Privacy Issues Top Legislative Concerns

Governing magazine says state lawmakers are in a “privacy panic.”

Professor Fred Cate says the free flow of information is threatened by a “privacy avalanche.”

I don’t care what anyone else calls the faddish fetish for privacy now sweeping through the halls of state legislatures: I call it “Trouble.” (Note the capital “t”.)

Professor Cate, who is director of the Information Law and Commerce Institute at Indiana University’s law school, told the NCPA Winter Institute that “[t]he open flow of information is under attack in the United States as never before in an effort to protect privacy. This issue has united the far right and far left, Republicans and Democrats, federal and state governments, the Eagle Forum and the ACLU, even Phyllis Schlafly and Ralph Nader. In the past two years we have seen a flood of privacy legislation, regulation, litigation— including two supreme court cases upholding sweeping privacy laws, and negotiation. And all indicators are that this is only the beginning: The recent privacy avalanche, rather than satiating appetites for restricting the flow of information to protect privacy, has only whet them.”

A December article in Governing gives particulars of the stampede to enact privacy-driven legislation, such as a recent Florida law that closes the state’s voter lists to the public, but allows candidates and political action committees to have access to them. The author explains that such legislation is driven by public fear: “[I]t is nearly always a mistake to underestimate sensitivities on the privacy question, even when facts may suggest little to worry about. Millions of Americans are convinced that the celebrated ‘Information Revolution’ is producing . . . a steady erosion of their personal privacy.” Professor Cate echos this view, saying that the penchant for privacy legislation is “irrational,” because “it is based on unsubstantiated anecdote and fear of the unknown.”

“This,” he says, “is why so many legislative hearings on privacy only feature testimony by lawyers and lobbyists, not victims of privacy harms. You can bet if advocates of privacy legislation could find those victims, they would have them in front of the cameras testifying, but the simple reality is that there are precious few of them and often, when their stories are investigated, the alleged harm is unrelated to the collection and use of personal information or already the subject of existing law. Given the prevalence of information flows and the size of this country, the absence of substantiated evidence of privacy harms is noteworthy.” Professor Cate also points out that although consumers profess to be worried about “identity theft” and other abuses of privacy, most take few or no practical steps to protect themselves.

Privacy legislation has not been a priority in recent sessions of the North Carolina General Assembly, but many in the Winter Institute audience were alarmed by what they perceived as veiled criticism of the Public Records Law voiced by State Senator Eric Reeves of Wake County, who also appeared on the Winter Institute program. Senator Reeves, whose remarks and responses to questions primarily took the form of oblique ruminations, gave no specifics and has no established track record as a champion of privacy rights. Still, a recent News & Observer article suggests that he may simply view public information with a somewhat jaundiced eye.

In late January, the N&O reported that “While Yevonne Brannon, a Democrat and former Wake County commissioner, was campaigning for re-election last year, Rep. Russell Capps called up her employer, N.C. State University, with an unusual request: he wanted to see records of Brannon’s vacation time in her personnel file and a list of her telephone calls.” The story said that the University turned over the requested information, and that Capps had requested and received similar information about two other state employees, including former Raleigh City Council member Stephanie Fanjul.

In my view, the information requested by Rep. Capps requests were perfectly proper. Senator Reeves, who is a political ally of Ms. Brannon and Ms. Fanjul, and whose constituents include thousands of state employees, plans to respond to Rep. Capps’ actions by introducing legislation to restrict legislators’ rights to see state personnel files. Under his proposal, a legislator seeking access to such files would be required to document the request, explain its purpose, and obtain prior approval from the Government Operations Committee or some other joint committee of the General Assembly. It is not clear whether the employees would be told that legislators were looking at their records.

With all due respect for my local senator, I think his proposal stands the issue on its head. What we need in North Carolina is more access to the personnel records of public employees, not less. He should be supporting legislation that would make it clear that anyone may find out not only how many vacation days a state employee has taken, but a lot of other information, too – including the employee’s initial employment application and references; the employee’s periodic evaluations; and a complete history of employee’s promotions, demotions, transfers, disciplinary measures and compensation. Other than medical information, everything in a state employee’s personnel file should be open to inspection by any citizen of the state.

If Senator Reeves were to ask me to justify such sweeping access, here’s what I would say:

“First, I believe that anyone who accepts pay and benefits from the people of North Carolina should be accountable to them. A person who isn’t willing to account to the taxpayers for his or her time and performance should look for work in the private sector.”

“Second, the stereotype of the state employee as a lazy bureaucrat who couldn’t get a “real job” is a vicious canard. Most of the state employees I know — including my wife, who has worked for the state for 15 years – are conscientious, hard-working and productive. Keep in mind that Rep. Capps presumably was looking for information that he could use as political dirt, but he didn’t find any. If you agree that most state employees have nothing to be embarrassed about, why would you introduce legislation that suggests that they do?”