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City Fights Blogger On Display of Public Information
rokkaku writes "When the gadfly blogger Claremont Insider went searching for information about employee compensation on the city of Claremont web site, they never expected to find scans of pay stubs for all the employees. Nor did they expect the city attorney to demand that they remove copies of those pay stubs from their web site. They found it especially odd since, according to California law, the compensation of public employees is public information."
Dear Rokkaku:
You are very confused. And I mean that in the nicest possible way.
Yes, a California judge has recently ruled that the compensation of public
employees is public information. But all of the pay stubs that I have
seen in, oh, the last 20 years have more information on them than that.
Many pay stubs have the employee's social security number on it. Is that
public information?
Are all of one's deductions for various benefits also public information?
What about the ones dealing with health care?
Or one's marital status?
Or amount of tax withholding?
In fact, an employee's pay stub probably has enough information on it
to steal that employee's identity. Yes, the public has a right to know
what a public employee earns. The public doesn't have a right to steal
a public employee's identity.
"I'd rather be a lightning rod than a seismometer." -Ken Kesey
(And love how the article is tagged "censorship"...)
Also, there is a lot of "public information" that isn't online and instantly searchable and accessible en masse. There are other issues here, which I'd hope someone who stops to think about it for a few moments can imagine.
And the bottom line is that anyone can still determine the compensation of a public employee if they wish to do so.
For example, the University of Wisconsin System made its budget summaries, including compensation - known as the Redbook available on the internet. However, now the personnel salaries are only accessible via computers with UW System IP addresses. Else,
Why? Because it was being abused. So now it's not universally available and publicly searchable on the internet. That doesn't mean the information still isn't "public". And before you say that the government's job should be to use technology to make access to such information easier, e.g., via putting on the internet, ask yourself if you'd want all information about you that is technically "public information" aggregated and made quickly and easily searchable by anyone on the internet on a whim, or if you'd rather that people have to actually have a legitimate need for specific pieces of information, and be willing to go through the processes to get it?
Would you want anyone to see images of your entire pay stubs, even if you work for a public agency and your compensation is "public"?
When things like the Redbook and Wisconsin Circuit Court Access became more restrictive, most of the complaints I heard over time were from people who could no longer do the essential equivalent of casual stalking of individuals' salaries and civil, criminal, and traffic court records. Persons who still have a legitimate need for it can still easily get access to the information, and any member of the public can easily obtain any information they might need.
Further, this case seems a little odd...if all of the pay stubs were available on the city's web site, why did they have to aggregate them all? They were already publicly available, right? Obviously the city didn't intend for them to be displayed or obtained the way they were, and regardless of how much "their fault" it was, how incompetent they were at running their web site, or whether it was a data leak, even if it it is "public information" doesn't mean it needs to be, or should be, aggregated en masse on a third party internet site.
Also, while the individuals' compensation may be public, actual images of pay stubs may not be at all (and probably isn't). Again, even if the city had this out in the open through their error, that still doesn't mean it should be fair game for everyone until the end of time, regardless of whether some of the content of the image is "public information". A mistake is a mistake. The city isn't filing charges against someone for "hacking"; they're asking that images of pay stubs of city employees be removed from the internet. The public can still discover the compensation of the employees if they wish,
Yes, city/state/federal compensation is 'public info'. But there is much more on a pay stub that is very personal info.
Were these actual scans?
The compensation is public. Pay stubs are not compensation. Pay stubs contain fun stuff that may lead to the compromise of the financial security of the individual. Requesting the takedown of the pay stubs was more than reasonable.
"Who is the Journal of Quantum Physics going to believe?" --Stephen Hawking
I deal with FOIA type stuff all the time, and the truth of it is, most government employees have no idea what is public and what is not. They fire off knee jerk threats, and withhold stuff all the time.
Used to be the media kept them in better check, but if your local newspapers aren't suing the crap out of them every time they step out of line (and mostly they're not these days, because it's expensive), then they start power tripping and keeping secrets.
ad logicam Claiming a proposition is false because it was presented as the conclusion of a fallacious argument.
let me repeat: the yro color scheme sucks. Particularly the part where comment titles are a slightly darker shade of red than the background box.
Do you even lift?
These aren't the 'roids you're looking for.
http://www.cfac.org/content/index.php/cfac-news/commentary20/
California Supreme Court decision, IFPTE, Local 21 v. Superior Court
Quote: "Significantly, the Court could have---but did not---limit its holding to employees earning over $100,000. While the justices no doubt were impressed by evidence of abuses and mismanagement concentrated at the high end of the public pay scale, they were careful not to ascribe any legal significance to the compensation threshold.
Similarly, the Court could have---but did not---limit its holding to local governments, like Oakland, that have a history of disclosing their employees' salaries, thus undermining workers' claims to a "reasonable expectation" of privacy in their government compensation."
Copyright? Nada.
CC.
TaijiQuan (Huang, 5 loosenings)
First, I apologize to the Slashdot community for moronically making my previous posting under this same title without using preview. If I had, I'd have seen that all of my spacing was lost and I thereby made the post almost unintelligible. Moderators, if you would be so kind as to delete the previous post then I would be in your debt. Second, here's the post as it should have appeared:
/========== ...the fair use of a copyrighted work... for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include--
>"It doesn't make any sense," said Terry Francke, general counsel of Californians Aware. "First of all, I doubt that it's a fact that the city copyrights the pay stubs. I don't know why it would."
They wouldn't. Why not? Because it's no longer necessary to register something for the author to claim copyright. That does not mean that it's not copyrighted.
>"And secondly, it's not clear to me that the display of the pay stubs would violate the copyright act anyway. It's simply displaying an image of them, it's not making a copy of them."
An image *is* a copy.
>Francke added that if the documents are indeed copyrighted, the posting by the blog of the pay stubs would qualify as a "fair use" - meaning it would pass legal muster - because there is no market value lost by the publication.
Fair use is defined by 17 U.S.C. 107 and by various judicial decisions. 17 U.S.C. 107 sayeth, in part:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
\==========
This may or may not be "fair use", but it's easy to use the statutory definition to make an argument against. If the blogger accepts advertising or otherwise profits from his blogging then this can be construed as a commercial use; he nature of the pay stubs, or of any pay stub, is typically private; and the entirety of each stub is used rather than quoting a subsection such as stating only the name of the employee and the compensation.
I don't know the whole story on this one, but it's not just government-oppresses-blogger.
Don't give in just because the city attorney says he wants it all back. He is not the law. Only a court can decide what's legal and what isn't. Taking legal advice from a city attorney, or the policeman who just arrested you, is some of the worst advice you will get.
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
Generally you WRITE a REQUEST for this information, not snoop around and find it. Bad on the City to leave stubs lying around as that's just more stuff for identity thieves to pillage.
A feeling of having made the same mistake before: Deja Foobar
The fact that the city had the pay stubs taken down doesn't worry me -- they probably shouldn't be allowed to be publicly accessible. The censorship concern of this to me is: from the article it sounds like the city's first act in finding something it didn't like online was going straight to the ISP to remove it, rather than trying to contact the person who posted the information first. It sets a bad trend -- removing from the individuals rights as well as responsibilities in what they publish...
Who knows, though, what the article might be leaving out...
And as an aside, commercial income does not invalidate fair use. The logical structure of the law is not clear, and only says that the purpose of use must be considered. If it were that iron clad, Governments and corporations could sue when the media releases leaked documents, as they are profiting off their "copyright".
My wife works in city government. The salary ranges and what a called control points (maximums for a position) are indeed public knowledge although some of the high level execs hide their bonuses, but not pay levels, in obscure documents. Wonder why ;-) But as many hear have stated, an individual's pay stub isn't a position pay range--it is uniquely personal and contains information about taxation, vacation. PTO, health insurance, life insurance, possibly bank information, possibly social security information, maybe addresses, dependents, etc. The city is divulging way too much information and that should be shut down ASAP.
>>"It doesn't make any sense," said Terry Francke, general counsel of
>Californians Aware. "First of all, I doubt that it's a fact that the city
>copyrights the pay stubs. I don't know why it would."
>
> They wouldn't. Why not? Because it's no longer necessary to register
> something for the author to claim copyright. That does not mean that it's
> not copyrighted.
You'd be right in most cases - individuals and organizations are granted copyright by default. But the general rule with respect to *government* is, "if the government creates a copyrightable work, that work is immediately placed into the public domain by default." Why? Well, since governments are - in theory - merely the embodiment of the public itself, hence anything they create naturally belongs to the public.
In other words, if you or I create it, it is copyrighted by default and a positive action must be made in order to put it into the public domain. If, however, the government (including its employees in the course of their duties - the equivalent of "works for hire" if they were employed in private industry) creates it, **it is in the public domain by default** unless a positive action has been made to place it under copyright.
So, long story short, you're dead wrong. If the government made it (in this case, a City Government) and didn't specifically file for copyright, it's almost a lock that it's NOT copyrighted.
IANAL. TINLA.
I do believe that the government only has to publish the salaries of *positions*, unless they are elected officials. They dont ( and really shouldn't ) tie them to actual individuals for publishing.
I also question what was on the stub, the address, and empID perhaps? That stuff shouldnt be published.
---- Booth was a patriot ----
Umm.. forms can be and are copyrightable.
I can create a form with text, that enables any number of processes to be handled well.
Unless it's graph paper... it's unique, and creative works.
every day http://en.wikipedia.org/wiki/Special:Random
All the CSS/Themes have been changed to this retarded crap, is this some kind of a joke?
I've checked Linux, Games, Apple, and of course YRO sections, and all of them have this color problem in their respective CSS files.
This space is not for rent.
Almost all freedom of information law came about because a print media outlet sued the fuck out of someone for keeping secrets. Television never does that sort of thing, and bloggers don't have the resources to do that sort of thing.
When journalism all becomes corporate journalism, you stop seeing good papers sticking it to the man for freedom of information...The dollars it takes to sue come out of the budget of the editorial section...A "non-revenue generating business unit"...nevermind that the point of the whole thing is to generate NEWS and it's hard to do that if the local government is free to withhold whatever they want, and they are, if you can't cost justify suing.
ad logicam Claiming a proposition is false because it was presented as the conclusion of a fallacious argument.
- We do not accept advertisements. We do have a widget that has ads, but that we receive no revenue from it; it simply comes with the widget. We've offered to remove it if it offends any readers, but no one responded, and we happen to like it because it's handy.
- There were no personal identifiers on the stubs. No Social Security numbers, no dates of birth, no home addresses or phone numbers, no dependents. The payroll info and the names are all public records in California. A local paper has copies of the documents and submitted them to California public records experts, as you noted in your post.
Here is a link to the article you referenced:
http://www.dailybulletin.com/news/ci_6888125
The thing I notice about this blogger's investigation is that he seems very focused on the raw number that people are being paid over the context for what they are being paid for.
That context includes things like the number of people reporting to you (or in your tree), educational requirements, duties, length of service, etc. etc. etc.
Many of these people could be in private industry where they could earn more with the skills and experience that they have. If you want to get the best people to run you city/state/province/country, you have to compensate them accordingly. Altruism can only go so far. (Especially if you are cop and your job is to dodge bullets.)
There's some bad lawyering going on in that article. The lawyer for the city claims attorney-client privilege over emails to Google. Not covered. Only some communications between client and lawyer are privileged. Communication between lawyer and a third party, in this case Google, are never privileged. Doesn't mean she has to hand the emails over on a simple demand, but they're not privileged. The quote from the "open government" lawyer about how an image is not a copy is pretty bizarre. But so is claiming copyright as the reason to take the images down. That must just be a buzzword to trigger Google's action. I'm not an IP lawyer, but surely if the US Government can't copyright its works then Claremont, CA, can't.
I'd love it if everyone just got their gross pay and a 1099. Especially "public" employees.
Let them have the joy of filing quarterly taxes... all that paperwork keeps their public service brethren employed.
This issue is a bit more complicated than you think.
First, he seems unaware that if something is copyrightable, copyright is automatic. So, if paystubs are copyrightable, the city would not have to do anything special. They would be copyrighted the moment they are printed.
Second, he says that they aren't copying the paystubs, just making images of them to display, so it would not fall under copyright. An image of a document is a copy as far as copyright law is concerned, so that's strike two.
finally, he says that this would be covered by fair use because there is no market value in the pay stubs. Affect on market value of a work is just one of the four factors considered in determining whether a use is fair use. Strike three.
Lawyers who do not specialize in copyright often make mistakes, but this guy seems to be setting some kind of record here!
"there were no Social Security numbers, no dates of birth, no personal identifiers. The documents only contained name and pay information"
If a job's not worth doing, it's not worth doing right.
The USA has been a country for well over 200 years. We started with a decent set of guidelines for basic laws, expecting to fill in the details over time, as we saw the need. (See a need, fill a need. Just like BigWeld says.)
Fast forward to today. We've been making laws for 231 years, +/- my errors in American History and Math. There are so many, I repeat so many, laws on the books that it's unreasonable to expect any single person to know and obey them all. Even big organizations sometimes slip up and violate laws they didn't mean.
To make matters worse, sometimes decent, logical laws get passed, and yet there are so many laws on the books that it's impossible to police things to make sure none of them get broken. And so, shady entities have a wide margin of arbitrage between legality and enforcement, from which to pry their takings. Usually the frequency and severity of the punishments is inversely proportional to the obscurity of the law (more obscure == less penalty) and so it's actually profitable and more efficient to dance around in the gray areas of legality. Bummer.
(You're wondering where I loop back around and relate this to TFA? Me too. Lemme think.)
Oh yeah. Public employees usually aren't the most talented or savvy of the lot. There are some awesome people in the public sector, but in general the _average_ govt. employee is not as strong a worker as the _median_ govt. employee. "Free market" capitalism combined with capped government salaries ensure this.
So our expectations of public bureaucracy need to be lowered, sadly. This is just another example of why. Expecting the highly unlikely to happen and getting saddened by it not happening isn't really fair or logical.
Some systems need to be changed from without, not within. And expecting them to change themselves just isn't going to happen.
I put government into this category.
We need a new government system.
We need a radical departure from today's way!
Who is with me?! Yeah! Let's set off a firecracker every six inches along the entire state line of California, all at once. The ensuing shocks will cause the state to break free and sail towards Hawaii. At which point we'll, uh, wait a sec...
1. Light firecrackers
2. Sail California into the Pacific
3. ??
4. Profit!
5. Justice Dept. barges in, seizes computers
6. EFF steps in
7. ??
8. Profit again!
We can't fail....
I should have been specific, Government forms usually cannot be copyrighted. At the very least, they are "opt in".
I know where I work (The Cal State System) one can simply check out a book from the library listing everyone that works for the university and their current pay rate.
People here in the U.S. need to understand that just because they have certain rights provided by law DOESN'T mean that they should be assholes.
I mean for example, just because I have the right to access public employee information doesn't mean that I have to go around publicly displaying the employee's pay stubs.
Some people might disagree, saying that we should be able to find out what people are being paid (as ALOT of public officials get paid six, sometimes seven, figures just to play golf and ski), which is true, but that doesn't justify the overt publishing of employee's personal information. If you want to find out what public officials are earning, you should just do a simple FIA request yourself. Keep in mind that the claim is to keep an eye on excessive spending of taxpayer dollars. However, what about the wasteful spending of funds by corporations? Corporate executive abuse their funds too, not just governments.
Naysayers should ask themselves if they would publicly post their own information. Think about it: If you are a public official, and someone publishes your personal information, it is ok, while if someone posts your personal information, and you are NOT a public official, it is an invasion of privacy. So what? A job is a job is a job. Period.
My beliefs are this: If you were elected to office through a public election, then your information should be available. If you were hired in the same way that private employees are, then your information should be kept private, with the obvious exceptions for budget analysis and allocation (departmental allocation, travel expenses, office expenses, fees, etc.), but amounts/figures only.
Why should we force the city street sweepers, meter maids, library Reference Desk clerks, or librarians to be publicly scruitinized and have their own personal privacy invaded and compromised in the same way as police chiefs, fire chiefs, city council members, and mayors? (I think that there is less of a chance that a Librarian is corrupt and being overpaid, rather than the mayor or council members.)
Just because you work for the city/state/federal goverment, and not a private business doesn't mean that your personal information should be available for the world to see and become somebody's bitch.
Simple Rule:
Elected Official (Term Jockey) -> Public Information.
Hired Employee (Clock Watcher) -> Private Information.
Remember: Just because you have rights doesn't make it right to abuse them by being a dick.
Be polite and respectful of other people's privacy, even if you have the right to abuse and violate it.
Knowing Google's lust for data collection, the Soviet Union is still alive and well inside the psyche of Sergey Brin....
There are several quotes where city officials basically call the blogger a thief. The blogger then goes on the point out that their actions show that they knew the real source of the information. Sounds like a the blogger could sue the city officials. If I were them Id be looking into that one.
"We Don't Need No Truthless Heros!" - Project 86
So if I'm a professional book critic who is paid by a newspaper, I have no fair use when quoting a passage for critical purposes? Don't be silly.
Commercial use can still be fair use. But the nature of the use is one of the factors taken when determining whether a use is fair. It is possible in borderline cases that it's fair use only if the infringer is not making a profit.
A paystub is just an aggregation of facts/data about an employee and their pay. Copyright requires some element of originality to give protection.
The only thing I could imagine that remotely approaches copyright would be the layout of the fields on the paystub, so the fact that the NAME is in the upper left and the Gross Pay is below it rather than to the left would be the only element of the work that required some level of originality. Didn't this type of argument already get thrown out in the old "Look and Feel" lawsuits that Lotus filed against developers of 1-2-3 clones?
We are the 198 proof..
I would NOT want my pay stub on the internet. Yes, what I make is public, but there is a process in which said information is given. It must be requested and then they are given only the information that is requested.
Mike http://thenextgenerationofradio.com
One of New Jersey's newspapers that likes to report government graft maintains a list of all state employee salaries. Doubtless some aren't happy about this, but as a matter of public record, they can't really do anything about it without drawing presumably unwanted attention.
I'm on the list. I've checked some of the numbers for my facility and they're accurate. You're told your information is public record when you're hired. Hopefully it keeps people a little more honest. Doesn't mean crap if it can be hidden away behind some government paperwork maze, though. So, overall, I'm happy the numbers are online.
Which raises the question, what is Claremont trying to hide? And, can they do so legally?
What is being missed here is Google's complicity in censoring the blog. They (being owners of Blogger) removed the images. Had it been Microsoft or Yahoo, I'm sure the Slashdotizens would have been up in arms ready to lynch them; but since it's Google, it's OK!
I can't believe nobody here has stated the obvious: By going to Google and demanding that the Claremont Insider blog be taken down, the city has censored them. What if the Los Angeles Times had printed the pay stubs and the city had responded by having the police seize its printing presses? What is this, Soviet Russia? The operators of the Claremont Insider, IMO, have a great lawsuit for violation of their civil rights under 42 USC 1983, IAAL. Even more so if the city were stupid enough to sue or arrest them.