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From page 52... ... 52 First, it is difficult to predict how the courts would rule on privacy claims in the absence of any judicial precedent holding that technology that collects locational and other personal data on individuals violates a right to privacy at common law.686 Second, violations of privacy by transit agencies collecting customers' electronic data would have to have been intentional, as mere negligence ordinarily will not suffice.687 Third, in some states a violation of privacy must have been caused by "willful or outrageous" conduct.688 Fourth, the common law has not recognized a cause of action for a violation of privacy resulting from a disclosure of data collected on individuals when they are "on the public streets."689 There are various defenses to a claim for intrusion, including that the plaintiff did not intend to keep the information private, that under the circumstances the plaintiff did not have a reasonable expectation of privacy, or that the plaintiff voluntarily and without any coercion consented to the disclosure.690 In Doe v. DiGenova,691 a federal court in the District of Columbia held that there is no claim for intrusion when an intrusion is reasonable under the circumstances or when an intrusion is not "serious." Finally, in the event of an unintentional release of personal data, there may be a good faith defense that may also be codified in some state statutes. Read the entire page →
From page 53... ... 53 nature" from disclosure "if public disclosure…would constitute a clearly unwarranted invasion of an individual's privacy."700 Similar to Michigan's FOIA, the Illinois FOIA prohibits inspection and copying of "[p] rivate information, unless disclosure is required by another provision of [the Illinois FOIA] Read the entire page →
From page 54... ... 54 Finally, another possible exemption is that some states' agencies may be able to withhold data from the public under a "deliberative process" privilege, an exemption that may be applicable to some data collected and maintained by transit agencies.718 C Agency Waiver of Privacy Exemption Exemptions under a FOIA or similar legislation may be waived. Read the entire page →
From page 55... ... 55 The Supreme Court held in N.L.R.B v. Sears, Roebuck & Co.723 that the purpose of the FOIA is to inform the public about agency action, not to benefit private litigants.724 Scholars, moreover, argue that a FOIA is meant to address public access to information, not to aid private litigants in litigation.725 If government data are exempt under a FOIA, however, it is not presumed that the data are thereby privileged within the meaning of the discovery rules.726 When there is a FOIA request, a party's need for the information is "irrelevant" in contrast to discovery, when a qualified privilege may be asserted and a litigant's need for the information becomes a key factor in deciding whether to permit the discovery.727 Some courts do not allow the government to claim a privilege and withhold data when the data are available to other members of the public.728 In a Texas case, the court held that the fact that a plaintiff requested documents through the FOIA does not preclude the party "from receiving the same documents through discovery" from the opposing party.729 Finally, as one source observes, agencies may not claim a privilege on behalf of a party whose documents they possess.730 The civil discovery rules require a party to produce only documents that are relevant to the litigation;731 however, a party may use a FOIA to obtain data or other records that are irrelevant. Read the entire page →

From page 52...

... 52 First, it is difficult to predict how the courts would rule on privacy claims in the absence of any judicial precedent holding that technology that collects locational and other personal data on individuals violates a right to privacy at common law.686 Second, violations of privacy by transit agencies collecting customers' electronic data would have to have been intentional, as mere negligence ordinarily will not suffice.687 Third, in some states a violation of privacy must have been caused by "willful or outrageous" conduct.688 Fourth, the common law has not recognized a cause of action for a violation of privacy resulting from a disclosure of data collected on individuals when they are "on the public streets."689 There are various defenses to a claim for intrusion, including that the plaintiff did not intend to keep the information private, that under the circumstances the plaintiff did not have a reasonable expectation of privacy, or that the plaintiff voluntarily and without any coercion consented to the disclosure.690 In Doe v. DiGenova,691 a federal court in the District of Columbia held that there is no claim for intrusion when an intrusion is reasonable under the circumstances or when an intrusion is not "serious." Finally, in the event of an unintentional release of personal data, there may be a good faith defense that may also be codified in some state statutes.

Read the entire page →

From page 53...

... 53 nature" from disclosure "if public disclosure…would constitute a clearly unwarranted invasion of an individual's privacy."700 Similar to Michigan's FOIA, the Illinois FOIA prohibits inspection and copying of "[p] rivate information, unless disclosure is required by another provision of [the Illinois FOIA]

Read the entire page →

From page 54...

... 54 Finally, another possible exemption is that some states' agencies may be able to withhold data from the public under a "deliberative process" privilege, an exemption that may be applicable to some data collected and maintained by transit agencies.718 C Agency Waiver of Privacy Exemption Exemptions under a FOIA or similar legislation may be waived.

Read the entire page →

From page 55...

... 55 The Supreme Court held in N.L.R.B v. Sears, Roebuck & Co.723 that the purpose of the FOIA is to inform the public about agency action, not to benefit private litigants.724 Scholars, moreover, argue that a FOIA is meant to address public access to information, not to aid private litigants in litigation.725 If government data are exempt under a FOIA, however, it is not presumed that the data are thereby privileged within the meaning of the discovery rules.726 When there is a FOIA request, a party's need for the information is "irrelevant" in contrast to discovery, when a qualified privilege may be asserted and a litigant's need for the information becomes a key factor in deciding whether to permit the discovery.727 Some courts do not allow the government to claim a privilege and withhold data when the data are available to other members of the public.728 In a Texas case, the court held that the fact that a plaintiff requested documents through the FOIA does not preclude the party "from receiving the same documents through discovery" from the opposing party.729 Finally, as one source observes, agencies may not claim a privilege on behalf of a party whose documents they possess.730 The civil discovery rules require a party to produce only documents that are relevant to the litigation;731 however, a party may use a FOIA to obtain data or other records that are irrelevant.

Read the entire page →

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