right to know Archives - Prindle Institute

When I first heard that President Donald Trump tested positive for COVID, I began following the regular updates about his condition. I read through the updates from his doctor, I checked the dates on his previous COVID tests to determine when he was probably infected, I cross-referenced the results of his medical tests with what actuarial data exists for COVID cases, and I regularly checked in to see if President Trump’s condition was improving or worsening.

Or, more precisely, those were all things I wanted to do. Why didn’t I do them? Because the White House did not release detailed medical information. We got some minimal updates about the president’s conditions, but those updates were devoid of specifics and often inconsistent. This bothered me, and I immediately added this to the tally of ways the Trump administration has been insufficiently transparent.

I was upset with the White House, I felt they were doing something wrong by not being more transparent. I felt like I had a right to know about my president’s health condition! Not only that, I felt I had a right to know about the health condition of a current presidential candidate less than a month from the election. I felt that President Trump, as both the sitting president and a presidential candidate, did something wrong by not releasing details of his condition to the public.

But is my feeling that the president had such an obligation of transparency correct? There is an extensive academic discussion of this very question. To what extent do candidates retain rights to medical privacy, and to what extent does the public gain a sort of moral right to medical transparency? That is the question I want to consider here.

Normally people do not have an obligation to disclose private medical information. That is true even if that information is materially significant to others. Certain illnesses could perhaps compromise my ability to teach at FSU — FSU thus has a real interest in knowing the results of my medical tests. That does not mean I have an obligation to send FSU that information. If I decide I can no longer do my job, then I should let FSU know and possibly I should resign. But if I think I can continue my work, FSU does not have some right to the same medical information so that they can make their own determination. My interest in medical privacy supersedes their interest in my medical history. FSU can fire me if the quality of my work suffers. But they don’t have a right to my medical information so that they can preemptively decide if they think my work will suffer.

Now, there are limits to our medical privacy. If diagnosed with HIV, one ought to disclose that diagnosis to prior sexual partners. Similarly, in cases of medical emergency, the state might need to violate medical privacy to prevent the spread of a highly infectious disease. Even in those cases, however, it is still reasonable to maintain as much privacy as possible. Following a COVID diagnosis, you might be justified in telling people I’ve been around that they may have been exposed to COVID-19. But that would not justify you telling others whether or not I was given supplemental oxygen.

So what explains my intuition that the president should release the details of his medical tests and treatment? It is something about the difference between me and the president. The first difference that comes to mind is how much more important the president’s work is. President Trump’s decisions are more influential. As such, perhaps there is a large enough public interest to override claims to privacy.

That explanation does not quite capture my moral intuitions though. I don’t just intuit that President Trump has an obligation of transparency, I also intuit that the President of Malta has an obligation of transparency to the people of Malta. I don’t, however, intuit that Jeff Bezos has an obligation of transparency, even though Jeff Bezos almost certainly has far more power and influence than the President of Malta.

So if President Trump has a special obligation of medical transparency, that must be because of his governmental role. It is not that President Trump is more powerful than I am, but that President Trump can act with the coercive force of law. Put another way, President Trump is actually two persons. He is the private person of Donald Trump and also the public person of the President of the United States. President Trump can act as a private person, such as when he gives his children Christmas presents or writes personal letters to friends. President Trump can also act as a public person, such as when he signs laws or writes letters to foreign dignitaries on behalf of the United States. Indeed, it is precisely my distinguishing these two persons that we can make sense of concepts like political corruption. An act is corrupt when a politician uses their public function for a private purpose.

And indeed, we do think that President Trump retains privacy interests over his personal letters in a way he does not over letters he writes as the head of state. So, perhaps in the private person of Donald Trump deciding to run for the President of the United States, he forfeits certain privacy interests due to the demands of public transparency that a democratic electorate have over the head of the executive. Perhaps because the government acts with the consent of the governed, informed consent implies the public has special rights to know.

This seems like the strongest case for why President Trump, unlike myself, might have special obligations of medical transparency. There is, however, a powerful argument against norms of medical transparency. One of the interests we have in medical confidentiality is that it encourages people to seek out healthcare. If I know my doctor will keep a, potentially damaging, diagnosis secret, then I am more likely to go to the doctor. Presidents are political creatures; they need to factor in public reactions to what they do. Thus, a politically savvy politician might well be unwilling to undergo certain medical tests if they know there is a norm of disclosure. And this might be especially concerning for someone in a position as important as the President of the United States. The medical ethicist George Annas has argued that in general “we should encourage our leaders to seek such help whenever they feel they need it, both for their own sakes and for ours, and protecting their medical privacy is essential if this is to happen.” If presidents were morally required to disclose consultations with a psychiatrist, then presidents will be much less likely to consult them. Having the ‘leader of the free world’ unwilling to consult with medical professionals, however, is a scary place to be. We don’t want a president refusing needed supplemental oxygen just because they fear the consequent political blowback. The best way we know to prevent that, however, is maintain strong norms of medical privacy.

It seems reasonable to think that one might forfeit a deontological right to medical privacy by running for president. But it also seems reasonable to think that there are independent reasons to maintain norms of medical privacy that go beyond merely personal rights.

Oh, and a quick postscript for those readers who have never watched The West Wing. It is a great show, and the third season largely deals with questions of medical privacy and the public’s right to know.

This past week on Wednesday morning June 5, the Australian Federal Police raided the headquarters of the ABC, Australia’s national broadcaster and the most trusted media organisation in the country. Files were seized relating to a story from 2017 known as The Afghan Files sourced from leaked documents some of which detailed disturbing allegations of misconduct and criminal activity by Australian Special Forces serving in Afghanistan between 2009 and 2014.

The previous day, Tuesday June 4, the AFP had raided the home of News Corp Journalist Annika Smethurst in connection with a story she published over 12 months ago about the government secretly canvassing a plan to allow the National Signals Directorate to spy on Australians without their knowledge by hacking into critical infrastructure.

These raids have provoked outrage in Australia and beyond. It must be noted that the timing of consecutive raids is extraordinary, given that both reports concerned are well over 12 months old, and are in no way related to one another. The searches have raised concern about press freedom in Australia, with the media union denouncing them as a disturbing attempt to “intimidate” journalism.

Overseas media organisations like the BBC and The New York Times have weighed in on the raids. In a statement on Twitter the BBC said “this police raid against our partners the ABC is an attack on press freedom which we at the BBC find deeply troubling.” And The New York Times reported that Australia May Well be the World’s Most Secretive Democracy. Indeed, the Australian government has become increasingly tenacious in its pursuit of secrecy on a range of fronts, under the ever-broadening umbrella of ‘national security.’

These raids suggest that knowledge, which is merely inconvenient or embarrassing to the Australian government, is being guarded under the cloak of national security. Many observers dispute the characterization of either of these stories as genuine security issues. It is clear, also, that the release of both stories are overwhelmingly in the public interest. As such, it appears the government’s sweeping national security powers are being used to silence and intimidate journalists and their sources.

At the center of the debate is the question of what kind of security matters count as genuine reasons to keep knowledge from the public, and what constitutes an overwhelming public interest. At issue is balancing the principle of the public’s right to know with government’s need for confidentiality to protect other important things like security.

In the era since September 11, in response to the heightened threat of domestic terrorism, Australia has zealously pursued anti-terror, security legislation that has significantly advanced government agency powers. One such law, passed in 2015, requires internet providers and mobile phone networks to store customers’ metadata – the sender, recipient and time of emails and calls. The government argued that the bill was necessary to help Australia’s security services fight domestic terrorism. Those laws were further expanded once again at the end of 2018. There are limited defense provisions for journalists on the basis of public interest, but very weak protections for whistle-blowers who might be sources for investigative journalists.

If ‘national security’ is being used, as many civil liberties advocates worried it would be, to shut down debate and to silence public conversation, this has grave implications for Australia’s democratic integrity. There are deep issues at stake, in terms of the citizens’ ability to trust in the institutions of government, and to be protected against capricious acts by institutions, agencies, and governments. While security and confidentiality are important values, they must not be used by governments to hide things about which we ought to know, and we have to be able to trust that they are not.

It is ostensibly a conflict between the public’s right to know and the government’s right or need to protect confidential information, but that may be a false dichotomy. The interest of the people ought to be the only thing that determines the interest of a properly liberal democratic government –that is its raison d’être and its sole source of legitimacy. That is the ideal of a free democratic society – it is not however true in practice, and the distance between this ideal and reality is the measure of the extent of corruption of the modern democratic state. Corruption thrives on secrets.

Transparency and accountability are two of the most important principles for the functioning of an open, free society. They are both necessary conditions, without which a free, democratic society is not possible. We must be able to trust that, when knowledge which may have profound implications for our society is withheld on security grounds there is a genuine security risk associated with its disclosure. Yet that expectation of trustworthiness appears to have been breached, as the Australian government seeks to enforce its culture of secrecy by employing tactics of intimidation.

Australians have been asked to accept the erosion of many freedoms for the protection of national security. If these raids are not shown to be precipitated by genuine security concerns, the government’s ability to prosecute a case for genuine security needs in the future is compromised.

In a democracy the citizens legitimize the power of the state, and a democratic government has to be accountable to the citizens. A free press is what makes that accountability possible. In general, truth is fundamentally important for the function of an open, healthy democratic society, and we should lean heavily on the side of the public’s right to know and err on the side of transparency.

While some civil liberties advocates have long expressed scepticism about the wisdom of sweeping security laws, especially since Australia, lacking a bill or charter of rights, does not have strong legal protections for freedom of speech protecting the press, more broadly there has been a failure of community and political opposition to critically examine new security laws for how they could be misused; a failure which political commentator Waleed Aly described as a failure of civil reasoning. That failure has occurred in the context of a political culture dominated in Australia by ‘national security’ over other civic freedoms and rights.

The national conversation Australia is now having is about press freedom and its importance for democracy. Those participating need to remain cognizant that at stake is the abstract political and philosophical question of the legitimacy and the limit of state power.

This article has a set of discussion questions tailored for classroom use. Click here to download them. To see a full list of our discussion questions, check out the Educational Resources page.

right to know

Medical Privacy and the Public’s Right to Know

Press Freedom in Australia: Democracy, Transparency, and Trust