Electronic Access to Information and the Privacy Paradox : Rethinking Practical Obscurity and Its Im...
Rethinking Practical Obscurity and Its Impact on Electronic Freedom of Information

<jats:p> This article addresses the U.S. Supreme Court’s formulation of “practical obscurity” in Reporters Committee v. Department of Justice, a seminal case interpreting the U.S. Freedom of Information Act (FOIA). By examining lower federal court opinions interpreting Reporters Committee and by analyzing the effects of the Court’s opinion on the implementation of the privacy exemptions of the FOIA, this article finds that the Court’s opinion has greatly narrowed the scope of the FOIA and limited the power of the FOIA to democratize electronic information. Exemptions from the presumption of disclosure inherent in the FOIA were designed to balance the public’s right to know against other competing interests. Historically, courts have balanced the public interest in disclosure against privacy interests when weighing privacy claims made under the FOIA. The Department of Justice argued for a change in this analysis, however, and in Reporters Committee successfully urged the adoption of a narrower definition of disclosable records. This new analysis expands the scope of privacy under the FOIA while it restricts the scope of acceptable public interest arguments in favor of disclosure. This article demonstrates how the Court’s decision in Reporters Committee—specifically, its formulation of practical obscurity as a value worth protecting—holds far-reaching implications for federal access law and for FOI laws around the world. </jats:p>