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Dark side of the Sunshine LawWe become mere road kill on the information superhighway.
BY JOHN M. CARBONE
BERGEN COUNTY, NEW JERSEY County Clerk Kathleen Donovan initially thought it was an innocuous Open Public Records Act request: "Provide copies of all institutional liens for the last 22 years."
Institutional liens were placed on real property for many years to ensure repayment to the county or state for hospital care of psychiatric patients. But in 2005, New Jersey abolished these liens that contained significant personal and mental health information. Donovan was concerned and uncomfortable about the release of these records that no longer had any legal effect. She denied the request.
Donovan was sued for the release of these records and other property records that contained Social Security numbers. The suit unmasked the individual requestor as an employee of a national data-mining company that compiled personal information dossiers on people with information culled and bundled from Public Records requests.
Interceding for public
Bergen County Assignment Judge Sybil R. Moses quickly ruled to protect the public and the privacy of the information in the Public Records. Ensuring that the institutional liens were not released, Moses then ruled that the other Public Records would be released only if the requestor paid for the redaction of all Social Security numbers. The information broker's appeal is now pending.
This is the darker side of the well-intentioned Public Records access laws and allowing the sun to shine into all recesses of government. The many individuals and families who years before had been treated for psychiatric disorders today had no right to notice of the request, no forum in which to object to the release and no notice that the information might be released. They may only learn of the release when a family member is denied employment for unspoken reasons.
For many years, and with little thought, we willingly turned over and entrusted to our government confidential and personal information through filings for motor vehicles, property records, deeds, mortgages, civil suits, permit and license applications, completed forms, voting records, health care and many other required disclosures. Whether identity thieves, data-mining companies or just nosy people, anyone can attempt to cull together a "dossier" for anyone from Public Records requests. This is without bundling other information readily available through your discount-card purchases at supermarkets and drugstores, political contributions, online surveys or seemingly innocuous disclosures on Facebook and other Web sites.
The access to, aggregation of and sale of the information are legal and beyond your control. Data miners and information brokers do this with the information released from Public Records and gathered at the taxpayers' expense, and then they sell it for millions of dollars. With worldwide disclosure and open access to government records, data miners covertly seek the release of Public Records containing personal and confidential information, and we become mere roadkill on the information superhighway.
There is a constant tension between government release of public documents and protecting personal and private information, which requires the application of a legal balancing test. We construct a balance between a citizen's right to open access to government records and the state's interest in protecting the confidentiality of information.
But had we known then what we know now about the release of Public Records revealing this stored personal history, we may have been more cautious. The laws as they now stand do not afford the private citizen notice of the request for the information or the opportunity to be heard on its release or final notice that the information has been released. But for the quick actions of a county clerk and the boldness of a judge, the unfettered release of personal information would have been automatic and devastating
Laws that allow previously unanticipated and unknown access to information gatherers trolling for a citizen's secrets do not foster better government. A citizen's right to privacy is easily and silently violated by this new and altered level of accessibility, never anticipated many years ago.
Lawmakers must ensure protection of our personal privacy. The Legislature and the courts must ensure that before release of any personal and confidential information, those persons affected should be notified and afforded an opportunity to be heard.
Violation of personal privacy must not become a secondary consequence of citizens being able to look into government workings, which is the laudable primary purpose of public access to government records.
John M. Carbone, an attorney, practices in Ridgewood, New Jersey.
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