The Sacramento Bee has updated its database of all state salaries by name, including UC employees. No, I won't give you the link although you can readily search it out.
Yours truly writes a weekly blog for a group called the Employment Policy Research Association. As it happens, this week's blog for that group tells you why I won't supply the link to the Bee's database. (The fact that the blog entry and the database appeared in the same week was a coincidence.)
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Daniel J.B. Mitchell
Let’s start with the admission that I am not a lawyer, letalone a constitutional scholar. So Ican’t really evaluate the U.S. Supreme Court’s recent unanimous decision whichvoided the conviction of someone apparently dealing drugs that was obtainedbased on GPS evidence. All I can say isthat the justices seemed upset with the idea of the police attaching a deviceto a private car which allowed tracking of the car’s movements and eventualfinding of incriminating evidence. Trustme; I will ultimately relate that decision to an employment concern.
It appears (to me) that the degree of efficiency in thetechnology utilized played an important role in the GPS decision although partof the discomfort of the court seemed related to the intrusion on the vehicleneeded to attach the device. It alsoappears (to me) that if the police had done old fashioned following of thevehicle around with another car - and eventually found incriminating evidenceas a result - that approach to obtaining evidence would have been OK with theCourt.
If that interpretation is correct, there seems – to thisnon-lawyer at least – to be only a matter of degree between high-techsurveillance - which produced massive amounts of data according to the Courtdecision – and old fashioned tailing. But obviously the former was much more efficient and much less costlyand labor intensive, than the latter. Ifprivacy violations are cheap, they are more likely to occur than if they areexpensive.
There are analogies in other controversies in the newsinvolving evolving technology. Therecent brouhaha surrounding the congressional political battle betweenHollywood and Internet providers over measures to prevent piracy of films andsuch has similarities to the GPS decision. If you saw the film, The King’sSpeech, you may recall the scene – taking place in the 1930s – in which thespeech therapist, using a new home phonograph record device said to be fromAmerica – records the King.
So it technically was possible in the 1930s, with what musthave been an expensive device, to copy phonograph records – possibly violatingcopyright. After World War II, lessexpensive home tape recorders and wire recorders became available. It was becoming easier to copy, say, radio broadcastsof the top-ten tunes, again possibly violating copyright. But record companies didn’t panic since themeans of copying and distributing was cumbersome involving reels of tape orspools of wire.
More concern concerning copyrights and intellectual propertyarose when home video cassette recorders came along and movies might thereforebe copied from TV broadcasts. TheBetamax case ultimately went to the U.S. Supreme Court on that issue. But home cassette recorders were allowed inthe Court’s 1984 decision. Thatcontroversy occurred before there was an effective Internet which would allowrelatively easy distribution of copied movies by digital means.
In short, courts and legislators are now continually facedwith changes in technology which make past transgressions that were onceinherently limited much easier. Exactlywhere you draw the line between what is and what isn’t going to be allowed is amatter of degree and discretion. And adecision at one point in time may be made obsolete as technology advances. There really is no absolute, timeless rule.
That observation brings me to issues of privacy andtechnology – and employment. A number ofnewspapers and other organizations have obtained court judgments saying thatpublic payrolls and public pension rolls are public documents – and presumablyalways were. Therefore, it is OK to postthem wholesale on the web with the namesof the employee or retiree included.
Now it may well have been the case in a simpler age that onecould have gone to a public office and obtained information on payments toemployee X or retiree Y, using state and local equivalents of the federalFreedom of Information Act. But copyingdown the entire payroll of an agency would not have been a simple matter. And wholesale and easy distributing theinformation, if one had the patience to copy it, would also have been difficultand costly. But currently such wholesalecopying and distribution has become easy, thanks to computer technology and theInternet. With that technologicaladvance, the process today raises issues of privacy and potential identitytheft.
Most private employers would not think that publishing theirpayrolls wholesale, disclosing pay named employee by named employee, was a goodidea as a human resource practice. Weknow that no private employers do it. Andamong the employers who do not choose to do it are the very newspapers makingavailable public employer databases. Surely, their readers might like to find out what they (the newspapers)pay their editors, columnists, reporters, and – who knows – even their floorsweepers. But the fact that readersmight be interested and that the newspapers already have the data on their ownpayrolls has not impelled any newspapers I know of even to contemplate suchpublication.
When pushed, the newspaper response is that the public has aright to know where its tax money goes.[1] But actually there are lines drawn. So far there have been no court decisions –again that I know of – that make wholesale health records of public employeesavailable by name, even though taxpayers fund public health insurance benefitsfor employees. Internal personnel fileswith performance appraisals are not routinely made public on a wholesale basis.But couldn’t it be argued that the public has a right to know about healthexpenses and performance reviews? So, infact, as in the GPS case, it is a matter of degree and balance. Not everything funded by taxpayers is in facta public document.
There are ways of balancing publication of public payrolldata against privacy and identity theft concerns. Pay rates by occupation can be made available– but without names – so that outsiders can judge whether public pay rates arebeing set correctly. The Californiastate controller, for example, has published municipal pay rates without names. One can learn, for example, that one “policeevidence clerk” in the City of Santa Monica in base salary and overtime earned$60,228 while the other earned $59,923.[2] But no names are provided. If you are worried about whether Santa Monicaoverpays or underpays its police evidence clerks, now you have the data todecide.
The general exception about naming names in the privatesector, at least for publically-traded firms, is that top executive pay is madepublic (with the names known). Thatpractice might also be followed in the public sector. And it typically is - and has been. What the President of the United States ispaid has not been top secret. And notethat presidents, governors, mayors, or Supreme Court justices are publicfigures. Police evidence clerks are not.
Undoubtedly, the GPS decision by the Supreme Court will berevisited in the future as technology changes. What if it becomes possible to track a car without actually attaching adevice? Cars of the future may havedevices built in that transmit information for internal operating reasons. What if the police pick up those signals anduse them for tracking?
Bottom line: The public employee payroll issue also needsrenewed court and legislative attention. Many more people are affected. That is, many more people work in the public sector than there are drugdealers who police might want to tail. It is clear that those newspapers that are publishing payrolls by nameare set on doing so. Sometimes they simplysay it is legal – which it apparently is at present. But they don’t routinely publish, say, thehome addresses of crime victims or the names of rape victims even though thesecan be obtained in public police records. So they cannot really take the position that they simply publisheverything that is legal without making any judgments about what is appropriate. Since their good judgment on crime victims isevidently not going to be applied to public payroll records, only if courts andlegislators say it is not legal would wholesale public payroll publishing byname come to an end.
[1]I rather doubt that the fact that subsidized mailing rates would be viewed bynewspaper publishers as grounds to force them to make their payrolls public,even though one might argue that public money is involved in the subsidy. Newspapers also receive other public benefitsincluding antitrust exemptions in some circumstances and, of course, FirstAmendment protections.
[2]Figures are for 2010. The full databaseis at http://lgcr.sco.ca.gov/.
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