(dissenting) — In this information-intensive society, dependent upon the marvels of the modern computer, we frequently exhibit indifference toward intrusions into our personal privacy. Confronted with ever-advancing technological developments, we have resigned ourselves to the inevitability of our private affairs appearing on silicon microchips in computers too numerous to count. The majority's opinion reflects this societal apathy, holding that the disclosure of a mental health patient's name and diagnosis to the State does not violate the state or federal constitutional right of privacy. I must dissent. In my opinion, Const, art. 1, § 7 prohibits the compelled disclosure of personal information to the State in the manner contemplated by the Community Mental Health Tracking System (CMHTS).
I
A noted Russian author of this century, writing of his home country, once wrote:
As every man goes through life he fills in a number of forms for the record, each containing a number of *938questions. . . . There are thus hundreds of little threads radiating from every man, millions of threads in all. . . . Each man, permanently aware of his own invisible threads, naturally develops a respect for the people who manipulate the threads.
A. Solzhenitsyn, Cancer Ward 189 (1968). The majority opinion sanctions the attachment of yet another thread to citizens of this state, ignoring the existence of a less intrusive means of effecting an admittedly legitimate state interest.
Computers, the machines from which these threads emanate, permit the analysis and centralized storage of each individual's record, in effect creating a "dossier" on practically every individual in the United States. In fact, "[t]he average American may be the subject of between ten and twenty individual 'dossiers' . . . Americans generally dislike the term dossier. The computer data of today, however, is the dossier of tomorrow." Solomon, Personal Privacy and the ”1984" Syndrome, 7 W. New Eng. L. Rev. 753, 754-55 (1985). Although frightening, "[t]he fact is that many Americans are now the subject of a 'womb-to-tomb' dossier." (Footnote omitted.) Solomon, at 760.
So what is objectionable about permitting the government to collect and1 store, in dossier form, information on each and every individual in this country? As pointed out by one student author, "[t]he mere collection and retention of sensitive or personal information creates a state of severe psychological insecurity." Comment, The Privacy Act of 1974: An Overview and Critique, 1976 Wash. U. L.Q. 667, 674. Another commentator warns of a "record prison psychology" in this country, noting that "[pjrevious dictatorships have repressed society with machine guns, tanks, and armies, but repression may come in the form of an Orwellian psychology, with data banks and dossiers.'' Solomon, at 760. As put by Judge Bazelon, "tyrannies thrive by granting great secrecy to government but very little to individuals, while democracies thrive by opening government to public scrutiny and closing citizens' lives to governmental prying." *939(Footnote omitted.) Bazelon, Probing Privacy, 12 Gonz. L. Rev. 587, 592 (1977).
As the foregoing suggests, each additional "thread" that attaches to an individual lessens his own psychological security and invites governmental abuse. Viewed this way, the CMHTS is not as benign as the majority would like to believe. The ratification by law of each new thread simply invites additional threads. Approval of one makes it that much easier to sanction the next. When viewed in isolation, a particular privacy invasion may seem harmless, but when each isolated invasion is added to all other "harmless" invasions, the resulting society begins to mirror that which George Orwell contemplated in his novel, 1984.1 G. Orwell, 1984 (1932).
If this society is to avoid Orwell's frightening forecast, and retain any modicum of personal privacy, infringements upon privacy cannot be accepted as an inevitable outgrowth of technological advancement. As the final arbiter of our state's constitution, it is our duty to ensure that, pursuant to article 1, section 7, the citizens of our state enjoy this cherished right to the extent possible in a civilized society.
II
The concept of privacy was not recognized at English common law. Samuel D. Warren and Louis D. Brandéis first introduced the idea of a legal right to privacy on a national level in a law review article, Warren & Brandéis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890). According to Warren and Brandéis, the very "right to life has come to mean the right to enjoy life, — the right to be let alone ..." (Italics mine.) Warren & Brandéis, at 193. *940According to them,
[t]he intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world ... so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury.
Warren & Brandéis, at 196. Thus, although the right previously had not been recognized, Warren and Brandéis believed that " [political, social, and economic changes entail the recognition of new rights, and the common law, in its eternal youth, grows to meet the demands of society." (Italics mine.) Warren & Brandéis, at 193.
Professor William L. Prosser later defined four privacy torts that subsequently emerged in American jurisprudence. Prosser, Privacy, 48 Calif. L. Rev. 383, 389 (1960). Although the tort of public disclosure of private facts "may be most applicable to computer cases and the abuses that are likely to arise in modern medical record systems", Solomon, 7 W. New Eng. L. Rev. at 775, the existence of a tort remedy does not satisfactorily answer the question of whether disclosure of particular information should be compelled from an individual by the government in the first place. To answer this question, we must further define the nature of privacy.
Professor Westin defines privacy as "the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others." A. Westin, Privacy and Freedom 7 (1967). Professor Westin also identifies four reasons why this privacy is essential to the individual. First, it preserves the individual's personal autonomy. Second, it facilitates emotional release from the pressures of daily life. Third, it makes possible self-evaluation, including the exercise of conscience. Finally, privacy permits an individual to engage in limited and protected communication, thus enabling the *941individual to share confidences. A. Westin, at 33-39. As noted by the majority, the law already recognizes that individuals should be allowed the autonomy to make certain decisions, and that they also should be protected from the disclosure of certain personal matters to the government. Majority opinion, at 933-34. Both of these interests clearly are implicated in this appeal.
Ill
The issue in this appeal is whether the forced disclosure of a patient's name and diagnosis to the State violates the patient's right of privacy under our constitution. To determine the constitutionality of the CMHTS under article 1, section 7, this court must delineate the scope of nondisclo-sural privacy by addressing three questions: (1) What kind of information does the right protect? (2) Under what circumstances does the right protect the information? (3) What standard of review applies to state action that violates the right of nondisclosural, or informational, privacy? I will answer each question in turn.
The Supreme Court has established that the constitutional right of privacy protects only "fundamental1' privacy interests. See Roe v. Wade, 410 U.S. 113, 152, 35 L. Ed. 2d 147, 93 S. Ct. 705 (1973). The Court also has stated that a right is "fundamental" if the abolition of the right would violate the ” 'principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental."' Palko v. Connecticut, 302 U.S. 319, 325, 82 L. Ed. 288, 58 S. Ct. 149 (1937) (quoting Snyder v. Massachusetts, 291 U.S. 97, 105, 78 L. Ed. 674, 54 S. Ct. 330, 90 A.L.R. 575 (1934)).
In Whalen v. Roe, 429 U.S. 589, 599, 51 L. Ed. 2d 64, 97 S. Ct. 869 (1977), a case in which the Supreme Court first distinguished between an individual's interest in autonomy and an individual's interest in nondisclosure, the Court recognized "the individual interest in avoiding disclosure of personal matters”. (Italics mine.) Anomalously, the Court later noted that the government's duty to keep *942information private was only "arguably" constitutional, Whalen, at 605, thus apparently taking away with one hand what it had given with the other. Accordingly, it is unclear whether, under the federal constitution, the individual has a "fundamental" privacy interest in avoiding disclosure of personal matters. See California Bankers Ass'n v. Shultz, 416 U.S. 21, 39 L. Ed. 2d 812, 94 S. Ct. 1494 (1974).
Regardless, I believe citizens of this state do have a fundamental privacy interest in avoiding disclosure of "personal matters" under article 1, section 7. In my opinion, nondisclosure of personal information is an essential element of an individual's "private affairs", for without protection from compelled disclosure, the individual is dissuaded from sharing confidences and, in turn, from exercising his personal autonomy. Thus, I conclude that the right to avoid disclosure of personal matters, the essence of privacy, is necessarily protected by article 1, section 7. The fact that this interest may not be recognized under the federal constitution is not controlling. As we frequently have held, article 1, section 7 affords greater privacy protections to our citizens than does its federal counterpart. See State v. White, 97 Wn.2d 92, 640 P.2d 1061 (1982).
IV
Assuming an individual has a fundamental interest under article 1, section 7 in avoiding disclosure of a "personal matter", the question remains as to what information this includes. One commentator has asserted that the privacy interest in nondisclosure should protect information "which a person desires to keep private and which, if disseminated, would tend to cause substantial concern, anxiety or embarrassment to a reasonable person." Leigh, Informational Privacy: Constitutional Challenges to the Collection and Dissemination of Personal Information by Government Agencies, 3 Hastings Const. L.Q. 229, 251 (1976). I agree. In my opinion, article 1, section 7 should protect such personal matters which, except for the challenged governmental action, could be kept confidential.
*943In this case, the respondents seek to avoid disclosure of mental health patients' names and diagnoses. This information clearly is of the type that a patient would desire to keep private. Indeed, there is substantial evidence that many patients would either forgo treatment entirely or divulge much less information than they otherwise would if such information was not collected and retained by the State. Furthermore, this information clearly is of the type which, if disseminated, would tend to cause a reasonable person substantial concern, anxiety, or embarrassment.2 Finally, this information is of the type which, but for the CMHTS, could be kept in confidence by the mental health institution serving the patient. Accordingly, because I conclude that patients' names and diagnoses are "personal matter", article 1, section 7 should protect such information from compelled disclosure.
V
The next task is determining the circumstances under which the right to nondisclosure protects such personal matter. As discussed above, mere collection of personal information can cause an individual severe psychological insecurity, regardless of whether the government intends to disseminate that information. As noted by one commentator, "[e]ven if totally effective safeguards are devised against abuses of information . . . many people will still feel their privacy is violated by any sort of probing of their inner lives." Bazelon, 12 Gonz. L. Rev. at 593. Therefore, I believe the right to avoid disclosure of personal information is implicated both by compelled disclosure of personal matter to the government, and nonconsensual dissemination of personal matter by the government. Accordingly, article 1, *944section 7 should apply in either context.
In this case, we are concerned primarily with disclosure of personal information to the government. Thus, the fact that adequate safeguards exist to prevent the dissemination of the information by the government is of little consequence. In my opinion, article 1, section 7 should protect against compelled disclosure regardless of whether that information may, in fact, be disseminated to others. Security systems are not foolproof, and penal sanctions may not deter one seeking pecuniary gain. Accordingly, the best way to prevent government abuse is to preclude the government from collecting the information in the first place.
VI
Because no privacy right can be absolute in this society, In re R., 97 Wn.2d 182, 190, 641 P.2d 704 (1982), the final task is to determine the appropriate standard of review to apply to state action that infringes upon the right of non-disclosural privacy. In its cursory discussion of the state constitutional argument, the majority indicates that a state invasion of personal privacy will be upheld under article 1, section 7 if the State is attempting to effectuate "legitimate goals" by means which are "carefully tailored" to meet those goals. Majority opinion, at 937. I disagree. Although this rational basis test might be suitable for reviewing infringements upon lesser interests, where a fundamental privacy right is involved, I believe heightened scrutiny is necessary to curb governmental excesses.
In reviewing alleged infringements upon fundamental rights, this court generally determines whether the state action is justified by some "compelling state interest". See State v. Koome, 84 Wn.2d 901, 906, 530 P.2d 260 (1975). Nevertheless, because the ease of labeling certain governmental goals as "compelling state interests" might obviate the need for weighing the individual's privacy interest, I reject this analysis in favor of a balancing test. Thus, when reviewing an article 1, section 7 privacy challenge, I believe this court should assess the importance of the State's goals *945and the individual's privacy interest to determine whether the State's interest outweighs that of the individual.3 However, even if the State's interest does outweigh the individual's privacy interest, I believe the State should bear the burden of proving that it employed the least intrusive means available to effectuate its interest. Accord, A. Westin, at 370-77. Cf. State v. Koome, supra at 908 ("State restrictions on fundamental freedoms must be narrowly drawn to conform to the legitimate state interests to be furthered . . .").
In this case, the State asserts two interests which allegedly will be furthered by implementation of the CMHTS. First, the CMHTS will permit the State to maintain accurate accounting procedures, precluding duplication of service, and thereby ensuring continued federal funding. Second, the CMHTS will permit the State to "track" mental health patients once they have entered the mental health system, thereby ensuring continuity of service. Needless to say, these asserted State interests are legitimate.
The individual, on the other hand, has a significant privacy interest in avoiding both tracking and the disclosure of his name and diagnosis to the State. As stated earlier, mere collection of such information could create intense psychological insecurity, especially if the patient knew the information could be used to track him from one mental health center to the next. If the ability to maintain confidences and exercise personal autonomy means anything in this country, we must accord great weight to the patient's interest in nondisclosure.
*946Although I ultimately conclude that, under the aforementioned balancing test, the State's asserted interests outweigh the individual's privacy interest, this conclusion is less obvious than the majority contends. First, with respect to the State's interest in ensuring continued federal funding, there is no evidence that use of the preexisting system had led or would lead to disallowance of federal funding. Thus, to the extent the State undertook unnecessary measures, its interests arguably are deserving of less weight. Nevertheless, because we live in a social welfare state, attendant with all of its valuable benefits, we can and must expect strict fiscal control from service-providing agencies. Thus, I conclude the State's interest in ensuring this control outweighs the individual's privacy interest in avoiding disclosure. To conclude otherwise would be to place an onerous burden on the agency responsible for efficient provision of necessary services.
The State also has a significant interest in maintaining continuity of service using a tracking system. Upon reflection, however, this aspect of CMHTS is most frightening. If today the government may track mental health patients, tomorrow it will track resident aliens, and the next day it might track you! If the government can justify the tracking of a particular group of people simply by pointing to a social ill and proposing a rational plan to cure it, we shall have abandoned one ¡of the principle virtues of a democratic society — the right to be let alone. In short, I would be hard pressed to recognize many state interests that outweigh an individual's privacy interest in not being "tracked".
This interest, however, flows from an individual's right to exercise personal autonomy. Because some priority mental health patients might be unable to rationally exercise that autonomy due to their mental health (i.e., be unable to decide whether they require treatment), the tracking system is justifiable on the ground it will ensure that all such individuals receive needed care from mental health professionals. In other words, without a tracking system mental health patients may be ensured personal autonomy, but at *947the risk of forgoing necessary treatment. Because the tracking aspect of the CMHTS prevents patients from slipping through the cracks of our state's mental health system, I conclude the State's interest outweighs that of the individual.
VII
As indicated previously, however, the inquiry does not end once this court determines that the State's interest is greater than the individual's. Under article 1, section 7, the State still bears the burden of proving that it employed the least intrusive means available to effectuate its interest.
The trial court found that the State's goals could be realized without requiring the mental health centers to disclose patient names and diagnoses to the Department of Social and Health Services. Clerk's Papers, at 23. This finding was based upon the extensive testimony of two University of Washington professors who testified that each mental health center could generate a unique patient code using computer "hashing" or encryption. The patient's name and diagnosis would remain with the health care provider, where this information would be protected within the confidential patient-therapist relationship. The code would be sent to the State for its legitimate purposes of accounting and tracking.
Despite the trial court's conclusion that this system would promote both the patient's confidentiality and the State's interests, the majority substitutes its judgment for the trier of fact, arguing that "such a system undoubtedly would be more cumbersome and error prone than having one centrally located encoding system." (Italics mine.) Majority opinion, at 936. With respect to the contention that the hashing system would be more "cumbersome", I do not believe constitutional protections can be denied to promote administrative expediency. Although one method of securing information may be less desirable to the State, where privacy interests are at stake, bureaucratic efficiency may have to be sacrificed. This is just such a case.
*948With respect to the majority's contention that the hashing system would be more "error prone", I direct the majority to the testimony of Professor Martin, who concluded that the probability of duplication was smaller than two-tenths of 1 percent, and the testimony of Professor Diehr, who concluded that the chance of duplication using a 10-character hash code was 1 in 1.78 million based upon a population of 60,000 persons. If it is human error that concerns the majority, I can only say that this is one of the vices of the human race. In my opinion, however, it is preferable to risk human error than to depend upon mechanistic perfection where the latter results in greater invasions of privacy.
The majority ignores substantial evidence in the record that establishes the availability of less intrusive means to effectuate the State's legitimate goals. Implicit in its opinion is the attitude that if technology can do it, and do it better, privacy interests are worthy of less protection. As recently noted by one commentator, however,
[i]t is not technology, as such, which affects society for good or bad, but its uses, which are . . . shaped by the values of society and by the historical context in which the technology is Used. ... We must remember that we are not trapped helplessly in front of an unstoppable technological steamroller. Our control is in how we use our knowledge that we will be required to live with the results of our decisions on the use of this new technology.
Weingarten, Privacy: A Terminal Idea, 10 Hum. Rts. 18, 56, Fall 1982.
In this case, computer technology clearly promotes legitimate state interests, potentially for the good of society as a whole. Before this court rubber-stamps the use of this technology, however, it must contemplate the consequences of its application. Decisions which permit the government to collect and store personal information move this country that much closer to the Orwellian society we all fear. As rational decision makers, we have the ability to ensure that computer technology is used wisely. As the ultimate arbi*949ters of our state's constitution, we have the duty to protect the privacy rights of our state's citizens. In my opinion, the majority fails in both roles. Accordingly, because less intrusive means are available, I would affirm the trial court on the ground that the CMHTS is violative of article 1, section 7.
Brachtenbach, J., concurs with Pearson, J.Reconsideration denied July 10, 1986.
This is not mere melodrama. Informational specialists already have proposed that each American be assigned a "birth number" at the time of birth, and that each birth number correspond to a central computer data bank containing each individual's personal information, including medical records. A. Miller, Assault on Privacy 4 (1971). This birth number conceivably could correspond to a data bank containing all aspects of our private lives, and "be used as a leash around our necks". Solomon, Personal Privacy and the "1984" Syndrome, 7 W. New Eng. L. Rev. 753, 761 (1985).
As stated by a commentator: "For many people medical records are the most sensitive form of personal information. If one questions the fact that the disclosure of personal medical information could affect one's entire future, recall what happened to the 1972 Democratic Party nominee for Vice President, Senator Thomas Eagelton, after it was disclosed that he had sought psychiatric help." Solomon, 7 W. New Eng. L. Rev. 753, 761 (1985).
In reviewing a privacy challenge, however, the court should be mindful of Professor Westin's warning that
if all that has to be done to win legal and social approval for [an invasion of privacy] is to point to a social problem and show that [this invasion] would help to cope with it, then there is no balancing at all, but only a qualifying procedure for a license to invade privacy.
A. Westin, Privacy and Freedom 370 (1967). Thus, we must ask "whether the interest opposing privacy is sufficiently important to justify the invasion." Bazelon, Probing Privacy, 12 Gonz. L. Rev. 587, 601 (1977).