Many know that the New York Freedom of Information Law (FOIL) generally gives the public rights of access to records of state and local government agencies, with certain exceptions.
My favorite exception states that an agency may withhold records to the extent that disclosure would result in “an unwarranted invasion of personal privacy.”
That standard also appears in the federal FOI Act and numerous access laws in other states.
When I offer a presentation, I often ask the crowd: “Unwarranted invasion of personal privacy….anyone know what that means?” Nobody raises a hand, and I say, “That’s OK. Nobody knows what it means, and nobody will ever know what it means.
There isn’t a judge alive who can define that phrase any better than the average reasonable person.”
Then I ask whether anyone has seen the Victoria’s Secret ads on TV, and a few people giggle, some sheepishly, but everyone admits to having seen the ads.
Would those ads have run on network TV 25 years ago?
Everyone says, emphatically, “No!” Well then, why do we see them today?
Very simply, the sensibilities of society have changed and are constantly changing. What had been so intimate, highly personal, risqué or off color seems to be more acceptable today.
Next, I ask whether anyone has kids, and whether they’re users of social media.
Parents grimace, and I suggest that our kids share information about themselves with their peers that their parents would never share.
There are generational differences in views about privacy.
Young people, their parents and senior citizens have different notions about what is private and what isn’t.
And this is my favorite: two equally reasonable people can look at the same items and disagree. I use my own life as an example.
We used to have a joke in the house. If the phone rang after 9:00 p.m., it was either my mother-in-law, or a reporter who’d gotten kicked out of a meeting, seeking an opinion or a comment regarding a board’s compliance with law.
My name, home address and home phone number (still a land line) are in the phone book and available online. Anyone can find me. My wife, on the other hand, uses a different name for good reason.
First, she doesn’t want to be associated with me (completely understandable), and second, she’s a psychotherapist and doesn’t want clients to know where she lives, or her home phone number.
She has perfectly valid reasons for saying, “No, never!” I have equally good reasons for saying, “I don’t care”, and never the twain shall meet.
So what do we do about privacy?
The courts have given us guidance. When records relate to a private individual, the state’s highest court has offered a standard: the reasonable person of ordinary sensibilities. What would a “reasonable person” feel about disclosure of a particular item?
If that person believes that it’s one of those items that is nobody’s business, intimate or highly personal, it’s likely that the item can be withheld.
However, if the item pertains to a public employee, the courts have repeatedly found that public employees have less privacy than others because they are supposed to be more accountable than others.
If an item about a public employee relates to that person’s duties, usually the information is public because disclosure would result in a permissible (not an unwarranted) invasion of privacy.
That’s the basis for your right to records indicating the salary, overtime payments, attendance, findings of misconduct, and similar items concerning public employees.
I’m a public employee…and if you are not, I have less privacy than you!
The point is that you have the right to know various details about me and others, those who are supposed to be your public servants.
Robert J. Freeman is executive director of the New York State Committee on Open Government.