American Civil Liberties Union of Mississippi, Inc. v. State of Miss.

• Decision Date: 14 September 1990
• Docket Number: No. 89-4647,89-4647
• Citation: 911 F.2d 1066
• Parties: 18 Media L. Rep. 1056 AMERICAN CIVIL LIBERTIES UNION OF MISSISSIPPI, INC. et al., Plaintiffs-Appellees, v. STATE OF MISSISSIPPI, et al., Defendants, v. Edwin KING and John Salter, Plaintiffs Subclass Second-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1066

911 F.2d 1066

18 Media L. Rep. 1056

AMERICAN CIVIL LIBERTIES UNION OF MISSISSIPPI, INC. et al., Plaintiffs-Appellees, v. STATE OF MISSISSIPPI, et al., Defendants, v. Edwin KING and John Salter, Plaintiffs Subclass Second-Appellants.

No. 89-4647.

United States Court of Appeals Fifth Circuit.

Sept. 14, 1990.

Dixon L. Pyles, Pyles & Tucker, Jackson, Miss., David B. Goldstein, Eric M. Lieberman, Rabinowitz, Boudin, Standard, Krinsky & Lieberman, P.C., New York City, for plaintiff subclass second-appellants.

Shirley Payne, American Civil Liberties Union, Jackson, Miss., Ronald W. Lewis, Oxford, Miss., for plaintiff-appellees.

Appeal from the United States District Court for the Southern District of Mississippi.

Before THORNBERRY, GEE, and SMITH, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Following the dismantling of the Mississippi State Sovereignty Commission (the "Commission"), a number of individuals and organizations brought suit against various Mississippi state officers, seeking to recover damages and to enjoin any further information-gathering activities of the type that the Commission had once directed against them. Subsequently, the district court divided this group of plaintiffs into two subclasses, one of which is now appealing the court's decision granting complete public disclosure of the information accumulated in the Commission's files.

Appellants, the "privacy plaintiffs," maintain that this complete disclosure senselessly and needlessly violates many individuals' constitutional right not to have the government publicly release sensitive personal information about them. They assert that a complete public release of the information would serve only to amplify the deleterious effects of abusive and unconstitutional governmental behavior by subjecting innocent parties to spurious allegations that, whether true or false, would not have been contained within any governmental files but for unconstitutional invasions of those parties' privacy. Appellees, the "disclosure plaintiffs," argue that a limited disclosure would unconstitutionally deny access to the courts, deprive the public of important information about governmental activities, inhibit the workings of a free press, encourage government censorship, obstruct justice, impede individuals in their efforts to clear their names, and improperly impose federal remedies where state remedies are adequate and available. We vacate and remand.

I.

Because the district court has set forth at length the factual background of this case in its published opinion, American Civil Liberties Union ("ACLU") v. Mabus, 719 F.Supp. 1345 (S.D.Miss.1989), we include only a brief summary of those facts. In 1956 the State of Mississippi enacted laws creating the Commission. By statute, the governor, the lieutenant governor, the attorney general, and the speaker of the state house of representatives served as four of its twelve members. Launched with the ostensibly benign purposes of "protect[ing] the sovereignty of the State of Mississippi ... from encroachment thereon by the Federal Government ... and resist[ing] the usurpation of the rights and powers reserved to this state," the Commission in actuality was the state's secret intelligence arm, committed and devoted to the perpetuation of racial segregation in Mississippi. ¹

In 1977, when the Mississippi legislature finally voted to disband the Commission, it also directed that all the records accumulated by the Commission be destroyed. Before this could be implemented, plaintiffs in this action obtained an order enjoining the destruction of the files. Thereafter, the legislature enacted legislation sealing the files until 2027.

In 1982, after we had vacated the district court's earlier denial of class certification, see ACLU v. Finch, 638 F.2d 1336, 1338, 1340 (5th Cir. Unit A Mar.1981), the district court granted the plaintiffs' request for class certification. In 1986, a consent judgment was entered between the plaintiff class and defendant state actors, settling much of the defendants' liability for damages and enjoining the state from further investigating or harassing individuals or groups based solely upon their exercise of protected first amendment rights.

The declaratory judgment, the disclosure orders, and attorneys' fees were left to the later district court opinion in ACLU v. Mabus [, 719 F.Supp. 1345 (S.D.Miss.1989) ]. This subsequent decision and order, from which the instant appeal arises, holds that Miss.Code Ann. Sec. 39-5-63 violates the United States Constitution. The order enjoins Mississippi from enforcing the statutes that would keep the files accumulated by the Commission under seal until the year 2027 (id. Sec. 39-5-61) and that make it a felony to release information from those files (id. Sec. 39-5-63). On the issue relevant to this appeal, the court ordered that all Commission files be disclosed and accessible to the general public.

II.

The district court found that approximately three fourths of what is contained in the files is newspaper clippings or other material already in public circulation.

The other quarter of the material includes correspondence to employers urging them to fire employees who advocated desegregation, correspondence recommending the denial of commissions as notaries public for applicants who supported civil rights groups, reports of information gathered through warrantless searches on private property, lists distributed to local law enforcement agencies of people suspected of being civil rights leaders or workers, and reports of money spent to support informants, press relations and investigations.

719 F.Supp. at 1350-51. The gathering, compiling, or maintaining of many of these records was in violation of constitutional privacy rights, as many of the above activities were ones in which governments should not properly be engaged. Without deciding specifically which of the files implicate constitutional privacy interests, we consider the proper treatment of those files where a privacy interest is present.

The privacy plaintiffs have not requested, and we do not recommend, that the Commission's files remain entirely inaccessible to the public. We hold today only that on the record before us, complete and unfettered disclosure of the files does not give appropriate protection to the constitutional privacy interests of various persons in not having government-gathered sensitive personal information about them released.

While we review de novo the district court's exposition of the appropriate constitutional standards and rules, we review for abuse of discretion the court's weighing of the right of access to the files against the privacy interests of those named therein. ² Specific factual findings of the district court on the issue are, of course, entitled to review under the clearly erroneous standard.

III.

The Supreme Court has recognized, in certain circumstances, some degree of constitutional protection for individuals from public dissemination of sensitive personal information. See Whalen v. Roe, 429 U.S. 589, 599, 97 S.Ct. 869, 876, 51 L.Ed.2d 64 (1977). ³ We described this privacy right in Ramey v. City of Hedwig Village, 765 F.2d 490, 492 (5th Cir.1985), cert. denied, 474 U.S. 1062, 106 S.Ct. 809, 88 L.Ed.2d 784 (1986):

The constitution protects individuals against invasion of their privacy by the government. The liberty interest in privacy encompasses two notions: The freedom from being required to disclose personal matters to the government and the freedom to make certain kinds of decisions without government interference. The disclosure strand of the privacy interest in turn includes the right to be free from the government disclosing private facts about its citizens and from the government inquiring into matters in which it does not have a legitimate and proper concern. [Emphasis added.]

We echo the district court in stating that the thwarting of constitutional imperatives is not a legitimate and proper concern. The Commission compiled personal information on suspected civil rights activists largely for the purpose of suppressing speech contrary in viewpoint to the beliefs of the Commission and with the primary goal of preventing any encroachment upon Mississippi's segregated educational system despite existing federal court orders declaring its demise. Moreover, some of the information not only was assembled pursuant to an unconstitutional purpose but also included unconstitutional searches and seizures. In fact, the litigants in this action do not contest the district court's finding that much of the information was collected in violation of certain individuals' first, fourth, and fourteenth amendment and constitutional privacy rights.

At issue here is what to do with this collection of information, most of which should never have been gathered. Thus, we consider the extent of the right to be free from the government's disclosing private facts about its citizens. Here, "where the privacy right is invoked to protect confidentiality, a balancing standard is appropriate as opposed to the compelling state interest analysis involved when autonomy of decisionmaking is at issue." Fadjo v. Coon, 633 F.2d at 1176. "An intrusion into the interest in avoiding disclosure of personal information will thus only be upheld when the government demonstrates a legitimate state interest which is found to outweigh the threat to the plaintiff's privacy interest." Id.

In Fadjo, id., we also concluded that the Supreme Court, in Whalen v. Roe and Nixon v. Administrator of Gen. Servs., 433 U.S. 425, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977), found the privacy interest in confidentiality to be extensive. In the case at bar, Commission reports include numerous instances of (often unsubstantiated) allegations of homosexuality, child molestation, illegitimate births, and sexual promiscuity, as well as reports of financial improprieties, drug abuse, and...