concurring. I join the majority opinion but wish to write separately to state my views on the right of privacy.
There is no doubt that the document in question here, the letter from Mr. Markle to Ms. McCambridge, is being maintained in a public office and is presumed to be a public record. Ark. Code Ann. § 25-19-103 (1987). Thus, it is open to inspection and copying, Ark. Code Ann. § 25-19-105 (1987), unless it falls within a statutory exception or disclosure of it would violate a constitutional right. None of the exceptions of Ark. Code Ann. § 25-19-105 (1987) applies, so the only question is the constitutional one.
The majority opinion is correct in stating that the United States Supreme Court recognized the right to non-disclosure by government of private matters in Whalen v. Roe, 429 U.S. 589 (1977). It is also correct in pointing out that it was again recognized in Nixon v. Administrator of General Services, 433 U.S. 425 (1977). However, the recognition came as obiter dicta in those cases. The Whalen case held that New York’s laws safeguarding the release of drug treatment information contained in state computer information banks were sufficient to protect whatever privacy interest patients may have had in the information. In stating that which the court did not decide, Mr. Justice Stevens wrote: “We therefore need not, and do not, decide any question which might be presented by the unwarranted disclosure of accumulated private data — whether intentional or unintentional — or by a system that did not contain comparable security provisions.” 429 U.S. at 605-607. To me it is clear the Supreme Court would have protected the information at stake had it not been for the safeguards. The only basis for the protection would have been the privacy right not to have the information disclosed. The court was hardly disavowing the privacy right by making that statement. The Nixon case held the former president’s privacy interest would not preclude a limited invasion for the purpose of separating personal from public materials.
Neither of the cited cases, when limited to its holding, can stand for the proposition that there is a right of privacy requiring the government not to disclose sensitive, personal, private, information. Realizing that there is no holding supportive of the right of privacy where it was asserted to prevent governmental disclosure of personal information, we could refuse to recognize it, knowing full well that the right is there. We should, however, do as the majority opinion has done and ascertain the law on the basis of our prediction as to how the United States Supreme Court would determine this issue.
Griswold v. Connecticut, 381 U.S. 479 (1965), is typical of the cases recognizing the right of privacy citizens have in making decisions with respect to their intimate personal conduct. That statement of constitutional protection of the privacy right is clear. In Stanley v. Georgia, 394 U.S. 557 (1969), it was held that the power of a state to regulate pornography did not extend to condemning possession of it in one’s home. The court quoted with approval Mr. Justice Brandeis’s dissenting opinion in Olmstead v. United States, 277 U.S. 438 (1928), in which he wrote that the authors of the Constitution “conferred, as against the Government, the right to be let alone — the most comprehensive of rights and the right most valued by civilized man. [227 U.S. at 478].” What a citizen chooses to think or to expose himself or herself to is also protected. The right of privacy thus was held to extend beyond the personal conduct to which it applied in the Griswold case.
Here we are not balancing the right of the state to regulate a perceived evil against the right of privacy. Rather, we are balancing the right of the citizens to information which reveals the nature and operation of government against the right of a citizen not to have intimate personal matters disclosed. If that right did not exist, the Supreme Court would have simply said so in the Whalen and Nixon cases and would not have scrutinized the schemes designed to protect it. Instead, the court wrestled the right of government to have the information in question against the right of the citizen not to disclose it to the government, and the ultimate discussion was about whether the government procedures would protect sufficiently the right of the citizen not to have the information disclosed publicly. Neither case held the right existed, but both of them found it necessary to discuss it, and I find that to be a clear recognition of it.
The right to be let alone must, of course, yield to the police power when overbalanced by it. It should, likewise, yield to the interest and right of the citizenry to know and understand how their government is being conducted when overbalanced by that right. If the letter from John Markle to his mother had contained nothing relevant to the four homicides, I believe this court would protect Ms. McCambridge’s privacy right and not allow it to be disclosed. While the document is subject to the provisions of the Arkansas Freedom of Information Act, sections of which were cited at the outset of this opinion, the governmental interest protected by that act must be balanced against Ms. McCambridge’s constitutional right to privacy. We have engaged in the same sort of balancing conducted by the Supreme Court in the Whalen and Nixon cases and concluded the public’s right to know must prevail.
Hays, J., joins this opinion.