Nightclubs featuring nude dancing and erotic entertainment. Government licensing of the club dancers. Open government. A civil engineer who wants to pray for the dancers.
Wait… one of those things is not like the others. Open government?
It’s actually a better fit than you’d think, thanks to the case Roe v. Anderson, decided recently by a federal judge in the state of Washington. The facts of the case are, let’s say, strange, but they raise the question of how to strike a balance between public records and personal privacy—an issue that has important implications for journalists.
About those strange facts—here’s the CliffsNotes version: Washington law requires strip-club dancers to get licenses, and the state Public Records Act requires the release of licenses generally. David Allen Van Vleet, a civil engineer from Pierce County, requested the licenses for dancers at a particular club, later telling the judge he wanted them because he planned to “pray for those dancers by name.” (The dancers, as is customary, perform under stage names.)
But the dancers, notified of the request, sued to stop it—and the judge ordered local officials not to release the licenses, holding that the dancers “are faced with the loss of their First Amendment rights, deprivation of their right of privacy, and threats to their physical safety if their private information is disclosed.”
Invoking the First Amendment to deny a records request is an interesting bit of legal jujitsu. But setting that aside, along with the licensing regime’s dubious merit, the case is notable for other reasons. As Eugene Volokh wrote, it could be “relied on by analogy in Second Amendment cases,” in which public records laws are used to seek the names of registered gun owners or holders of concealed-carry licenses.
Those requests have become a flashpoint for conflict with news organizations ever since the controversy set off by the Journal News in late 2012; CJR has covered such conflicts in Michigan, North Carolina, and West Virginia.
Even if that doesn’t strike you as a sturdy analogy—the dancers’ privacy interests seem more clearly connected to a credible risk of harm than do the gun owners’—both the Washington case and the gun-records cases get at a larger issue: the extent to which personal privacy rights do, or should, trump access to public records.
The public interest in personal privacy
Let’s unpack things a little more. As I’ve written before, with a few exceptions the First Amendment does not provide a general right of access to government information. As a result, the press relies mainly on public records laws for such access. Those laws, as Volokh points out, are “seen as fulfilling broader First Amendment values, by facilitating speech about how the government operates.”
But a complicated web of regulations, both state and federal, exists to balance the interests of transparency and privacy.
Government records contain all manner of personal information that citizens are required to disclose under certain circumstances: data related to births, deaths, marriages, arrests, and so on—even family dynamics, financial status, and health condition, and contact information. Not all of that is publicly accessible, because there’s a public interest in personal privacy, expressed in laws prohibiting government disclosures of certain personal information and (sometimes) in privacy exemptions to public records laws themselves.
This is salient in part because public records systems increasingly are computerized and searchable, and businesses regularly use them for commercial purposes. In fact, under the federal FOIA, the vast majority of requests each year fit that bill. That isn’t inherently a bad thing—it’s just a reality that shapes the thinking around government disclosures of personal information.
But reconciling transparency and privacy is a concern for journalists, too. And it’s not a new one. In a 1989 case, the Supreme Court held under the federal FOIA that the release of FBI rap sheets to journalists fell within the exemption for law enforcement records that “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” Further, the court said the FOIA’s purpose is to enable the public to learn what the government is “up to.” So, if a request would reveal nothing about government, the public interest wouldn’t favor disclosure.
A complicated balance
Generally, courts and scholars have converged on a few concepts to help reconcile transparency and privacy—though how the balance is struck varies from place to place, and case to case.
One thread in the analysis is the purpose of a given records request. While the nature of the information can matter, as it did in that 1989 ruling, under the federal FOIA and many state laws, individual requesters do not have to establish any kind of interest in a record to obtain it.
Screw. You.
#1 Posted by Anonymous, CJR on Sat 8 Nov 2014 at 12:47 AM