Nightclubs featuring nude dancing and erotic entertainment. Government licensing of the club dancers. Open government. A civil engineer who wants to pray for the dancers. Anderson , decided recently by a federal judge in the state of Washington. Invoking the First Amendment to deny a records request is an interesting bit of legal jujitsu. Those requests have become a flashpoint for conflict with news organizations ever since the controversy set off by the Journal News in late ; CJR has covered such conflicts in Michigan , North Carolina , and West Virginia.
As a result, the press relies mainly on public records laws for such access. But a complicated web of regulations, both state and federal, exists to balance the interests of transparency and privacy. Government records contain all manner of personal information that citizens are required to disclose under certain circumstances: data related to births, deaths, marriages, arrests, and so onโeven family dynamics, financial status, and health condition, and contact information.
This is salient in part because public records systems increasingly are computerized and searchable, and businesses regularly use them for commercial purposes. In fact, under the federal FOIA, the vast majority of requests each year fit that bill. But reconciling transparency and privacy is a concern for journalists, too.
Generally, courts and scholars have converged on a few concepts to help reconcile transparency and privacyโthough how the balance is struck varies from place to place, and case to case. One thread in the analysis is the purpose of a given records request. While the nature of the information can matter, as it did in that ruling, under the federal FOIA and many state laws, individual requesters do not have to establish any kind of interest in a record to obtain it.
Then there are the privacy exemptions themselves. However, some states have no privacy exemption. And state records laws mostly forbid the kind of discrimination among requestors codified in Georgia, leading a number of courts to find that the government may not consider the purpose or motives of a request. The closer the nexus, the bigger the public interest in disclosure. The potential for gamesmanship is hard to ignore. As is the risk, on the other hand, that laws allowing you to obtain a record for any reason will leave peopleโeven some open-government advocatesโuncomfortable because of the potentially invasive disclosures they could allow.
