July 16, 2007

The following op-ed in today's San Diego Union-Tribune lays out the legal arguments and constitutional principles in our recent court challenge to the disclosure of the names of private individuals forced by the City of Vista to register their intent to hire day laborers.

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Day laborers and the right to privacy

By David Blair-Loy
July 16, 2007

Although the American Civil Liberties Union often agrees with the press on disclosure issues, we believe the balance tilts in favor of privacy in the case recently filed by us in Vista. Above all, the ACLU believes that the forced registration scheme is the real problem, and we continue to oppose the handing over of personal information about private individuals when it serves no public interest. We believe it was unnecessary for the government to collect this information in the first place.

However, current law often allows the government to collect such information. When it does, the public sometimes needs to have that information to evaluate the government's exercise of discretion, for example in issuing concealed weapon permits or allowing persons with certain convictions to work in day-care centers. The courts also hold that the public is entitled to know who gives money to a state university or exceeds their water ration during a drought, to find out if the government is engaging in unfair favoritism or discrimination in the allocation of public resources or enforcement of the law.

But this case is fundamentally different. The city of Vista's day-labor ordinance requires anyone who hires a day laborer for any purpose, including occasional odd jobs around the home, to have a permit. Anyone who obtains a permit must provide a name, address and telephone number. The city has a clerical duty to issue a permit to anyone who completes a simple application. The city imposes no prerequisites such as residence, citizenship, business license or lack of criminal history. No fee is charged.

The ordinance requires no exercise of discretion, evaluation of qualifications, or allocation of resources in issuing a permit. Therefore, the name, home address and telephone number of private persons who obtained permits has little or nothing to do with how city staff are performing clerical duties.

People disagree over whether day-labor hiring promotes illegal immigration or is otherwise good or bad for the community. Day laborers may or may not be citizens or lawful residents. Private persons who hire workers for odd jobs may not be required to document citizenship or immigration status. Those issues, however, do not justify invading the privacy of individuals who have registered under the ordinance. The act of obtaining a permit is legal, and private people should not lose their right to privacy because they followed the law.

The press or others might like the city to tell them who has registered, in order to research whether they have hired day laborers and have complied with any applicable laws in doing so. But the primary purpose of public disclosure law is not to facilitate investigation of private individuals.

Public disclosure law exists to enable the public to investigate the government, not private people. Anyone interested in day-labor hiring in Vista by private persons can research the issue without obtaining private home address information from the government. For example, they have a right to talk to day laborers or persons who hire them at sites where they congregate. Reporters and scholars have done such research and published it. But there is no right to compel the government to disclose private, personal information just to make such research more convenient.

Our position is narrowly tailored. We do not oppose disclosure of business information, because businesses do not have the same privacy rights as individuals. We do not oppose disclosure of who was cited for violating Vista's day-labor ordinance, because such information is relevant to ensuring that enforcement is evenhanded. But private people should not have to surrender their constitutional right to privacy because they have been forced to give the government personal information to exercise a lawful right and such information has little or nothing to do with monitoring the government.

Privacy rights do not depend on who seeks private information or why, and we would have brought this case regardless of who made the request. In particular, we do not uniformly oppose anything the Minutemen do. This newspaper has quoted the ACLU in defense of the free speech rights of a San Diego State University professor affiliated with the Minutemen. It also published a letter from us disavowing a defamation lawsuit against Minutemen because it infringed their free speech rights.

This case requires a careful balance of privacy rights and public access. The ACLU takes open government very seriously, but we also uphold the right to privacy. On the unique facts of this case, the ACLU believes that privacy rights clearly outweigh the public's limited interest in private persons' home addresses and telephone numbers. The balance between conflicting rights is never easy, and we look forward to the court's resolution of this issue.

Blair-Loy is the legal director of the American Civil Liberties Union of San Diego and Imperial Counties.

San Diego Union-Tribune Op-Ed 7/16/07