TRANSPARENCY TUESDAY: “Personal privacy” exception to open-records access can’t be allowed to swallow the rule

Government obfuscation in the face of requests for public records can be irritating. At times, maddening. And on rare occasions, downright sickening.

This is that case. A New York teenager tells police that two boys abducted her, forced her into a store bathroom and sexually assaulted her. The police investigate, but close the case without bringing charges. Unable to get the criminal justice system to act, the family files a civil suit. Using New York’s Freedom-of-Information-Law, the family requests access to a complete copy of the police incident report, which includes the names and contact information of the two accused assailants.

“No,” says the Suffolk County Police Department, you can’t have it. We need to protect personal privacy.

Of the two guys you say dragged your 16-year-old into the bathroom and forced her to have sex.

On June 19, a New York appellate court refused to grant the girl and her family relief from the agency’s bizarre denial. The ruling was on a pure technicality — the family failed to appeal the denial to the head of the police agency within the 30 days required by statute before resorting to the courts. So it’s unknown whether the courts would have recognized disclosure of the names and addresses of rape suspects — information that routinely is made public every day to police reporters — as invasive of personal privacy.

The case presents two important reminders — the first being, watch the clock. Be mindful that a few state freedom-of-information laws carry an “exhaustion of agency remedies” requirement that must be satisfied before the courts can step in. (In most instances, including under the federal Freedom of Information Act, a requester will be able to go straight to court without having to climb the agency ladder, because the agency’s failure to provide a timely response — and they rarely do — will be treated as establishing that further appeals would have been futile.)

The second reminder is, be skeptical of glib claims of “personal privacy.” Almost every state has a variation of the exemption, derived from the federal Freedom of Information Act (“FOIA”), that enables a government agency to withhold information from otherwise-public records that would amount to a “clearly unwarranted invasion of personal privacy.”

By the phrase “clearly unwarranted,” Congress purposefully chose to err on the side of access. There are times — and police reports are a classic example — when the private behavior of non-famous people becomes a matter of intense and legitimate public inquiry.

In recent years, federal courts have provided some clarity about what legitimately does and does not fall within Exemption 6 (“personal privacy”) of the federal act. Some illustrative examples:

  • Emails between government employees discussing minor internal complaints about co-workers’ personalities may be withheld, but complaints that go to the efficiency or honesty of government services (e.g., money being wasted on employee moving expenses) must be disclosed. (Yonemoto v. Department of Veterans Affairs)
  • The business affiliations or investment holdings of government employees that were flagged as presenting possible conflicts-of-interests limiting their ability to serve on federal scientific panels are not private, and are subject to disclosure, because of the overriding public interest in “detecting undue influence on the functioning of government.” (Seife v. National Institutes of Health)
  • Transcripts of government investigators’ interviews with witnesses in an insider-trading investigation that raised ethical questions about the conduct of a federal securities regulators are not a matter of “personal privacy,” even if they discuss the personal finances of people involved in the investigation.  (Aguirre v. Securities and Exchange Commission)

Withholding records on the grounds of “personal privacy” is a discretionary judgment call; FOIA allows, but does not require, an agency to deny a request for invasively private information. “I can’t give that to you, it’s not a public record,” is almost never a true statement.

Finally, don’t accept a blanket denial if it’s possible for an agency to provide a lightly redacted document removing only the legitimately private information. At times, it’s preferable to accept the half-a-loaf production while in pursuit of a news story, since fighting for every last word might take years.