New Privacy Policy Hinders Public’s Right to Know

Atty. Gen. John Ashcroft’s new policy on how the executive branch should treat requests for federal records under the Freedom of Information Act holds a potentially alarming consequence for open government in the United States.

Last month, Ashcroft specifically directed federal agencies to be mindful of “institutional, commercial and personal privacy interests” when considering any request for information. This added emphasis on privacy to justify withholding records creates a standard that fosters official secrecy on matters unrelated to national security and law enforcement. In past years, executive branch agencies have used privacy concerns to justify rejecting freedom of information requests on a number of issues of public interest. For example, withholding decisions have:

* Restricted the news-gathering capabilities of journalists on stories involving such topics as mob ties to a corrupt Pennsylvania congressman and cocaine smuggling by a Texas law enforcement official.

* Blocked independent attempts to confirm whether the U.S. government kept its word to uphold human rights in Haiti.

* Limited public debate about the government’s future environmental plans for the Oregon high desert.

After the horror of Sept. 11, Americans fully realize that when fighting a war, sensitive government information must be safeguarded from our nation’s enemies. Clearly, information that pertains to military plans and U.S. intelligence methods and sources must be protected.

But promoting the withholding of government information under a wide blanket of confidentiality based on vaguely framed “privacy” interests--which are not involved in the U.S. war on terror--presents a thorny problem for democracy. In order for people to direct their own government, they must have information about governance and be able to examine the performance of elected leaders and bureaucrats.

The Freedom of Information Act opens to public inspection the records of dozens of federal agencies--such as the FBI, Federal Aviation Administration and Securities and Exchange Commission--as well as government departments, including Justice, Commerce, Education and Health and Human Services.

There are nine exemptions from disclosure under the information act. The most commonly known involve matters of national security, personal privacy, law enforcement, trade secrets and internal agency memos. These exemptions, however, are often broadly interpreted by agencies and by the courts. The privacy exemptions were intended by Congress to protect individuals from unwarranted intrusions. They were not intended to be used as a justification to shield agencies’ activities from public scrutiny and evaluation.

Rather than cast a cloak of confidentiality over all government records that may touch on issues of privacy, a better solution would be for agencies to use a case-by-case balancing test that weighs the social and public benefits of a request for information against any possible invasions of privacy.

Sometimes the public’s right to know what the government is doing may indeed impinge on a privacy interest, but that does not mean privacy interests should automatically outweigh the public interest in disclosure.