Wyoming Wrestles With a Delicate Balance

     CHEYENNE, Wyo. (CN) – Lawmakers are rewriting a privacy amendment to the Wyoming Constitution to address concerns that the state might release information about private citizens – or use state employees’ “privacy protections” to hide government abuse.
     Lawmakers were back at the drawing board in Casper last week after the Legislature rejected a bill that failed to address the delicate balance.
     The amendment as written states that individual privacy is “essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest.” It would provide “individuals” constitutional protections against disclosure of personal information.
     But what happens in investigations of government abuse? Government employees, after all, are individuals. And what sort of information about individuals should the government be prohibited from releasing?
     That’s the million-dollar question, Wyoming Press Association executive director Jim Angell told Courthouse News.
     The state already has laws to protect individuals’ personal information.
     “There are no specifics,” Angell said of the legislation. “The language is gloriously huge.”
     He said taking the privacy issue to the constitutional level without addressing the right-to-know issue raises the stakes.
     “By giving it constitutional amendment status, you elevate it above the rights of the public to see public information,” Angell told The Billings Gazette. “That creates an unbalanced situation.”
     Proponents of tougher reins on the state claim that lack of constitutional privacy protections means the state could release personal information about private citizens if there is no explicit law saying it cannot do so.
     Wyoming’s Task Force on Digital Information was slated to discuss whether the Legislature should address the amendment again during the 2016 legislative session. Government watchdogs say it must be modified to include transparency provisions – i.e., disclosure of government action – to give it balance.
     Angell, a former Associated Press reporter, testified to the task force to support adding a right-to-know provision to the amendment, as did Montana’s Equality State Policy Center executive director Bri Jones.
     Jones said she did not believe the state government intentionally drafted language that would allow it to hide behind an individual privacy amendment, but that citizens’ right to know deserves the same “higher level of scrutiny” as their right to privacy.
     “My initial thought is that they (legislators) didn’t immediately think of the specific privacy elements and free speech elements that have raised concerns,” she said.
     “I think they brought this from a Libertarian standpoint, with the NSA spying.
     “I believe it’s part of a larger national conversation, whether we think privacy is something we specifically want to grant through the Constitution. With that said, I stand up for the right-to-know clause. The bill does leave room for abuse.”
     Jones said the latest case law on the issue played out in neighboring Montana about six months ago, in City of Billings v. Billings Gazette Communications.
     Angell knows the case well, having worked with former Casper Star-Tribune editor and current Billings Gazette editor Darrell Ehrlick.
     “There was a recent investigation by the Billings Gazette in Montana about the Billings landfill,” Angell said. “They investigated the misuse of public property and wanted information on the internal investigation, but the city not only said ‘no,’ because it ‘violates the privacy rights of public employees,’ they also filed a lawsuit against the newspaper to prevent them from getting the documents.
     “The judge kind of laughed at it, as if to say, ‘Are you out of your mind?’ and threw it out.”
     Angell asked: “Just how many people have the resources to challenge a lawsuit like that? So you have to go to court to get public information?”
     He cited Montana law that guarantees residents’ “right to individual privacy” while simultaneously protecting their right to know what is happening in state government.
     
     Montana Law
     The City of Billings sued The Billings Gazette in July 2014, asking the Yellowstone County Court to determine whether the newspaper’s request for records of an investigation of alleged “mishandling, misappropriation or misuse of public funds or property by employees at the city-owned landfill” allows “disclosure of such records when analyzed in the context of an individual’s right to privacy.”
     The Gazette filed a counterclaim in August, and the city asked for summary judgment in October. The Gazette, with daily circulation of 45,000, is the second-largest newspaper in Montana.
     Judge Michael Moses ruled in January that “employees entrusted with public trust and who abuse that trust by misconduct that relates to their public duties do not have an expectation of privacy in an investigation of that abuse of trust.”
     Angell and Jones say Wyoming’s privacy legislation leaves the door open for government abuse under the guise of individual privacy.
     “I think the state’s legislation may be a reflective urge to protect privacy in light of NSA spying,” Gazette editor Ehrlick told Courthouse News. “I don’t think anyone would argue against privacy. That’s reasonable. But the challenge is how that intersects with data privacy and government.
     “The notion (of protecting privacy) is benign and in certain instances is admirable, but is it practical? That’s where it gets tricky, when you are talking about employees doing the public’s work.”
     Ehrlick rejects suggestions that conspiracy theorists are on a witch hunt against the government.
     “There is also a notion involving ‘conspiracy theory,’ that there is something conspiratorial about all of this,” he said. “In my time here, we have had two large-scale lawsuits, fights about privacy, as it relates to the city and The Billings Gazette, so this is not a theoretical, ‘Oh, this will never happen,’ or ‘this is just a bogeyman theory.'”
     Judge Moses in January ordered Billings to produce the requested documents in the 2014 case.
     What the Gazette found could serve as testimony in support of “balance” in Wyoming’s proposed privacy legislation.
     “City of Billings documents ordered released by Yellowstone County District Judge Mike Moses detail missing money in the solid waste department and a recycling scheme that thwarted at least five different accounting safeguards over three years,” Ehrlick wrote in a Billings Gazette article in April.
     “Nearly 1,200 pages of documents, originally withheld from the public, but later ordered released, shed light on a system of taking cash from the city’s recycling program and channeling the money into coffee, food, kitchen supplies and personal use. City officials estimate more than $12,000 was misused.”
     He added: “None of the money was recovered.”
     Gazette reporter Mike Ferguson co-authored the story.
     “Yeah, people want privacy, but the devil is in the details,” Ehrlick told Courthouse News. “What does it mean if someone is a public employee, and then what obligations does the state or local entity have to disclose information? I hope they (Wyoming legislators) really take a look at Montana’s case law.”
     
     The Opposition
     Although all four lawmakers on Wyoming’s task force agreed to consider it, some are skeptical about adding a right-to-know provision to the amendment.
     State Sen. Chris Rothfuss, D-Laramie, said the state already has laws addressing the protection the right-to-know provision seeks, and suggested that adding it to the proposed constitutional amendment would merely feed paranoia.
     “It’s not that I’m not concerned about transparency,” Rothfuss told Courthouse News on Wednesday. “It’s that I feel these folks are against this amendment because they are seeing bogeymen.
     “In Wyoming, we have public records and public meetings laws that provide very specific circumstances where records can be made available.”
     Rothfuss, a former senior nanotechnology adviser for the U.S. Department of State, said he believes the media are the ones most concerned about transparency.
     “Public records laws come from the media,” he said. “There is for-profit interest in making information easier to get. Their corporate interest is full disclosure of everything. Anything private is going to be hard for those corporations to get.”
     When pressed, Rothfuss conceded that individuals working as public employees should not expect a right to privacy if they are investigated for misconduct.
     “If you are a public employee, should you be protected? There are certain things you do as a public official that is public information and that is consistent with our public records laws in Wyoming,” he said. “I think it is reasonable and consistent with public law that when acting on behalf of the public … they shouldn’t have the expectation of those privacies, but at the same time, those public officials have private lives. …
     “They have private lives, and that should be treated as private information. Again, if there is criminal behavior there, there should not be special treatment.”
     Asked to respond to Angell’s question about how many private citizens would have the money, time or inclination to sue the state for information for the public good, Rothfuss said: “There is always tension between those two provisions [the right to privacy vs. the right to know). That’s why the courts are there. Should we give up our rights because it’s expensive
     “I think there are good people in newspapers, but there are always going to be bad actors; there are bad actor reporters, bad actor politicians. If there were not, we wouldn’t need these laws, would we?”
     After hearing testimony, the task force asked legislative staffers to draft three versions of the bill for the 2016 legislative session: one including a stand-alone right-to-privacy provision, one including the right to privacy and right-to-know provisions in a single amendment, and a third version with the two provisions in separate amendments.
     The task force will review the drafts at its next meeting, in July.

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