The Evolving Ethics of Public
Data Creation & Dissemination
Mark C. Hoffman
Information Technology Workshop
12 February 2005
School of Public & Nonprofit Administration
Grand Valley State University
Four competing goals of public
data dissemination
• Open and transparent government
• Respect for individual privacy
• Concern for security
Personal security (“identity theft”)
National security (terrorism)
• Entrepreneurial government
Cost-recovery
Client-centered innovations
GOAL #1
Open and transparent
government
John Emerson Moss (1915-1997)
US Congress (D – Calf) 1953-1978
author of US Freedom of Information Act
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US Freedom of Information Act
• 1966 FOIA requires that a US federal agency*
disclose public records once a proper request has
been made.
• Supreme Court: “the basic purpose of the FOIA is
to ensure an informed citizenry, vital to the
functioning of a democratic society, needed to
check against corruption and to hold the governors
accountable to the governed.” NLRB v. Robbins Tire &
Rubber
* does not apply to records held by Congress, the courts, or by state or
local government agencies
US 1996 Electronic FOIA
• Downloading data is NOT creation of a new
record
• Agency cannot limit format -- must make
REASONABLE efforts to provide in
requested format
• Agency must have commonly requested
material available in “electronic reading
room”
US copyright law
§ 105. Subject matter of copyright: United
States Government works
“Copyright protection under this title is not
available for any work of the United States
Government, but the United States
Government is not precluded from receiving
and holding copyrights transferred to it by
assignment, bequest, or otherwise.”
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Michigan FOIA
• Michigan: requires that a Michigan public body
disclose public records once a proper request has
been made.
• Currently 23 listed exemptions
• Response to FOIA request must be made within 5
business days
• Fee are limited to cost of searching, duplicating
and mailing (including labor and materials)
• Creation of “new public record” is not required
Farrell v City of Detroit (1995)
• Are computer tapes public records that are
subject to disclosure under Michigan FOIA?
– Detroit News sought public computer records
of property tax payers
– City of Detroit offered only hard copy
– Court ruled that FOIA created right to access
public record itself, not just information
contained in the record
Farrell v Detroit, 209 Mich App 7; 530 NW2d 105 (1995).
Zeeff v. City of Ann Arbor (1994)
• Is creating a electronic data extract a “new record”
not required by FOIA?
– Jon Zeeff made FOIA request to Ann Arbor data on
street conditions in an electronic format.
– Ann Arbor said requested data is not kept in an
individual file, so request was for a “new record.”
– Court ruled that extracting data was not the creation of
a “new public record” as defined by FOIA.
Zeeff v. City of Ann Arbor, No. 93-1548-CZ (Mich. Cir. Ct. 1994).
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GOAL #2
Privacy
George Orwell (1903-1950)
British author
wrote 1984, Animal Farm
Privacy in common law
•
•
•
•
violation of personal isolation
disclosure of upsetting private facts
characterizing a person in a false light
using a person’s name or likeness without
permission
US Privacy Act of 1974
individuals can:
inspect and correct their stored personal
information
learn how their personal information is use
consent to secondary uses of their personal
information
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US Electronic Communications
Privacy Act (ECPA) of 1986
• makes it illegal to intercept electronic
messages sent over public systems without
a search warrant.
• allows employers to intercept employees email if:
– notice is given
– company believes its interests are in jeopardy
Computer Matching and Privacy
Protection Act of 1988
• Computerized comparison of information from
different sources to determine eligibility for
Federal benefit programs.
– Subjects must receive notice and can refute adverse
information
– require agency’s to establish Data Protection Boards
• Amended 1990
• Office of Management and Budget memorandum,
2000
Driver’s Privacy Protection Act of
1994
State DMVs may
never disclose: individual's photographs, SS #,
driver ID #, medical / disability information
rarely disclose: name, address, telephone #
Can disclose: vehicular accidents, driving
violations, driver's status, zip code
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Privacy impact assessments
• Evaluate and build privacy protection into
new information systems before the system
is developed.
• Adopted as part of E-Government Reform
Act of 2002
OMB memorandum on Web
privacy (1999-2000)
• Agencies must
– establish clear privacy policies for its web
activities,
– post those policies
– comply with those policies.
• Agency contractors should also comply
with those policies.
• No specific policies required
Privacy exemptions in Mich FOIA
• Specific personal information about an individual
if the release would constitute a clearly
unwarranted invasion of that individual's privacy.
• Records which if disclosed would violate the
Family Educational Rights and Privacy Act of
1974 (primarily student records).
• Medical, counseling or psychological facts which
would reveal an individual’s identity
• Crime Victims Rights Act of 2000
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GOAL #3
Security
John Ashcroft (b. 1948)
US Attorney General 2001-2005
Preamble to Constitution
We the people of the United States, in order to
form a more perfect union, establish justice,
insure domestic tranquility, provide for the
common defense, promote the general
welfare, and secure the blessings of liberty
to ourselves and our posterity, do ordain
and establish this Constitution for the
United States of America.
1. National Security
• Exemptions to US FOIA
• Deletion of potentially risky information from
Internet
• Total Information Awareness project
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National Security exemptions to US
FOIA
• FOIA exemption
– “This section does not apply to … an agency
conducting a lawful national security intelligence
investigation”
• Central Intelligence Agency Information Act of 1984
• Ashcroft FOIA Memorandum, October 2002
– “sound legal basis” replaced “foreseeable harm”
standard.
– Promised DOJ would back refusals
• Proposed Domestic Security Enhancement Act of 2003 ???
Deletion of Internet information
• Post 9/11, OMB watch has identified 18 instances
where federal or state agencies have removed
information from their web pages
–Department of Energy
–EPA
–US Geological Survey
–Nuclear Regulatory Commission
–The National Archives and
Records Administration
–State of New Jersey
– NASA
–State of Florida
–State of Pennsylvania
Total Information Awareness
• DoD project to build database to identify
potential foreign terrorist threats by seeking
patterns in transactions data like credit card
bills and travel records.
• “would not require the collection of any
data currently protected under privacy law”
• Not aimed at Americans
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2. Identity Theft
• open a new credit card account, using your
name, date of birth, and SS#.
• call your credit card issuer and, pretending
to be you, change the mailing address.
• get cellular phone in your name.
• open a bank account in your name and write
bad checks on that account.
-FTC
Michigan law
• Exemption from FOIA: “Records that
would disclose the social security number
of an individual.”
• Michigan penal code (1931) Sec. 750.285.
A person shall not obtain or attempt to
obtain personal identity information of
another person with the intent to
unlawfully use that information …
Public safety / identity theft security
exemption in Mich FOIA
• Public Safety
– Investigating records compiled for law
enforcement purposes…
– Records of a public body's security measures.
• Personal Security
– Records that would disclose the social security
number of an individual.
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GOAL #4
Entrepreneurial Government
David Osborne
Author of Reinventing Government
and The Price of Government
US Information Reform Act of
1986
• Prices cannot be assigned to the information itself,
but to time spent searching (i.e. not market price)
• Searches < 2 hours & 100 pages are free
• Allows distinctions based on how the information
will be used (not allowed under FOIA)
– Commercial users are charged higher fees for
information searches.
– Non-commercial interests are charged a minimal fee
(usually the cost to provide the data)
E-government Reform Act 2002
• allows agency and its contractor to retain
portion of savings from “technology
innovations”
• establishes
– Office of Electronic Government to removing
information barriers to federal data and services.
– Chief Information Officers Council
• mandates public comment periods when
deciding what information to publish online.
• requires “privacy impact assessment“ on new
data systems and projects
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Cost recovery potential
Limited by:
FOIA
Lack of copyright
US Geological Survey (2001) has entered into
business relationships with private firms
Cost recovery in states
Can sell data: e.g., Alaska, Kentucky
FOIA applies: e.g., Vermont, NJ
“Enhanced Access” provision: e.g.,
Michigan
Michigan's 1996 Enhanced
Access to Public Records Act
"Reasonable fee” means a charge calculated to enable a
public body to recover over time only those operating
expenses directly related to the public body's provision of
enhanced access.
"Operating expenses" include, but are not limited to, the
direct cost of purchasing, creating, compiling, storing,
maintaining, processing, upgrading, or enhancing
information or data in a form available for enhanced
access, including the cost of computer hardware and
software, systems development, employee time, and the
actual cost of supplying the information or record in the
form requested by the purchaser.
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Should electronic data be
exempted from FOIA?
• YES say governments who want to sell data
for market price
• NO say information industry companies that
want to get government information
cheaply, repackage it, and sell it
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