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Freedom of/from the press

Privacy is public issue

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Photo Illustration by Christie Jackson, Michael Brandy, Deseret News

The elections were so hot in Miami and areas of St. Louis that dead people were getting out of their graves to vote.

That information — and the number of people who didn't live in the communities where they voted — has been grist for public-service news stories about voter fraud. Reporters at the Miami Herald and the St. Louis Dispatch ferreted out the fraudulent votes by comparing voter registration rolls with reality.

Around the nation, there's a move afoot to close off voter registration records to protect privacy. But access to the information is seen by some — including members of the media, the political parties themselves and some voters — as a way of keeping the political process honest or just getting out the vote.

It's not surprising that competing interests don't agree on what constitutes legitimate privacy concerns in an age when personal information seems to be everywhere. And the media are at the heart of the privacy debate. Reporters rely on access to government records — some of them quite personal — to monitor how government conducts its business. They rely on court records to report on how the court system works. They rely on police reports to track crime trends. They rely on access to all kinds of records to do their jobs.

"There are two competing trends, even before Sept. 11," said Tom Rosenstiel, director of the Project for Excellence in Journalism and vice chairman of the Committee of Concerned Journalists. "The first was technology makes privacy more difficult because it's an environment that makes information more accessible. Everything from medical records to travels are on the Internet. At the same time, government, and particularly certain politicians, have had enormous success going to unprecedented lengths to take information that was once public and making it private again."

The rub, he said, is that denying the press denies the public.

"Citizens, distrustful of the press, are happy to have you not tell reporters," Rosenstiel said. "They don't make the connection: It means you're withholding it from me."

Last year, state and federal lawmakers slammed the door on access to motor registration records. They feared that a stalker could use the records to find a target's address.

Those same records, however, have been the foundation for stories on individuals with repeat drunken driving offenses. Whether John Doe is a good driver may not be anyone's business. But what if Mr. Doe drives a school bus or just killed three people after his fourth foray into driving drunk?

"My take is it just takes one bad instance to shut down records," said Sandy Davidson, who teaches communications law at the University of Missouri. For instance, after a reporter got Supreme Court nominee Robert Bork's video rental records, Congress — which did not confirm him — unanimously passed the Video Privacy Protection Act, putting video rental records off limits without a court order.

"I am a true believer in access to government records and in combining records to find patterns. Comparing lists of bus drivers to criminal records, drug abuse and very poor driving habits — that's a valuable public-interest story to anyone interested in the safety of children on school buses," Davidson said.

She also notes that government is amassing a ton of data it doesn't have manpower to analyze. "There are important stories to be told from data collected about compliance with disabilities laws or educational compliance. When journalists and researchers are willing to go through that information it's a public service."

Said Al Sherwood, chief privacy officer for Utah state government: "I think that the tension between the citizen right to privacy and the public right to know is built into really everything we do in government. Still, I am amazed at what records are public records."

Even the information collected for hunting and fishing licenses contains a great deal of personal data, he said. There have been questions about whether the public portions of that ought to remain public.

Some of the contention about personal privacy is a simple misunderstanding by the public, Davidson said. People think you can't print their name or use their photo without their consent. They're wrong. Courts have long held that photographers who want to take pictures of things in open view may do so. On the other hand, photographers can't shoot without permission in an evacuation helicopter where someone could reasonably expect privacy.

"On a personal level, I do care about privacy," said Joel Campbell, legislative monitor for the Utah Press Association. "But I don't want us to get so overly paranoid about privacy we cut off access to important information."

It's a mixed picture, Rosenstiel said. A Pew Center survey showed that citizens are more impressed now by the media than they have been in a long time. "I think one reason is that the press is covering something important, something serious. We've been hyping sensational stories for the last 10 years and people think we're in it for a buck; they've come to mistrust our motives. Perhaps if we continue to serve them well, by covering serious stuff that matters, people may begin to trust us more in some permanent way. But the same survey shows people are more trusting of the government to censor us than they are desirous of the press to have freedom.

"How can this be? They want the press to be aggressive, but trust in the government's desires to censor us."

Alan Romberg, a senior associate at the Henry L. Stimsom Center in Washington, D.C., and former State Department spokesman, said the existing tension between government and media is nothing new. But he believes "in a more politicized realm, the public does have a right to know what government is doing. More than that, it has a right to expect government to explain why it's doing it."

Police records are a particularly touchy area, Campbell said. Some police departments provide more information than others about the victims of crime. If that information were used to identify a rape victim to an attacker who didn't know her identity, she could be at risk. It happened in Columbia, Mo. On the other hand, the Oakland Tribune used the same type of information to show that rapes in rich areas were being investigated and cleared quickly, while those in poorer parts of town were not getting much attention. It was a possible miscarriage of justice that could be uncovered only by using personal information. A huge majority of news media have strict policies against identifying rape victims.

A news report that puts someone in danger is covered under negligence law, Davidson said. "To some degree, we have to be our brothers' and sisters' keepers. But it should be a matter of common sense, not law."

Governments make choices. Megan's Law mandates that information about persistent sexual offenders be made available to the public. The federal law was precipitated by the murder of Megan Kanka, who was killed by a known sexual predator whom neighbors did not know was living among them.

Government has also allowed exceptions to its own rules. When Nushawn Williams was spreading HIV in New York, under the public emergency exception to privacy his picture was disseminated on what amounted to a wanted poster, Davidson said.

"Sometimes, you have serious competing interests. If a woman is pregnant and has HIV, she may need some kind of treatment to keep her baby from contracting it. Should there be mandatory testing? And what about requiring that HIV positive tests be forwarded to the Centers for Disease Control? Is having to disclose sexual contact right, or an invasion of privacy?"

Utah has tried to strike a balance through the Government Records And Management Act (GRAMA). Government can deny access to certain types of information. The classification can be challenged before the State Records Committee.

"My biggest concern is a trend where people propose exemption to GRAMA that precludes the ability of journalists, scholars, historians or citizens to go in and make a case for public access. It robs due process. And to lock it up, to just simply exempt anything entirely from GRAMA is never, ever in the public interest. It robs the balance between the public and private interest that GRAMA was intended to create," Campbell said.

Utah officials left drunken-driving records available for a certain number of years. But the records of people who have had other infractions that could be a public safety issue were placed out of bounds.

Juror anonymity is another issue that causes reporters heartburn. Critics see it as a move to secret courts. And as more court records go online, courts are becoming skittish about what's made available there, too.

Attorney Jeff Hunt, representing the Utah Chapter of the Society of Professional Journalists, argued unsuccessfully against a court rule that allows a judge to prohibit or delay release of juror identities.

Laws regarding privacy have historically aimed to protect the intimate details of an individual's life, not identity, he said. But Hunt, of Parr, Waddoups, Brown, Gee and Loveless, says the debate has "morphed" into one of anonymity.

"You're not protecting the intimate personal details on juror questionnaires. They've always contained a lot of private information the public has no legitimate interest in knowing, and that has been protected. What this new rule does is allow someone to say, 'I don't want to be bothered to say no if I don't want to talk to the press,' " he said.

Traditionally, judges kept the names of jurors private during the trial and released them soon after the verdict. The Judicial Council approved a change allowing judges to forever bar public access to juror names or delay their release for up to five business days, although it said there was no evidence any juror had been harassed by the media in Utah, Hunt said.

Under GRAMA, some records aren't generally available. Examples are medical records, Social Security numbers, home phone numbers, addresses and some employment records. To protect that information, some officials refuse to release any.

"Government needs to start constructing databases with access in mind," Hunt suggests, "so they can block fields with legitimately private information and still provide summary information." He cites as examples child-abuse and domestic-abuse databases, where data could show trends. Instead, the response from the state is often "I can't give you anything. We're not set up to redact."

GRAMA provides a duty to government to block out private, protected information and provide the rest.

Local attorneys have complained to the Deseret News about the personal details available from records in divorce cases. And Hunt agrees that in 99 percent of cases, there's no legitimate public interest. But there are exceptions. If, for instance, an elected official is going through a divorce where there are allegations of physical abuse or criminal conduct. Financial impropriety sometimes comes up in a divorce.

"These all have bearing on fitness for office," Hunt said, "so I can see perhaps where certain records are of legitimate public interest."

And divorce, he adds, is public in the sense that it requires a judge to preside and give it legal effect. "There's a public interest in making sure it works and certain data may lead to the ability to monitor the performance of judges. Certain details, however, may not be of public interest."

In GRAMA, there's no "purpose test." Public records, Hunt said, are just that. The property of the public. Sometimes, government officials become proprietary. "They think the records are theirs."

When GRAMA was enacted, a proposal by the Utah Association of Counties would have allowed officials to close off embarrassing facts about an individual. Had it passed, voters would not have known when a county commissioner was repeatedly arrested for drunken driving.

The public vs. private concerns are at the heart of an ongoing debate in the federal government.

Could privacy be used to hide information about lobbyists and campaign contributions? Utah's lieutenant governor's office treats all information about lobbyists and money spent on government officials as public information.

Information kept in online databases poses interesting questions. Is it right to say you can get information about a divorce if you go to the court, but you can't get it online?

Online policy is evolving. But Campbell notes one trend: When the state started talking about a privacy checklist to use when putting information online, no one said anything about the public interest in knowing the information.

And what of protecting private information from the government itself? A lot of information is sealed off from the public and the press, but not from state government workers, law enforcement and others. Groups on both the left and right are concerned about how much information the government collects.

Sherwood said much of that information is gathered to offer services to citizens. "We don't want to turn around and take information people give us to be able to provide them a special service and then share it with just anyone who wants access to it. Or who will use it for a different purpose than that for which it was shared."

Jim Lobe, a correspondent for Inter Press Service, which covers developing countries, has watched the U.S. media for a long time. One challenge facing the modern press, he said, is the thirst for content. Particularly with cable news programs, which are "always on," there's an insatiable need for more.

With 24-hour news cycles, Lobe said, news becomes a "constant drum beat. It causes a complete lack of proportion. There's no sense of what to be afraid of or not to be afraid of. Everything is equally important."

What's missing, he said, is the connections that provide a context and a way to assess what's going on.

"Most journalism today is not intended to help make connections. It's to help lose weight, feel better about yourself, get 'in touch.' "

Still Lobe, a harsh media critic, believes journalism is important. "The frustration is it doesn't realize its potential more often."

E-mail: lois@desnews.com