Sunday, August 12, 2001

Caught in the Web

The perpetual struggle over an individual's
right to privacy and the public's right to know
has a new battlefront -- the Internet.
The combatants are those who know
all your secrets -- the people who keep
Hawaii's government records.

By Lee Catterall

A NEW STRUGGLE in the long-running conflict between a person's right to privacy and the public's right to know has broken out on the Internet. Local, state and the federal governments collect voluminous records on each of us, most of it with our acquiescence. The government assigns a Social Security number, records marriages and divorces, notes births and deaths, issues driver's licenses and business permits, and tracks court judgments and criminal records.

To most of that, Americans cannot object if it is made public, if someone goes down to the courthouse to check on a marriage to see if it is legitimate. Moreover, those who use computers to supply information through cyberspace are aware -- or should be aware -- of the risks when they make purchases with credit cards or provide a commercial company with information that goes into a personal profile.

SEEING ALL THAT information show up on the 'Net, however, is a different issue. Many, perhaps most, people do not expect those records to be put on display or to be easily accessible to Web surfers or commercial researchers combing through files with a high-powered search engine.

These concerns over privacy have caused officials in control of public records in Hawaii and across the country to ask themselves just how public those records should be. The answers so far have been neither consistent nor conclusive.

In the executive branch here, Gov. Ben Cayetano's administration embarked on a process last year to determine which public records were appropriate to put online. The conclusion: The state's Web site should provide access to most records that are available to the public on paper and that are physically transferable.


To find out what government Web sites are saying about you, log on to these addresses:
State Executive branch:
State Legislature:
State Judiciary:
City and County of Honolulu:

The Legislature succumbed to pressure in the last session to put the current versions of budget proposals online, a precedent that is likely to result in greater Internet access to future legislation in the making.

THE STATE'S JUDICIARY, however, has adopted a policy limiting information accessible in cyberspace to that "necessary to ensure an impartial and fair court system" and protecting "an individual's privacy and safety." The courts are not subject to open-records requirements of executive agencies.

Says Larry Meacham, spokesman for the civil rights watchdog Common Cause Hawaii: "I think it would have been a good idea for the judiciary to hold public hearings on this to let privacy advocates and the people who need this information for commercial purposes to thrash out their concerns and perhaps reach a compromise."

Public hearings don't necessarily lead to amicable compromise, as Maryland judiciary officials can attest. Last year, the Maryland courts released a proposal that would have imposed special limits on criminal court records to be accessible on the Internet. The proposal, which followed a court decision in favor of a plaintiff who claimed his privacy had been invaded on the Internet, would have provided online court access to a few licensed individuals.

"The whole rule change came about very quickly and without too much input by the industry," says Jo Kamae Byrne, president of Honolulu Information Service, a document-search company that belongs to the National Public Records Research Association. "Our association was very disturbed by it," Byrne says.

The Maryland courts held a hearing on the proposal in December, and the public outcry led to a decision to withdraw the proposal.

COURTS IN HAWAII fashioned an Internet policy more quietly, in response to an individual's request early this year for an explanation of why addresses and telephone numbers had been omitted from information about a civil case on computer terminals in the courthouse. The request triggered an April 12 memorandum from Marsha E. Kitagawa, the judiciary's public affairs director, to Michael F. Broderick, the courts' administrative director. Kitagawa says the memo was adopted by Broderick as judiciary policy.

"First, the concept behind open records is to allow the public to act as 'watch dog' over government operations," Kitagawa wrote. "Access to (an) individual citizen's information is a byproduct, and not the impetus, behind the open records concept."

ALTHOUGH ACKNOWLEDGING that, "under common law, court files were traditionally matters of public record," the memo cited the "competing interest between open records and an individual's privacy and safety," in addition to the state Constitution's guarantee of the right to privacy, as justification for putting limits on information on the Internet.

"In our opinion," Kitagawa wrote, "an individual's safety and right to privacy outweighs the convenience of electronically accessing an individual's personal information. Electronic access should be limited to basic information such as the parties' names, case number and status of the case.

"Persons seeking electronically limited information may still go to the courthouse to request and manually seek through hard copy files. The inconvenience and face-to-face necessity of requesting a hard copy file may act as a deterrent to inappropriate uses of personal information."

KITAGAWA SAYS some information available on courthouse computers prior to the emergence of the Internet has been taken off electronic versions of court documents. "Because of the nature of the Internet," she says, "we really analyzed whether or not all of the information that's captured in the electronic data base should be made available on the Internet. For these reasons, we decided to block out an individual's personal information" on electronic material.

The policy is aimed at satisfying concerns voiced by privacy advocates that some states are making court documents, including divorce records, available on the Internet. "Court files can contain intimate details of people's lives, such as Social Security numbers, birth dates and bank account numbers," writes Stephen Keating, executive director of the Privacy Foundation, a Denver-based advocacy group. "A reporter reviewing such files at the courthouse is unlikely to publish that data. But when the court file is online, anything goes."

Whether such information is on the Internet will not keep the information from going undetected by the person seeking it. "All it means," says Meacham, "is that someone can do it electronically or they can pay someone to do it for them, and I don't think that should be a consideration...The information goes out there anyway. It's just more inconvenient."

Jo Kamae Byrne, president of Honolulu Information Service, a
document-search company, praised the state executive office's
policy on making records accessible online. Her company
collects information for credit bureaus, mortgage companies
and employers seeking information on potential hires.

Nor may keeping it off the court system's Web site prevent certain information from finding another way onto the 'Net. The city of Kirkland, Wash., recently sued operators of a Web site for posting publicly accessible information about Kirkland police officers -- telephone numbers, addresses, salaries, birth dates and Social Security numbers. The King County Superior Court ruled that the Web site operators should remove the Social Security numbers, but the other information could remain.

Byrne says the document-searching industry is "sensitive to the idea that individual privacy concerns need to be considered." However, she says, "arbitrary rule-making without input from the industry and without full discussion on options and alternatives is really going to be counterproductive in other areas."

SHE SAYS COLLECTING information for credit bureaus, collecting tax liens, for financial information needed by mortgage companies, and for background information needed by employers about job applicants is made more cumbersome by forcing document seekers go into court files.

Byrne contrasts the judiciary's Internet policy with that of the state's executive departments, spearheaded by Kathy Matayoshi, head of the Department of Commerce and Consumer Affairs.

In a press briefing last year to describe the state's plans for "the new economy," Matayoshi said public records would be viewed for potential posting online, taking privacy into consideration. She says she was concerned about posting people's home addresses, which no longer are included in state records. Home addresses are deleted before those records are put online, she says. Privacy decisions determine whether records should be public, she says, so no further review is needed in placing those records online.

THE ONLY considerations, she says, are "whether it's physically possible" to display on the Internet and whether it is helpful to consumers. Some people may question whether the information can be abused, but Matayoshi says she does not think it "is our role to make that determination."

Byrne praises Matayoshi's department for being "progressive about transforming their sort of paper-driven function into something that's more electronically accessible." Byrne says the process of determining whether a company had "good standing" so it could go forward on a transaction once took 24 hours but now takes less than 10 minutes.

Agency heads are told they may consider privacy interests beyond those in state law to determine what should be posted on the Internet, says Moya Davenport Gray, director of the Office of Information Practices, which advises state agencies.

"SOME PEOPLE THINK that putting information up on the Web is dangerous, and in some cases that very same information is public record," Gray says. "So we've told them that if you have a sensitivity to putting that information up, you don't have to as long as you keep it open to the public."

Courtney Harrington, the city's director of information technology, says his office has requested guidelines from Corporation Counsel David Arakawa about privacy concerns in deciding what to post on the city's Web site. He expects a response later this month.

"You've got to balance privacy and public access," says Common Cause's Meacham. "Personal information is generally not available (in any public records), but all the other information should be available. Anything that's normally accessible should be online also."

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