Access with Attitude: An Advocate's Guide to Freedom of Information in Ohio

8: Privacy

105 8 Privacy 8.1 Food to Some Is Poison to Others Everyone agrees that we all deserve some degree of privacy in what people know about us. But we don’t agree about which information about us should be private. Police think that disciplinary complaints against them should be private . School boards think that the identities of candidates for school superintendent should be private. Crime victims think that their identities should be private. People who get arrested think that their arrests should be private. These views are not universally shared. Unlike the federal Freedom of Information Act, the Ohio Public Records Act has no blanket exemption for privacy. If it did, you can be sure that an administrator’s view of what is private would differ from yours. In fact, you can be sure that administrators would differ markedly even among themselves about which information in their custody is private. An exemption for privacy would lead to too many disputes and too little consistency in how the exemption was applied. In fact, that is one of the many flaws in the federal act. The Ohio Supreme Court decided in 1994 that the Fourteenth Amendment to the U.S. Constitution affords individuals a right of 106฀฀•฀฀Access with Attitude privacy in information.1 The Fourteenth Amendment guarantees, among other things, that the government won’t deprive you of your liberty without due process of law. The court’s theory is that the government could deprive you of liberty in some ways if it discloses private information about you. Most of the following sections deal with informational privacy under the Fourteenth Amendment. 8.2 Ohio’s Constitutional Right of Privacy in Information The Newspaper Request That Gave Birth to Constitutional Privacy in Ohio In 1992, the Akron Beacon Journal’s projects editor asked Akron administrators for copies of the city’s electronic records of year-end employee master payroll files for 1990 and 1991. The city had about twenty-five hundred employees. The computer tapes recorded the following information: • employee names • Social Security numbers • home addresses • home phone numbers • birth dates • education • employment status • employment position • pay rates • overtime hours and pay • year-to-date employee earnings • annual sick leave The city provided electronic copies of the entire master payroll file, redacting only the Social Security numbers. The editor then asked for the data without redaction of the Social Security numbers, explaining that Social Security numbers are unique identifiers, but names and addresses are not. In fact, the city itself used Social Security numbers instead of names and addresses to identify its employees .2 The city refused to provide the Social Security numbers, and the newspaper then sued in the court of appeals. Privacy ฀•฀฀107 The Court of Appeals Ruling The court of appeals agreed with the newspaper: More than one individual may be identified by the same name, but every social security number identifies a different individual. Just as names document the individuals employed by the City, . . . social security numbers do so more precisely. We disagree, therefore, with [the city’s] assertion that the requested social security numbers do not impart any information about “the government or its employees.” They document who those employees are.3 The Ohio Supreme Court Reverses The Ohio Supreme Court reversed, adopting a federal constitutional right to privacy in information. The court decided that the twenty-five hundred employees’ constitutional rights to privacy trumped the newspaper’s right to see the Social Security numbers.4 Although the court did not identify any specific provision of the federal Constitution as affording a right of privacy in information, it has since cited both the Fourteenth Amendment to the U.S. Constitution and article I, section 1, of the Ohio Constitution.5 The Crux of Federal Court Rulings The U.S. Supreme Court has never decided that a federal constitutional right to informational privacy exists outside the context of governmental searches and seizures under the Fourth Amendment.6 The U.S. Court of Appeals for the Sixth Circuit, whose jurisdiction includes Ohio, and the other federal courts of appeals have adopted varying versions of a Fourteenth Amendment privacy right that inhibits government disclosures of information about individuals.7 8.3 How the Constitutional Right to Informational Privacy Works in Ohio Not a Statutelike Rule Regardless of what an administrator or government lawyer tells you, constitutional privacy does not bar disclosure of personal 108฀฀•฀฀Access with Attitude...