The privacy crackdown

As fears of identity theft grow, personal information becomes increasingly off-limits to the journalists who need it.

From the Summer 2007 issue of The News Media & The Law, page 4.

By Nicholas Coates

In the summer of 2004, the governor of New Hampshire signed a bill making financial affidavits filed with the court in divorce cases confidential to anyone but the couple, their lawyers, the guardians for the children’s rights and select government officials. The law made it a crime to show the affidavits to any unauthorized person.

Testifying before a state Senate committee in support of the law, former U.S. Rep. Charles Douglas (R-N.H.) called public access to the records “a gold-plated gift for anyone who wants to reconstruct anyone else’s financial record.”

Douglas, a former state Supreme Court justice, had himself tried and failed to keep financial information sealed in two of his divorce cases.

But when legislators passed the bill, the rationale given was not protecting prominent New Hampshire residents: it was protecting the privacy interests of the parties and, as Douglas said, preventing identity theft.

Before the law took effect, the presumption was that financial affidavits were public unless a litigant could prove that they should be private. The new law switched that presumption.

Two days after the law was enacted, The Associated Press, five local newspapers, a television station and the state broadcasters association sued, seeking to have the law declared unconstitutional.

In 2005, the state Supreme Court struck down the section of the law reversing the presumption of access, saying it was not written narrowly enough “to serve the allegedly compelling interest of the State in protecting its citizens from identity theft.”

Media lawyer Bill Chapman, who represented the media organizations, said the law could not be justified based on a concern for identity theft.

“My response, and what the Supreme Court found was, that’s all well and good, but there is no information in the legislative history that shows people are, in fact, going to courts and looking at the financial affidavits and using them for identity theft,” Chapman said.

Though the press ultimately prevailed in that case, similar battles have erupted around the country as preoccupied legislators and court officials cite fears of fraud in curtailing access to court records and public documents.

In many states, Social Security numbers, driver’s license numbers and other data critical to reporters is more difficult or impossible to get in the face of a wave of privacy legislation.

“Identity theft is such a hot-button issue that legislators are making quick decisions because they want to be seen as tough on crime,” said Greg Romberg, a lobbyist for the Colorado Press Association. “But just because there’s a chance someone may use a public record for identity theft, doesn’t mean that it’s actually happening.”

Colorado is among the states that have taken the most action to restrict information.

In 2004, former Gov. Bill Owens signed a bill closing any public record containing a Social Security number. Owens signed another bill letting people request all information on arrest and criminal records, except basic identifying information, be sealed. Only records that report charges that were dismissed because of a plea bargain are now subject to full disclosure.

‘They close off a little bit more’

The Sept. 11 attacks caused legislators to create laws allowing them to operate more secretly, Romberg said. And since federal government officials have made a case for connecting terrorism and identity theft, it gives legislators an extra incentive to curb access.

Betsy Broder, assistant director of the Federal Trade Commission’s division of privacy and identity protection, said in an interview that identity theft is a terrorism issue. She cited the Sept. 11 commission’s report that questioned the validity of at least four of the hijackers’ identity documents.

But others say given the lack of evidence tying public records to identity theft, the crackdown on public records access is an overreaction.

“Even our state attorney general’s office can’t get a specific number of on how often identity theft happens and how often it happens from public records,” said Frank Deaner, executive director of the Ohio Newspaper Association. (See related story, page 7)

In Texas, the Legislature this spring also took major steps toward restricting access to government records that have long been open.

Joe Larsen, a media lawyer and board member of the Freedom of Information Foundation of Texas, said the lawmakers cited concerns of safety and their desire to conduct the public’s business more efficiently. While identity theft was not cited, Larsen said it was an underlying concern.

Gov. Rick Perry signed bills that sealed the identities of concealed handgun owners, limited the public disclosure of attorneys’ and judges’ home addresses, upped charges for record requests, and limited access to contents of court-issued search warrants and police affidavits.

“Every legislative session, they close off a little bit more,” Larsen said.

But Larsen’s organization had some measure of success in persuading the Legislature to pass a separate bill that Perry signed. The law removes the requirements for government officials to redact Social Security numbers of living people from a public record before the record is released.

The issues began when the state attorney general issued an opinion in February that required government officials to redact Social Security numbers from living citizens. In response, clerks pulled hundreds of records offline.

But Perry signed a law in March saying redaction is optional, even though he said he remained concerned about identity theft.

The choking of information out of identity theft concerns is also prevalent at the local level.

In Washington’s Snohomish County, a county of 670,000 people on Puget Sound, hundreds of thousands of public records from its online archives are being taken down because of identity theft concerns, said Hal Hupp, the county’s lead identity theft prosecutor.

Hupp said the reasons for identity theft in the county are rooted in crystal meth and OxyContin abusers’ need to pay for their addictions. The primary ways of stealing information in the county is by physically stealing credit cards and checks, not by reading records online, Hupp said.

“But with records on the Internet, there have to be decisions made,” he said. “We need a balance to allow people to get the information they need about their government with their right to privacy.”

‘It got to this ridiculous point’

The fears of identity theft have made doing even basic groundwork for stories increasingly difficult, Larsen said.

“Reporters are being hit from every side,” Larsen said. “Just trying to get information, an organization might need to throw another body at trying to get that information, which takes a reporter away from another story. And because of cutbacks, organizations don’t have the staff to help reporters review the documents.

“So reporters really have to make the request, do the gumshoe work, and then spend many hours trying to interpret data,” Larsen added. “That can make the journalism suffer or discourage a reporter from doing a story.”

Reporters who specialize in computer-assisted reporting rely heavily on open records, and the laws protecting them, as investigative tools.

In 2004, Sarasota (Fla.) Herald-Tribune reporters Matthew Doig and Chris Davis found themselves in a struggle for public records when they worked a story analyzing how teachers performed on basic skills tests.

The reporters put in requests at the state education department for a roster of teachers and where they work a list that includes teachers’ Social Security numbers and a list of how the teachers performed on state certification tests.

Since the education department uses Social Security numbers to identify employees, Doig said the reporters needed the numbers to accurately match teachers from each list.

The department put up a fight: first delaying the release of the data for nine months, then omitting all data for every teacher from two counties and refusing to provide a staff database from the year before. The paper filed a lawsuit against the department of education for the teacher information from the two counties and the database.

The paper won in a lower court, but an appeals court blocked the release of one of the two sets of Social Security numbers.

The reporters had asked education officials to match the records by using a unique identifier other than Social Security numbers. The officials refused, saying the process would have created another record, which they were not legally obligated to do.

During the process, teachers from across the state put strong pressure on legislators about the disclosure of their Social Security numbers. Doig said rumors even started that the paper was going to publish the Social Security numbers.

“Of course we weren’t going to do that,” Doig said. “So many people were calling us worried about there numbers being put out there. It got to this ridiculous point where we put the database on a computer off the network.”

In response to the pressure from the teachers, lawmakers passed a bill on the last day of the 2004 legislative session that excluded state employees’ Social Security numbers from the state public records law but allowed the last four digits to be released in some commercial uses.

After the reporters analyzed the data they did receive, they used it to write a story detailing how hundreds of thousands of students were taught by teachers who had failed the state’s basic skills test given to educators.

“You would think the government would come up with a way that even if someone comes up with a person’s Social Security number, that it wouldn’t harm them if it was used,” Doig said. “You have to find a balance between a need for doing stories like what we did and a way to protect people from some yahoo who’s trying to steal someone’s identity.”

Deaner has dealt with similar fears in Ohio. He supports legislation in his state that would redact Social Security numbers on court and agency documents. But journalists will always need to cross-reference fields of data in databases, so birth dates on documents should still be available, Deaner said.

“People should realize simply because a journalist is seeking information does not mean that it is going to be published,” he said. “It’s not public information that harms people, but it’s how someone uses that information.”