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A question of who gets government data

High court hears a case that will decide if states can limit access to

Police departments across the US routinely release arrest information to news reporters, a tradition that supports the American ideal of open government. But should others, such as businesses that sell lists of arrestees' names, have that same access to the information?

The US Supreme Court this week takes up a case that will further define the degree of protection afforded to the free-speech subset of "commercial speech." In the process, it is expected to address the question of when government agencies can restrict public access to data - and to whom.

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The case, scheduled to be heard tomorrow, involves a California law that permits police to release names of arrestees to the media but not to certain types of businesses. Direct-mail marketers and their suppliers, who obtain the names and addresses of recently arrested individuals, use the information to send fliers to arrestees' homes promoting the services of lawyers, driving schools, drug counselors, insurance companies, and others.

It is a growing industry, but one that is under siege in some states, like California, that are passing laws to protect the privacy of the arrestees.

The case highlights the inevitable collision between privacy rights and free-speech rights in an age of giant government databanks and sophisticated, intrusive computerized direct-mail operations.

Closing the gap

In broad terms, analysts say, the court may use the case to further reduce the disparity between the level of constitutional protection afforded to commercial and political speech, which is granted the highest level of protection.

Others say the high court could set a new standard for public-records laws, either approving or striking down the practice of the government selecting who gets the data and who doesn't.

The case has attracted the attention of several media groups who are concerned that the court might issue a decision that requires agencies to release records to all requesters or to none of them. A blanket ban on release of government information would make it much harder for news reporters to carry out their traditional watchdog role of closely monitoring police and other government activities.

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The case before the Supreme Court involves United Reporting Services Corp., which is in the business of obtaining and selling lists of the names and addresses of recent arrestees. The company sued the Los Angeles Police Department (LAPD) when it began denying United Reporting access to the arrest data.

A federal and appeals court both ruled that the police department was violating United Reporting's free-speech right to gain access to government data and to use that data as it chose without government interference.

The police department appealed the case to the US Supreme Court. Three other appeals courts have issued rulings similar to the United Reporting decisions. But at least one other appeals court and two state supreme courts have adopted contrary positions.

At stake are laws in some 38 states and the federal government that restrict the release of certain kinds of government information to businesses seeking to sell it.

"I don't think the government should be allowed to pick and choose who obtains government records and for what speech uses they should be put. Then the government is entering the marketplace by controlling ideas and speech, and I don't think that is permissible," says Guylyn Cummins, who is arguing the case for United Reporting.

Thomas Goldstein, representing the LAPD, says the case has nothing to do with free speech. At issue is whether a state legislature and a government agency can decide for themselves who is entitled to receive certain government-held information, he says.

"The court has always had a clear rule that states can restrict the release of their records without judicial oversight," Mr. Goldstein says.

The California law justifies the restrictions on the direct-mail marketing suppliers on grounds that the fliers they send to recent arrestees violate the arrestees' privacy rights. But the same law permits news reporters to publish and broadcast the names and addresses of arrestees. The court of appeals found the two provisions contradictory.

"Having one's name, crime, and address printed in the local paper is a far greater affront to privacy than receiving a letter from an attorney, substance-abuse counselor, or driving school eager to help one overcome his present difficulties," says the unanimous appeals court decision. Robert Sherman, a lawyer for the Direct Marketing Association in New York, says the California law has nothing to do with protecting privacy. Instead, he says, it is a thinly veiled attempt to muzzle direct marketers.

"It comes down to purely an anticommercial statute," he says. "Once records are made public, that access must be given for all legitimate and lawful purposes."

Who is worthy?

Goldstein counters that not all potential recipients are equally worthy to receive the information.

The California legislature carved out an exception for the media because reporters are involved in the important business of informing the public about government operations, he says. In contrast, he says, "United Reporting exists to make a buck off private facts that come to light."

He believes there is no larger public benefit to the release of information to United Reporting.

Ms. Cummins says that many recent arrestees might well benefit by receiving mailed fliers about legal and other services. She says it should be up to the arrestees to decide whether the fliers are a violation of their privacy. "It is really the person who should control this," she says.

(c) Copyright 1999. The Christian Science Publishing Society

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