How to remove an entry from Boston Herald database

Question

A Boston Herald database posted information about government employees' salaries here. Can a person named in the database remove their entry?

Answer 1

A listed employee could ask the Herald to remove their information, but they should not expect the Herald to honor that request.

There are certain circumstances in which the disclosure of a person's information could result in a court forcing the removal of information, but this is almost certainly not one of them.

For instance, one could bring a claim of public disclosure of private facts, but that would require that reasonable people would consider the disclosure "highly offensive" and that the information was not of legitimate concern to the public. However offensive someone might consider the disclosure of their salary, there's not a great argument to be made that the public doesn't have a legitimate interest in knowing whether the government is paying people too much or too little.

There's also a claim for intrusion upon seclusion, but that requires proof that the defendant intruded, physically or otherwise, into your private affairs. In this case, the Herald isn't intruding into anyone's public affairs; it is merely receiving information from the public. If anyone is making an intrusion, it's the government, but you can't really argue that the government isn't allowed to know its own employees' salaries.

The Massachusetts Supreme Judicial Court has, in fact, already addressed this issue and concluded that disclosing government payroll records does not violate the state's invasion-of-privacy laws. Hastings & Sons Pub'g v. City Treasurer of Lynn, 374 Mass. 812, 818 (1978) ("The names and salaries of municipal employees, including disbursements to policemen for off-duty work details, are not the kind of private facts that the Legislature intended to exempt from mandatory disclosure.").

I don't know of any other claim an employee could bring to force the Herald to remove this information. But even if you could make one of these privacy claims -- or anything else -- fit these circumstances, it would probably still not work because the information is protected by the First Amendment.

The First Amendment prohibits any law "abridging the freedom of speech or of the press." Although this prohibition is not absolute, overcoming it is nearly impossible when the information involved is not a deliberate lie. To get a court to order the removal of an entry, you would have to prove at least that doing so would advance an important government interest, and that forcing the Herald to delete the information is the least speech-restrictive way to go about protecting that interest.

I don't know any way to make that argument work, as the Supreme Court's general rule is that "privacy concerns give way when balanced against the interest in publishing matters of public importance." Bartnicki v. Vopper, 532 U.S. 514, 534 (2001).

You need an important governmental interest, but this action would be aimed instead at vindicating a personal interest in privacy. And because this is information that originates with the state, a court would probably conclude that the state has no legitimate interest in protecting the information, as its legislature has enacted a law saying the opposite: The Massachusetts Public Records Law specifically provides for the release of payroll information (G.L. 66 sec. 20), and the Hastings & Sons case has already decided that the government interest in disclosing the information is more important any privacy rights that might be sacrificed.

Whatever interest one might come up with, there are virtually no circumstances under which courts will conclude that prohibiting the publication of truthful, lawfully obtained information is the least speech-restrictive means of achieving that interest. The courts wouldn't allow it to prevent the publication of the Pentagon Papers, and the federal government even gave up trying to prevent the publication of information explaining how to make a hydrogen bomb.

So it's unlikely that a court is going to force a newspaper to remove a government employee's salary from a website. Probably the only way to make this happen, again, is to present a compelling personal case to the newspaper itself.

Such a request needs to be made very carefully. The newspaper believes it is providing a valuable public service by publishing this information, and it takes such responsibilities very seriously. And reporters react very poorly to any attempt to bully them into not publishing information.

To have a chance at being effective, that request would probably have to do several things:

• acknowledge the paper's right to publish the information;
• acknowledge the value of publishing the information in most circumstances;
• acknowledge that the employee has no right to have the information removed;
• identify some concrete harm to the employee coming from the publication of this information; and
• explain exactly how taking the information down will make that harm stop.

The employee should be aware, though, that it's going to be hard to come up with a harm that they think is serious enough to warrant the removal of the information. In the absence of physical danger to the employee, I would not expect any request to be successful.

Answer 2

That would require a change in the law. Names and salaries of public employees have been held to not be highly personal information exempt from the public records law. See Attorney General v. Collector of Lynn, 377 Mass. 151, Hastings & Sons Publishing Co. v. City Treasurer of Lynn, 374 Mass. 812. This is part of the "diminished expectation of privacy in matters relating to their public employment" attaching to public employment.