Use of Public Record Databases in Newspaper and Television Newsrooms

I. INTRODUCTION The right of access to public record information can be found in the statements of this country's Founders,(1) state and federal statutes,(2) and decisions of the Supreme Court.(3) A growing trend favoring privacy protection, manifested most recently in the federal 1994 Driver's Privacy Protection Act ("DPPA")(4) and its 1999 amendments,(5) poses a serious threat to First Amendment interests and threatens to substantially harm journalists. Surprisingly little effort has been expended, however, to determine the amount and nature of journalists' use of electronic public records, or to understand the full extent of harm threatened by recent privacy enactments. The study on which this Comment is based systematically investigated journalists' use of public record databases. The study combined in-depth interviews and survey research to produce a more complete view of how journalists use these databases in television and newspaper stories and what they will lose if access to public record databases is substantially reduced or eliminated. Part II provides a brief overview of the history of public access to government records and the current privacy debate. Part III describes the survey methodology and presents the results. This Comment concludes that reporting and developing socially significant stories depends on access to public records. If legislatures restrict that access, not only would some stories prove more difficult or expensive to report, or be reported less completely, accurately, or quickly, but reporters would miss altogether those stories that result from routine searching of public records--so-called "enterprise stories." Given that enterprise stories often involve politics, government abuse, crime, safety violations, and other matters of exceptional public importance, the ultimate effect of restricting access to public records would impact not only journalists, but also the public at large. II. THE HISTORY OF PUBLIC ACCESS AND THE CURRENT PRIVACY DEBATE A. Traditional Access to Public Records The democratic process relies on open access to government records. An informed citizenry is crucial to a functioning democratic government, and access to information about the workings of the government is key to that process. As James Madison wrote: "Knowledge will forever govern ignorance: And people who mean to be their own Governors, must arm themselves with the power which knowledge gives."(6) In addition, the American system of free expression relies upon access to information, as First Amendment theorists such as Thomas Emerson, Alexander Meiklejohn, and Vincent Blasi have repeatedly noted.(7) The Supreme Court has explicitly recognized a right of access for the public to attend trials or obtain access to other judicial information,(8) and has implicitly identified a right of access to other government information.(9) Extrajudicial statements have further supported expansion of the right of access. Justice Potter Stewart wrote that the Constitution is "neither a Freedom of Information Act nor an Official Secrets Act."(10) Justice White wrote in Branzburg v. Hayes that "without some protection for seeking out the news, freedom of the press could be eviscerated."(11) The prevalence of federal and state access statutes may have influenced the Supreme Court to refrain from recognizing a constitutional right to access public record information outside of the context of trials and related documents. Federal access laws developed after World War II, beginning with the Administrative Procedures Act of 1946,(12) which was amended in 1966 to include the Freedom of Information Act ("FOIA").(13) The FOIA mandates that all government information generated by executive branch agencies must be disclosed, except for material fitting within nine specified exemptions, such as matters of national security, law enforcement, or personal privacy.(14) The exemptions reflect the presumption in favor of disclosure, however, whereas nondisclosure is permissive, not mandatory. …