Electronic records are subject to the same exemptions from disclosure under open records laws as paper records.

Some agencies maintain that there is a greater risk of invasion of privacy if personally identifiable information is easily retrieved from computers. Legislators are beginning to scrutinize traditionally public records, worried that their disclosure intrudes upon privacy.

The argument by these agencies that computerized records are somehow more intrusive on personal privacy than paper records is a dangerous one and has led to serious losses of important news stories.

Privacy advocates have convinced some legislators that personally identifying information in databases should be withheld. This can render the data useless because the reporter has no way of distinguishing one person from another.

For reporters who wish to match two databases – to learn, for instance, if teachers within a school system are convicted child molesters, or if ambulance drivers have been convicted of drunken driving – denials of identifying details can be devastating. Without personal identifiers such as name and date of birth such analyses are virtually impossible.

Driver records, voter records, hunting licenses and personnel records have all been vulnerable to privacy protection in recent years. Even databases as innocuous as pet licenses have been withheld on privacy grounds.

Concerns over personal privacy have caused some courts to resist releasing computerized information. These cases often involve commercial requesters who want names for mailing lists or sales prospects.

A California Court of Appeal cited concern for “extensive dissemination” of juror questionnaires “with the ubiquitous availability of integrated computer information circulating freely.” The court prohibited the distribution of the information for privacy reasons.

Even where the same computer information would later be published in a public directory, the Michigan Supreme Court wrote that providing a computer tape containing the names and addresses of students at a state university “was a more serious invasion of privacy than disclosure in a directory form” because “computer information is readily accessible and easily manipulated.”

The 3-3 deadlock among justices in that case let stand a lower court decision denying public access to the tape.
A dissenting justice in that case wrote that “we cannot accept the conclusion that the Legislature intended to allow a public body to exempt otherwise public records by the simple expedient of converting the public record from one form to another.”

Other courts have overruled similar privacy arguments. The New Mexico Supreme Court held that release of computer tapes does not create special privacy concerns.
Minnesota and Illinois courts have also repudiated privacy arguments in cases seeking lists of doctors who performed state-funded abortions.

If some material in a record is confidential, a principle accepted by the federal government and most states requires agencies to delete that material and provide the remainder to any requester.

This process traditionally involved a records custodian drawing a black line through an entry in a paper document. But some software is not designed to automatically redact confidential information from electronic records.

Several states have recognized the need to separate confidential and public information at the time the data are entered into the computer systems, not down the road when a member of the public requests the record.

The Ohio Supreme Court ruled that a public officer has a duty to maintain files in a way that allows confidential material to be deleted and the remainder provided to the public “within a reasonable time.”

When privacy concerns required a school district to delete names and other identifying information and then “scramble” the alphabetized record to further protect identities, the Illinois Supreme Court said such manipulation would not be “overly burdensome.”

On the federal level, Justice Anthony Kennedy, while serving as a judge on the U.S. Court of Appeals in San Francisco (9th Cir.), wrote in Long v. U.S. Internal Revenue Service that deleting names and addresses from tax files would not be overly burdensome. 596 F.2d 362 (9th Cir. 1979), cert. denied, 446 U.S. 917 (1980).
That order, he found, would not violate the court-imposed rule that an agency is not required to create a “new record” in response to an FOI Act request.

Reporters need to argue strenuously against the categorical application of privacy exemptions in open records laws.

Passage of censorial privacy protection laws must be curtailed. Congress passed the Driver’s Privacy Protection Act in 1994 to protect personal information in driver records. Rep. Barbara Boxer (D-Calif.) hoped to prevent stalking when she introduced the measure, but it has stopped reporting that relied on driver records in all 50 states and the District of Columbia.

Medical privacy regulations developed by the Department of Health and Human Services in response to a congressional mandate similarly will bar news stories that need to be told. The regulations go into effect in April 2003. And yearly, state and federal legislatures suggest new ways to bar use of information in overzealous attempts to address exaggerated privacy concerns.