136 F.3d 1055 (6th Cir. 1998), 96-3853, Kallstrom v. City of Columbus

Docket Nº:96-3853.
Citation:136 F.3d 1055
Party Name:Officer Melissa KALLSTROM, et al., Plaintiffs-Appellants, v. CITY OF COLUMBUS, Defendant-Appellee.
Case Date:February 12, 1998
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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136 F.3d 1055 (6th Cir. 1998)

Officer Melissa KALLSTROM, et al., Plaintiffs-Appellants,


CITY OF COLUMBUS, Defendant-Appellee.

No. 96-3853.

United States Court of Appeals, Sixth Circuit

February 12, 1998

Argued Aug. 5, 1997.

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Kirk L. Somers (briefed), Daniel F. Marinik, Marshall & Melhorn, Toledo, OH, Richard M. Kerger (argued), Kerger & Kerger, Toledo, OH, for Melissa Kallstrom.

Kirk L. Somers (briefed), Daniel F. Marinik, Marshall & Melhorn, Toledo, OH, Richard M. Kerger, Kerger & Kerger, Toledo, OH, for Thomas Coelho.

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Kirk L. Somers, Daniel F. Marinik, Marshall & Melhorn, Toledo, OH, Richard M. Kerger, Kerger & Kerger, Toledo, OH, for Gary Householder.

Glenn B. Redick (argued and briefed), Columbus City Attorney's Office, Civil Division, Columbus, OH, for City of Columbus.

Before: KRUPANSKY, SILER, and MOORE, Circuit Judges.


MOORE, Circuit Judge.

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.


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

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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.


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).

  1. 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 expressly 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).

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    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...

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