ULC

Information Practices Code Summary

With the great proliferation of governmental records at all levels of government, two great, contending concerns have arisen respecting them. These records contain essential in­formation about the operations and decisions of government. It is important, therefore, that members of the public have adequate access to this information as a basic check upon governmental actions. Corrupt practices, misfeasance, inepti­tude, and injustices to individuals become much harder to con­ceal.

At the same time, governmental records often contain in­formation about specific persons. Such information may be injurious to an individual. It may, only, be embarrassing. Or it may be simply a matter of privacy for its own sake. There is intrinsic injury when even innocuous information falls into strange hands. Privacy is a respected right in the United States. 

 

 

Both of these concerns -freedom of information and right to privacy -are in potential conflict. Proper guidelines and a balancing of interests is essential to prevent potential con­flict from ripening into irremedial and damaging collision. Congress has enacted federal privacy and freedom of information legislation. Some states have passed proposals for freedom of information and privacy. Many more have been considered in the state legislatures and have been rejected. Yet no single, com­prehensive state act has existed until the Uniform Information Practices Code, promulgated in August, 1980, by the NCCUSL.

The Code has five major articles. Article I contains general matter~ such as act title, rules of construction, and definitions. Article II is the basic freedom of information chapter. Article III concerns disclosure of personal records, the concerns of privacy, basically. Article IV is an optional chapter which provides for an Office of Information Practices. This is the agency which regulates access to governmental rec­ords. It is optional because many states will not wish to create a specific agency for these purposes. Article V deals with certain exemptions to the provisions of this Code. 

 

Under Article II, every agency of state government must make major areas of information readily available for public inspection. These include all rules of procedure, substantive rules of general applicability, statements of general policy or interpretations of general applicability, and final agency opinions. The agency has to permit reasonable requests for access during business hours. If a record is denied to a person requesting it, he or she can submit a request in writ­ing. The written request must be met with a specific answer. A denial, or any other violation of this Code, provides a per­son the power to petition an applicable court for redress. Violation of the freedom of information article subjects any responsible officer or employee of the agency to disciplinary action, including dismissal.

Under Article II, there are items of information in gov­ernment records which need not be disclosed. These include information which would impair criminal investigations, in­formation created in or between agencies which is material to decision-making and which would impair decision-making if re­vealed, information gathered in anticipation of litigation and not available through pre-trial discovery, and other like types of information. All these kinds of information have, in common, injury to a person if disclosed or impairment of a critical legal process. 

 

The disclosure of "individually identifiable records" is raised once in Article II as a matter which an agency is not required to disclose. This provision establishes the transi­tion between Article II and Article III. The "individually identifiable record" is the sole subject of Article III and the gravamen of the privacy concern. An "individually iden­tifiable record means a personal record that reveals, or can readily be associated with, the identity of the individual or individuals to whom it pertains." In general, Article III prevents disclosure of the "individually identifiable record" to anyone except the individual to whom the record pertains. There are exceptions to this general rule, carefully set out. There are certain kinds of disclosures which are necessary. For instance, some kinds of basic employment information should be available to prospective employers. An individual should be able to consent to other disclosures of information pertaining to himself or herself. There are kinds of agency proceedings which are open to the public at the time informa­tion is gathered. Restricting disclosure in these instances would not make much sense. Each of the exceptions is care­fully prescribed.

Also, disclosure of an "individually identifiable record is not a “clearly unwarranted invasion of personal privacy if public interest in disclosure outweighs the privacy interest of the individual." The right to privacy is not absolute. The question of disclosure cannot be rigidly determined, and a bal­ancing of interests is fundamental. If a disclosure is made, and a remedy is sought, the issue of personal privacy versus public interest will be a potential issue in the litigation. 

 

There are other limited, permissible disclosures between agencies. Included are disclosures for civil or criminal law enforcement investigations and to the U. S. Bureau of the Census for its census purposes. A receiving agency is under the same restrictions on disclosure that the originating agency is. These limited disclosures are meant to allow proper conduct of business without jeopardizing personal privacy.   

 

Article III also provides the rules by which an individual may gain access to his own records. Every person has a right to examine and copy records pertaining to himself, generally, and to be informed of all prior disclosures of his records to other persons, on demand. Again, this right is not absolute. If a person is under investigation for criminal activity, or involved in civil litigation with the agency, for example, there is no right to records pertaining to these matters. Included in the sections concerning access to a person's own records are procedures for correction and amendment of erroneous information.

Disclosure of information about a person presupposes that the information has been collected in the first place. Perhaps a first order of business with respect to privacy is some guide­lines for agencies in the collection of information. The Uniform Code attempts to limit collection activities to "information about individuals which is necessary to accomplish its purposes…." It also mandates that, if at all possible, informa­tion should be collected directly from the person directly concerned, and that records be used with "the accuracy, com­pleteness, timeliness, and relevance reasonably necessary to assure fairness…." These guidelines may, very well, help keep information from being unnecessarily and improperly collected. 

 

 

 

Article III contains considerable other material concern­ing access to records for research, and applicability to the private contractors of state agencies. Penalty provisions include civil action to compel compliance, agency disciplinary action against employees who make knowing and willful viola­tions, and criminal penalties.

 

Article IV may be used to establish an agency, the Office of Information Practices, to regulate information practices in state agencies. The role of this specific agency is twofold. It can assist other agencies in establishing proper informa­tion practices through its guidelines and advisory opinions. It has, also, investigative and enforcement powers to guarantee compliance. This Article is regarded by the NCCUSL as optional. Indeed, the NCCUSL does not encourage the establishment of a new agency. However, there are states which have established an independent regulatory body, and some others are likely to follow suit. To assist those jurisdictions, this optional Article is provided. 

 

Some agencies can claim exemption from compliance with this Code. Article V provides the possibility. An exemption may be granted only if the public interest in exemption out­weighs the public interest in inclusion. The Code provides a list of considerations for granting exemptions, including the quantity of records, the probable quantity of requests for dis­closure, and the likelihood of individual abuse. An exemption is limited to the requirement of making facilities available for duplication, for formal denial process, and for rule-making to implement Article III. These exemptions would mainly apply to agencies with a high volume of record-creation and problems in meeting required statutory deadlines.

 

The comprehensive nature of this Code allows these dis­parate policy ends -freedom of information and personal privacy ­to be served adequately. The Code should help solve critical, existing problems with the keeping of governmental records.