"Private" Data That's Awfully Public  | American Journalism Review
From AJR,   July/August 1998

"Private" Data That's Awfully Public   

The Arizona Supreme Court says school districts don't have to release teachers' birth dates.

By Jane Kirtley
Jane Kirtley (kirtl001@tc.umn.edu) is the Silha Professor of Media Ethics and Law at the University of Minnesota's School of Journalism and Mass Communications.     

"Protecting children" is the pretext for restricting all kinds of speech these days. We've seen it trotted out to justify the V-chip and the television ratings system, as well as mandatory filtering of "unsuitable" Web sites in public libraries and schools.

In May, the day after several local television stations carried, live, a man's suicide beside a California freeway jammed with rush hour traffic, an outraged Los Angeles Times op-ed writer denounced the Fox affiliate because it aired this breaking news while children, some presumably home alone, were riveted to their television sets, watching "Spiderman" cartoons.

Of course, the writer didn't seem bothered that many of these same kids view fantasy violence on a daily basis. The objection seemed to be that they received an unexpected dose of reality.

Invoking children as an excuse for censorship has become the universal solvent for free expression. It's reached the point where almost nothing is strong enough to trump it. But the Arizona Supreme Court has found something that it values more than the safety of children: privacy.

In 1994, KPNX-TV in Mesa got a tip that a substitute teacher in a public school had been caught masturbating in a classroom full of children. The station checked court records and found that the teacher was a registered sex offender, verifying his identity based on his birth date.

To find out whether there were other teachers with criminal backgrounds, the station sent open records requests to 57 Maricopa County school districts, seeking the names, birth dates, home addresses and current places of employment for all full time and substitute teachers. Most of the districts released names and work addresses but refused to give out birth dates and home addresses, claiming that this would be a violation of the teachers' privacy and the districts' promises that the information would be kept confidential.

KPNX explained that it needed the birth dates to positively identify the teachers. In addition, one of its producers, Kim Stafford, demonstrated that she was able to get the teachers' birth dates, home addresses, phone numbers and places of birth simply by obtaining certified copies of their voter registration records. In other words, this "private" information was already public.

But the school districts replied that the fact that the birth dates were otherwise available didn't make them public information, especially since the dates themselves would tell the public nothing of significance and could be used to gain access to a variety of personal information, such as medical records, credit and financial files, and education histories.

And they characterized KPNX's proposed investigation as "speculative and repetitive." After all, they argued, criminal background checks are already conducted by the districts and the state education department, and the station had no solid evidence that any other teachers had misconduct in their backgrounds.

In the legal battle that followed, a trial judge ruled that birth dates, like Social Security numbers, are "private" and that compelled disclosure of the dates by a public agency is offensive, even if other government offices make them available as a matter of course. A mid-level appeals court reversed that decision on the grounds that the information was neither confidential nor private as long as it could be obtained from other public records.

But the state Supreme Court disagreed, finding that because birth dates are usually disclosed only to family and friends or to receive health, retirement or other benefits, the privacy interest in keeping them secret doesn't disappear simply because they are available from another public source.

Although the high court acknowledged that the public has an interest in knowing whether school districts employ teachers with criminal records, it dismissed that interest as "at best speculative." While the station wasn't obligated to prove that other teachers with similar backgrounds worked in the schools, KPNX had failed to provide "any basis at all" for believing that they did. Therefore the teachers' privacy interests must prevail, the court said.

This decision is a classic example of how courts turn somersaults to come up with a rationale to justify withholding "personal" information when someone claims it would be an invasion of privacy to disclose it. Even though the government's system for vetting teachers had been demonstrated to be inadequate, the court dismissed the station's plan to check up on it as "speculative." But based on equally "speculative" concerns that someone might use the information for harmful or illegal purposes, the court chose secrecy over accountability, even though the safety of children could be at stake. l



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