View Point

By David Ezra

Friday, July 4, 1997

makes us free

Our freedom depends on the right
to find out what the government is doing
and those who serve the public must accept
limits on their right to privacy

When we speak of the First Amendment and freedom of the press, we often think in terms of the people's "right" to know. We would be more correct to think in terms of the people's "responsibility" to know.

Of course, having the responsibility to be well-informed about matters of government presupposes that members of the public and press have the right to access important information about their government and the people who run it.

A free press and public access to information is a concept that all Americans readily agree with in principle. As they say, however, "the devil is in the details," and there has been and remains much disagreement about how much information is "sufficient," and who is entitled to have access to that information.

Most would agree that government has the right, and even the duty to keep some information secret. Matters of national defense and the protection of citizens' legitimate privacy interests in information collected about them are obvious examples.

For instance, few would suggest that a private citizen's tax returns or medical records should be made readily accessible to the general public. Indeed, the very ability of government and the private sector to keep this sort of personal information confidential is one of the greatest challenges of the computer age.

So, while is it clear that local, state and federal governments have a legitimate interest in keeping certain types of information secret, it is also equally clear that the U.S. Constitution requires that the public have ready access to most information regarding the operation and conduct of our governmental institutions.

This information necessarily must include how well our public institutions are being managed, how public funds are being spent and how our public officials conduct themselves.

The latter necessitates a delicate balance between a public official's legitimate right to personal privacy and the public's right to be informed about that official's conduct as it impacts the performance of official duties.

In the end, public officials -- whether elected, appointed or hired -- must expect that to the degree their work is in the public interest, they must sacrifice a modicum of privacy and some personal rights they might otherwise enjoy.

For example, federal and state laws require certain public officials to file detailed financial disclosure reports listing income, assets and the amount and sources of gifts they have received.

In the case of many public officials, the limitation of personal rights is even more expansive.

A federal judge, for instance, must personally forgo the exercise of many of the very constitutional rights he or she has a sworn duty to uphold and protect, including the right to participate in political campaigns, make campaign contributions, hold outside employment or comment publicly on many issues of importance.

Most private citizens would find these restrictions a severe intrusion on their privacy and violation of their inherent rights. And they would, of course, be right.

However, for those who have the privilege to serve in government, the relinquishment of certain rights is a necessary concession to ensure the fairness, impartiality and integrity of public institutions.

Unfortunately, there are always those who see the requirement of public access to information in the narrowest terms.

Some have even now suggested that certain public officials should be exempted from having proven instances of misconduct disclosed to the public and press in order to spare them and their families from embarrassment.

Preventing the disclosure of official misconduct seriously affects the public's confidence in their government. It also ignores the fact that public officials -- whether they are governors, legislators, judges or police officers -- work for and are paid by the people.

In the end, the ability of our citizens to be sufficiently informed by a free press is not merely some abstract concept of an enlightened 18th-century thinker; it is the most essential component of our democratic form of government.

It permits us to participate in the institutions of government and ensures we remain an informed electorate. As Justice Sutherland so aptly put it, "...informed public opinion is the most potent of all restraints upon misgovernment, the suppression or abridgment of the publicity afforded by a free press cannot be regarded otherwise than with grave concern."

While the Constitution does not provide the public with an absolute right to all information, the constitutional right to access most governmental information is expansive and essential.

This means that those of us who are privileged to work in public service must recognize and accept that open government means we must sacrifice at least some of the personal privacy and even personal freedoms we might otherwise enjoy.

It is also the responsibility of every citizen to keep informed. And if we Americans are to continue to enjoy government "by the people and for the people," the press and public must continue to challenge the denial of the First Amendment's right of reasonable access to public records and information whenever it occurs.

As we celebrate this Independence Day, we must never forget that "vigilance is the price of liberty."

David Alan Ezra is a U.S. district judge in Hawaii,
and is the 1997 recipient of the Freedom of Information Award
from the Society of Professional Journalists-Hawaii chapter.

Your Right To Know

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