, have proposed or passed more than one hundred bills that would limit access to parts of the public record.(17) One recent example of such legislative tampering with access to information at the federal level is the DPPA, enacted in 1994.(18) The law bars states and their employees from releasing information, including names, addresses, photographs, and telephone and social security numbers, from motor vehicle records. Senator Barbara Boxer of California introduced the act as an amendment to the Violent Crime Control Act of 1994(19) after the shooting death of actress Rebecca Schaeffer. A stalker murdered Schaeffer at her California apartment after obtaining her home address from a private detective, who found the information in state motor vehicle records.(20) Ironically, the law as enacted carves out an exemption for private investigators along with law enforcement officials, courts, and government agencies.(21) Yet, no exemption exists for the news media, despite the First Amendment's free press guarantee.(22)

      Only one senator discussed the First Amendment during debate over the DPPA. Senator Orrin Hatch stated that restricting access to information under the DPPA would harm newsgathering. On the Senate floor, Hatch read a letter from the Utah branch of the Society of Professional Journalists, which outlined important journalistic uses of such information.(23) The organization cited several examples of important stories that resulted from searches of driver's license records.(24) For example, a reporter from the Providence Journal used a computerized list of driving records from the Department of Motor Vehicles ("DMV") to identify school bus drivers with dangerous driving records.(25) Another story uncovered Minnesota airline pilots who, despite losing their driving privileges because of alcohol-related offenses, were still flying planes.(26)

      Testimony and editorials from journalists also indicated the wealth of stories that have resulted from searching these records. The Miami Herald used DMV records to document nearly five hundred drivers who retained their licenses, despite having six or more DUI convictions.(27) The Orlando Sentinel used driver records to locate home addresses for Kennedy Space Center workers who, when interviewed at home and away from watchful eyes, discussed government mistakes that led to the Challenger explosion.(28) WCCO-TV uncovered a ring of automobile title laundering where unsuspecting car buyers purchased cars that had been totaled and rebuilt.(29)

      Despite concerns from First Amendment advocates and professional journalists groups, Congress passed the DPPA, and President Clinton signed it into law. Media advocacy and professional journalists groups have continued to speak out against the DPPA,(30) as well as its 1999 amendment, which eliminates highway funds for states that release any personal information from drivers' records without the consent of the licensee.(31) After a series of legal challenges and two Court of Appeals decisions ruling the DPPA unconstitutional,(32) the Supreme Court upheld the act.(33) The Court confined its discussion narrowly to issues of federalism,(34) addressing neither the privacy concerns at hand nor the implications to the public and press of limiting information that had traditionally been available to the public.

      The legislative history of the DPPA illustrates that privacy concerns motivated the legislation, however, and many fear the proliferation of such privacy-inspired legislation. Media advocate Lucy Dalglish wrote: "The bottom line is that a valuable source of public information has been shut down, and privacy advocates are setting their sights next on voter registration, property tax, and land transaction records."(35) Dalglish expects legislative and congressional efforts fueled by the privacy wave to continue chipping away at access to these records.(36)

   2. Privacy and the Press

      The conflict between the press and privacy advocates stems from...