The Freedom of Information Act, then, is a comprehensive public disclosure statute. It mandates disclosure of information to the public for all but nine specifically exempted categories. Even within these exempted categories, however, the FOIA does not proscribe disclosure but leaves dissemination of information to the discretion of the executive agency. The Constitution and other Federal statutes which regulate the collection, dissemination, and use of information do, however, limit such discretionary release of information, both to the public and to other Government agencies. How these limitations on disclosure operate, and how information becomes "confidential," can best be understood by examining the law as it applies to various categories of information determined, in essence, by the content and/or source of the data. This Section explores the current state of the law applicable to the following kinds of data: personal data on individuals; trade secrets, financial data, and other confidential business information kept confidential in the interests of national This Section ends with a brief discussion of another special Personal Data about Individuals: the Right to Privacy Although legal commentators may disagree on a definition of the right to privacy or its Constitutional foundations, the Constitution clearly imposes some limitations on the collection, use, and dissemination of information about individuals. The Fourth Amendment, proscribing unreasonable searches and seizures, has been held to limit the involuntary collection of information - through "Congress did not intend the exemptions in the F.O.I.A. to be used either to prohibit information, or to justify automatic withholding of information. Rather, they are only permissive. They mark the outer limits of information that may be withheld where the agency makes a specific affirmative determination that the public interest and the specific circumstances present dictate—as well as the intent of the exemption relied on allows that the information should be withheld. . . . A number of agencies have by regulation adopted this position that, notwithstanding applicability of F.O.I.A. exemptions, records must go disclosed where there is no compelling reason for withholding. . . . This approach was clearly intended by Congress in passing the F.O.I.A.". S. Rep. 854, 93d Cong., 2d Sess., p. 6 (1974) (Emphasis in original). See also Environmental Protection Agency v. Mink, n. 7, supra; Associated Dry Goods Corp. v. Equal Empl. Opp. Com'n., 419 F.Supp. 814, 821-822 (E.D. Va., 1976); Charles River Park "A" Inc. v. Department of H.U.D., 519 F.2d 935, 941 (D.C. Cir., 1975); Pennzoil Co. v. Federal Power Commission, 534 F.2d 627, 630 (5th Cir., 1976). 15 16 wiretapping, for example—and to safeguard the individual's right of privacy. 10 The First, Fifth, and Fourteenth Amendments restrict the ways in which Federal or State authorities may use information about a person's ideas, religion, race, color, or other personal attributes and, to some extent, whether and how such information may be obtained." On the other hand, there is no explicit Constitutional guarantee of the right to privacy12 and, however it is defined, the right is certainly not an absolute one. It is a right that must be defined and weighed against other Constitutional rights and against the needs of society, either by the Congress or, in the last analysis, by the courts. 13 With the expanding role of Federal, State, and local governments in administering benefit programs whether health, education, welfare, or insurance programs and in conjunction with their regulatory and law enforcement functions, government entities need to collect personal information from and about their citizens. Additional personal information is collected by various government entities for research or investigative purposes. Moreover, private entities lending institutions, employers, medical facilities - also collect a great deal of personal information about individuals. No one feels more acutely the effects of the information explosion than the individual citizen, whose very life is governed by "forms." Yet, despite the incursion of government and other organizations into the personal life of the citizen and despite Constitutional limitations on governmental intrusion, the private citizen, until recently, had little control over how information about himself was collected or how it was being used. In many instances, he did not even know whether such information was being collected or was being maintained and, of course, he had no way of verifying its accuracy. The U.S. Census: Limitations on Disclosure The Federal Government's first attempts to restrict the disclosure or 10 Berger v. New York, 388 U.S. 41 (1967); Katz v. United States, 389 U.S. 347 (1967). "Gibson v. Florida Legislative Investigation Committee, n.6, supra; NAACP v. Alabama ex rel. Flowers, 377 U.S. 288 (1964); Baird v. State Bar of Ariz., 401 U.S. 1 (1971). But see Marks v. Schlesinger, 384 F.Supp. 1373 (D. Cal., 1974); Association of Am. Physicians and Surgeons v. Weinberger, 395 F.Supp. 125 (N.D. III., 1975), aff'd. 423 U.S. 975 (1975). 12 The right of privacy has been defined as a "penumbra" of rights guaranteed by the First, Fourth, Fifth, and Ninth Amendments. Griswold v. State of Conn., 381 U.S. 479 (1965). 13 See Note, "Formalism, Legal Realism, and Constitutionally Protected Privacy Under the Fourth and Fifth Amendments," 90 Harv. L. Rev. 945 (1977). and more data of a "private" nature were sought, concerns for confidentiality focused on commercial data rather than on personal information identified with individuals. In fact, until 1850, population schedules were publicly posted as a means of verifying their accuracy; yet as early as 1820 assurances of confidentiality were given for business data. Even as late as the Census Act of 1880, the penalty clause for violation of the census taker's oath referred only to disclosure of "statistics of property or business". Over the years, however, several factors, all of current impact, forced the issue of individual privacy to the forefront. The introduction of the punched card system in 1880 (computer technology), the expansion of the scope of information sought (information explosion), judicial support for mandatory collection of data14 (government intrusion in the life of the citizen), and, finally, the establishment of a permanent Office of the Census in 1902, all served to focus attention on the confidentiality of census data. The Acts of 1899, 1909, and 1919 prescribed criminal sanctions for the unauthorized disclosure of such information. 15 The Act of June 18, 1929, included as well the following safeguard provision16 the information furnished under the provisions of this Act shall be used only for the statistical purposes for which it is supplied. No publication shall be made by the Census Office whereby the data furnished by any particular establishment or individual can be identified, nor shall the Director of the Census permit anyone other than the sworn employees of the Census Office to examine the individual reports. This guarantee of confidentiality coupled with mandatory collection authority directly affected the quantity and quality of the data collected, and contributed, in turn, to the growth of the Census. As the first and for many years the only Federal agency in the business of gathering information, the performance of the Bureau of the Census and its predecessor agencies in maintaining confidentiality is of more than historical interest. Over the years, the Bureau has resisted efforts of other Federal agencies, such as the State Department, the FBI, and the War Department, to obtain access to the "individual" information it maintained. 17 Even at the height of anti-Japanese hysteria in 1941, the Bureau was able to withstand attempts of the War Department to obtain the names, addresses, and ages of persons of Japanese extraction living on the West Coast. 14 U.S. v. Moriarty, 106 F. 886 (S.D. N.Y., 1901). 15 Until the Act of March 3, 1919, 40 Stat. 1299, violations were misdemeanors. The Act of 1919 made violations felonies, punishable by a fine of up to $1,000, imprisonment of up to two years, or both. 16 46 Stat. 25. 17 For example, the State Department requested data about individual farms in connection with an international dispute with Canada involving alleged crop damage. In 1947, the Attorney General asked for individual data for use by the FBI to investigate possible Communist infiltration and sabotage. U.S. Department of Commerce, Bureau of the Census, A Numerator and Denominator for Measuring Change, Tech. Paper 37, p. 27 (June 1975). 17 18 Today, the Census Bureau is the only public or private agency that collects data on every household in America. In addition, the Bureau conducts quinquennial censuses of manufacturers, mineral industries, and other businesses, agricultural censuses, censuses of governments, and compiles interim current population data for the use of State and local governments. Except for the government censuses and compilations of interim current data, the individuals and business entities furnishing information are assured of the confidentiality of the data given. The current law provides: 18 (a) Neither the Secretary, nor any other officer or employee of the Department of Commerce or bureau or agency thereof, may, except as provided in Section 8 of this title. 19 (1) use the information furnished under the provisions of this title for any purpose other than the statistical purposes for which it is supplied; or (2) make any publication whereby the data furnished by any particular establishment or individual under this title can be identified; or (3) permit anyone other than the sworn officers and employees of the Department or bureau or agency thereof to examine the individual reports. No department, bureau, agency, officer, or employee of the Government, except the Secretary in carrying out the purposes of this title, shall require, for any reason, copies of census reports which have been retained by any such establishment or individual. Copies of census reports which have been so retained shall be immune from legal process, and shall not, without the consent of the individual or establishment concerned, be admitted as evidence or used for any purpose in any action, suit, or other judicial or administrative proceeding. Criminal penalties are provided for violation of these provisions: fines of up to $5,000, imprisonment for up to five years, or both.20 Subject to these limitations of confidentiality, however, the Bureau does engage in data sharing. It may furnish copies of tabulations and other statistical materials to and make "special statistical compilations and surveys" for other Federal agencies, State and local agencies, and other public and private bodies. It also engages in "joint statistical projects" with other agencies. To save costs and lessen the reporting burden, the Bureau tries to use the records of 18 13 U.S.C. §9. 19 Section 8 provides two exceptions to the nondisclosure policy: (1) furnishing, on request, to an individual or his heir or agent, information pertaining to or submitted by that individual, and (2) furnishing copies of tabulations or other statistical materials containing no identifying particulars to and making special statistical compilations and surveys for other Federal agencies, State and local agencies, and other public and private bodies. This section provides, however, that, in no event shall information furnished be used "to the detriment" of any person to whom the data relate. 13 U.S.C. §8. 20 13 U.S.C. §214. other public and private entities in compiling its statistics, as authorized by the law:21 (c) To the maximum extent possible and consistent with the kind, timeliness, quality and scope of the statistics required, the Secretary shall acquire and use information from any source referred to in subsection (a) or (b) of this section instead of conducting direct inquiries. Data shared by the Bureau with other agencies are in such form that no information can be attributed to any particular individual or business entity. Data "acquired" by the Census Bureau are subject to the same rules of confidentiality as if collected by the Bureau. Where joint projects are conducted, employees of other agencies are subject to the same confidentiality oath as Bureau personnel. Thus, to the extent that information is being shared with the Census Bureau, that agency's track record on guaranteeing "appropriate standards of confidentiality" is excellent. As is discussed more fully below, however, further sharing could be accomplished without sacrificing these standards, at least with respect to some business data. Other Statutory Controls For many years, the Census Act remained the only statutory limitation on the disclosure or use of personal information about individuals by Federal agencies. By the late 1960's, however, several factors had contributed to sharpened awareness of and concern for the potential abuses inherent in the rapidly increasing amount of such information collected by government entities as well as by private organizations. Foremost among these factors was the development of computer technology. The steady proliferation of computer-based personal data systems22 raised possibilities of both intentional and unintentional disclosures and uses never contemplated when only manual systems were maintained. Reports of wide dissemination and linkages of such records, of the disclosure of inaccurate or incomplete data, and of other misuses by both private and governmental entities kindled fears of further abuses. The need for the collection of personal data and the scope of the data gathered paralleled the growth of governmental programs and activities. As individuals felt powerless to stem this growth, pressures developed for legislation to give individuals some control over the accuracy of the data collected about them and how they were to be used. Congressional reaction to these concerns was on a piecemeal basis with legislation enacted first in those areas where reports of abuse were most rampant. But even these sporadic efforts, such as the Fair Credit Reporting Act of 1970,23 the Crime Control Act of 1973,24 21 13 U.S.C. §6(c). 22 See Senate Committee on the Judiciary, Subcommittee on Constitutional Rights, Federal Data Banks and Constitutional Rights, 93d Cong., 2d Sess., p. 43 (1974). 23 15 U.S.C. §1681. 24 42 U.S.C. §3334 et seq. 19 |