Employment & Labor Law for Public Safety Agencies

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Privacy Rights

     See 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.

        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.

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