Judge orders city to disclose police personnel files

From the Fall 2001 issue of The News Media & The Law, page 37.

A federal judge in Columbus, Ohio, in September refused for the second time to recognize police officers’ rights to privacy and required Columbus city officials to allow reporters to inspect certain information from the officers’ personnel files.

U.S. District Judge George C. Smith held that denying inspection of public records hindered the First Amendment interests of the media because it prevented them from acting as watchdogs over government activity.

“The full disclosure of these personnel files is necessary to enable the press to do its job,” Smith wrote.

Smith originally heard the case in July 1996, finding that no court in the federal Sixth Circuit, which includes Ohio, had recognized a constitutional right of privacy. But a three-judge panel of the appellate court reversed Smith’s decision in February 1998 and sent the case back to Smith for review consistent with its findings.

Smith based his Sept. 27 holding on slightly different facts than the appellate court because 10 Ohio news organizations had joined the lawsuit.

The original case arose in September 1995 when the plaintiffs — Melissa Kallstrom, Thomas Coelho and Gary Householder, all undercover narcotics officers of the Columbus Police Department — served as prosecution witnesses for a trial involving the investigation of a violent Columbus gang. The city released personnel files of the undercover officers during the trials to defense attorneys.

One of the officers later found that his personnel files were released to an independent police organization looking into unfair hiring practices in the department. The three officers sued the city for damages and to prevent further disclosure of their personal information.

The officers argued in the trial court that the release of the personal information invaded their right to privacy and hurt their families.

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

The city prevailed. The trial court in July 1996 rejected the officers’ arguments that they had a constitutionally protected privacy right that could prevent the government from releasing personal information about them.

The officers appealed the decision, arguing that the city’s disclosure of their personnel files put the officers and their family members in “special danger.” The “special danger” occurs when a government’s actions place a person in a situation where they suffer more danger than the public at large.

The U.S. Court of Appeals in Cincinnati (6th Cir.) held the disclosure had nothing more than an inconsequential effect on the safety of their families. But the three-judge panel unanimously held that the officers had a protected privacy right to the information in their files.

The news organizations joined the lawsuit after they requested files including home addresses, summaries of investigations of officers’ backgrounds, reports of any assaults in which the officers were involved, reports of any motor vehicle accident in which the officer and an official city vehicle were involved, any disciplinary charges, and answers to personal history questions.

However, they specifically excluded the officers’ banking information and other recorded information specifically exempt from disclosure under Ohio open records laws. The city officials denied their request to inspect the officers’ personnel files, citing the appellate court’s decision as a basis for their denial.

Although Smith explicitly rejected the media’s suggestion that he “overturn” the panel’s decision, he noted that the panel’s decision had “established new law for the Sixth Circuit.”

However, Smith said he based his judgment on new facts that arose when the news organizations joined the lawsuit and held that the city’s disclosure to reporters violated no constitutional right to privacy of the officers. Smith wrote the Sixth Circuit decision did not prohibit the release of information in personnel files but “provided a two-part test to determine whether this newly articulated standard would protect a party seeking to avoid disclosure of highly personal information.”

The 6th Circuit’s two-part test required courts to show that the release of an officer’s private information from personnel files would raise a risk of serious bodily harm and that the risk outweighed the public’s need for disclosure.

Smith found that since the officers had revealed their own names in initiating the lawsuit, other personal information was easily accessible and so they did not have a right of privacy. He also found that the city’s disclosure of the personnel files outweighed the privacy interests of the officers since it promoted an open government.

“The state has a compelling interest in releasing this type of information to enlighten the public about the performance of its law enforcement agencies and ensure government accountability,” Smith wrote in his second decision.

However, Smith in his later decision did require city officials to provide written notice to officers before releasing any information that could potentially threaten the officers’ personal security or the security of their families. (Kallstrom v. City of Columbus) — MM