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.
Legal scholar Daniel Solove points out, though, that some states have tried to restrict access to (and use of) any personal information in a record if the request’s purpose is to solicit business or to market something. For example, Georgia made it unlawful in 1991 to access police or motor-vehicle accident records “for any commercial solicitation of such individuals or relatives of such individuals.”
Then there are the privacy exemptions themselves. The federal FOIA’s main one applies to “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” Many state laws include similar language, and many of their courts have adopted the federal approach of balancing public access and personal privacy in individual cases.
However, some states have no privacy exemption. And state records laws mostly forbid the kind of discrimination among requestors codified in Georgia, leading a number of courts to find that the government may not consider the purpose or motives of a request.
All of which adds up to … a complicated balance.
Solove argues that personal information in public records often is not essential to learn what the government is “up to.” So, maybe it makes sense generally to consider, as federal courts do, the relationship of the requested record to the purposes of public records law. The focus would be on their nexus, not the requester’s motives or identity. The closer the nexus, the bigger the public interest in disclosure.
But that approach puts officials in the position of defining and weighing the “public interest,” creating the risk that if an official simply didn’t like how a record would be used, she could try to withhold it. The potential for gamesmanship is hard to ignore. As is the risk, on the other hand, that laws allowing you to obtain a record for any reason will leave people—even some open-government advocates—uncomfortable because of the potentially invasive disclosures they could allow.
There’s no perfect solution here. The extent to which personal privacy rights can trump access to public records varies widely from state to state, and between the federal and state levels. The press and public, whether they want to obtain nude dancer licenses or gun records, must be prepared to make highly fact-dependent arguments that befit the law in their jurisdiction.
All politics is local, as they say, and so is the public interest in privacy.
Jonathan Peters is CJR’s press freedom correspondent. He is a media law professor at the University of Georgia, with posts in the Grady College of Journalism and Mass Communication and the School of Law. Peters has blogged on free expression for the Harvard Law & Policy Review, and he has written for Esquire, The Atlantic, Sports Illustrated, Slate, The Nation, Wired, and PBS. Follow him on Twitter @jonathanwpeters.