State worker unions get court victory in public records clash with conservative group

by: WALKER ORENSTEIN, The News Tribune Updated:

A coalition of state worker unions was handed a court victory Tuesday in a long-running feud with a conservative organization trying to notify public employees of how they can opt out of paying some union dues.

A panel of three judges in Division II of the state Court of Appeals unanimously reversed a lower court ruling, saying workers have constitutional privacy protections that bar the Freedom Foundation from getting the names and corresponding birth dates of employees through public records requests.

The Freedom Foundation, a conservative nonprofit dedicated to shrinking the influence and size of public-sector unions, has been trying to get the names, emails and birth dates of state workers to send them information about their options to avoid union fees.

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The group hopes to cross-reference the state’s voter registry with the names and birth dates of state workers to get access to home addresses for canvassing and mailers.

State unions concerned that the Freedom Foundation is trying to drain their membership have been seeking an injunction to block the requests and had been unsuccessful so far.

But the appellate court ruled Tuesday that disclosure of names and matching birth dates gives no useful information to the public about how government is operating and could lead to identity theft and other potential difficulties for state workers.

The ruling says unions “have satisfied the requirements for an order granting permanent” Public Records Act injunctions. The result: the lower court’s decision refusing to grant a permanent injunction was nullified. The case now returns to Thurston County Superior Court for further proceedings.

The judges did not reverse an earlier ruling allowing disclosure of names and email addresses.

Tim Welch, spokesman for the Washington Federation of State Employees, called the ruling a victory for privacy and “about as close to a slam dunk decision as you’re going to find.” The federation is a local branch of the national American Federation of State, County and Municipal Employees.

David Dewhirst, the chief litigation counsel for the Freedom Foundation, called the decision a “really, really bad ruling” that runs counter to the spirit of the state’s Public Records Act and could have sweeping implications for access to certain records.

Welch and Dewhirst predicted the case likely will be appealed and eventually land in front of the Washington State Supreme Court.

In states such as Washington without “right to work laws” that bar union-only shops, public-sector unions can charge fees to nonmembers in place of dues. The fees are known as representation fees or agency fees.

Nonmembers must pay only for bargaining-related costs, meaning they don’t have to pay for dues that bankroll overt political action.

State workers also can claim a religious or ethical exemption and pay an amount equal to union dues to a charity of their choice.

Dewhirst painted the Freedom Foundation’s efforts as a crusade to inform state workers about their choices to opt out of certain union dues.

The ruling allows unions “to keep those workers in the dark about their rights,” he said. “I think part of transparency is allowing every public employee to know what their rights are regarding union representation.”

He also said privacy concerns are overblown because the organization has self-imposed confidentiality policies to protect identities.

Toby Nixon, president of the Washington Coalition for Open Government, also objected to the court’s ruling. He said the Legislature has mulled proposals for a broad birth date exemption based on privacy concerns and decided against it in the past.

Nixon said there are reasonable uses for names and birth dates of state employees, such as matching databases to provide analysis of state employees.

“The court should not be trying to substitute its judgment and for the judgment of the Legislature,” Nixon said.

Political parties and other organizations have used the state voter registration database — which contains similar personal information of voters such as names and matching birth dates — to target voters, or see whether registered voters were felons, Nixon said.

Dewhirst said the ruling, if it holds, would also call into question whether the existing voter registration database is constitutional.

Nixon noted that constitutional exemptions in records law is extremely rare. The most famous example comes from 2011, when the state Supreme Court recognized an “executive privilege” for the governor to withhold records from the public. Gov. Jay Inslee has said he won’t exercise the privilege.

Welch said he believes the constitutional ruling is justified. Disclosing birth dates with names goes too far and will put people at risk, he said. Some birth dates for employees and others in dangerous jobs already are exempted.

But Welch said others still deserve the protections.

“It’s like the key to the kingdom,” he said of birth dates and names. “When you have somebody’s date of birth, the game is over in terms of privacy, and you can get any record you want.”

He accused the Freedom Foundation of trying to “defang” unions and said the organization has been misleading about how much money people can save by using exemptions.

The appeals court Tuesday wasn’t considering the motives of unions or the Freedom Foundation. But it handed a win to unions based on privacy concerns, for now.

“This is a big deal,” Welch said.
 

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