Most laws governing public and media access to government records were written and tested in court when most records had four corners and fit neatly into file cabinets.
Public record laws were designed and applied by courts to strike a balance. On one side are government efficiency and personal privacy. On the other are the needs of the public and media for reasonable access.
As governments shifted from paper to digital record systems during the past three decades, many laws are no longer adequate to ensure access. Problems confronting the public and media fall into three categories based on what government records custodians can't do, won't do and shouldn't do.
Can't do
Often records custodians have little training, especially at the local level, or are not "computer persons." They don't understand requests or are unwilling to attempt to meet them. An oft-heard refrain: "But our computers can't do that." Reporters lacking computer skills often contribute to the problem, not knowing where and how to obtain information, or what questions to ask.
Won't do
In the paper era, records custodians were not required to gather information from different sources and put it together in a meaningful way. Records either existed or they didn't. But does information gleaned from a computer at a reporter's request constitute the "creation" of a new record? Is sorting a database akin to searching a file cabinet. Courts disagree among themselves.
Should a custodian be required to create a computer program at government expense to extract information to meet a reporter's request? Courts disagree among themselves.
What about the format in which a computer record is released? Who should decide, the agency or the requester? Is it reasonable access when an agency decides to give a requester a computer database on hundreds of pages of printouts when the same could be provided at much less cost to taxpayers, and in a much more usable form on computer tape? Courts disagree among themselves.
Finally, who should pay the cost of ensuring that government agencies use their computers to provide public records? The agency or the requesters? Courts disagree among themselves.
Shouldn't do
A more fundamental question deals with the very nature of computerized records and how such records differ substantively from their paper counterparts. Government information about individuals used to be less threatening to privacy.
The U.S. Supreme Court, in the influential 1989 opinion Justice Department vs. Reporters Committee for Freedom of the Press, lamented the demise of this so-called "practical obscurity." The court, in reasoning that threatens to limit access to computerized records, suggested that public records gathered from many public sources compiled in a central government database enjoyed a rejuvenated privacy interest.
In other words, the way in which records are stored could become as important as their content. This reasoning has not been lost on records custodians, who arguably could raise privacy concerns to shield information that rightly belongs in the public domain.
The potential dangers of computerized records have not been lost on legislatures. Protecting individual privacy is attractive politically. Several states, in the wake of a federal anti-stalking law, limited access to drivers license records.
The computerization of government records creates access problems on a number of levels. None has been resolved adequately to both facilitate access and ensure government efficiency and privacy. Journalists must understand these issues if they are to maintain continued levels of access and properly frame the issues in the ongoing legal and political debates.
Ironically, there is a downside to the resounding success of journalists who have mined government databases for stories rich in detail and social and political relevance. As journalists become more adept with computers, custodians likewise become more sophisticated at using computers and legal confusion over open records laws to thwart access.
Sig Splichal is assistant professor at University of Miami's School of Communication.