Which Government Records Should Be Open to the Public?

Lawprof Daniel Solove argues that records related to divorce proceedings (presumably not the fact of the divorce itself, but the facts discovered or alleged during the proceedings) should generally be kept private, even when the divorce involves a politician, such as former Illinois senatorial candidate Jack Ryan.

I strongly support people's right to speak about others, even when such speech is said to infringe others' privacy; but it doesn't follow that the government should always make such speech easier by publicizing information that's in its hands -- often information gotten using the government's coercive power. The question, to which I don't have a ready answer, is: Which information should the government release? A few items to get the discussion going:

  1. Records of criminal trials, including information that was gotten from witnesses (such as the witness's medical history, sexual history, wealth, religious or political beliefs, and the like), as well as information about defendants' s past criminal convictions.

  2. Records of criminal or quasi-criminal trials involving offenders who were under 18 at the time of the crime.

  3. Records of civil proceedings, including normal civil litigation, divorce, bankruptcy, and the like.

  4. Income tax records, which have historically been kept highly confidential.

  5. Property tax records, which have historically been public records.

  6. Gun registration records and concealed carry license records; the latter, I'm told, are public records in at least some states.

  7. Grades and disciplinary records of students at government-run schools and universities; I believe federal law generally requires that these be kept confidential.

  8. Salary records and disciplinary records of government employees; the federal government and many state governments makes the salary information publicly available, though generally not easy to get.

Should the government keep these confidential? Should it make them publicly available? Should it make them publicly available but hard to get, for instance by keeping them in storage and not putting them on the Internet?

What I find interesting is the distinction between "public" and "easy to get". Is there a principled argument for the proposition that "Document X is a public document that should not be kept secret by the government and I should be able to obtain it if I ask for it, but it should not be available through a Google keyword search."

Criminal court records are a good example - it seems easy to say that I should be able to go down to the Courthouse and get a copy of a transcript, but should someone be able to google my name (or search a government database) and obtain every court document referring to me? The former seems somehow different from the latter.
12.9.2005 5:52pm
Andy Cowan (mail):
I've never understood why people get hung up on income and grade information. Especially the tight confidentiality policies on grades at (at least public) academic institutions. As a student, the only people who really care about my grades are potential employers and other academic institutions that I apply to (e.g. law schools when I was an undergrad). I have to release my grades to them for them to consider me, so the confidentiality requirement seems somewhat extraneous.

As far as my fellow students knowing my grades, I have somewhat mixed feelings about it. As an undergrad, I didn't honestly care, and I discussed grades with most of my friends. Also, you generally knew who were the top and bottom people in each class.

Now that I'm a law student (and for full disclosure: I'm a 1L and haven't gotten fall semester grades yet), I'm happy to participate in the conspiracy of silence and not discuss grades with my peers. I do so only beecause 1Ls are notoriously neurotic, however, and I see no particular need to fuel anybody else's neurosis, nor do I care what grades my friends got (except insofar as I like them and desire to see them do well). If Cornell were to post everybody's grades on a bulletin board every semester, I don't imagine myself being particularly upset. If my fellow students were upset at the fact of posting or giving each other flak about grades, I would want them to get over it.
12.9.2005 6:02pm
AppSocREs (mail):
I believe the current "constitutional" position on a right to privacy ultimately derives from Frankfurter's succesful attempts to extend the common law doctrine of trespass in such a way as to protect his wealthy clients from yellow journalism. Basically, Frankfurter was trying to protect the wealthy and powerful from the embarrasment and legal liabilities that resulted when their less savory shennanigans were revealed to the public.

I'm going to make the radical argument that any kind of privacy is bad in a liberal democracy, where the more we know about our fellow citizens the better we can judge their worthiness for civic responsibility. The main concerns about distributing private information should be that: (1) Procedures are in place to filter out falsely slanderous material. (2) The wealthy and powerful cannot protect private information any better than the poor and powerless. (3) Information that can cause irreparable physical harm, e.g., the revelation of a witnesses address in the trial of a powerful mobster, be secured. Things like the use of e.g., medical information to discriminate in the issuing of health insurance can be addressed by legislation. After these concerns are addressed, the only arguments I've seen in favor of privacy are that it protects individuals from the consequences of shameful or criminal behavior.

I'm really curious if there is a good argument for privacy in a democracy.
12.9.2005 6:08pm
The Original TS (mail):
I do so only beecause 1Ls are notoriously neurotic.

Andy, there's a good reason for this. When they begin law school, 100% of students are used to being in the top 10% of the class. At the end of the first year, however, only 10% of students will be in the top 10% of the class!

With respect to the OP, there's a parity argument to be made that in many proceedings, the parties should decide whether or not the details should be public.

The reason is that wealthy litigants can already do this, if they want by going to the private justice system. If the parties agree, they can go to arbitration and keep as much of it private as they like. As there is no reason that knowing the details of disputes among the poor should be more important to the administration of justice than knowing the details of disputes among the rich, there's no good reason to allow the rich to keep their disputes private but not the poor.

Of course, I don't mean to imply that only the poor use the "public" justice system. It's just that the rich can opt out, if they so choose.
12.9.2005 6:20pm
Cal Lanier (mail) (www):
"The former seems somehow different from the latter."

All you've done is eliminate (or drastically reduce) the transaction cost. That's technology's job.

Until quite recently, people needed access to Lexis/Nexis or a library's microfilm collection to search news stories older than a day or so. Now all you need is a browser. The blogosphere wouldn't exist--or wouldn't exist in the same form--without that ability.

The act is either legal or illegal. The effort involved is irrelevant--or should be.
12.9.2005 6:27pm
MDJD2B (mail):
I'm going to make the radical argument that any kind of privacy is bad in a liberal democracy, where the more we know about our fellow citizens the better we can judge their worthiness for civic responsibility. The main concerns about distributing private information should be that: (1) Procedures are in place to filter out falsely slanderous material. (2) The wealthy and powerful cannot protect private information any better than the poor and powerless. (3) Information that can cause irreparable physical harm, e.g., the revelation of a witnesses address in the trial of a powerful mobster, be secured. Things like the use of e.g., medical information to discriminate in the issuing of health insurance can be addressed by legislation. After these concerns are addressed, the only arguments I've seen in favor of privacy are that it protects individuals from the consequences of shameful or criminal behavior.

So if you have a sexually transmitted disease, someone should be able to find out through Google? If you wrote an inane paper for a college freshman seminar in, then this should be part of the public record, discoverable when you want to be a corporate CEO 30 years later? If you were arrested at age 15 for throwing gliders or snowballs off an elevated train platform, this should be fodder for journalists when you run for Senate at age 55?

Yes-- shielding this sort of information from disclosure "protects individuals from the consequenses of shameful or criminal behavior. Even if there are no serious consequenses, protection from embarrassment gnerally seems more important than giving others the opportunity to laugh at them or to scorn them. Enough people (the vast majority) want such protection that our institutions offer it. Furthermore, people change sufficiently over many years that it seems reasonable to most. When you run for the Senate, you wouldn't necessarily want your post to be quoted in your opponent's literature. Especially if you eventually changed your mind.

And, by the way, APPsocREs,what did you say your name was? And why don't you use it to post comments on this blog? (Rhetorical questions)
12.9.2005 6:31pm
Don Miller (mail):
I will through out one more here:

My understanding is that in at least one Scandinavian country, arrest records and suspects names are considered confidential and private. If someone is a fugitive, their name can be made public.

As a general rule in a criminal case, the media isn't allowed to publish the name of anyone arrested or charged with a crime until the person has been convicted or pled guilty.

The basis for this is people are innocent until proven guilty and publication of their name unfairly damages their reputation.
12.9.2005 6:34pm
I'd like to see income tax records made public, which would probably result in the income tax being repealed. But there is a compelling public interest to let everyone see how fairly, or unfairly, the government is taking our money. No one can really make comprehensive sense out of what the impact of all these tax laws are.
12.9.2005 7:26pm
No one really knows what they want to know about another person until the same information is publicly known about them.
12.9.2005 7:52pm
AppSocREs (mail):

As I said in my original post, I do not think the argument that a lack of privacy will lead to widespread chagrin is very useful. If two people are running for Senator and one has done stupid things as a youth and one hasn't, it's in the public interest to know this. The universal availability of such information would probably lead to more sympathy for minor human failings rather than less. A great many preachers might be less strident about others' failings if their own were freely available to the public.

That the majority of people -- thinking of stupid things they have done -- prefer to keep such behavior hidden is not a good argument against a policy of openness: Most people would prefer not to pay taxes, but that's not a good argument against taxation.

I'm still waiting for a good argument in favor of privacy, as a private right with public benefits. I don't think you've provided one.

By the way, a condition of posting here is providing an email address. Anyone who wants can probably find my name and I have made some embarrassingly stupid postings here. So there's not a whole lot of sting in your rhetorical question.
12.9.2005 7:59pm
MDJD2B (mail):

Most people are not seeking civic responsibility. They are seeking to live their own life. If the majority want to make privacy in an area of life the law because it makes them feel better, then that is good enough reason to keep it private, barring an affirmative reason for disclosure. You spoke of liberal democracy. If the majority favor privacy, then that is the democratic thing to do. Liberty usually is associated with personal autonomy, and if most people favor personal control over information reating to themselves, then the democratic think is also the liberal thing. If people are afraid of enquiring minds peeking into their receses, they will be constrained in their behavior and their expression. This is illiberal, on the whole. It is also another reason to maintain privacy (since you want one-- I assume that, ceteris paribus, in a liberal democracy, we want to encourage people to express themselves maximally).

This does not prevent people from being compelled to disclose otherwise private information in consideration for something they want from others. If you want to read somebody's high school papers or medical exam before you decide whether to vote for him, or want to know what his fellow swift boat officers really thought of him, then you can ask him-- and if he doesn't tell you-- then you can vote for somebody else. If you want to go to a doctor who is a practicing Zoroastrian, then ask, and if he won't tell you his religion, then you can walk. If enough people think these things are important, then there will be disclosure.

On the other hand, some people think that these sorts of things, as practiced in the recent campaign (what one did on switr boats, or the circumstances of separation from the Air Force reserves) got in the way of decisions on who was fit for civic duty. This may be a pragmatic reason why even people seeking civic duty should be allowed to maintain their privacy. Again, if it is important to enough people, the principals will have to disclose the private data if they want the would-be recipients of the information to give them what they want.
12.9.2005 9:06pm
Bottomfish (mail):
Consider this, AppSocRes. I get enough solicitations for refinancing home mortgages and vacations in Florida as is. The reason is that people who can afford to look at my credit bureau report are examining it and making inferences. If this information were made available to the public at large, God knows how much nonsense would occur. There is a correlation between how much people can find out about your financial condition and how much they want to interfere in your life.

As for the task of filtering out "slanderous information" -- that seems to me a near-insuperable burden, which would fall mostly on the individual.
12.9.2005 9:24pm
Michelle Dulak Thomson (mail):
This is not really responsive to EV's question, but I find the recent enthusiasm for convicted-sex-offender databases very disturbing. Obviously any criminal conviction is a matter of public record, but efforts to get the word out to every member of said public that so-and-so is a convicted rapist and now lives at such-and-such address strike me as, well, creepy and excessive.

Now, making all felons' identities and locations as easily accessible as that might have a point, and would certainly be more equitable. If there's a public interest in knowing that the guy across the street has a rape conviction, why isn't there one in knowing that the guy in the house to your right has three manslaughters to his credit, while the woman two doors down served time for embezzlement? I say all or nothing, preferring "nothing" (that is, obviously the record ought to be public, but you'll have to take some trouble to get at it).
12.9.2005 9:48pm
Wintermute (www):
"So if you have a sexually transmitted disease, someone should be able to find out through Google?"

If it's an incurable one, that would be especially nice to know, and likely more effective than the criminalizing of transmission that we have on the books for HIV.

Yow, did I read somewhere that 20% of adult Americans have herpes?
12.10.2005 3:12am
Bill Harshaw (mail) (www):
A quibble re the "historical" keeping of income data private: we first had an income tax during the Civil War. In at least one county (Ontario, NY), the newspaper published the list of incomes subject to tax. (Discovered by googling in the course of genealogical research.)

David Brin's Transparent Society is interesting in this area. He includes the point that rules applicable to ordinary citizens differ from those applicable to government employees.
12.10.2005 7:57am
Bottomfish (mail):
There is a SCOTUS decision, Dept of Justice vs Reporters' Committee (1989) that a DOJ rap sheet (a compilation of criminal convictions on a given person) cannot be released to the media under the Freedom of Information Act, because doing so would constitute an unreasonable invasion of privacy. This is in spite of the fact that the sheet is compiled from publicly available information (court records). So if you collect enough public information on somebody, you may come up with something private. Fascinating! Once we have classified what information is public and what is not, we have to determine the mystic moment when a collection of public information becomes private.
12.10.2005 8:03am
Andy Cowan (mail):

Andy, there's a good reason for this. When they begin law school, 100% of students are used to being in the top 10% of the class. At the end of the first year, however, only 10% of students will be in the top 10% of the class!

Of course there's a reason. And it's certainly a good reason to work hard and make sure you stay at the top of your game. But is it really a good reason for the level of neurosis that is all too common? Especially at a school with a 99% placement rate, no class-ranking, and only a mean requirement (no distribution requirement) on the forced curve for the classes, I say no.
12.10.2005 8:15am
WHUFOs (mail):
I wanted to mention, in support of Michelle's point, that it is not only rapists who are required to register on sex offender registries. In fact, my understanding is that a great many other crimes may require registration as a sex offender (such as indecent exposure, statutory rape, etc.). However, I don't believe this is widely known by the public. Thus, sex offender registries may be causing false impressions of offenses - causing people to fear the "rapist" down the street, when he's actually on the list for having "consensual" intercourse with a 17 year old when he was 23.
12.10.2005 10:17am
sbw (mail) (www):
As a non-lawyer, I'd be interested to know how a previous civil decision could be used as precedent for a current case if the records had been determined to be private?
12.10.2005 11:45am
Ofc. Krupke (mail) (www):
Many, if not most, sex offender databases include as part of the offender's information, the specific crime and statute number for which they were convicted. So someone isn't going to get tagged as a rapist when they're "just" a peeper.

The rationale for registering sex offenders and not other criminals is that sex offenders have significantly higher rates of re-offense than other classes of offender.
12.11.2005 8:58am
Jim Moody (mail) (www):
"Justice must not only be done, but must manifestly seen to be done." The judiciary collectively has great power over individual citizens. So their actions must be able to withstand scrutiny. The entirety of the information on which they base their judgements needs to be available if such scrutiny is possible. So, yes: full records of trials which result in judgement should be public.

To the extent that administrative orders have similar impact on individual citizens, the same principle should apply. You need to know your neighbours' real estate assessments to be assured that the assessors aren't picking on you, for example.
12.11.2005 12:20pm
The central concern seems to be aggregated, precise data. As a brief examination of history will tell, it's not the learning of One Big Fact that is determinative of outcomes... each fact is a pieces of the puzzle, which provides meaningful information only in context of other facts (like pieces of a puzzle). Many of the information-types that Prof. Solove cites can, with some effort and difficulty, be determined piecemeal (e.g. one can estimate a person's income from the value of his home, the type of car(s) that he drives, etc., from public records, and Mk I Mod 0 eyeball observation) The danger arises when the government, by force of law, collects and aggregates the data, then makes it publicly available.
To illustrate: recourse to a university engineering library will provide a talented indivdual with knowledge of chemical explosives, precise shaping of metals, the chemistry of materials separation, and general physics. With great effort and expense, these piecemeal, publicly available, innocuous facts can be assembled into a design for a nuclear weapon; yet the government maintains this aggregate of data as a closely held secret. Why? - that "great difficulty and expense" of aggregating serves as a shield to the final product. Likewise, the effort and expense of visiting every courthouse in the land to aggregate personal data acts as a shield to privacy.
12.11.2005 2:50pm
In essence there are two ways to anlyze the above list. 1) Which items in the name of equity and the citizenry's notions of fairness DESERVE to be private, and 2) which items on the list have a compelling/substantial reason for being publicly available (whether transaction costs in place or not). Fairness arguments go both ways, but I request dare anyone reading to give me reasons why the above have compelling policy reasons for being publicly available, except:

3) Civil litigation/divorce records (especially bankruptcy)--which are particularly relevant for business purposes/creditworthiness, etc.
4) Property tax records--allow objective then-existing government review, albeit flawed, to combat the assymetry of information that often exists in a RE market between buyer and seller.
8) Salary/discipline of public employees--b/c every one of us is each of their "bosses." We should be able to cry to Channel 9 news, or our legislators and keep track of objectively-abusive exercise of the money and power we assign to them.

The ones I excluded all have knee jerk reasons for inclusion on a list of REASONABLE public info. But I would like to see a thoughtful articulation that I may have overlooked. I.e., exclude gun records b/c although you could say it has a safety effect--you don't want to live in neighborhood with lotsa guns--this is completely emasculated by the fact that many people in this country have guns that are NOT registered. This defeats the purpose of "knowing where all the guns are."
12.11.2005 7:13pm
Bottomfish (mail):
There seems to be a connection between secrecy or privacy and economic value. I am reminded of the discussion of property in John Locke's Second Treatise: "As much land as a man tills, improves, cultivates, and can use the product of, so much is his property. He by his labour does as it were enclose it from the common." So, starting with ordinary facts in the public domain (the physics and chemistry texts in the library), you can add value to them by mixing them with your labor, and then they become private or secret, and also economically valuable. I can't resist the temptation to add that there is another SC decision that you have no privacy right in your garbage.
12.11.2005 7:49pm
Brian Dell:
I watched a documentary today about an incident where four cops showed up at a suspect's place and were caught completely by surprise and without preparation when they were gunned down. The producers of the documentary produced legions of evidence that the killer was a total psycho almost from pre-school, interviews with his ex-girlfriends, with neighbours, with respect to his historical rap sheet, etc etc. But the cops knew next to nothing about this guy because they don't have access to this knowledge.

That's just an example of where ignorance resulted in death. Usually, it is just a lifetime of misery, e.g. marrying someone and then finding out what that person is really like...
12.12.2005 2:16am
Splunge (mail):
I suggest the traditional convention of privacy has nothing to do with abstract fancy theories of justice and the law, but simply with the fact that a convention of privacy encourages us to be honest in our transactions with each other, simply because it assures us that the only parties to the transaction are right there in front of us, in the present. Without a tradition of privacy, every transaction we make includes a huge number of unknown future participants, including future friends and spouses, and future employees and employers. With so many unknown parties to the transaction, we are not likely to be as honest as we might be.

Consider a few illustrations:

(1) You've a teenage daughter. She comes home from school having had an embarassing accident stemming from a failure to anticipate the first day of her menstrual period, an accident about which she was mercilessly heckled by her peers. She's near tears. Now, as her parent, you want her to be able to tell you what happened, right? In complete honest detail. Is that going to happen if she knows you're going to blab to your friends, who are the parents of those same peers?

(2) You were drunk and ran your car into a stop sign, destroying it and damaging your car. It probably needs some work to be completely safe. Now you're selling the car. The potential buyer wants to know if the car has ever been in an accident. You don't want him to be unaware of the possible safety risk, but will you tell him -- if you know he's going to stop by City Hall on the way home and tell them what happened to the sign at 4th and Main?

(3) You own a store, and Al is a major wholesaler from whom you buy nearly everything. Your personal relationship to Al is pretty key to getting along in business, so you overlook the fact that when Al gets a little drunk he rants on about the Jews and how they're taking over the world, can't trust 'em, et cetera. (Al's not violent, you understand -- he's just imbibed a little prejudice in his mother's milk.) Now, it turns out you need a new VP of sales, and this guy applies, and he is just perfect, an amazing find -- but he's a Jew. He'll be working in the back office, where Al has no reason ever to go. But -- are you going to offer him the job if the first thing that happens when you do is that you have to post all your new employee's private info, including his lack of a foreskin, on a placard in your shop window, where Al is sure to see it next time he makes a delivery?

In each case, you can argue away the necessity for privacy by saying everyone should live a crystal-pure life from start to finish. But, first, that is naive. Second, it ignores the value in redemption and change -- if a man's sins follow him into every subsequent transaction, if he can't ever begin anew, he has far less incentive to change. Finally, it arrogantly ignores the damage to innocents of penalizing private honesty by adding to its costs all the costs of fully public honesty.
12.12.2005 3:32am
H Barton Thomas (mail):

This topic has been of interest to me for some time. I'm glad it has prompted me to register and post a comment here.

While I acknowledge that in many situations, a credible case for privacy can be made (doctor-patient, attorney-client, etc..) it seems that these privileges come with a societal cost. Balancing the societal costs against the private costs has not, to my knowledge, been attempted except in rather narrow legislative efforts relating to the rules of evidence.

Since the individual benefits of privacy are widely recognized, I think it bears mentioning why I think the societal costs militate toward making privacy the exception, rather than the rule. It seems very easy for an individual to construct an argument for keeping almost any piece of information private.

Publicity of information undoubtedly discourages much more antisocial behavior than laws. For many white collar criminals, the shame they experience is a heavier punishment than the incarceration imposed by the justice system. Small towns have much lower rates of crime per capita than do larger cities, mainly, I would argue, because of the far greater likelihood of criminals being discovered in such communities. It is no secret, either, that people are generally friendlier in small towns. Again, I think this is related to the costs of antisocial behavior in these towns.

Ultimately, I suspect game theory may shed a good deal of light on this topic. An individual who expects any given encounter to be a one-time transaction, i.e. someone who the person does not know and does not expect to see again, may act selfishly or boorishly without consequence.

Of course, I abhor the notion that some direct marketer has access to my loan applications, or tax returns. I would not want my medical records made publicly available. But the growing impetus towards making traditionally public information (such as court records) private troubles me. The notion that such records should be available only to those with the resources to hire detectives or paralegals, instead of through the internet, seems particularly ill-advised.

Of course, as should be evident, my own thoughts on this topic are far from fully baked.
12.13.2005 2:53am