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, let
alone a constitutional scholar. So I
can’t really evaluate the U.S. Supreme Court’s recent unanimous decision which
voided the conviction of someone apparently dealing drugs that was obtained
based on GPS evidence. All I can say is
that the justices seemed upset with the idea of the police attaching a device
to a private car which allowed tracking of the car’s movements and eventual
finding of incriminating evidence. Trust
me; I will ultimately relate that decision to an employment concern.
It appears (to me) that the degree of efficiency in the
technology utilized played an important role in the GPS decision although part
of the discomfort of the court seemed related to the intrusion on the vehicle
needed to attach the device. It also
appears (to me) that if the police had done old fashioned following of the
vehicle around with another car - and eventually found incriminating evidence
as a result - that approach to obtaining evidence would have been OK with the
Court.
If that interpretation is correct, there seems – to this
non-lawyer at least – to be only a matter of degree between high-tech
surveillance - which produced massive amounts of data according to the Court
decision – and old fashioned tailing.
But obviously the former was much more efficient and much less costly
and labor intensive, than the latter. If
privacy violations are cheap, they are more likely to occur than if they are
expensive.
There are analogies in other controversies in the news
involving evolving technology. The
recent brouhaha surrounding the congressional political battle between
Hollywood and Internet providers over measures to prevent piracy of films and
such has similarities to the GPS decision.
If you saw the film, The King’s
Speech, you may recall the scene – taking place in the 1930s – in which the
speech therapist, using a new home phonograph record device said to be from
America – records the King.
So it technically was possible in the 1930s, with what must
have been an expensive device, to copy phonograph records – possibly violating
copyright. After World War II, less
expensive home tape recorders and wire recorders became available. It was becoming easier to copy, say, radio broadcasts
of the top-ten tunes, again possibly violating copyright. But record companies didn’t panic since the
means of copying and distributing was cumbersome involving reels of tape or
spools of wire.
More concern concerning copyrights and intellectual property
arose when home video cassette recorders came along and movies might therefore
be copied from TV broadcasts. The
Betamax case ultimately went to the U.S. Supreme Court on that issue. But home cassette recorders were allowed in
the Court’s 1984 decision. That
controversy occurred before there was an effective Internet which would allow
relatively easy distribution of copied movies by digital means.
In short, courts and legislators are now continually faced
with changes in technology which make past transgressions that were once
inherently limited much easier. Exactly
where you draw the line between what is and what isn’t going to be allowed is a
matter of degree and discretion. And a
decision 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 and
technology – and employment. A number of
newspapers and other organizations have obtained court judgments saying that
public payrolls and public pension rolls are public documents – and presumably
always were. Therefore, it is OK to post
them wholesale on the web with the names
of the employee or retiree included.
Now it may well have been the case in a simpler age that one
could have gone to a public office and obtained information on payments to
employee X or retiree Y, using state and local equivalents of the federal
Freedom of Information Act. But copying
down the entire payroll of an agency would not have been a simple matter. And wholesale and easy distributing the
information, if one had the patience to copy it, would also have been difficult
and costly. But currently such wholesale
copying and distribution has become easy, thanks to computer technology and the
Internet. With that technological
advance, the process today raises issues of privacy and potential identity
theft.
Most private employers would not think that publishing their
payrolls wholesale, disclosing pay named employee by named employee, was a good
idea as a human resource practice. We
know that no private employers do it. And
among the employers who do not choose to do it are the very newspapers making
available 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 floor
sweepers. But the fact that readers
might be interested and that the newspapers already have the data on their own
payrolls has not impelled any newspapers I know of even to contemplate such
publication.
When pushed, the newspaper response is that the public has a
right 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 employees
available by name, even though taxpayers fund public health insurance benefits
for employees. Internal personnel files
with 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 health
expenses and performance reviews? So, in
fact, as in the GPS case, it is a matter of degree and balance. Not everything funded by taxpayers is in fact
a public document.
There are ways of balancing publication of public payroll
data 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 are
being set correctly. The California
state controller, for example, has published municipal pay rates without names. One can learn, for example, that one “police
evidence 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 Monica
overpays or underpays its police evidence clerks, now you have the data to
decide.
The general exception about naming names in the private
sector, at least for publically-traded firms, is that top executive pay is made
public (with the names known). That
practice might also be followed in the public sector. And it typically is - and has been. What the President of the United States is
paid has not been top secret. And note
that presidents, governors, mayors, or Supreme Court justices are public
figures. Police evidence clerks are not.
Undoubtedly, the GPS decision by the Supreme Court will be
revisited in the future as technology changes.
What if it becomes possible to track a car without actually attaching a
device? Cars of the future may have
devices built in that transmit information for internal operating reasons. What if the police pick up those signals and
use them for tracking?
Bottom line: The public employee payroll issue also needs
renewed court and legislative attention.
Many more people are affected.
That is, many more people work in the public sector than there are drug
dealers who police might want to tail.
It is clear that those newspapers that are publishing payrolls by name
are set on doing so. Sometimes they simply
say it is legal – which it apparently is at present. But they don’t routinely publish, say, the
home addresses of crime victims or the names of rape victims even though these
can be obtained in public police records.
So they cannot really take the position that they simply publish
everything that is legal without making any judgments about what is appropriate. Since their good judgment on crime victims is
evidently not going to be applied to public payroll records, only if courts and
legislators say it is not legal would wholesale public payroll publishing by
name come to an end.
[1]
I rather doubt that the fact that subsidized mailing rates would be viewed by
newspaper 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 benefits
including antitrust exemptions in some circumstances and, of course, First
Amendment protections.
[2]
Figures are for 2010. The full database
is at http://lgcr.sco.ca.gov/.
1 comment:
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