Officer Melissa Kallstrom v. City of Columbus

OPINION

We are called upon in this appeal to consider whether the plaintiffs, undercover officers for the Columbus Police Department, have a privacy interest of a constitutional dimension in certain personal information contained in their personnel files. We hold that the plaintiffs do indeed have a constitutionally protected privacy interest under the substantive component of the Fourteenth Amendment’s Due Process Clause. Accordingly, we conclude that the Fourteenth Amendment prohibits the City of Columbus (“the City”) from disclosing certain personal information contained in the plaintiffs’ personnel files absent a showing that such disclosure narrowly serves a compelling state interest. We therefore reverse the district court’s dismissal of the plaintiffs’ claims for damages. With respect to the plaintiffs’ motion for preliminary and permanent injunctions, we hold that it is premature to issue an-injunction prohibiting the City from releasing to members of the public certain personal information concerning the plaintiffs. We believe, however, that the plaintiffs are’ entitled to injunctive relief requiring the City to provide notice to the plaintiffs prior to releasing information contained in their personnel files to members of the public.

I. FACTS AND PROCEDURAL HISTORY

The three plaintiffs, Melissa Kallstrom, Thomas Coelho, and Gary Householder, are undercover officers employed by the Columbus Police Department. All three were actively involved in the drug conspiracy investigation of the Short North Posse, a violent gang in the Short North area of Columbus, Ohio. In United States v. Derrick Russell, et al., No. CR-2 95-044, (S.D.Ohio), forty-one members of the Short North Posse were prosecuted on drug conspiracy charges, Plaintiffs testified at the trial of eight of the Russell defendants.

During the Russell criminal trial, defense counsel requested and obtained from the City Kallstrom’s personnel and pre-employment file, which defense counsel appears to have passed on to several of the Russell defendants. See Joint Appendix (“J.A.”) at 45-46 (Kallstrom Aff.). Officers Coelho and Householder also suspect that copies of their personnel and pre-employment files were obtained by the same defense attorney. The City additionally released Officer Coelho’s file to the Police Officers for Equal Rights organization following its request for the file in the fall of 1995 in order to investigate possible discriminatory hiring and promotion practices by the City. The officers! personnel files include the officers’ addresses and phone numbers; the names, addresses, and phone numbers of immediate family members; the names and addresses of personal references; the.officers’ banking institutions and corresponding account information, including account balances; their social security numbers; responses to questions regarding their personal life asked during the course of polygraph examinations; and copies of their drivers’ licenses, including pictures and home addresses. J.A. at 38-48 (Officers’ Affs.). The district court found that in light of the Short North Posse’s propensity for violence and intimidation, the release of these personnel files created a serious risk to the personal safety of the plaintiffs and those relatives named in the files. J.A. at 89 (Dist. Ct. Op. and Order).

Prior to accepting employment with the City, the plaintiffs were assured by the City that personal information contained in their files would be held in strict confidence. J.A. at 39, 42, 46-47 (Officers’ Affs.). Despite its earlier promise of confidentiality, however, the City believed Ohio’s Public Records Act, Ohio Rev.Code Ann. § 149.43 (BanksBaldwin *1060 1997), required it to release the officers’ files upon request from any member of the public.

The officers brought suit under 42 U.S.C. §§ 1983 and 1988 against the City, claiming that the dissemination of personal information contained in their personnel files violates their right to privacy as guaranteed by the Due Process Clause of the Fourteenth Amendment. The officers also claim that the City’s actions violate their rights under state law, specifically Ohio Rev.Code Ann. §§ 2921.24 and 102.03(B) (Banks-Baldwin 1997). In addition to seeking compensatory damages, the officers request an injunction restraining the City from releasing personal information regarding them.

The district court initially issued a temporary restraining order prohibiting the City from releasing to any person the addresses and phone numbers of the officers and their immediate family members, their family members’ names, and copies of the officers’ driver’s licenses. The officers’ comfort was short-lived. Upon reviewing the officers’ request for preliminary and permanent injunctions, the district court determined that the law of this circuit foreclosed the officers’ constitutional claims. Specifically, the court concluded that the Sixth Circuit has “steadfastly refused to recognize a general constitutionally-protected right to privacy that would shield an individual from government release of personal information about the individual.” J.A. at 88 (Dist. Ct. Op. at 4). The district court thereupon entered final judgment for the City, and this appeal ensued regarding the officers’ constitutional claims.

II. SECTION 1983 CLAIM

Section 1983 imposes civil liability on a person acting under color of state law who deprives another of the “rights, privileges, or immunities secured by the Constitution and laws.” 42 U.S.C. § 1983. The threshold question, therefore, is whether the City deprived the officers of a right “secured by the Constitution and laws.” See Baker v. McCollan, 443 U.S. 137, 140, 99 S.Ct. 2689, 2692-93, 61 L.Ed.2d 433 (1979).

A. Due Process — Fundamental Privacy Right

The officers claim that in releasing personal information from the officers’ personnel files, the City denied the officers rights granted to them under the Due Process Clause of the Fourteenth Amendment, specifically, their right to privacy. Although a literal reading of the Due Process Clause may suggest that the clause governs only the procedures by which the State may deprive an individual of life, liberty, or property, the Supreme Court has long recognized that the clause “bar[s] certain government actions regardless of the fairness of the procedures used to implement them.” Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 665, 88 L.Ed.2d 662 (1986). This substantive component of the Due Process Clause includes not only the privileges and rights ex pressly enumerated by the Bill of Rights, but includes the fundamental rights “ ‘implicit in the concept of ordered liberty,”’ Roe v. Wade, 410 U.S. 113, 152, 93 S.Ct. 705, 726, 35 L.Ed.2d 147 (1973) (quoting Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 151-52, 82 L.Ed. 288 (1937)), and “deeply rooted in this Nation’s history and tradition[s].” Moore v. City of East Cleveland, 431 U.S. 494, 503, 97 S.Ct. 1932, 1938, 52 L.Ed.2d 531 (1977).

The officers contend that the release of the personal information contained in their personnel files infringes upon their right to privacy. Although the Supreme Court first recognized this right over thirty years ago, see Griswold, v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (recognizing married ‘ couples’ right to privacy with respect to the use of contraception), the boundaries of the right to privacy have not been clearly delineated. The privacy cases have developed along two distinct lines. The first line of cases involves the individual’s interest in independent decision making in important life-shaping matters, while the second line of cases recognizes the individual’s interest in avoiding disclosure of highly personal matters. See Whalen v. Roe, 429 U.S. 589, 598-600, 97 S.Ct. 869, 875-77, 51 L.Ed.2d 64 (1977).

*1061 Cases concerning an individual’s interest in autonomy have extended constitutional protection to activities relating to marriage, see Griswold, 381 U.S. at 484-86, 85 S.Ct. at 1681-83; Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967), procreation, see Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942), contraception, see Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); Griswold, 381 U.S. at 485, 85 S.Ct. at 1682, family relationships, Moore v. City of East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977), and child rearing, see Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923). The officers claim the City’s disclosure of the personal information contained in their personnel records implicates their fundamental interest in family relationships, or “the right not to have your family subject to harm merely because of your career.” J.A. at 18 (Pls.’ Mem. in Supp. of Mot. for T.R.O. at 8). The release of the information at issue does not seriously infringe upon the intimate decisionmaking incidental to protection of the family. As the Fifth Circuit explained, “[t]he appropriate question is: What impact will [the] disclosure have upon the way intimate family and personal decisions are made? Will it affect .the decision whether to marry? Will it determine when or if children are born?” Plante v. Gonzalez, 575 F.2d 1119, 1131 (5th Cir.1978) (holding that financial disclosure laws undeniably have some influence on intimate decisionmaking, but not on the kinds of decisions protected by the autonomy line of cases protecting the family), cert. denied, 439 U.S. 1129, 99 S.Ct. 1047, 59 L.Ed.2d 90 (1979).. The officers have simply not convinced us that the release of the personal information contained in their personnel files has more than a de minimis impact on intimate family decisions.

In Whalen v. Roe, the Supreme Court declared that the constitutional right to privacy grounded in the Fourteenth Amendment respects not only individual autonomy in intimate matters, but also the individual’s interest in avoiding divulgence of highly personal information. See Whalen, 429 U.S. at 599-600, 97 S.Ct. at 876-77. The court echoed these sentiments in Nixon v. Administrator of Gen. Servs., 433 U.S. 425, 97 S.Ct. 2777; 53 L.Ed.2d 867 (1977), acknowledging that “[o]ne element of privacy has been characterized as ‘the individual interest in avoiding disclosure of personal matters:’ ” Id. at 457, 97 S.Ct. at 2797. Although 'Whalen and Nixon appear to recognize constitutional protection for an individual’s interest in safeguarding personal matters from public view, in both cases the Court found that public interests outweighed the individuals’ privacy interests. See Whalen, 429 U.S. at 602-04, 97 S.Ct. at 877-79 (upholding a New York law that required physicians to compile prescription records containing detailed patient information for a centralized state-run database); Nixon, 433 U.S. at 465, 97 S.Ct. at 2801 (compelling President Nixon to disclose personal communications to government archivists in light of the important public interest in preserving the materials, Nixon’s diminished expectation of privacy in the bulk of the materials, and other factors).

This circuit has read Whalen and Nixon narrowly, and will only balance an. individual’s interest in nondisclosure of informational privacy against the public’s interest in and need for the invasion of privacy where the individual privacy interest is of constitutional .dimension. See J.P. v. DeSanti, 653 F.2d 1080, 1091 (6th Cir.1981). 1 In DeSanti juveniles in Ohio claimed that the post-adjudication dissemination of their, social histories to governmental, social, and religious agencies that were members of a “social services clearinghouse” violated their constitutional right to privacy. In reversing the *1062 district judge’s finding that such dissemination would violate the juveniles’ constitutional rights to privacy, this court rejected the notion of a general constitutional right of nondisclosure of personal information against which the governmental action must .be weighed. See id. at 1088-89. Relying on Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), in which the Supreme Court held that police circulation of a flyer publicizing respondent’s arrest for shoplifting did not violate any constitutional right to privacy because the state did not “restrict his freedom of action in a sphere contended to be ‘private,’ ” and because the state has an interest in “publicizing] a record of an official act such as an arrest,” id. at 713, 96 S.Ct. at 1166, this court stated in DeSanti that any constitutional right to privacy must be restricted to “those personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty.’ ” DeSanti, 653 F.2d at 1090 (citations omitted). While the opinion in DeSanti did not hold that there is never a constitutional right to nondisclosure of private information, it did conclude that “not all rights of privacy or interests in nondisclosure of private information are of constitutional dimension, so as to require balancing government action against individual privacy.” Id. at 1091. The question then is whether the officers’ privacy interests in the personal information contained in their personnel records “are of constitutional dimension.” We hold that the officers’ privacy interests do- indeed implicate a fundamental liberty interest, specifically their interest in preserving their- lives and the lives of the their family members, as well as preserving their personal security and bodily integrity.

1. Personal Security and Bodily Integrity

The liberty interests preserved by the Due Process Clause of the Fifth Amendment, later incorporated into the Fourteenth Amendment, include “those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.” Meyer v. Nebraska, 262 U.S. at 399, 43 S.Ct. at 626; see also Ingraham v. Wright, 430 U.S. 651, 673, 97 S.Ct. 1401, 1413-14, 51 L.Ed.2d 711 (1977). Among the historic liberties long cherished at common law was the right to be free from “unjustified intrusions on personal ■ security.” See Ingraham, 430 U.S. at 673, 97 S.Ct. at 1413. As far back as 1891, the Supreme Court recognized that “[n]o right is held more sacred, or is more carefully guarded ... than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.” Union Pac. Ry. v. Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 1001, 35 L.Ed. 734 (1891). Although threats to personal security usually arise in the context of government-imposed punishment or physical restraint, courts have not limited protection of this historic interest to those settings. See, e.g., Winston v. Lee, 470 U.S. 753, 764-66, 105 S.Ct. 1611, 1618-20, 84 L.Ed.2d 662 (1985) (holding that compelling a robbery suspect to undergo surgical operation to remove from his body a bullet fired by the victim would be an “extensive intrusion on [the suspect’s] personal privacy and bodily integrity,” and thus an unreasonable search and seizure under the Fourth Amendment); Cruzan v. Director, Missouri Dep’t of Health, 497 U.S. 261, 278, 110 S.Ct. 2841, 2851, 111 L.Ed.2d 224 (1990) (acknowledging that a competent person has a constitutionally protected liberty interest under the Fourteenth Amendment in refusing unwanted medical treatment); Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 857, 112 S.Ct. 2791, 2810, 120 L.Ed.2d 674 (1992) (stating that the right to an abortion reflects respect for “personal autonomy and bodily integrity, with doctrinal affinity to cases recognizing limits on governmental power to mandate medical treatment or to bar its rejection”); Doe v. Claiborne County, 103 F.3d 495, 507 (6th Cir.1996) (the right to personal security and to bodily integrity under the Due Process Clause encompasses the right not to be sexually assaulted by a government actor); see also Doe v. Taylor Indep. Sch. Dist. 15 F.3d 443, 450-52 (5th Cir.1994) (en banc) (same); Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 727 (3d Cir.1989) (same). Individuals have “a clearly established right under the substantive component *1063 of the Due Process Clause to personal security and to bodily integrity,” and this right is fundamental where “the magnitude of the liberty deprivation that [the] abuse inflicts upon the victim ... strips the very essence of personhood.” Claiborne, 103 F.3d at 506-07. Finally, it goes without saying that an individual’s “interest-in preserving her life is one of constitutional dimension.” Nishiyama v. Dickson County, 814 F.2d 277, 280 (6th Cir.1987) (en banc).

In light of the Short North Posse’s propensity for violence and intimidation, the district court found that the City’s release of the plaintiffs-appellants’ addresses, phone numbers, and driver’s licenses to defense counsel in the Russell case, as well as their family members’ names, addresses, and phone numbers, created a serious risk to the personal safety of the- plaintiffs and those relatives named in the files. See J.A. at 57 (T.R.O.) and 89 (Op. and Order). We see no reason to doubt that where disclosure of this personal information may fall into the hands of persons likely to seek revenge upon the officers for their involvement-in the Russell case, the City created a very real threat to the officers’ and their family members’ personal security and bodily integrity, and possibly their lives. 2 Accordingly, we hold that the City’s disclosure of this private information about the officers to defense counsel in the Russell case rises to constitutional dimensions, thereby requiring us under De-Santi to balance the officers’ interests . against those of the City. 3

*1064 The district court found that although there was no indication that the Police Officers for Equal Rights organization posed any threat to the officers and their family members, disclosure even to that group of the officers’ phone numbers, addresses, and driver’s licenses, and their- family members’ names, addresses and phone numbers “increases the risk that the information will fall into the wrong hands.” J.A. at 57 (T.R.O.). The district court, however, made no finding with respect to the magnitude of this increased risk. Since the district court did not indicate its view of the severity of risks inherent in disclosure of information to the Police Officers for Equal Rights organization, we remand to the district court for reconsideration in light of this opinion of issues regarding disclosure of personal information to that organization.

In finding that the City’s release of private information concerning the officers to defense counsel in the Russell case rises to constitutional dimensions by threatening the personal security and bodily integrity of the officers and their family members, we do not mean to imply that every governmental act which intrudes upon or threatens to intrude upon an individual’s body invokes the Fourteenth Amendment. But where the release of private information places an individual at substantial risk of serious bodily harm, possibly even death, from a perceived likely threat, the “magnitude of the liberty deprivation ... strips the very essence of person-hood.” Claiborne, 103 F.3d at 506-07. Under these circumstances, the governmental act “reaches a level of significance sufficient to invoke, strict scrutiny as an invasion of personhood.” Laurence H. Tribe, American Constitutional Law 1333 (2d ed.1988).

2. Balancing the Officers’ Interests Against the Government’s Interests

Whére state action infringes upon a fundamental right, such action will be upheld under the substantive due process component of the Fourteenth Amendment only where the governmental action furthers a compelling state interest, and is narrowly drawn to further that state interest. See Roe v. Wade, 410 U.S. at 155, 93 S.Ct. at 727-28; Griswold, 381 U.S. at 497, 85 S.Ct. at 1688-89 (Goldberg, J., concurring). Having found that the officers have a fundamental constitutional interest in preventing the release of personal information contained in their personnel files where such disclosure creates a substantial risk of serious bodily harm, we must now turn to whether the City’s actions narrowly serve a compelling public purpose.

The City believed Ohio’s Public Records Act, Ohio Rev.Code Ann. § 149.43 (Baldwin-Banks 1997), required it to disclose the personal information contained in the officers’ records. Ohio’s Public Records Act requires the state to make available all public records to any person, Ohio Rev.Code Ann. § 149.43(B) (Baldwin-Banks 1997), unless the. record falls within one of the statute’s enumerated exceptions. 4 The State man *1065 dates release of state agency records in order to shed light on the state government’s performance, thereby enabling Ohio citizens to understand better the operations of their government. See State ex rel. Strothers v. Wertheim, 80 Ohio St.3d 155, 684 N.E.2d 1239, 1242 (1997) (“One of the salutary purposes of the Public Records Law is to ensure accountability of government to those being governed”); cf. United States Dep’t of Defense v. Federal Labor Relations Auth., 510 U.S. 487, 495-97, 114 S.Ct. 1006, 1012-14, 127 L.Ed.2d 325 (1994) (stating that the purpose of the federal Freedom of Information Act, 5 U.S.C. § 552, is to “she[d] light on an agency’s performance of its statutory duties or otherwise let citizens know what their government is up to” (quotation omitted) (alteration in original)). In the judicial setting, courts have long recognized the importance of permitting public access to judieial'reeords so that citizens may understand and exercise oversight over the judicial system. See Nixon v. Warner Communications, Inc., 435 U.S. 589, 597-98, 98 S.Ct. 1306, 1311-12, 55 L.Ed.2d 570 (1978); Video Software Dealers Ass’n v. Orion Pictures Corp. (In re Orion Pictures Corp.), 21 F.3d 24, 26 (2d Cir.1994); Littlejohn v. BIC Corp., 851 F.2d 673, 678 (3d Cir.1988). We see no reason why public access to government agency records should be considered any less important. For purposes of this case, we assume that the interests served by allowing public access to agency records rises to the level of a compelling state interest. Nevertheless, the City’s release to the criminal defense counsel of the officers’ and their family members’ home addresses and phone numbers, as well as the family members’ names and the officers’ driver’s licenses, does not narrowly serve these interests.

While there may be situations in which the release of the this type of personal information might further the public’s understanding of the workings of its law enforcement agencies, the facts as presented here do not support such a conclusion. The City released the information at issue to defense counsel in a large drug conspiracy case, who is asserted to have passed the information onto his clients. We simply fail to see how placing this personal information into the hands of the Russell defendants in any way increases public understanding of the City’s law enforcement agency where the Russell defendants and their attorney make no claim that they sought this personal information about the officers in order to shed light on the internal workings of the Columbus Police Department. We therefore cannot conclude that the disclosure narrowly serves the state’s interest in ensuring accountable governance. Accordingly, we hold that the City’s actions in automatically disclosing this information to any member of the public requesting it are not narrowly tailored to serve this important public interest.

B. State Action Requirement

The Due Process Clause of the Fourteenth Amendment does not impose upon the state an affirmative duty to protect its citizens against private acts of violence, but rather, places limitations on affirmative state action that denies life, liberty, or property without due process of law. See DeShaney v. Winnebago County Dep’t of Social Servs., 489 U.S. 189, 195, 109 S.Ct. 998, 1002- *1066 03, 103 L.Ed.2d 249 (1989). In DeShaney, the Supreme Court stated that the Due Process Clause imposed an affirmative duty to protect an individual against private acts of violence where a “special relationship” exists between the state and the private individual, such as when the state takes a person into its custody. See id. at 199-201, 109 S.Ct. at 1005-06. Applying this principle to the facts in DeShaney, the Supreme Court did not find a due process violation where a young child, Joshua DeShaney, suffered serious harm at the hands of his father after the state failed to remove the child from the father’s custody. See id. at 201, 109 S.Ct. at 1006. Thus, before holding the City liable for violation of the officers’ constitutional rights to privacy, we must address whether the actions or potential actions of private actors, namely the gang members of the Short North Posse, can be attributed to the City.

In DeShaney, the Court left open the possibility that the state may be liable for private acts which violate constitutionally p