Government has gone overboard disclosing personal information about citizens. Two recent cases involving disclosure of personal information filed with the government for “public records” show two different approaches to fighting back.
In Doe v. Reed, Washington Secretary of State, 130 S. Ct. 2811 (2010), the plaintiffs sought the U.S. Supreme Court’s protection against disclosure of residential addresses. In Ostergren v. Cuccinelli, nos. 09-1723, 09-1796 (4th Cir. July 26, 2010), a privacy advocate used self-help to give government officials a “vested interest” in protecting the confidentiality of Social Security numbers.
Doe v. Reed involves a state of Washington requirement that citizens signing petitions for ballot initiatives list their residential addresses. Ballot-initiative petitions are filed with the secretary of state, who determined under Washington law that those are records subject to review by the public.
Opponents of a ballot initiative to repeal the state’s domestic partnership law stated they would publish on the Internet the names and addresses of petition signers. Petition organizers claimed such disclosure violated the First Amendment because it exposed petition signers to threats, harassment and reprisal, and therefore has a chilling effect on the right to sign the petition.
The U.S. Supreme Court ruled, 8 – 1, that the First Amendment does not prohibit the secretary’s determination that the petitions are public records. The opinion held that compelled disclosure of signatory information on referendum petitions is subject to “exacting scrutiny,” and there must therefore be a “substantial relation between the disclosure requirement and a sufficiently important governmental interest.” But the Court determined that “the State’s interest in preserving the integrity of the electoral process suffices to defeat the argument that the [Washington Public Records Act] is unconstitutional with respect to referendum petitions in general.”
Remanding the case back to the U.S. district court, the majority acknowledged in its opinion that “those resisting disclosure can prevail…if they show ‘a reasonable probability that compelled disclosure [of personal information] will subject them to threats, harassment, or reprisals from either Government officials or private parties.’ ”
U.S. District Court Judge Benjamin Settle, on remand, said “not so fast,” and issued an order blocking release of the signatory information until the court hears arguments about whether such disclosure would expose the signers to threats, harassment or reprisal. Doe v. Reed, No. C09-5456 (W.D. Wash. Aug. 11, 2010) (order granting temporary restraining order).
In Ostergren, decided by the U.S. Court of Appeals for the 4th Circuit on Aug. 2, a privacy advocate took an entirely different route. She published online the Social Security numbers of Virginia public officials as a means to protest the commonwealth’s failure to redact that information from land records of citizens.
Virginia sought to sanction her and enjoin publication, but the 4th Circuit held that the First Amendment protected such publication.
The Virginia privacy advocate’s approach may appear to some as stringent, but it was effective and perhaps more cost-efficient than the approach taken in Doe v. Reed. Virginia officials amended the state’s laws and procedures to protect against disclosure even before the case was decided.
Ostergren’s case is an appropriate smackdown of government that is too often too careless with private information of citizens. Besides Social Security numbers and residential addresses of referendum petition signers, however, what about citizens who want to protect their personal information from disclosure by the government for other reasons?
There are many people who take steps to limit the number of people who know their residential addresses: victims of sexual crimes or domestic violence; people who have other reasons, including protecting their family members. A recent experience of mine may help illustrate the point.
The North Carolina secretary of state oversees various licensing and disclosure requirements. The state’s charitable-solicitation law requires the filing of residential addresses of principals at agencies hired by nonprofits to consult or write letters for nonprofits. The secretary of state decided to publish on the Internet those registration forms with the residential addresses of these private citizens.
THE SAFETY ISSUE
Privacy, besides its own value, is a safety issue. Some nonprofits are subject to threats because they are controversial, or critical of government and other powerful institutions. Someone was recently arrested for planning to shoot individuals at the Tides Foundation, which funds nonprofits, and the American Civil Liberties Union.
In addition to the threat presented to nonprofits by political whackos, disclosure of residential addresses could expose victims of domestic violence and other crimes to their stalkers.
The secretary’s office would not retract publication without an injunction. This “so-sue-us” tact by government officials is not uncommon since they have no “skin in the game.”
North Carolina has an Address Confidentiality Program (ACP) whereby victims of domestic violence, sexual offense and stalking may opt out of filing their residential addresses on documents that become public records. Victims of rape must disclose and file evidence of the fact to bureaucrats. That’s unhealthy for those who might already be suffering from mental trauma, and impossible for victims who never reported the crimes out of fear in the first place.
The ACP statute does not require state agencies to provide notice of the program. State forms requiring disclosure of residential addresses do not provide notice of the ACP option. Even if they were willing to disclose their situations to state bureaucrats, how would registrants know the ACP option is available?
The Ostergren protest wasn’t an alternative that “so-sue-us” government employees and officials expected. It may, however, be an option more citizens take to generate action to protect privacy and safety.
Mark J. Fitzgibbons is president of corporate and legal affairs at American Target Advertising Inc.