NEWS MEDIA UPDATE · SIXTH CIRCUIT · Freedom of Information · June 23, 2005
Strip club license applicants can be kept under wraps
June 23, 2005 · Information from an application for an adult cabaret license is private and therefore exempt from Ohio’s Public Records Act, the entire U.S. Court of Appeals in Cincinnati (6th Cir.) ruled Tuesday.
As part of a larger opinion on strip club licensing requirements set up by Ohio’s Union Township, the court ruled that the information the township requires of license applicants — their names, home addresses and birth dates, as well as all employees’ names, birth dates and job titles — could threaten their security if made public and is therefore constitutionally protected.
Deja Vu of Cincinnati, the operator of a nightclub featuring nude and seminude dancers, had argued that the information should not be collected because it would have to be released under the public records act, potentially threatening the applicants’ and employees’ personal security. The court agreed the information could be dangerous in the wrong hands and therefore should not be released to the public, but it found that the government could still collect the information for its own use.
Writing for the majority, Judge Ronald Lee Gilman relied on a previous case, Deja Vu of Nashville v. Metro. Gov’t of Nashville. In that 2001 case decided by a panel of three Sixth Circuit judges, operators of adult entertainment businesses had argued that requiring them to disclose personal information to the government for licensing purposes would jeopardize them because that information could be accessed by anyone through Tennessee’s open records act. This would chill their desire to exercise their right of free expression through nude dancing, the plaintiffs had argued.
While the panel of judges in Deja Vu of Nashville agreed, it ruled that the applicants’ information was constitutionally private under the due process clause of the Fourteenth Amendment and could not be released under the open records law, but the operators could be ordered to disclose it to the government.
Applying the same reasoning, the court in Tuesday’s ruling concluded “that the [ordinance’s] disclosure provisions are constitutional, but that the names and other information that are gathered pursuant to those provisions constitute protected private information that are exempted from Ohio’s Public Records Act” because of the same Fourteenth Amendment protections.
This conclusion was supported by at least 10 of 12 members of the appellate court. Six judges joined Gilman in his majority opinion, and three others dissented from other parts of the decision but explicitly concurred with the majority opinion on the privacy issue. Two other judges dissented in part from Gilman’s decision, but did not specifically address his reasoning on this issue. The three-judge panel of Sixth Circuit judges, which had earlier heard the case, had come to the same conclusion. The initial district court opinion in the case, handed down before Deja Vu of Nashville, did not address the issue directly.
In a similar case last year, the U.S. Court of Appeals in San Francisco (9th Cir.) ruled that Arizona’s Maricopa County could require adult service providers to register with the county but may not release that information under the state’s open records law.
(Deja Vu of Cincinnati, L. L. C. v. the Union Township Board of Trustees et al.; Attorneys for Union Township and the state of Ohio: Stephen P. Carney, Office of the Attorney General of Ohio, Columbus; Lawrence E. Barbiere, Schroeder, Maundrell, Barbiere & Powers, Cincinnati) — TS