How Transparency Protects Privacy in Government Records

Abstract

Americans tend to think of the courthouse as a passive repository of public records. But as government records are sold and incorporated into consumer profiles, employment background checks, and credit records, the courts and other government agencies have become active publishers of large amounts of data about individual citizens.

The treatment of information about individuals as "public" records has exposed personal data without letting citizens know that their interactions with the government may have unforeseen consequences for them. Three assumptions about government data files need to be challenged. First, the assumption that personal information in government records is inherently "public" in nature is false; Social Security numbers, for example, are ubiquitous in government records. Second, it is widely -- but falsely -- assumed that government records are accurate. Third, it should not be assumed that the personally identifiable information in government records can appropriately be used for nongovernmental purposes.

To counteract the harms that flow from ill-considered disclosures of personal information, the state should bear the responsibilities and liabilities of a publisher. The government should ensure that personal information about citizens is accurate, and give individuals an opportunity to correct errors. In this way, transparency and government accountability will provide a measure of protection for individual privacy.

Keywords: privacy, data mining, government records, transparency, FOIA