Keeping public records public

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By Dan Kennedy, assistant professor of journalism, Northeastern University

U.S. Supreme Court Justice John Paul Stevens, who is retiring this summer at the age of 90, deserves the accolades he has received. But before we propose him for secular sainthood, let’s hope he takes a different position on a crucial public-records case now before the Court as compared to 21 years ago.

Last week the Court heard arguments in Doe v. Reed, brought by gay-rights opponents in Washington State who seek to keep private the names of people signing petitions to place public-policy questions on the ballot. In Washington and many other states, including Massachusetts, such names have long been a matter of public record.

The argument for ending that practice is that pro-gay-rights organizations such as Know Thy Neighbor have used technology that didn’t exist until recently, posting the names of petition-signers on the Internet and subjecting them to harassment.

There’s no telling which way Stevens may go this time. But in 1989, writing for a unanimous Court, he overturned a federal appeals court and ruled that public records can cease to be public once they have been compiled into a computerized, easy-to-access database. Sounds a lot like the matter before the Court right now.

There are some crucial differences. The earlier case, U.S. Department of Justice v. Reporters Committee for Freedom of the Press, involved rap sheets — that is, raw police records — that had been compiled by the FBI. The ruling turned on such matters as the inherent unreliability of such unvetted records, as well as whether the federal Freedom of Information Act could be used to reveal the conduct of private individuals. (No, the Court said.)

But Stevens’ principal insight at that time would seem to be applicable to both cases:

Plainly there is a vast difference between the public records that might be found after a diligent search of courthouse files, county archives, and local police stations throughout the country and a computerised summary located in a single clearinghouse of information.

Let’s hope that Stevens has changed his mind. It would be a bitter irony if technology aimed at increasing governmental transparency becomes an excuse to hide information long considered to be public.

For more, please see my commentary in the Guardian.

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