Officers have 'fundamental' constitutional right of privacy

SIXTH CIRCUIT–In mid-February, a three-judge panel of the U.S. Court of Appeals in Cincinnati (6th Cir.) unanimously ruled that the release of undercover police officers’ personnel files under the state Public Records Act violated their right to privacy under the U.S. Constitution.

Judge Karen Nelson Moore wrote that disclosure of the files to a lawyer representing defendants in a drug conspiracy case, at which the officers testified, placed the officers and their families at substantial risk of serious bodily harm. The defense lawyer apparently had passed the files on to several of the defendants.

The disclosure of the personnel files implicates a constitutionally protected “fundamental liberty interest” because it threatens the personal security and bodily integrity of the officers and their families, the court said.

Because disclosure infringed upon a fundamental right, it can be upheld only if it furthers a compelling state interest, and is narrowly drawn to further that interest, the court acknowledged.

Although allowing public access to agency records constitutes a compelling state interest which generally would justify the disclosure, the court found that release of the files did not narrowly serve that interest.

“We simply fail to see how placing this personal information into the hands of the . . . defendants in any way increases public understanding of the City’s law enforcement agency,” the court wrote. The defendants and their attorney made no claim that they sought the personnel files in order to shed light on the internal workings of the Columbus Police Department, the court noted.

The files contained the officers’ addresses and phone numbers; the names and addresses of their family members and personal references; the officers’ banking institutions and account information, including account balances; their Social Security numbers; responses to questions regarding their personal life during polygraph examinations; and copies of their drivers’ licenses, including their pictures.

The court held that the officers are entitled to injunctive relief prohibiting the City of Columbus from again disclosing the information contained in their personnel files without first notifying the officers. The city is liable to the officers for any damages incurred as a result of the release under federal civil rights law, the court said.

News organizations from Ohio, Tennessee, Kentucky and Michigan filed a brief in mid-March supporting the petition of the City of Columbus for a rehearing before the entire court. (Kallstrom v. City of Columbus; Counsel: Glenn Redick, Columbus)