Public Records Audit: Privacy in the sunshine

Public records vs. an individual's privacy rights is an old debate in Florida and one that will not go away

Special to The Record
February 10, 2004
In today's world of Internet and computers, people are concerned about their privacy.

To many, Big Brother seems dangerously close when fans attending a Super Bowl game can have their face scanned to determine if they are wanted by the police.

A rise in identity theft has fed the notion that too much personal information is too easily accessible. More than 27 million Americans have been victims of identity theft in the past five years, according to the Federal Trade Commission.

All of this has intensified a long-standing debate between the public's right to access information and an individual's right to privacy.

Floridians have debated how much access citizens should have to government records since at least 1909, when lawmakers wrote the state's first public records law.

Legislators, who singularly possess the power to make government records secret, regularly introduce new exemptions that would add to the roughly 850 that already exist.

Often, it is done in the name of protecting the privacy of citizens. After all, who would argue that strangers should have access to your Social Security number or the results of your last physical?

But Barbara Petersen, president of the Florida First Amendment Foundation, said the pressure to make more records secret has intensified with the growing concern about terrorism and identity theft.

Special interest groups, from veterinarians to nursing homes, have used the increased concern over privacy to win exemptions that do little more than protect their cash flow.

"Any time you can invoke this privacy idea, it's an easy sell," said Sandra Chance, executive director of the University of Florida's Brechner Center, which studies and serves as a resource on public records law.

In 1996, veterinarians won a fight in the Legislature to ban the release of vaccination records for animals.

They argued that pets and their vets share the same need for doctor-patient confidentiality that the law grants to people and their physicians. In reality, veterinarians wanted to keep competitors from getting their list of clients and offering animal medications cheaper.

Nursing home operators successfully lobbied to have records about "adverse incidents" kept secret. The reports are required any time a nursing-home patient is injured or killed. By law, no one can review them.

Doctors want the same secrecy for similar forms that they are required to fill out when a patient is injured. According to the proposed legislation, doctors want the records secret to protect patient's privacy.

Defenders of public access to government argue that such exemptions corrupt people's ability to watch over their government.

People must have access to public records to ensure that the government is held accountable, that businesses continue to run smoothly and that citizens' constitutional rights remain intact.

Public records allow parents to check their neighborhood for child molesters and homeowners to track zoning changes in their neighborhood.

Businesses use public records to offer services, including loaning money, renting cars and issuing insurance. In 2002, companies spent more than $27 million on Florida driver's license information alone.

"It's important that we be able to hold our public officials accountable and protect against government waste," Chance said. "Public records law can help us make better decisions for ourselves our families and our communities," Chance said.

The argument for secrecy

Jacqueline DiCarlo was stalked via public records by former friend and Jensen Beach resident Paul Curry for 15 months in the late 1990s.

Curry culled every public database he could find to learn about DiCarlo's life. He used the information to file dozens of complaints with police and state agencies, ranging from perjury to parking violations, and to send letters to her friends and relatives.

"A 24-hour-a-day, seven-day-a-week job focusing on me is not normal," DiCarlo told the Palm Beach Post in 1997. "This has stalking written all over it."

Curry served 30 months in prison before an appeals court set him free in 2002 on the grounds that there is nothing illegal about using the government's open records an as intermediary between "stalker and stalkee," the paper wrote.

For some, the DiCarlo case is evidence that too much personal information is too readily available in public records.

The concern over privacy also has increased because of the Internet, which makes many public records searches something you can do in the convenience of your home.

Many court clerks throughout Florida embraced the Internet and rushed to post public records such as home sales and marriages online after the Legislature in 2000 made it a statutory requirement.

Access to records got faster and cheaper, said Beth Allman, communications director with the Florida Association of Court Clerks. But clerks soon realized computer access to records made mass reviews of personal information much easier.

The Florida Supreme Court decided in November that it would deal with the problem by stopping clerks from posting many documents until a uniform policy is developed to deal with personal information.

Government officials around the nation took similar measures just after the Sept. 11, 2001, terrorist attacks by erasing Web pages that showed the layouts of public buildings.

Nearly three years later, officials throughout Florida still cite fears of terrorism when trying to explain their suspicion about people asking for public documents. Lawmakers use the terror threat to garner support for new public records law exemptions.

"One of the things you've seen since post 9-11 is that everyone has that justification," said Larry Spalding, the American Civil Liberties Union of Florida's legislative staff council. "Prior to that you didn't see everyone trying to use the terrorism hook."

The argument for openness

Instead of stripping away Floridians' constitutional rights, the government needs to find other ways to protect people's privacy and safety, said First Amendment attorney Jon Kaney, a Daytona Beach lawyer who sits on the Media Law Committee of the Florida Bar.

If the government wants to protect information, it can stop requiring that information when citizens fill out government documents, he said.

Kaney said the government can also address privacy concerns by crafting exemptions that keep records open, but hide information that might endanger someone.

"Most of the privacy thing is a false dilemma," Kaney said. "Privacy and public access should not collide, they should mesh through the medium of properly tailored exemptions."

Other open-records advocates point out that criminals, as a rule, don't use public records to obtain credit card numbers or steal a person's identity. They take your wallet, hack into your computer or sift through your mail and garbage for sensitive information.

Chance argues that making documents secret won't protect national security, either, and could actually undermine it.

"Only through information and openness do we understand where the critical needs are, what the resources are and how to protect ourselves," she said.

Chance complains that government officials have focused too much of their energy on security without any thought of how to balance it with public access.

The result is that people like Jim Christman get frustrated in their attempt to participate in government. The Nokomis resident wants the state to rebuild two bridges in this tiny Sarasota County community to make sure they are high enough to allow emergency boats to pass under them.

When the project stalled because of the $1.7 million price tag, Christman wanted to do some comparison shopping. But state officials told him they couldn't share any information about the bridges because of a law designed to protect public structures from terrorists.

State officials told Christman he couldn't get the height or width of the bridge, even though he could drive to the bridges and get the figures with a tape measure.

"We were denied," Christman said. "We were told the Florida Legislature deemed the information to be too sensitive."

Reporters Chris Davis and Matthew Doig and researcher Cindy Allegretto contributed to this report.

© 2004 The St. Augustine Record

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