(Specious “Privacy” to Evade Attention and Reform)

Most of us are by now aware that the acronym SLAPP refers to “Strategic Litigation Against Public Participation”—in its purest form, a lawsuit filed to silence speech about public issues, brought by one who finds the speech detrimental to his personal interests.

I would add to the quiver of systematic weapons against self-government the SPEAR— “Specious ‘Privacy’ to Evade Attention and Reform.” Instead of a private person’s using the formidable threat of litigation to discourage constitutionally protected speech by others, the SPEAR involves the government itself using the quieter but equally effective mechanism of secrecy—denial of access to information in public records—to keep people from effectively scrutinizing its faults and foibles, or from even corresponding and comparing notes with one another on the need for reform.

The notion that the core policy or most legitimate purpose of public records access laws is to shed light on government activities and not on private lives is easily said, but sets up a fallacious mutual exclusiveness. In many cases one simply cannot evaluate government activities without knowing, with some particularity, whom they benefit or burden, and how. Moreover, a scheme of protection that allows the government to deem facts "private" and exempt from disclosure simply because they involve identifiable individuals may or may not benefit those very individuals (who are often never consulted or even informed regarding the denial), but may just as easily benefit the desire of government to have its activities and their impact on the individual kept quiet.

Currently, for example, I'm aware of a state agency that has a list of companies that it has dealt with in certain transactions and that has told one of the firms that, on privacy grounds, it may not have access to the list, since some of the companies may be sole proprietors whose business address is also their home address. The purpose of the requester is precisely to contact all others who have had the same transactional relationship with this agency in order to compare notes and see if there is common ground for a collective approach to the agency or perhaps the Legislature that would solve certain problems that the requester has encountered and suspects may be a common experience. In other words, the requester wants to exercise his constitutionally protected rights of assembly and petition if is a sufficient assemblage of likeminded petitioners. The agency knows this, and its firm assertion of a "privacy" basis for refusing to disclose the requested information is forcing the requester to have to hire a lawyer and sue to get the information.

One can easily imagine the same experience where all those involved are truly individuals, affected in their personal rather than business capacities, and thus the privacy label is all the more unhesitatingly applied. One obvious example is the juvenile court system, in which parents who have had their children removed from their custody, not always for entirely just or wise reasons, and sometimes with terrible results, are isolated from one another and deprived of the collective deliberation that might lead to reform.

Likewise third parties—public interest organizations, the press or even elected officials—are disabled from documenting how a variety of social service or other government programs are operating, and particularly from doing so in a thoughtful, anecdotally resonant way, because they are prevented from contacting the human beings who are the ostensible beneficiaries of these programs, even to ask them if they would be willing to share their experiences and shed light on the efficacy of the programs.

In short, a policy that makes individuals inaccessible to inquiry and discussion on privacy grounds may or may not serve their interests, but unquestionably makes government activity that much more opaque to scrutiny.

As an attempt to address this problem, Contra Costa County has enacted, as part of its Better Government Ordinance, the following policy:

Article 25-4.6 Public Records Access

25-4.602 Confidentiality waiver request

Whenever a county officer asserts, as a justification for nondisclosure of a public record, the exemption protecting personal privacy in Government Code section 6254(c), the exemption for names and addresses of crime victims in Government Code section 6254(f)(2), the exemption for taxpayer information in Government Code section 6254(i), any confidentiality or privilege statute referenced under Government Code section 6254(k) the exemption for personal financial data in Government Code section 6254(n), and any other claimed exemption based upon the personal or proprietary interests of a private natural or corporate person, the officer shall cooperate with the requester's efforts to communicate with the subject of the record as follows, upon request, if the requester fulfills the related terms and conditions.

(a) If the requester is seeking information concerning an unknown number of persons, the officer or designee shall inform the requester of the number or approximate number of persons to whom the public record request pertains. If ascertaining that number involves itemized labor or other costs reflecting more than ten minutes of staff time in research, the requester may be required to pay those itemized costs.

(b) The requester shall prepare one stamped envelope for each of the persons sought to be contacted, with the requester's return address on the envelope. Within the envelope the requester shall place a letter explaining why the information is being sought and asking the person to contact the requester. The requester may also include a self-addressed, stamped envelope for that purpose. The envelope shall be presented to the officer for mailing.

(c) The officer or designee shall affix to each envelope so received the mailing address of the person who is the subject of the information request and shall mail it, provided that a mailing address is included in the officer's records. Any staff time required to do so shall be required to be paid by the requester, at the pro rata hourly rate of the employee addressing the envelopes.

(d) If the subject of the record signs a privacy waiver, the record shall be released to the requester if it could lawfully be released to the person authorizing release.

(e) If the subject of the record is legally incompetent to waive privacy interests, the officer shall address the requester's envelope to the parent, guardian, conservator or judicial officer, as the case may be, if known, with the duty and authority to make such decisions for the incompetent person.

(f) If, in the judgment of the department head, the requester is someone who may misuse the information, or if the records or the subjects of the records are of a sensitive nature, the department head may include in the mailing a caution that the individual need not waive his or her privacy interests. The requester shall be provided a copy of the caution and an opportunity to include a response in the mailing.

The point is that blanket confidentiality or even “opt in/opt out” choices do not and should not exhaust the possibilities for protecting privacy in public records. In fact, given that privacy is a personal right that individuals often exercise in a contingent, selective way, based on nuanced circumstances of context, time, and estimates of their own interest and advantage, an ad hoc informed consent regime such as that adopted by Contra Costa County is one that makes the relevant individual’s informed judgment, not bureaucratic policy, sovereign. Absolute barriers are certainly easiest to administer, but they are also most easily used to keep people from communicating with one another for their mutual advantage—and that of the public as a whole.