AELE LAW LIBRARY OF CASE SUMMARIES:
Employment & Labor Law for Public Safety Agencies
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Privacy Rights
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also: Telephone & Pager Monitoring / Audio &
Visual Taping
Monthly Law Journal Article: Does Ordering an Employee to
Refrain From Certain Personal Contacts Violate Constitutional Due Process? by
Michael P. Stone and Marc J. Berger, 2007 (3) AELE Mo. L.J. 501.
Monthly Law Journal Article: Officer
Privacy and a Citizen’s Right to Video-Record Police Activity, 2009
(5) AELE Mo. L.J. 201.
Monthly Law Journal Article: Genetic
Information Privacy, 2010 (8) AELE Mo. L. J. 201.
In a privacy lawsuit brought by a former probationary police officer, the defendants were entitled to qualified immunity because it was not clearly established that a probationary officer's constitutional rights to privacy and intimate association are violated if a police department terminates her due to her participation in an ongoing extramarital relationship with a married officer with whom she worked, when an internal affairs investigation found that the probationary officer engaged in inappropriate personal cell phone use in connection with the relationship while she was on duty, resulting in a written reprimand for violating department policy. Prior case law in the federal appeals circuit further did not clearly establish that there was a legally sufficient temporal nexus between the individual defendants’ allegedly stigmatizing statements and the plaintiff’s termination. The individual defendants were therefore entitled to qualified immunity on plaintiff’s claim that the lack of a name-clearing hearing violated her due process rights. She conceded that her sex discrimination claims were not actually based on her gender. Perez v. City of Roseville, #15-16430, 2019 U.S. App. Lexis 19338 (9th Cir.).
The plaintiffs, applicants for jobs operating vehicles with a public transportation authority, had each been convicted of drug offenses between 1997 and 2007. Each of them disclosed their criminal history while applying, as well as authorizing the employer to obtain a background check. They were each denied employment and the employer did not send them copies of their background checks before it decided not to hire them, nor did it send them notices of their rights under the Fair Credit Reporting Act (FCRA), which required the employer to send both before it denied them employment, 15 U.S.C. 1681b(b)(3). A federal appeals court upheld the dismissal of claims based on failure to provide notice of FCRA rights. The plaintiffs became aware of their FCRA rights and were able to file the lawsuit within the statute of limitations period, so they were not injured. The court reversed, however, the dismissal of the claim based on failure to provide copies of the consumer reports. The FCRA clearly expresses Congress’s “intent to make [the] injury redressable.” Long v. Southeastern Pennsylvania Transportation Authority, #17-1889, 903 F.3d 312 (3rd Cir. 2018).
Employees of a county jail filed a lawsuit claiming violations of their right to privacy in health information under the Fourteenth Amendment and the Computer Fraud and Abuse Act (CFAA), 18 U.S.C. 1030. The trial court dismissed all CFAA claims and granted summary judgment to the defendants on the Fourteenth Amendment claims. A federal appeals court upheld the dismissal of the CFAA claims, because the plaintiffs failed to plead damages from the alleged breach. The appeals court overturned the trial court's grant of summary judgment on the right to privacy in medical records claims, holding that even individuals with non-stigmatizing medical conditions have a right to privacy in their medical records, even if their interest in privacy might be less. Hancock v. County of Rensselaer, #16-2888, 882 F.3d 58 (2d Cir. 2018).
A former probationary police officer fired after an internal affairs investigation into her romantic relationship with a fellow officer sued, asserting that her termination violated her constitutional rights to privacy and intimate association because it was impermissibly based in part on disapproval of her private, off-duty sexual conduct. Both she and the male officer she was involved with were separated from, although still married to, other individuals. A federal appeals court ruled that the plaintiff had presented sufficient evidence to survive summary judgment on her claim for violation of her constitutional rights to privacy and intimate association. A genuine factual dispute existed as to whether the defendants fired her at least in part on the basis of her extramarital affair. These rights were clearly established at the time, the appeals court stated, so it reversed the trial court’s grant of qualified immunity on her privacy claim. But it upheld summary judgment on the plaintiff’s due process claim because any due process rights she might have had were not clearly established at the time of the challenged action, and therefore the defendants were entitled to qualified immunity on that claim. Summary judgment on a sex discrimination claim was also upheld because the evidence indicated that disapproval of her extramarital affair, rather than gender discrimination, was the cause of her firing. Perez v. City of Roseville, #15-16430, 2018 U.S. App. Lexis 3212 (9th Cir.).
Based on their conduct during the execution of a search warrant at a marijuana dispensary, two police officers became the subjects of an internal affairs investigation that was initiated after video recordings of the raid were released to the media. The recordings were made by the dispensary owners using hidden cameras they had secretly installed. The Santa Ana, California Police Department initiated the investigation after video recordings of the officers were released to the media. The Santa Ana Police Officers Association and the officers sued the city, its police department, and its police chief. They claimed that the police department violated the California Invasion of Privacy Act by using the video recordings made at the marijuana dispensary as the basis for, and as evidence in, the internal affairs investigation. They also asserted that the defendants violated Government Code section 3303(g), part of the Public Safety Officers Bill of Rights Act, by refusing to produce tape recordings of the initial interrogations of the officers, transcribed stenographer notes, and any reports or complaints made by the investigators or other persons, before interrogating the officers a second time. An intermediate California appeals court rejected the claim for violation of the California Invasion of Privacy Act because the officers had no reasonable expectation as a matter of law that their communications during the raid of the marijuana dispensary were not being overheard, watched, or recorded. The plaintiffs did, however, state a valid cause of action for violation of the Public Safety Officers Bill of Rights Act because, under section 3303(g), the defendants were required to produce the tape recordings of the initial interrogations, transcribed stenographer notes, and reports and complaints made by the investigators or other persons, before the officers could be interrogated a second time. Santa Ana Police Off. Assn. v. City of Santa Ana, #GO53126, 2017 Cal. App. Unpub. Lexis 4087.
A union representing county sheriffs
deputies sought to enjoin a newspaper from publishing newspaper articles about
the sheriff's department's hiring of officers who used to work for the county's
Office of Public Safety. The union claimed that the newspaper had information
and documents from the job applications and background checks of the deputies,
including accusations about past acts of misconduct. An intermediate California
appeals court granted the newspaper's anti-SLAPP (strategic lawsuit against
public participation) motion, because the public possessed a strong interest in
learning about the conduct and qualifications of the deputies. There is a
strong constitutional prohibition against prior restraint of publication under
the First Amendment, and the injunction sought was not content neutral. The
complaint seeking the injunction was stricken. Assn. for LA Deputy Sheriffs v.
LA Times, #B253083, 239 Cal. App. 4th 808, 191 Cal. Rptr. 3d 564 (2015).
A number of police officers claimed that two
other officers violated their Fourth and Fourteenth Amendment rights when they
complied with a court order to obtain DNA samples from them to exclude them as
possible contributors of DNA at a crime scene. The samples were of saliva,
obtained by use ol a mouth swab. A federal appeals court ruled that the court
order in question satisfied the Warrant Clause of the Fourth Amendment, and
that no undue intrusion occurred as the use of buccal swabs was brief and
minimal, intrusions that involve almost no risk, trauma, or pain. As to a
reasonable expectation of privacy, it was reasonable to require officers to
produce such samples to to demonstrate that DNA left at a crime scene was not
theirs and was not the result of inadvertent contamination of the crime scene
by on-duty officers. Bill v. Brewer, #13-15844, 799 F.3d 1295
(9th Cir. 2015).
A detective at a
Veterans Administration medical center placed a hidden surveillance camera in
the ceiling of an office at the center which female officers used as a changing
area, capturing images of female officers dressing and undressing. A female
officer learned that images of her changing were captured, and she sued the
detective for unconstitutional search in violation of her Fourth Amendment
rights. A federal appeals court upheld a ruling that the detective was not
entitled to qualified immunity as the right of employees to be free from such
unreasonable searches was clearly established. The court rejected the argument
that the Civil Service Reform Act (CSRA) and the Federal Employees'
Compensation Act (FECA) were the appropriate remedies instead for the
plaintiff's claims, as FECA did not cover lawsuits against co-employees and the
installation of the camera illegally was hard to characterize as an
"injury by accident," or a "disease proximately caused by
employment." The detective's actions were also not a "personnel
action" covered by the CSRA. Gustafson v. Adkins, #15-1055, 2015 U.S. App.
Lexis 17972 (7th Cir.).
The highest court in Maryland held that police
disciplinary records are exempt from disclosure as "personnel
records" under a state public information law. The fact that the person
had already identified the officer she was complaining about in a public forum,
or that an investigation resulted in a sustained finding did not alter the
result. The state law, in exempting personnel records from disclosure, did not
make a distinction based on whether a citizen's complaint about a public employee
was sustained or unsustained. Her complaint involved a state police officer who
accidentally left a racial slur on her phone answering machine. She was
informed that her complaint had been sustained and the officer had been
disciplined, but was unable to learn the details. Maryland Department of State
Police v. Dashiell, #84, 2015 Md. Lexis 477.
After a paramedic/firefighter was suspended by
the Fire District for failing to respond to a directive issued by the Fire
Chief, he emailed a newspaper reporter with criticisms and concerns about the
District and its chief. The email shocked and angered his co-workers and
battalion chiefs found that it "fostered division" among co-workers
and against the chief. The paramedic/firefighter was terminated. A federal
appeals court rejected First Amendment retaliation claims, finding the
defendants entitled to qualified immunity, as fire district board members
reasonably believed that his statements were an attempt to undermine the
chief's authority and would lead to disruption in the department. The court
granted the plaintiff leave to amend his state law computer privacy claims,
however, as he sufficiently alleged that the chief and his own ex-girlfriend
had improperly accessed his email account and gained access to his private
emails. Anzaldua v. Northeast Ambulance & Fire, #14-1850, 2015 U.S. App.
Lexis 11906 (8th Cir.).
A newspaper publishing company obtained a number
of police officers' birth date, weight, height, eye color, and hair color from
state motor vehicle records and published that information in an article
criticizing a homicide investigation lineup in which the officers participated.
The officers sued, claiming that both obtaining and publishing the information
violated their privacy rights under the Driver's Privacy Protection Act (DPPA),
18 U.S.C. Sec. 2721, which prohibits knowingly obtaining or disclosing
"personal information" from motor vehicle records. A federal appeals
court upheld the officers' claim, rejecting the publisher's assertions that the
information published was not "personal information" as intended in
the statute or that the First Amendment right of free speech and freedom of the
press overrode the statute. The publisher had no constitutional right to obtain
or disclose the information. Dahlstrom v. Sun-Times Media, LLC, #14-2295, 2015
U.S. App. Lexis 1941 (7th Cir.).
A court order requiring a police department to allow
prosecutors access to officer personnel files to look for possible exculpatory
Brady materials was challenged. The court found that this did not constitute a
breach of confidentiality as the prosecutor had a duty to identify and disclose
material evidence favorable to the defense. Disclosure of the material in such
files to the defense, however, required the prosecutor to first seek a court
order authorizing the disclosure. People v. Superior Court (Johnson), #A10768,
228 Cal. App. 4th 1046, 2014 Cal. App. Lexis 722.
The California Supreme Court upheld the denial of
a police union's request fo an injunction barring the release of the names of
officers involved in specified on-duty shootings. The court found that no
exemption under the state public records law applied, and in weighing the
competing interests, the balance tipped strongly in favor of disclose over an
individual officer's privacy. This left open the presenting of evidence that
the disclosure of a particular officer's name would compromise the safety of
the officer or their family. Long Beach Police Officers Assn. v. City of Long
Beach, #S200872, 59 Cal. 4th 59, 325 P.3d 460, 2014 Cal. Lexis 3757.
A think tank concerned with public issues,
including public pension reform, sought information about retired public school
teachers receiving benefits from state and city retirement systems. The highest
court in New York found that the state Freedom of Information Law only exempted
from disclosure the home addresses of retired public employees receiving
benefits, but not their names. Retired employees' beneficiaries (family
members), however, had privacy protection under the law for both their names
and their home addresses. Empire Center for New York State Policy v. Teachers'
Retirement System of the City of New York, #77, 2014 N.Y. Lexis 948, 2014 NY
Slip Op 3193.
The U.S. Department of Labor claimed that the
Washington State Department of Social and Health Services engaged in both
overtime and recordkeeping violations under the Fair Labor Standards Act
(FLSA). The plaintiff provided proof of the claimed violations supported by 400
employee signatures, but 350 of the signatures were obtained after the lawsuit
was filed. The trial court ordered the plaintiff to answer three
interrogatories that would disclose those 350 employees' names, ruling that
they did not qualify as "informants" whose identities were protected
from discovery by the government's informants privilege, because of when their
signatures were obtained. The appeals court found that the trial judge had
erroneously limited the scope of the informants' privilege and that the
defendant agency did not have a compelling need for the identities or
identifying information of the 250 employees who would not be witnesses at
trial, and who said that they wished to remain anonymous. Perez v. U.S.
District Court, #13-72195, 2014 U.S. App. Lexis 7301 (9th Cir.).
A federal employee sought a work schedule accommodation
under the Rehabilitation Act so that he could undergo rehabilitation treatment
without using his work leave. The defendant agency was properly granted summary
judgment in his lawsuit over its denial because he failed to exhaust his
available administrative remedies before suing. He ceased participating in the
investigation of his claim, citing privacy concerns, and failed to furnish
sufficient information to the employer. This refusal was unjustified and he
failed to show how his concern over the disclosure of medical records required
him to fail to provide testimony to the investigator, or what was supposedly
inadequate about the "extensive" privacy protections for medical
records included in the contract the agency had with the investigator. Koch v.
White, #12-5139, 2014 U.S. App. Lexis 4246 (D.C. Cir.).
The New Jersey Supreme Court has required law
enforcement officers to get a warrant to obtain tracking information from a
cell phone. While the decision came in a criminal case, the reasoning is broad
enough to cover other situations. The decision holds that individuals have a
reasonable expectation of privacy in their cell phone location data under the
state Constitution. State v. Earls, #A-53-11/068765, 2013 N.J. Lexis 735
A state criminal trial court properly barred a
defendant from having his attorney view the entire personnel file of the
officer who testified against him on a drug charge. After the court examined
the entire file in camera, it was determined that only five pages of the file
were relevant in any way to the officer's supposed motive to falsely testify or
his credibility. The officer's general character was not an element of any
charge, claim or defense in the proceeding. People v. Collins, 2013 IL App (2d)
110915, 985 N.E.2d 613, 2013 Ill. App. Lexis 73, 368 Ill. Dec. 806.
The bargaining agent for county employees
proposed altering the memorandum of understanding it had with the county's
bargaining units to allow it to get a list of the home addresses and phone
numbers of all employees represented, including those who had not joined the
union. A county employee relations commission found that the county's refusal
to provide such a list was an unfair labor practice. The California Supreme
Court held that, despite any privacy interest employees might have in the
information, it was outweighed by the interests favoring disclosure of this
information to the union representing them. It stated, however, that there
could be procedures fashioned to allow employees who object to opt out, but an
intermediate appeals court, in attempting to impose a specific procedure for
this on the parties exceeded its authority.County of Los Angeles v. Los Angeles
County Employee Relations Comm'n, #S191944, 2013 Cal. Lexis 4692.
California, as of the start of 2013, has a law
making it unlawful for employers to request employee or applicant user names
and passwords to social media sites like Facebook and Twitter. Under the statute,
there is no exception for law enforcement, but there are exceptions for the use
of employer provided devices and when the information is relevant to an
investigation of employee misconduct. Similar laws are also in effect in
Delaware, Illinois, Maryland, Michigan, and New Jersey.
A
female former police officer in Minnesota who had served on the forces of two
municipalities will receive a total of $665,000 in settlements on a privacy
invasion claim from cities employing officers who allegedly routinely looked
into her driver and vehicle services data file without a law enforcement
purpose. They did so in response to gossip about her that began when she
engaged in training for a body sculpting contest at a local gym frequented by
other officers. She claimed that a total of 140 other officers looked at her
file to view her photos, address, physical description, driving records and
other unspecified personal information. A statute made it possible for her to
sue and be awarded damages at a minimum rate of $2,500 for each unauthorized
access to her file, and she alleged that there may have been as many as 228
unauthorized accesses by officers from just one city. Rasmusson v. City of St.
Paul, Minn., reported in the Minneapolis Star Tribune, October 16, 2012.
A terminated correctional officer, who was a
non-probationary sheriff's department employee, challenged her firing in an
administrative hearing. She was fired for supposedly falsifying time records,
and argued that the penalty was disproportionate to her misconduct because
other employees who had falsified time records had received lesser punishments.
She submitted a motion to the hearing officer for discovery of the disciplinary
records of other department personnel who had been investigated or disciplined
for that offense, normally deemed confidential and not subject to disclosure
except through discovery. The hearing officer ordered the records produced for
his review. An intermediate California appeals court rejected the argument that
discovery of such personnel records could not be ordered in an administrative
hearing, finding that it could be ordered when relevant, which it was here. Any
other interpretation of the law would conflict with the due process rights of
officers in disciplinary proceedings. Riverside County Sheriff's Dep't v.
Stiglitz, #E052729, 2012 Cal. App. Lexis 1025 (Cal.App. 4th Dist.).
Illinois enacted a law prohibiting an employer
from requesting or requiring a current or prospective employee to provide a
password to gain access to the person's account or profile on a social
networking website, such as Facebook or Twitter. There is no exception in the
law for law enforcement or other sensitive occupations. Illinois Public Act
097-0875 (eff. 1/1/13). A similar law was passed earlier in the year in
Maryland, Labor and Employment Ch. 234, Sections 3-712. (eff. 10/1/12).
After police officers and motorcycle club members
had a battle that left two officers wounded and one club member dead, a
newspaper sought under an Ohio state public records law to compel a police
chief to reveal information about the identities of the wounded officers. The
Ohio Supreme Court held that law enforcement agencies may withhold the identity
of officers who face substantiated threats of injury or death in retaliation
for their job-related actions. An officers’ constitutional right to privacy and
personal protection supersedes the state's public records laws. Revealing the
wounded officers' identities to the media under these circumstances could place
them at risk of serious harm. State ex rel. Cincinnati Enquirer v. Craig,
#2011-1798, 2012 Ohio 1999, 2012 Ohio Lexis 1024.
A pilot who contracted HIV and applied for FAA medical
certificates multiple times without disclosing his HIV status or his medications
pled guilty to making false statements to a government agency. The plea came
after the Social Security Administration (SSA) revealed his HIV status to the
Department of Transportation (DOT). He sued the DOT, FAA, and SSA, for
violating his privacy rights by unlawful disclosure of confidential medical
information causing him mental and emotional damages. The Privacy
Act of 1974, 5 U.S.C. § 552a, while permitting recovery against government
agencies for actual damages, does not unequivocally include damages for mental
or emotional damages as within the definition of "actual damages."
Therefore, the statute did not waive the sovereign immunity of the federal
government for claims for mental or emotional damages arising out of violations
of privacy rights. Federal Aviation Administration v. Cooper, #10-1024, 2012
U.S. Lexis 2539
An undercover drug enforcement agent who accidentally
shot himself in the leg during a speech to about 50 children and parents at a
community center failed to show that his employer violated his privacy rights
or was responsible for a video clip of the incident showing up on the YouTube
website. The video of the one hour anti-drug speech had been made by a parent.
Copies of the video were made as part of a DEA internal investigation of the
shooting. The court ruled that the video clip was not a part of the DEA's
"system of records," and further that it had never been shown who was
responsible for releasing the video clip to the public."The widespread
circulation of the accidental discharge video demonstrates the need for every
federal agency to safeguard video records with extreme diligence in this
internet age of iPhones and YouTube with their instantaneous and universal
reach." The court did say that the DEA’s handling of the video, including
creating several versions of it, “undoubtedly increased the likelihood of
disclosure and, although not an abuse of a system of records, is far from a
model of agency treatment of private data.” Paige v. Drug Enforcement
Administration, #11-5023, 2012 U.S. App. Lexis 906 (D.C. Cir.).
The names of police officers involved in
shootings were not made confidential by any of the possible exemptions in the
California Public Records Act. The trial court therefore, properly refused to
approve a police officers' association request to enjoin the disclosure of the
names to a newspaper. Long Beach Police Officers Ass'n v. City of Long Beach,
#B231245. 2012 Cal. App. Lexis 109 (Cal. App.).
An intermediate Ohio appeals court ruled that a
city police department properly withheld the names of individual undercover
police officers from copies of internal investigation records it provided to a
newspaper in response to their request for public records. The identities of
the officers were exempt from the definition of a public record under state law
and their release could result in injury to them, in violation of their
fundamental right to due process under the Fourteenth Amendment. "[W]e
determine that the officers’ interest in protecting themselves and their
families from serious bodily harm outweighs the public’s interest in uncovering
the individual officer’ names." The records sought concerned an incident
in which shots were exchanged between officers and members of a motorcycle club
they were investigating. State of Ohio Ex Rel. The Cincinnati Enquirer v.
Streicher, #C-100820, 2011 Ohio App. Lexis 3766; subsequently referred to
mediation, #2011-1798, 2011 Ohio 5604, 2011 Ohio Lexis 2702..
A deputy sheriff called into a talk radio program
and stated that the current sheriff was not a good fit for the job. In
response, the sheriff called in and replied that the deputy was a
"slacker," and made statements about the deputy's disciplinary
record, saying it involved sexual harassment of another employee, when it
actually involved violation of a rule against offensive conduct or language.
The deputy sued the sheriff for unlawful retaliation against him for exercising
his First Amendment rights in criticizing the sheriff. A federal appeals court rejected
this claim, because "(w)e cannot afford one party his right to free speech
while discounting the rights of the other party." The appeals court also
rejected claims that the sheriff, in making the statements about the deputy's
alleged disciplinary record, violated Wisconsin laws concerning privacy and
open public records. The open records statute did not apply, as there was no
actual release of a public record. As for privacy, the court found that there
was no genuine public interest in keeping the record of the concluded
disciplinary investigation closed to the public. Hutchins v. Clarke,
#10-2661, 2011 U.S. App. Lexis 21475 (7th Cir.)
A female deputy sheriff who was secretly
videotaped by a co-worker in a decontamination area of a hospital following a
shower could proceed with her privacy lawsuit against the county. She was
required to undergo the decontamination shower after being exposed to a large
number of fleas while conducting a search of a building. The video footage was
allegedly put on a departmental computer and disclosed to others over the
municipal network. The court held that the deputy had a reasonable expectation
of privacy in the shower and the decontamination room following the shower. The
co-worker who created the video served as the department's computer
administrator. The video had images revealing the deputy's back, shoulders, and
limbs, with the rest of her body was covered only with "paper sheets,
almost like when you're at a doctor's office." Doe v. Luzerne County,
#10-3921, 2011 U.S. App. Lexis 20650 (3rd Cir.).
Eleventh Circuit affirms a 12-month
sentence for a federal employee who violated workplace policies prohibiting
personal access to the agency's database and obtained personal information on
friends and acquaintances. The Computer Fraud and Abuse Act, 18 U.S. Code
1030(a)(2)(B) does not require that a person acted for financial gain to
violate the misdemeanor provisions of the law. U.S. v. Rodriguez, #09-15265,
628 F.3d 1258, 2010 U.S. App. Lexis 26203 (11th Cir.).
Federal court rejects Privacy Act claims [5
U.S.C. § 552a] brought by the DEA agent who was video recorded shooting himself
in the foot during a training session. The plaintiff was unable to name the
source of the video that was leaked to the news media and viewed on the
Internet. "Given that the incident occurred in a public forum, in front of
fifty parents and children while [the] plaintiff was on duty at a DEA sponsored
presentation and involved a public shooting incident, the incident was a matter
of public concern," wrote the judge. Paige v. DEA. #CV 1:06-644, Pacer Doc
63 (D.D.C. 12-29-2010).
"Case law makes clear" that "the interest in the privacy of
medical information will vary with the condition." Fibromyalgia is not a
condition that gives rise to a constitutionally-protected privacy right. Matson
v. Bd. of Ed. of City of N.Y., #09-3773-cv, 2011 U.S. App. Lexis 514 (2nd
Cir.).
In rejecting privacy claims, appellate holds that
"the qualifications of firefighters are a public safety matter and,
therefore, a matter of public concern." Smith v. Bor. of Dunmore,
#07-4534, 2011 U.S. App. Lexis 1461 (3rd Cir.).
Supreme Court finds that the Government has an
interest in conducting basic background checks in order to ensure the security of
its facilities and to employ a competent, reliable workforce to carry out the
people's business. That interest is not diminished by the fact that respondents
are contract employees. Justice Thomas added that "the Constitution does
not protect a right to informational privacy." NASA v. Nelson, #09-530,
2011 U.S. Lexis 911.
In a 2-to-1 ruling, the Sixth Circuit holds that
bringing an unlabelled folder containing private information of federal
correctional officers into an unsecured workspace rose to the level of
"intentional or willful" agency action under the Privacy Act. A
verdict for plaintiff officers is upheld. Beaven v. U.S. Dept. of Justice,
#08-5297, 2010 U.S. App. Lexis 19927, 2010 FED App. 0313P (6th Cir.),
Government employees in Texas have a privacy
interest in keeping their birth dates from the news media. Release "would
constitute a clearly unwarranted invasion of personal privacy." Texas
Comptroller of Public Accounts v. Attorney General of Texas, #08-0172, 2010
Tex. Lexis 890.
Cook County, IL, settles political hiring claims
for $555,772. A forest preserve police applicant was put on a
"failed" test list after scoring 66 %, while another candidate who
scored 49 % was hired. Four police applicants did not appear on the
"failed" police test list, but were never hired. At the same time,
the district hired another applicant who failed the police written and
psychological exams and who was rated the "least acceptable
candidate." Compliance Administrator Report, Shakman v. Democratic Organization
of Cook County, #1:69-cv-02145 (N.D. Ill. 2010).
Although an employer has agreed to expunge a
disciplinary matter from an official personnel file, it may retain documents in
a separate litigation file. An agency "is entitled to maintain a separate
litigation file containing documents that were expunged from [an] official
personnel file so that ... the agency can respond to subsequent claims
regarding its compliance with the settlement agreement." Perrine v. Dept.
of Veterans Affairs, #2010-3103, 2010 U.S. App. Lexis 20603 (Fed. Cir.).
Hospital security personnel did not violate the
Fourth Amendment by searching employee lockers for missing implements. The
locker inspections were not unreasonable and there was a low expectation of
privacy. Narotzky LLC v. Natrona County Memorial Hospital, #09-8053, 2010 U.S.
App. Lexis 12900 (10th Cir.).
Reversing the Ninth Circuit, the Supreme Court
has upheld the search of a police officer's text messages on a government-owned
pager. A warrantless review of the officer's pager transcript was reasonable
because it was motivated by a legitimate work-related purpose, and was not
excessive in scope. City of Ontario v. Quon, #08-1332, 2010 U.S. Lexis 4972.
In an ACLU sponsored action, a federal court has
struck down a Florida law that made it a misdemeanor to publish or disseminate
the residential address or personal telephone number of a law enforcement
officer. The city agreed to a $25,000 settlement with the named plaintiff.
Brayshaw v. City of Tallahassee, #4:09-cv-00373, PACER Doc. 61 (N.D. Fla.
2010).
After more than 15 years, the federal government
pays $3 million to a former DEA agent to drop his suit for privacy violations.
The plaintiff was stationed in Burma, and claimed that the CIA engaged in
unlawful surveillance of his telephone conversations. Horn v. Huddle, #94-1756,
(D.D.C. 2010). Prior decision: In Re Sealed Case, #04-5313, 494 F.3d 139 (D.C.
Cir. 2007).
New Jersey Supreme Court holds, 7-0, that an
employee can expect privacy and confidentiality in e-mails with his or her
attorney, which are sent and received through a personal, password-protected,
web-based e-mail account using an employer-issued computer. The employer's
policy failed to warn employees that the contents of personal, web-based
e-mails are stored on a hard drive and can be forensically retrieved and read.
Stengart v. Loving Care Agency, #A-16-09, 2010 N.J. Lexis 241.
New federal medical records privacy provisions,
buried in the American Recovery and Reinvestment Act of 2009, extended federal
civil penalties for HIPAA privacy violations. The law took effect Feb. 17, 2010
and contains the first federally-mandated data breach notification
requirements. Before HITECH, entities that failed to protect medical
information did not face governmental penalties. Health Information Technology
for Economic and Clinical Health Act (HITECH), Pub. L. 111-5 §13402, 42 U.S.
Code §17932, 123 STAT. 260. Interim final HHS regulations at 74 (79) Federal
Register 19006 (2009).
An employer's regulations notifying employees
that they had no expectation of privacy for the use of workplace computers did
not convert an employee's e-mails with her attorney, sent through the
employee's personal, password-protected, web-based email account into the
employer's property. The attorney-client privilege outweighs an employer's
unilaterally imposed privacy regulations. "We reject the employer's
claimed right to rummage through and retain the employee's emails to her
attorney." Stengart v. Loving Care Agency, #A-3506-08T1, 973 A.2d 390, 408
N.J. Super. 54, 2009 N.J. Super. Lexis 143; appeal pending, 200 N.J. 204, 976
A.2d 382; 2009 N.J. Lexis 922.
Appellate court requires the disclosure of
officer's private mobile phone records to criminal defense attorneys arising
from a DUI traffic stop. The defendant claimed that part of the dash-cam video
was missing. State v. Ortiz, #27,544, 2009 NMCA 92, 215 P.3d 811, 2009 N.M.
App. Lexis 104.
A game & fish employee who secretly recorded a supervisor
did not violate federal or state eavesdropping laws, and the contents are
admissible evidence. Perraglio v. N.M. Game & Fish, #6:08-cv-00351, PACER
Doc. #58, 28 IER Cases (BNA) 1555 (Unpub. D.N.M.).
Keystroke signals are not “electronic communication”
under the federal Wiretap Act, and gaining access to stored electronic
information does not constitute a violation of §2511. Brahmana v. Lembo,
#C-09-00106, 2009 U.S. Dist. Lexis 42800 (N.D. Cal.).
California public employers can be civilly liable for
breaching a confidentiality clause contained in a severance agreement. While
the severance agreement itself cannot be protected from public scrutiny, the
employer was not privileged to disclose the underlying reasons prompting the
employee’s severance. Sanchez v. County of San Bernardino, #E045200, 2009 Cal.
App. Lexis 1302 (4th Dist.).
Although a worker’s privacy interests in a shared
office is far from absolute, the plaintiffs had a reasonable expectation that
their employer would not install video equipment capable of monitoring and
recording their activities without their knowledge or consent.” However,
activation of the surveillance system “was narrowly tailored in place, time and
scope, and was prompted by legitimate business concerns.” The plaintiffs were
not at risk of being monitored or recorded during regular work hours and were
never actually caught on camera or videotape. Hernandez v. Hillsides Inc.,
#S147552, 2009 Cal. Lexis 7804, 09 C.D.O.S. 9763.
Federal court refuses to dismiss a union lawsuit
against the Postal Service claiming that management secretly obtained employee
medical records directly from doctors and hospitals. Natl. Assn. of Letter
Carriers v. U.S. Postal Service, #08 Civ. 458, 2009 U.S. Dist. Lexis 27301 (S.D.N.Y.).
Section 13402 of the American Recovery and
Reinvestment Act of 2009 requires an entity covered by HIPAA to notify
individuals if their "unsecured" health information has been
breached. See, CDT’s summary of the legislation.
Government agrees to settle privacy claims for
$20 million, arising from the 2006 theft of a laptop containing the names,
birth dates and Social Security numbers of more than 26 million veterans and
active-duty troops. The laptop was recovered and the FBI determined no data had
been breached. Veterans who show harm from the data theft will be able to
receive payments ranging from $75 to $1,500. Dept. of Veterans Affairs Data
Theft Litigation, #1:06-mc-00506, Pacer Doc. 53-2 (D.D.C. 2009); prior ruling
at 2007 U.S. Dist. Lexis 96696.
Appellate court finds that
Berkeley’s Police Review Commission had a duty to (1) maintain the
confidentiality of its investigatory records and findings, (2) close its
evidentiary hearings to the public and (3) afford all officers all rights and
protections provided by the California Public Safety Officers Procedural Bill
of Rights Act. Berkeley Police Assn. v. City of Berkeley, #A118537, 167
Cal.App.4th 385, 84 Cal.Rptr.3d 130, 2008 Cal. App Lexis 1567.
California appellate court holds that city
officials must not disclose police officer personnel records and must cease
permitting the public to access the Police Review Commission's investigations,
reports, hearings, and findings. Berkeley Police Assn. v. City of Berkeley,
#A118537, 2008 Cal. App. Lexis 1567 (1st Dist.).
Ninth Circuit Court rules in favor of a police
officer whose text messages were read by his superiors without his permission,
even though the city paid for the wireless service. The three-judge panel's
holding would require management to obtain a warrant before they could access
an employee's e-mail or text messages. The court found that a wireless firm
violated the federal Stored Communications Act, which prohibits providers from
divulging the contents of any communication that is maintained on the service
without a warrant. The fact that the city had informed employees that it had
the right to read e-mails and text messages did not override an expectation of
privacy by employees. Quon v. Arch Wireless Oper. Co., #07-55282, 529 F.3d 892,
27 IER Cases (BNA) 1377, 2008 U.S. App. Lexis 12766 (9th Cir.).
D.C. Circuit dismisses all claims brought by
ex-CIA agent Valerie Plame Wilson and her husband alleging that employees in
the Office of the Vice President and the State Dept. violated their rights by
publishing her status as a covert agent. The panel also wrote that the
Intelligence Identities Protection Act, 50 U.S. Code §421-26 "is not a
comprehensive remedial scheme ... because it is a purely criminal statute that
only authorizes criminal prosecution of those who intentionally disclose the
identity of a covert agent." Wilson v. Libby, #07-5257, 2008 U.S. App.
Lexis 17119 (D.C. Cir.).
California law now prohibits employers from
requiring workers to receive an identification implant as a condition of
"employment, promotion, or other employment benefit." Civil Code
§52.7.
Federal court dismisses privacy lawsuit filed by a
federal employee, who claimed a back injury, and was videotaped by contract
investigators while lifting heavy boxes into his pickup truck. Because the
taping occurred while outdoors and adjacent to a public road, the employee
lacked a reasonable expectation of privacy. Ryan v. Whitehurst, #SA-07-CA-723,
2008 U.S. Dist. Lexis 36432 (W.D. Tex.).
Court dismisses a privacy action brought by a
uniformed DHS employee who was required to furnish medical reasons why he
should be excused from a ban on facial hair. Boyd v. Chertoff, #07-1098, 2008
U.S. Dist. Lexis 25029 and 25002 (D.D.C.).
Ninth Circuit finds no error by the lower court
in refusing to order the National Park Service to seal the personnel records of
a former law enforcement officer that had made twenty-four false entries on her
job applications. Lane v. Dept. of Interior, #06-15191, 2008 U.S. App. Lexis
9521 (9th Cir.).
In an action brought by VA hospital police
officers because of management's surreptitious video surveillance of their
break room, a federal court holds that the officers lacked a valid claim under
the Federal Tort Claims Act. However, although management had a legitimate
interest in eradicating sexual discrimination in the workplace, there was
insufficient evidence in the record to warrant an encroachment into the
officers' privacy via surveillance video. Rosario v. U.S.A., #Civ-06-1517, 2008
U.S. Dist. Lexis 21297 (D.P.R.).
California Supreme Court orders POST to disclose
the names, employing agencies, hiring and termination dates of peace officers
included in the Commission's database. Cmsn. on Peace Officer Stds. & Trng.
v. Super. Ct. of Sacramento Co. (L.A. Times), #S134072, 2007 Cal. Lexis 8916.
Relying on its 1998 decision in Kallstrom v. City
of Columbus, #96-3853, 1998 FED App. 0055P, 136 F.3d 1055 at 1065, the Sixth
Circuit rejects a civil rights suit filed by corrections officers after select
inmates were provided with documents that included the officers' birth dates
and social security numbers. Barber v. Overton, #05-2014, 2007 U.S. App. Lexis
18320 (6th Cir. 2007).
Appellate court affirms the dismissal of a
privacy lawsuit brought by two former undercover police officers against
television station for broadcasting their identities and their undercover
status in the context of a suspected involvement in an alleged sexual assault.
The broadcast of allegations of police misconduct are in the public interest,
and there is no exception in the law for undercover officers. Alvarado v.
KOB-TV, #06-2001, 2007 U.S. App. Lexis 16720 (10th Cir.).
Federal court rejects the invasion of privacy
claims of ex-CIA agent Valerie Plame Wilson and her husband, brought against
Vice President Cheney, his former Chief of Staff, and others. Wilson v. Libby,
#06-1258, 2007 U.S. Dist. Lexis 51978 (D.D.C.).
For procedural reasons, the Sixth Circuit dismisses
an appeal brought by a Michigan city. Seven women state employees had been
forced to disrobe and get hosed down by male city firefighters, because it was
erroneously believed they had been exposed to anthrax powder. The jury awarded
them $480,000, and the court awarded $53,000 in legal fees and costs. Allison
v. City of East Lansing, #5:03-CV-156, 2005 U.S. Dist. Lexis 38443 (W.D.
Mich.); appeal dismissed, #06-1173, 2007 U.S. App. Lexis 9568, 2007 FED App.
0148P (6th Cir.).
Applicants who were rejected by the FBI and
Secret Service after they failed polygraph examinations lacked a legal right to
privacy about their drug use or medical, psychological, criminal, and sexual
histories. Croddy v. FBI, #00-651, 2006 U.S. Dist. Lexis 71823, 25 IER Cases
(BNA) 272 (D.D.C. 2006). {N/R}
Employees who discovered a hidden video camera
installed in their office may pursue claim for invasion of privacy without
proving that the video stream was recorded or viewed. The employer's suspicion
that someone was using computers to view pornography at night hours did not
justify invasion of their privacy. Hernandez v. Hillsides, #B183713, 142
Cal.App.4th 1377, 48 Cal.Rptr.3d 780, 25 IER Cases (BNA) 174 (Cal. App. 2d
Dist. 2006). {N/R}
Ninth Circuit rules against a DEA forensic
chemist who sued under the privacy act because the U.S. Attorney disclosed
information to a criminal defendant that the chemist had lied in another
proceeding. The disclosures qualify for the "routine use" exception
to the Privacy Act, 5 U.S. Code §552a(b)(3) and there was no evidence of
retaliation against the employee. Burnett v. DoJ, #04-56814, 2006 U.S. App.
Lexis 30203 (Unpub. 9th Cir.). {N/R}
N.Y. appellate court holds that the NYPD could
withhold personnel records from a prospective police employer, absent a waiver
from an applicant. In re 35 New York City Police Officers v. City of New York,
#101679/06, #9381N, 2006 NY Slip Op 08889, 2006 N.Y. App. Div. Lexis 14123 (1st
App. Dept. 2006); also see 819 N.Y.S.2d 852, 2006 N.Y. Misc. Lexis 1038. {N/R}
Federal court rules against applicants who were
rejected by the FBI and Secret Service because they failed a polygraph
examination; those agencies legitimately can inquire about an applicant's
financial status, drug use, health, and criminal history. Croddy v. FBI,
#00-651, 2006 U.S. Dist. Lexis 71823, 25 IER Cases (BNA) 272 (D.D.C. 2006).
{N/R}
Members of the Arkansas State Police did not
violate a criminal investigator's constitutional right to privacy by
investigating an allegation that he had sexual relations with a crime victim
during the course of a criminal investigation. Appellate court declines to
overturn his termination. Sylvester v. Fogley, #05-3492, 2006 U.S. App. Lexis
25750 (8th Cir. 2006). [2006 FP Dec]
Ninth Circuit holds that US customs agents may
conduct warrantless, random searches of travelers' laptops regardless of
reasonable suspicion or probable cause. U.S. v. Romm, #04-10648, 455 F.3d 990,
2006 U.S. App. Lexis 18474 (9th Cir. 2006). {N/R}
Federal court holds that an employee had a
reasonable expectation of privacy that management would not reconstruct and
access e-mails sent to and received from her attorney on her employer-provided
laptop. Attorney-client privilege overrides the employer's policy allowing
search and retrieval of documents from computers provided to employees. Curto
v. Medical World Comm., #03CV6327, (E.D.N.Y. 2006), affirming 388 F.Supp.2d
101. {N/R}
Ohio Supreme Court invalidates a management
demand that city employees provide a copy of their tax returns to verify that
they are legal residents of the city. The disclosure violates a right to
privacy under the federal and state constitutions. State ex rel. Fisher v. City
of Cleveland, #2004-1726, 2006 Ohio 1827, 109 Ohio St.3d 33, 845 N.E.2d 500,
2006 Ohio Lexis 1000 (2006). {N/R}
Former Los Alamos nuclear-weapons scientist,
accused of being a Chinese spy and imprisoned for 278 days, accepts a
settlement of $1,645,000 to drop his lawsuit. U.S. Government will pay $895,000
and five news organizations will pay $750,000. In an earlier proceeding, four
reporters were held in contempt for declining to reveal the names of federal
officials who gave them confidential information about Lee. Lee. v. Dept. of
Justice, Settlement, #99-3380 (D.D.C.); prior rulings at 401 F.Supp.2d 123,
2005 U.S. Dist. Lexis 27929 and #04-5301, 413 F.3d 53, 2005 U.S. App. Lexis
12758 (D.C. Cir.).
An employee at a Massachusetts college office who
learned that she had been undressing in a room with a hidden surveillance
camera did not present a valid Fourth Amendment or state privacy claim because
her office was an "open work area" with no reasonable expectation of
privacy. Nelson v. Salem State College, #SJC-09519, 446 Mass. 525, 845 N.E.2d
338, 2006 Mass. Lexis 118 (2006).{N/R}
N.J. appellate court holds that a compulsory
annual medical examination of police officers, which requires disclosure of
medical history as well as blood and urine testing, does not violate the state
or federal constitutions, and is less intrusive on privacy than random drug and
alcohol testing. New Jersey Transit PBA L-304 v. New Jersey Transit,
#A-5628-03T2, 2006 N.J. Super. Lexis 108 (App. Div. 2006). [2006 FP Jul]
DEA agent who was videotaped while he accidentally
shot himself sues the federal government for privacy violations. Video was
uploaded onto the Internet and was the subject of talk show hosts, Paige v.
U.S., #1:06-cv-00644-EGS (D.D.C. 4/7/2006). [2006 FP Jun]
Police supervisors had qualified immunity in a
right of privacy lawsuit filed after his personnel file was released to the
media. The officer had voluntarily released personal information to media
sources, and there was no increased risk to him or his family. Hall v. City of
Cookeville, #04-6133, 157 Fed. Appx. 809, 2005 U.S. App. Lexis 24616 (6th Cir.
2005); cert. den. Hall v. Shipley, #05-1008, 2006 U.S. Lexis 2282, 74 U.S.L.W.
3530 (2006). {N/R}
Federal court rules than an employee may proceed
with a damage claim that the Defense Dept. violated his privacy rights when
unauthorized officials viewed his psychiatric records as part of a background
check. O'Donnell v. United States, #04-00101, 2006 U.S. Dist. Lexis 2250 (E.D.
Pa. 2006). [2006 FP Apr]
Federal court strikes down a mandatory wellness
program for firefighters that included cholesterol testing. Although the
program was for the benefit of city workers, it violated their rights of
privacy. Anderson v. City of Taylor, #2:04-cv-74345 (Doc.# 20), 2005 WL 1984438
(E.D. Mich. 2005). [2006 FP Mar]
Arbitrator upholds the right of a city to require
all police employees to enroll in an electronic deposit system in a bank of the
employee's choosing. City of Bedford, Ohio and FOP L- 67, 121 LA(BNA) 1214
(Skulina, 2005). {N/R}
Law review article, "Video Surveillance and
the Constitution of Public Space: Fitting the Fourth Amendment to a World that
Tracks Image and Identity," 82 Tex. L. Rev. 1349 (2004). {N/R}
Law review article, "A Case Against
Biometric National Identification Systems (NIDS): Trading-Off Privacy Without
Getting Security," 19 Windsor Rev. Legal & Social Issues 45 (2005).
{N/R}
California appellate court holds that the
salaries of highly paid law enforcement officers and public officials are not
confidential personnel records, and disclosure to the media is not an
unwarranted invasion of privacy or a violation of the state constitutional
provision protecting personal privacy. Int. Feder. of Prof. Eng. L-21 v.
Superior Court (Contra Co. Newspapers), #A108488, 128 Cal.App.4th 586, 2005
Cal. App. Lexis 607 (1st Dist. 2005). {N/R}
California appellate court sustains liability of
an examining physician, who reported a worker's HIV status to his employer,
without consent. Damages were adjusted to $41,575 for lost compensation and
$250,000 for pain and suffering arising from the privacy intrusion. Francies v.
Kapla, #A102260, 127 Cal.App. 4th 1381, 25 Cal.Rptr.3d 501, 2005 Cal. App.
Lexis 500 (1st Dist. 2005). {N/R}
Florida appellate court concludes that installing
keystroke recording software (spyware) violated the state's anti-wiretapping
law, which makes it a crime to intercept electronic communications without
authorization. O'Brien v. O'Brien, #5D03-3484, 2005 Fla. App. Lexis 1408 (5th
Dist. 2004). {N/R}
Federal court declines to dismiss a suit brought
by a Jewish police officer. Although she was allowed to wait until after
sundown before taking the test, she objected to being monitored intrusively
during the period when the promotional tests were given to all others. Kaplan
v. City of Chicago, #99C1758, 2004 U.S. Dist. Lexis 22339 (N.D.Ill. 2004).
[2005 FP Jan]
Sixth Circuit holds that it was not a violation
of a teacher's due process rights of intimate association or privacy to deny
her tenure for maintaining a close personal relationship with a student.
Flaskamp v. Dearborn Pub. Sch., #02-2435, 385 F.3d 935, 2004 U.S. App. Lexis
20760 (6th Cir. 2004). {N/R}
Federal court allows a plaintiff to subpoena an
officer's medical and claims history, notwithstanding confidentiality
privileges and privacy laws. The plaintiff claimed the officer shot him in the
back because he was physically unable to chase him due to physical impairments.
Hutton v. City of Martinez, #C02-1606, 219 F.R.D. 164, 2003 U.S. Dist. Lexis
19852 (N.D. Cal. 2003). [2004 FP Nov]
The chief federal judge in Minnesota has ruled
that parties who complain of violations of a written privacy policy must allege
that they actually read the policy before submitting their personal
information. An web-based privacy policy did not create rights for persons who
did not actually read it. Airline passenger lists were given to federal
security officials, at the government's request. In re Northwest Airlines
Privacy Litig., #04-126, 2004 U.S. Dist. Lexis 10580 (D. Minn. 2004). {N/R}
Celebrity Defense Dept. employee receives
$595,000 in a negotiated settlement, because DoD had leaked personal
information about her in violation of the Privacy Act and the Federal Tort
Claims Act. Linda Tripp was a major source in the Monica Lewinski scandal that
culminated in the impeachment of President William J. Clinton. Tripp v. Dept.
of Defense, #99-2554 and #01-157, 41 (2033) G.E.R.R. (BNA) 1119 [settlement
reported]; 2003 U.S. Dist. Lexis 17074 [protective order] (D.D.C. 2003); 219
F.Supp.2d 85 [Motion to dismiss denied] (D.D.C. 2002). {N/R}
Two Little Rock police officers awarded $450,000
after their personnel files were found in the jail cell. City had released the
files to the defendant's lawyer. Hart v. Little Rock, #4:02-cv-576, 41 (2028)
G.E.R.R. (BNA) 1004 (E.D. Ark., verdict 9/12/03). [Dec FP 2003]
Federal appeals court overturns a summary
judgment for a corrections officer who sued to block management from getting a
medical opinion on her fitness. Although the ADA prevents generalized medical
inquiries, management must be allowed offer a valid business reason to justify
the intrusion. Conroy [Fountain] v. N.Y. St. Dept. of Corr. Serv., #02-7415,
333 F.3d 88, 2003 U.S. App. Lexis 12014, 14 AD Cases (BNA) 865 (2nd Cir. 2003).
[Dec FP 2003]
Supreme Court declines to review a lawsuit
brought by a male corrections officer who objected to the fact a woman monitor
allegedly observed his genitals while he provided a urine sample. Booker v.
City of St. Louis, #02-1114, 309 F.3d 464, 2002 U.S. App. Lexis 22705 (8th Cir.
2002); cert. den., #02-1511, 2003 U.S. Lexis 5504, 72 U.S.L.W. 3235 (2003).
[Dec FP 2003]
California appellate court concludes that a
dentist did not violate medical confidentiality when he reported to I-A that a
police officer had tried to get a prescription for an opiate without medical
justification. There is a public policy encouraging citizens to report possible
misconduct of police officers. Shaddox v. Bertani, #A097480, 110 Cal.App.4th
1406, 2 Cal.Rptr.3d 808, 2003 Cal. App. Lexis 1167 (2003). [2003 FP Nov] Note:
If the disclosure is for the purpose of aiding a criminal prosecution, the
result would be different. The Ninth Circuit has ruled that a psychiatrist
could not testify against a patient who made dangerous or threatening
confessions during therapy. U.S. v. Chase, #01-30200, 2003 U.S. App. Lexis
17420 (9th Cir. 2003). {N/R}
Federal court in Seattle strikes down a state
statute prohibiting the publication of an officer's home address or phone
number. The plaintiff website owner, a critic of local police activity, is
entitled to a summary judgment. Sheehan v. Gregoire, # C02-1112C (W.D. Wash.
2003). The state will appeal.[2003 FP Aug]
News reporter convicted of trespass when he went
to the front door of a former police officer's home seeking to interview him;
he entered through an unlocked gate that had a "no trespassing" sign.
Arizona v. Wells, Chandler (Ariz.) Municipal Court (2003). {N/R}
A federal appeals court has refused to dismiss a suit,
brought under the Privacy and Rehabilitation Acts, by a postal worker whose
HIV-positive status was revealed to coworkers after he requested medical leave.
Doe v. U.S. Postal Service, #01-5395, 317 F.3d 339, 13 AD Cases (BNA) 1801,
2003 U.S. App. Lexis 3277 (D.C.Cir. 2003). {N/R}
Law review article, "Privacy, Technology,
and Terrorism: Bartnicki, Kyllo, and the Normative Struggle Behind Competing
Claims to Solitude And Security," 51 Emory L.J. 1469 (2002). {N/R}
Arbitrator finds that management violated an
injured employee's rights under the Privacy Act of 1974 when it obtained her
medical records directly from medical university and two physicians; federal
regulations require agencies to seek an employee's cooperation in procuring
necessary documents. Dept. of Veterans Affairs and N.A.G.E, 117 LA (BNA) 1313,
FMCS Case #02/00404 (Singer, 2002). {N/R}
California appellate court upholds a police
association's suit for injunctive relief against a city for not keeping officer
records confidential at disciplinary hearings, under Penal Code §832.7. San
Diego Police Officers' Assn. v. City of San Diego Civil Serv. Cmsn., #D038685,
104 Cal.App.4th 275, 128 Cal.Rptr.2d 248, 2002 Cal. App. Lexis 5120 (Cal. App.
4th Dist. 2002). {N/R}
Federal agencies must now conduct privacy impact
assessments before developing or procuring information technology or collecting
new kinds of personal information. H.R. 2954, the E-Government Act of 2002
(Dec. 17, 2002). {N/R}
The Canadian Supreme Court has unanimously ruled
that its federal security agency can block citizens from accessing their
personal files on national security grounds. Ruby v. Solicitor General of
Canada, #28029, 2002 SCC 75, 2002 Can. Sup. Ct. Lexis 85 (Sup. Ct. Canada
2002). {N/R}
Eighth Circuit rejects an appeal that a random
drug test violated a male officer's privacy because the woman monitor observed
his genitals. Booker v. City of St. Louis, #02-1114, 309 F.3d 464, 2002 U.S.
App. Lexis 22705 (8th Cir. 2002). [2003 FP Feb]
Appellate court sets aside a $75,000 jury
verdict. City's attorney allowed third parties to observe a large photo of a
naked woman -- the wife of a city employee who had used a city-owned digital
camera to make the photograph. Haynes & Boone v. Chason, #12-00-00374-CV,
81 S.W.3d 307, 2001 Tex. App. Lexis 8596 (2001; rev. den. 2002). [2003 FP Jan]
Ninth Circuit holds that an employee could sue
his employer for violation of the Stored Communications Act, 18 U.S.C. §§
2701-2711 (2000). He alleged that his superiors accessed his personal website
without authorization. 18 U.S.Code § 2710(a)(1) makes it an offense to access,
intentionally and without authorization, any wire or electronic communication
while it is in storage. Konop v. Hawaiian Airlines, 9th Cir., #99-55106, 302
F.3d 868, 2002 U.S. App. Lexis 17586, 170 LRRM (BNA) 2906 (9th Cir. 2002).
{N/R}
Supreme Court holds that a State's removal of a
lawsuit to federal court waives Eleventh Amendment immunity. Lapides v. Bd. of
Reg. of the Univ. of Ga., 122 S.Ct. 1640, 2002 U.S. Lexis 3220 (2002). {N/R}
Although the California constitution protects
individual privacy, an opposing party is entitled to learn whether an officer
previously worked for another law enforcement agency. Fletcher v. Superior
Court (Oakland Police), #A096372, 100 Cal.App.4th 386, 123 Cal.Rptr.2d 99, 2002
Cal. App. Lexis 4417 (Cal.App. 1st Dist. 2002). {N/R}
Michigan appeals court upholds a newspaper's FOIA
request for the names of city employees and the associated costs of
representing them in a grand jury probe. The law's privacy exemption applies to
an individual's private life, not public service activities. The secrecy
provision relating to grand juries also does not prevent disclosure. Detroit
Free Press v. City of Warren, #231010, 250 Mich. App. 164, 645 N.W.2d 71, 2002
Mich. App. Lexis 2412 (2002). {N/R}
A proposed rule would implement the privacy
provisions in HIPAA, the Health Insurance Portability and Accountability Act of
1996, effective in 2002: "Standards for Privacy of Individually
Identifiable Health Information," 67 (59) Federal Register 14775-14815 (FR
Doc. 02-7144, Mar. 27, 2002). {N/R}
A Los Angeles County Superior Court has awarded a
police officer $177,776 against a politician who invaded his privacy and
defamed him in a campaign flier. Hernandez v. City of Inglewood, reported in
the Calif. Bar Journal Trial Digest, Jan. 2002.
Woman schoolteacher loses her suit to prevent a
male transvestite teacher from using the women's toilets. Minnesota state law
"neither requires nor prohibits restroom designation according to
self-image" and her federal claim fails because she did not suffer a
significant adverse employment action, i.e., a hostile work environment. Cruzan
v. Special School District # 1, #01-3417, 294 F.3d 981, 2002 U.S. App. Lexis
12161 (8th Cir.). {N/R]
Supreme Court holds that the Family Educational
Rights and Privacy Act of 1974, 20 U.S. Code §1232g, which prohibits the
release of students education records without parental written consent, did not
create an independent right to sue for violations, and §1983 cannot be used as
a piggyback vehicle to prosecute an action for damages. Gonzaga Univ. v. Doe,
#01-679, 122 S.Ct. 2268, 2002 U.S. Lexis 4649 (2002). {N/R}
Federal employees: Ninth Circuit holds that the
Civil Service Reform Act bars federal employee claims under the Privacy Act,
affirming the dismissal of a suit brought by two deputy U.S. Marshals. Orsay v.
Justice Dept., No. 00-16860, 289 F.3d 1125, 2002 U.S. App. Lexis 9127(9th Cir.
2002). They claimed that the Marshals Service violated their rights to be free
from unreasonable searches by requiring them to undergo fitness-for-duty
examinations, in order to return from extended time off without pay. [N/R]
Appeals court holds that a mayor's public
disclosure that the chief of police was undergoing treatment for stress was not
an egregious enough humiliation to support a federal privacy claim. Cooksey v.
Boyer, #01-3133, 289 F.3d 513, 2002 U.S. App. Lexis 8730 (8th Cir. 2002). [N/R]
Federal court refuses to dismiss a suit by a
former police chief against town officials who revealed confidential
information about his medical problems to the local newspaper. Public officials
might have a privilege if the condition is a "proper matter of public
concern." Pouliot v. Town of Fairfield, #01-CV-179, 184 F. Supp. 2d 38
2002 U.S. Dist. Lexis 2599 (D. Me. 2002). [N/R]
The two-year statute of limitations in the
federal Privacy Act (5 U.S. Code §552a) begins to run when a person first
becomes aware of errors in a report or record; a new cause of action does not
arise with each subsequent adverse determination which is based on erroneous
records. Harrell v. Fleming, #01-6134, 285 F.3d 1292, 2002 U.S. App. Lexis 6670
(10th Cir. 2002). [N/R]
Arbitrator holds that management can prohibit
personal passwords on employer-provided computers, without resorting to the
bargaining process. Saint Gobain Norpro and United Steelworkers of America,
L-1761-11, FMCS Case #010226/06676, 116 LA (BNA) 960 (Fullmer, 2001). [2002
FP Jun]
Appeals court overturns a ruling against a police
captain who was sued because a subordinate officer had videotaped a woman while
undressing at the academy. The captain had no knowledge of four prior incidents
involving the trooper. The captain was unaware of, and was not informed by his
predecessor of any performance or disciplinary issues involving the male
officer. Poe v. Leonard , #00-9024, 2002 U.S. App. Lexis 2530 (2nd Cir. 2002).
[2002 FP May]
Federal court in Ohio excuses a city from damage
liability for releasing personal information about named undercover police
officers, but also issues an injunction, requiring officials to notify the
officers about future informational requests. Kallstrom v. City of Columbus,
#C-2-96-00124, 165 F.Supp.2d 686, 2001 U.S. Dist. Lexis 16315 (S.D. Ohio).
[2002 FP Mar]
A divided Federal Labor Relations Authority holds
that an arbitrator may award damages to a federal employee for Privacy Act
violations. AFGE L-987 and Air Force Materiel Command, Robins A.F.B., Ga.,
#0-AR-3324, 57 FLRA No. 97 p551, 2001 FLRA Lexis 122, 39 (1937) G.E.R.R. (BNA)
1268. [2002 FP Mar]
Thwarting a suit by a former FBI agent who sought
White House records, a U.S. District Court rules that the President is not
subject to the Privacy Act 5 U.S. Code §552(f) or the Freedom of Information
Act. Sculimbrene v. Reno, #99-2010, 158 F.Supp.2d 26, 2001 U.S. Dist. Lexis 12309
(D.D.C. 2001). {N/R}
Ohio court rejects the damage claims of a
corrections officer who felt humiliated after a photograph of his penis, taken
after he broke up a fight, was passed among coworkers. Toth v. Ohio Dept. of
Youth Services, #99-09480, 113 Ohio Misc.2d 1, 754 N.E.2d 305, 2001 Ohio Misc.
Lexis 11 (Ohio Ct. Claims). [2001 FP 171]
Court orders website to remove police officers
Social Security numbers. Site could continue to post officers' names, addresses
and their salaries. Kirkland (City of) v. Sheehan, #01-2-09513-7 (Super. Ct.
King Co. 5/10/01). [2001 FP 86-7]
California Attorney General rules that the home
addresses of California couples who sign up as domestic partners under a 1999
state statute are open to public disclosure. Cal. A. G. Opinion #00-910 (Apr.
2001). [2001 FP 87-8]
It was not an unlawful invasion of privacy for an
organization to allow investigators, key employees and another victim to view a
videotape of the sexual assault of the plaintiff, an employee of the
organization. Shattuck-Owen v. Snowbird Corp., #981594, 2000 UT 94, 16 P.3d
555, 2000 Utah Lexis 163, 17 IER Cases (BNA) 260. [2001 FP 43]
Illinois appellate court rejects a privacy suit
filed by an officer who was disciplined for attending a party where minors
consumed alcohol. Hampton v. Vil. of Washburn, #4-00-0225, 724 N.E.2d 1276,
2000 Ill. App. Lexis 908 (Ill.App. 2000). [2001 FP 10]
Management did not violate the nondisclosure
provisions of the ADA when advising coworkers that an employee had diabetes.
The condition was voluntarily revealed by the employee herself and was not
learned as a result of a medical exam. Cash v. Smith, 231 F.3d 1301, 2000 U.S.
App. Lexis 27270, 11 AD Cases (BNA) 203 (11th Cir.). {N/R}
A city did not violate the ADA's prohibition
against disseminating confidential medical information in requesting that an
employee submit to psychiatric evaluation after she had an emotional outburst
during a court proceeding. Fritsch v. City of Chula Vista, 2000 U.S. Dist. Lexis
14820, 11 AD Cases (BNA) 273 (Unpub. S.D. Cal.). {N/R}
Ninth Circuit, joining four other circuits, sets
conditions under which a party can sue as a J. Doe. Does I-XXIII v. A.T.C.,
#99-16713, 214 F.3d 1058, 2000 U.S. App. Lexis 12049 (9th Cir.). [2000 FP
107-8]
Illinois Appellate Court recognizes a
cause of action for the tort of invasion of privacy where investigators, who
pose as coworkers, exceeded their duties in seeking information on theft and
drug use. Johnson v. K Mart Corp., #1-98-2172, 311 Ill.App.3d 573, 723 N.E.2d
1192, 2000 Ill. App. Lexis 16, 15 IER Cases (BNA) 1605. [2000 FP 56-7]
Subsequent action: although the Illinois Supreme Court agreed to review the
holding (see 729 N.E.2d 496) K Mart filed bankruptcy and a joint motion to dismiss
the appeal was allowed. Docket # No. 89037 (Mar. 17, 2004).
Federal court enjoins
the government from terminating a Navy chief, based on evidence obtained in
violation of his privacy rights. Investigators improperly obtained info from
America Online, without a court order, and pursued an investigation in
violation of DoD policy. McVeigh v. Cohen, 983 F. Supp. 215, 1998 U.S. Dist.
Lexis 790, 75 FEP Cases (BNA) 1656 (D.D.C.). [1998 FP 121]
Federal appeals court finds that the release of
personnel files to a criminal defense counsel risked the lives of three
undercover officers and their families. The state's public information laws did
not protect the city or require the disclosures. The officers are entitled to
damages and injunctive relief. Kallstrom v. City of Columbus, 136 F.3d 1055,
1998 U.S. App. Lexis 1941, 13 IER Cases (BNA) 1202 (6th Cir.). [1998 FP 73-4]
Employees win federal privacy ruling on employer
required medical exams. They were secretly tested for STDs, pregnancy and sickle-cell
anemia as part of an a pre-employment general health exam. The testing also
violated the 4th Amendment. Norman Bloodsaw v. Lawrence Livermore Lab., 135
F.3d 1260, 1998 U.S. App. Lexis 1398, 75 FEP Cases (BNA) 1695 (9th Cir.). [1998
FP 74-5]
Court employee did not have a reasonable
expectation of privacy in papers he threw in wastebasket in public courtroom.
Rogers v. McKoy, 1997 U.S. Dist. Lexis 132 (S.D.N.Y.).
Search of police officer's office for documents
relating to investigation of misconduct did not violate his Fourth Amendment
right to privacy. Saacks v. City of New Orleans, 1996 La. App. Lexis 2899,
& 3263. {N/R}
Search of workers comp. hearing officer's desk,
file cabinets and credenza violated the Fourth Amendment. Varnado v. Dept. of
Empl. & Trng, 1996 La. App. Lexis 1405, & 3267. {N/R}
Sheriff's intrusion past security area and into
office area to serve civil process violated business's right to privacy under
the Fourth Amendment. Gateway 2000 v. Limoges, 552 N.W.2d 591, 1996 S.D. 81.
{N/R - our ref. #5654}
Police department's investigation of allegations
of sexual harassment made against police officer, which included interviews
with officer's wife and others about his sexual lifestyle, did not violate
clearly established principles of constitutional privacy. Hughes v. City of N.
Olmsted, 93 F.3d 238 (6th Cir. 1996). {N/R}
Direct observation of urine collection process
violates California's constitutional right of privacy. Hansen v. Cal. Dep't of
Corr., 920 F. Supp. 1480 (N.D. Cal. 1996). {N/R}
Federal court rules that management is not
entitled to test a woman police officer for pregnancy without her consent, and
must obtain a search warrant for that purpose. Judge refuses to dismiss her
damage claims for conducting the test as part of a departmental physical exam.
Ascolese v. SEPTA, 925 F.Supp. 351 (E.D.Pa. 1996). [1996 FP 154-5]
Texas police officer was unfairly denied a
promotion because he was sexually active with the wife of another officer. Sherman
(City of) v. Henry, 910 S.W.2d 542 (Tex.App. 1995). [1996 FP 106-7]
California city settles privacy/sex
discrimination suit. Dept. investigated the plaintiff's romantic involvement
with another officer. Doe v. City, 109 (62) L.A.D.J. V&S 3/29/96, San
Bernadino Co. Super.Ct. (1996). [1996 FP 107]
Federal appeals court upholds management's right
to learn what prescriptive drugs its employees are taking. $125,000 breach of
privacy verdict set aside. Doe v. SEPTA, 72 F.3d 1133 (3rd Cir. 1995). [1996 FP
88-9]
Federal court in Colorado has ruled that
compelled disclosure of an employee's use of prescription medicines violates
the ADA. Roe v. Cheyenne Mtn. Conf. Resort, 920 F.Supp. 1153 (D.Colo. 1996);
affirmed, 124 F.3d 1221 (10th Cir. 1997). [1996 FP 89]
Appeals panel upholds verdict for privacy
violations, but reduces the award of $500,000. Supervisor matched employee's
daily personal credit card charges against his sick leave periods. Pulla v.
Amoco, 72 F.3d 648 (8th Cir. 1995; reh. en banc den. 1996). [1996 FP 89-90]
Ex deputy who claimed he was fired for living
with the sheriff's secretary loses his civil rights suit. Privacy rights not
extended to nonmarital interpersonal relationships. Struck v. Hackett, 668 A.2d
411 (Me. 1995); cert.den. 116 S.Ct. 1568 (1996) [1996 FP 75]
Appellate panel in New York refuses to extend
constitutional or statutory employment protections to cover employee dating.
Employee handbook prohibited "dating relationships" except between
spouses. State v. Wal-Mart Stores, 621 N.Y.S.2d 158, 10 IER Cases (BNA) 255
(A.D. 1995). [1996 FP 75]
Police chief who was fired for leaving a
sexually-explicit letter in his desk loses his suit for privacy violations.
Cronin v. Town of Amesbury, 885 F.Supp. 375 (D.Mass. 1995). [1996 FP 59-60]
Aff'd, 81 F.3d 257 (1st Cir. 1996). {N/R}
Police applicant loses a privacy claim against
mayor for disclosing his candidacy and a defamation claim for stating the
police applicant "flunked" a psychological exam and was a "lunatic".
Suppan v. Kratzer, 660 A.2d 226 (Pa.Cmwlth. 1995). [1996 FP 60]
Gay employee who was "outed" after he
listed his same-gender partner as his insurance beneficiary on an employment
form can sue his employer for invasion of privacy. Greenwood v. Taft, 1995 WL
540221, 1995 Ohio App. Lexis 3932, 10 IER Cases (BNA) 1744. [1996 FP 60-1]
It is a constitutional violation for a police
dept. to investigate an officer's private sexual life unless it has "some
impact on the police officers job performance." Hughes v. No. Olmstead,
894 F.Supp. 1120 (N.D.Ohio 1995). Reversed; see 93 F.3d 238 (above). {N/R}
Federal judge in NY sustains a civil rights suit
in which a NYPD sergeant alleged he was required to urinate in the presence of
a monitor and others. Kennedy v. City of N.Y., 10 IER Cases (BNA) 1174, 1995
U.S.Dist. Lexis 7437 (S.D.N.Y.). [1995 FP 167-8]
Massachusetts Federal Court hold that a person's
privacy rights are unconstitutionally violated if and when a police officer
publicly discloses one's status as an AIDS patient. Doe v. Town of Plymouth,
825 F.Supp. 1102 (D.Mass. 1993). [1994 FP 76]
Dating is not a protected activity and may be
prohibited, as between coworkers, by the employer. State v. Wal-Mart Stores,
621 N.Y.S.2d 158 (A.D. 1995). {N/R}
Federal court rejects suit by former officer who
alleged his privacy rights were violated by an intradepartmental newsletter
that explained the circumstances of his forced resignation. Worden v. Provo
City, 806 F.Supp. 1512 (D. Utah 1992). [1993 FP 91-2]
Police officer did not have the right to bring a
suit against the municipality without disclosing his true name; John Doe
complaints, when allowed by the courts, must be based on a motion giving
compelling reasons for anonymity. Doe v. Bor. of Morrisville, 130 F.R.D. 612
(E.D.Pa. 1990).
Photographing employees at work is not an
invasion of privacy. Truxes v. Kenco, 80 S.D. 104, 119 N.W.2d 914 (1963). {N/R}
Eavesdropping, Videotaping and C.C.T.V - also
see: "Telephone Monitoring, Video and Audio Taping",
Disciplinary Searches and Disciplinary Surveillance.