Freedom Foundation

Supreme Court weighs union assertion that birthdates are ‘private affairs’

(OLYMPIA, Wash.)– In their never-ending quest to keep union members from knowing they don’t have to be union members, lawyers for yet another labor organization appeared before the Washington State Supreme Court on Tuesday, this time arguing that the names and birthdates of public employees are, in fact, private affairs and not subject to disclosure under the Public Records Act.

Specifically, the case concerns whether the state of Washington can be compelled to honor a 2016 information request by the Freedom Foundation, an Olympia nonprofit think tank, for the names, birthdates and state-issued work email addresses of state employees in bargaining units exclusively represented by unions.

The Washington Public Employees Association filed suit to prevent the disclosure, arguing that names and birthdates contained in public records were “private affairs” under Article 1, Section 7 of the Washington Constitution and that the Public Records Act did not constitute “authority of law” justifying disclosure.

The union’s attorney tried to convince the justices that releasing the workers’ names in conjunction with their birthdates was tantamount to releasing their Social Security numbers, and that doing so would put the employees at risk of identity theft. But she was unable in her oral argument or written brief to cite a single instance of this ever happening or even explain how it could.

As always, the identity theft argument was simply a smokescreen to obscure the union’s true goal of preventing the Freedom Foundation from contacting state workers to inform them about recent – and pending – U.S. Supreme Court decisions that could allow government workers to decide for themselves whether to pay union dues or fees.

A Thurston County Superior Court ruling in 2017 agreed with the Freedom Foundation, but the decision was subsequently overturned by the Division II Court of Appeals.

The case finally reached the Washington State Supreme Court this week.

“The Washington State Constitution, like the U.S. Constitution, was written to protect the people from the government, not the other way around,” noted Freedom Foundation Litigation Counsel Hannah Sells, who presented the organization’s case on Tuesday.

“Article 1, Section 7,” she explained, “protects against government intrusion into private affairs. But it was never intended to protect against later use of information the state already has.”

Moreover, dates of birth are not “private affairs.”

“Anyone who’s ever been to a birthday party knows that it’s not just your intimate friends who know your date of birth,” Sells said, “but also casual acquaintances.”

Lastly, even if this information were private, the state could still release it providing it had the “authority of law” to do so.

The Supreme Court has previously held that a valid statute is authority of law. The PRA is a valid statute, so any invasion of privacy would be justified.

“The Supreme Court rightly disregarded an almost identical argument in the Nissen case,” Sells said. “I’m confident they will do so here, too. No matter what happens, we will continue to fight for transparency and accountability. We won’t give up on this cause or this state.”