As more governments allow and even encourage their employees to use their own cellphones and computers for work, the line between private and public communication has blurred.
“Any employee who uses a personal device for work is in peril of having that device searched to make sure there isn’t any information relevant to a public records request,” says George Crisci, an Ohio employment and labor lawyer who specializes in the public sector.
Last year, the Louisiana Legislative Auditor sent state and local public employees a clear message: Be careful about what you say over email.
“You cannot assume that you can have private conversations in a public arena,” says Jenifer Schaye, the general counsel of the Louisiana Legislative Auditor. “Even though you’re having conversations on private phones and private iPads, you have to assume that at some point they’ll be reviewed by the public.”
But how much of public workers’ personal information can be revealed to the public?
It varies state by state, but generally the kinds of data that would make someone vulnerable to identity theft -- tax records, home addresses, cellphone numbers -- is protected. Public employees’ salaries are generally not. Medical information is sealed under federal law.
Bans on sharing public employees' personal information have been hotly contested by organizations that believe they have a right to information about taxpayer-funded workers. The debate surfaced this summer in the aftermath of the U.S. Supreme Court's Janus decision, which made it illegal to require public workers to pay fees to unions that represent them.
On the day of the ruling, New York Gov. Andrew Cuomo signed an executive order to ensure that state workers' personal contact information was protected. According to the governor's office, “Recent media reports indicate that certain far-right groups are obtaining contact information of public employees through freedom of information policies and using the information to launch full-scale campaigns against union membership by contacting employees, in some cases at their homes, and presenting them with anti-union information to encourage them to leave their union and discourage union membership.”
The tension between transparency and privacy is particularly acute in Washington state, which has an expansive public records law as well as strict privacy protections in the state’s constitution.
“I don’t know that we’ve reached the right balance yet between the privacy protections that we expect and the transparency we demand from our public employees and elected officials,” says Philip Paine, a health and privacy attorney based in Washington.
The Washington Legislature has not yet dealt with this potential conflict, says Paine, and he cautions public employees to be careful about the risk to their personal privacy when public information mixes with private.
The patchwork of laws dictating what’s considered public record and what’s not is particularly evident in cases involving police use of force.
When Tamir Rice, a black 12-year-old was shot by police in 2014, Ohio’s expansive public records law allowed Cleveland newspapers to quickly get the officer’s personnel records. The files from Independence, a suburb where the officer had previously worked, contained negative notes from supervisors that chronicled emotional problems and “an inability to perform basic functions as instructed.”
By contrast, New York state has a law that was passed in 1976 that protects officer disciplinary records from being released to the public. That law stymied efforts by the press and the Legal Aid Society to access the disciplinary records of the officer involved in the death of Eric Garner, an unarmed black man who was placed in a chokehold by police prior to his death in 2014.
Efforts to get that law changed have so far been unsuccessful, but the debate rages on.
Police advocates believe that if too much personal information is revealed, that raises the specter of danger to officers.
“Unlimited public disclosure of police officers’ confidential personnel records would put them and their families at greater risk for harassment, or worse,” said Patrick Lynch, the president of the Police Benevolent Association, last summer.
But New York Assemblyman Dan Quart, who co-sponsored a bill that did not get traction this year, says New York is in the small minority of states that provide blanket protection of law enforcement personnel files.
“It is a shield to prevent the normal disclosure and transparency of police officer personnel records,” he says. “My hope is that this is at the top of the criminal reform agenda next year in Albany.”
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