2001 FOI update: State privacy developments

By Rebecca Daugherty

State legislatures continue to wrestle with questions of personnel privacy, according to the Reporters Committee's annual summer survey of measures that would affect the media. Since then, state lawmakers have continued to introduce bills that would create new "rights" of privacy in what traditionally has been public information. The Virginia legislature has before it a broad bill that would prohibit disclosure of information that would cause "an unwarranted" invasion of privacy. In Oregon there is an attempt to protect 911 calls; in Arizona, to protect voter records; in Georgia, to keep confidential the identities of Atlanta car-poolers. Privacy is popping up around every corner.

The privacy protectorates
There are recurring suggestions for privacy commissions in the states. Colorado enacted a law last year to study privacy issues. A new Kentucky law sets up a governor's advisory council for maintaining "privacy and confidentiality" in agency records.

In Arkansas, an Electronic Records Study Commission, which has been meeting for a year to deal with electronic records issues, has voted to include a provision dealing with privacy over the objections of the four news media members on the commission.

New York considered a bill to form a commission on personal privacy.

In California there is a new Office of Privacy Protection in the Department of Consumer Affairs charged with developing fair information practices. California had considered a privacy ombudsman to help control data dissemination on individuals not only from government agencies but also from commercial and non-profit groups.

In Maine a bill would create a new state office to protect personal privacy in government agency records, apparently triggered by fears that too much information would become available on-line.

A privacy task force in Wisconsin has had a different mission. Several news media representatives have worked very hard as members of a governor's task force on privacy to address a state Supreme Court decision that requires records custodians to notify subjects of open records requests and give them a chance to sue to block disclosure if the records would harm their reputations. That 1996 Woznicki v. Erickson decision involved criminal history information in school teacher personnel files and was used by agencies and courts as authority to withhold all kinds of records naming individuals unless they were notified of disclosures. A lengthy bill drafted by the task force still retains notice provisions for disciplinary records, and cuts off access entirely to some information in personnel records. But it goes a long way toward restoring the state's openness jeopardized by the high court's rule.

Consumer privacy
Consumer privacy measures are regularly introduced to monitor business use of information on individuals. Hawaii, Washington and South Dakota have considered such measures. A bill in Ohio would have required written permission from the subject of any record before it could be used for commercial purposes. The New Mexico legislature passed a consumer privacy law but it was vetoed by the governor.

Most states have complied with the Drivers Privacy Protection Act by passing laws limiting access to driver records.

Medical records
The U.S. Department of Health and Human Services issued final medical privacy regulations late last year that have been, at least temporarily, withdrawn for reconsideration. However some federal regulation is inevitable. The published rules would protect individually identifiable health information by any health care groups - not just hospitals, but fringe services such as ambulance services and pharmacies as well.

Already, press associations and hospital organizations in the states are in conflict over state rules to implement the federal requirements that set penalties for revelations of individual information. A hospital association in one state has suggested a measure to keep secret the destinations of ambulances other than by zip code.

States were already passing new patient privacy requirements. More undoubtedly will follow.

Child abuse, domestic troubles
State lawmakers have introduced or passed numerous bills to protect victims of domestic violence. Delaware, Florida and Wyoming passed new laws limiting access to child abuse records. Maine is considering a child's ombudsman's office in a bill that would make all complaints and inquiries to the ombudsman confidential.

But other lawmakers have learned, sometimes from graphic anecdotal examples, that there is a need for transparency in child abuse cases.

Wisconsin enacted a law requiring disclosure of child abuse and neglect records when a child is a victim of a fatality or near fatality. The Vermont House but not its Senate passed a similar bill.

A new Georgia law allows access to the records of any child who dies, if that child was the subject of a report to the family services division.

In Missouri a new law makes child abuse investigation records available to the press if they are requested by a specific child's name.

In Alaska the governor proposed, but the legislature did not consider, a complex measure to publicize child-in-need-of-aid matters.

An odd Ohio bill would allow journalists who identify themselves and state that they seek the information for a public interest purpose to access the home addresses of children's services agency employees by written request.

California considered a bill to keep divorce information secret, a notion that is being considered also in court records-keeping measures in some other states.

Alabama has a new law that authorizes the government to publish names and photographs of the 10 parents most egregiously behind in their child support payments.

Gun permits
Saying he was concerned that open gun permit records subjected gun owners to potential hate mail and gun thefts, an Iowa legislator in February introduced a measure to prohibit public inspection of records on handgun ownership and permits. In Colorado a similar measure passed the legislature last year but was vetoed by the governor; in 2001 a milder bill failed in committee. The Virginia legislature allowed a similar bill to die.

Victim information
In Michigan no one but the press association objected to a measure that makes videotapes of crimes and autopsy photographs off limits to reporters along with addresses and work telephone numbers of victims unless an address is included in a report. Mark Gribben, the press association's public affairs manager, told the Associated Press, "We stood in front of the train and it just ran us over."

The Idaho Senate passed a measure to keep information on crime victims secret and has sent it on to the House. Numerous states considered measures increasing privacy for victims, Colorado, Idaho, Mississippi, Massachusetts, Nebraska and Michigan among them.

Personnel records
The Atlanta Journal-Constitution used databases in 1999 to show that nearly 3,000 school employees had criminal records. A more recent request by the newspaper for similar school databases on school bus drivers triggered passage in the Georgia House, 169-0, of a bill that blocks public access to personal information including address, phone number and Social Security number on teachers and public school employees. Legislators agreed to continue to allow disclosure of birth dates of school employees, which enhances the ability of journalists to use the data. The bill is now before the Senate.

Rebecca Daugherty directs the FOI Service Center, a special project of the Reporters Committee for Freedom of the Press.