Kallstrom v. City of Columbus

• Citation: 165 F.Supp.2d 686
• Decision Date: 27 September 2001
• Docket Number: No. C-2-96-124.,C-2-96-124.
• Parties: Melissa KALLSTROM, et al., Plaintiffs, v. CITY OF COLUMBUS, Defendant.
• Court: United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio

165 F.Supp.2d 686

Melissa KALLSTROM, et al., Plaintiffs, v. CITY OF COLUMBUS, Defendant.

No. C-2-96-124.

United States District Court, S.D. Ohio, Eastern Division.

September 27, 2001.

COPYRIGHT MATERIAL OMITTED

Richard M. Kerger, Kerger & Kerger, Toledo, OH, for Plaintiffs.

David Marburger, Baker & Hostetler, Cleveland, OH, for Intervenor-Plaintiffs.

Patricia A. Delaney, Glenn Brooks Redick, Columbus City Attorney's Office, Columbus, OH, for Defendant.

OPINION, ORDER, AND ISSUANCE OF LIMITED PERMANENT INJUNCTION

GEORGE C. SMITH, District Judge.

I. INTRODUCTION

"Our liberty depends on the freedom of the press, and that cannot be limited without being lost."

— Thomas Jefferson, 1786

In this case, the Court is being asked to limit the freedom of the press by preventing the news media from obtaining public information contained in the city's personnel files. City police officers fear its publication may endanger themselves and their families.

To deny members of the press access to public information solely because they have the ability to disseminate it would silence the most important critics of governmental activity. This not only violates the Constitution, but eliminates the very protections the Founders envisioned a free press would provide.

Plaintiffs, who are three Columbus police officers ("Officers"), filed suit against defendant City of Columbus ("City") seeking compensatory damages under 42 U.S.C. §§ 1983 and 1988 and an injunction to prevent further dissemination of their personal information. Specifically, plaintiffs claim defendant violated their rights to privacy as guaranteed by the Due Process Clause of the Fourteenth Amendment by making their personnel records available to a criminal defense attorney pursuant to the Ohio Public Records Act, Ohio Rev.Code § 149.43.¹ In October 1998, intervenors, a group of ten Ohio news organizations, joined the lawsuit without opposition after the City, citing the Sixth Circuit decision in this case, denied their request to see plaintiffs' personnel files.²

These matters are before the Court on, among other motions, intervenors' motion for summary judgment in their declaratory judgment action and defendant's motion for summary judgment on plaintiffs' § 1983 claim. For the reasons set forth herein, the Court grants intervenors' motion for summary judgment on grounds one and two of their declaratory judgment action, denies intervenors' motion for summary judgment on ground three of their declaratory judgment action, and grants defendant's motion for summary judgment as to plaintiffs' § 1983 claim.

II. FACTS

A. The Original Proceeding Before This Court

Plaintiffs Melissa Kallstrom, Thomas Coelho, and Gary Householder are undercover officers in the narcotics division of the Columbus Police Department. All three officers were involved in a federal investigation of the Short North Posse ("Posse"), a violent gang in the Short North area of Columbus. The undersigned Judge presided over the criminal prosecution of forty-one members of the Short North Posse on drug conspiracy charges. United States v. Derrick Russell, et al., CR-2-95-44 (S.D.Ohio) (Smith, J.). Beginning in September 1995, eight alleged Posse members were tried before a jury in this Court. All three plaintiffs served as prosecution witnesses during the trial, which resulted in seven convictions and one acquittal.

During the Russell trial, the City released Officer Kallstrom's personnel file to one of the defendant's lawyers, who apparently allowed at least one of the Posse defendants to read it in the courtroom. Officers Coelho and Householder suspect copies of their personnel files were obtained by the same defense attorney. Following a request in the fall of 1995, the City also released Officer Coelho's file to the Police Officers for Equal Rights.³ The organization was investigating possible discriminatory hiring and promotion practices by the City. Plaintiffs allege the files included 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 account information, including account balances; their social security numbers; responses to questions regarding their personal lives asked during the course of polygraph examinations; and, copies of their drivers' licenses, which included the Officers' pictures and home addresses. Plaintiffs contend they feared for their safety and the well-being of their families knowing that Posse members might have access to this information.

Plaintiffs brought suit against the City under 42 U.S.C. §§ 1983 and 1988 seeking compensatory damages and an injunction to prevent further dissemination of their personal information. After initially entering a temporary restraining order, this Court denied plaintiffs' motion for a preliminary injunction and entered final judgment for the City. The Court based its decision on a clear and unbroken line of Sixth Circuit decisions that steadfastly refused to recognize a general constitutionally protected right to privacy that would prevent the government from releasing personal information about an individual.⁴ Plaintiffs then appealed the Court's decision to the Sixth Circuit.

B. Sixth Circuit Appeal

On February 12, 1998, a three-judge panel reversed the decision of this Court and remanded the case for further proceedings. See Kallstrom v. City of Columbus, 136 F.3d 1055 (6th Cir.1998). Establishing new law for the Sixth Circuit⁵, the panel held the Officers had a constitutionally protected privacy right in the information contained in their personnel files, "specifically their interest in preserving their lives and the lives of their family members, as well as preserving their personal security and bodily integrity." Id. at 1062. The court found "where the release of private information places an individual at substantial risk of serious bodily harm, possibly even death," the government act is subject to strict scrutiny and will be upheld under the substantive due process component of the Fourteenth Amendment only where it furthers a compelling state interest and is narrowly drawn to further that interest. Id. at 1064. The court then balanced the interests of the Officers against those of the City. It found the City did not establish that its actions narrowly served a compelling state interest and, therefore, disclosure of the information unconstitutionally denied the Officers their fundamental rights to privacy and personal security. Id. at 1065.

The Sixth Circuit also held that procedural due process requires the Officers receive notice and an opportunity to be heard prior to the release of personal information "where the disclosure of the requested information could potentially threaten the officers' and their families' personal security." Id. at 1069.

C. Proceedings Before This Court on Remand

Following the Sixth Circuit's ruling, intervenors requested portions of plaintiffs' personnel records from the City pursuant to Ohio's public records laws. The City refused to provide any of the requested records, citing the Sixth Circuit opinion in this case and because, as members of the press, the intervenors have "substantial capacity ... to disseminate" identifying information in the plaintiffs' records to "wide and diverse audiences, including Short North Posse members or other dangerous persons who have the motive and capabilities to harm the officers or their families." Intervenor Compl. (Doc. 26) at ¶ 17; Defendant Answer (Doc. 28) at ¶ 2. The news organizations then intervened in this lawsuit without opposition.

Intervenors filed their motion for summary judgment on July 28, 2000. Plaintiffs made no effort to respond and did not file for an extension.⁶ Thus, on September 12, 2000, this Court granted intervenors' unopposed motion for summary judgment. More than a month after intervenors' motion was granted, plaintiffs sought leave to file a response to intervenors' motion for summary judgment. Due to plaintiffs' counsel's difficult personal circumstances, this Court granted plaintiffs' motion to file a responsive memorandum. Defendant then filed for summary judgment on January 2, 2001, adopting many of intervenors' positions.

These issues are now before the Court. First, plaintiffs move to dismiss intervenors' claims as moot following recent actions by the Ohio Supreme Court and the Ohio General Assembly. Second, intervenors seek to strike portions of plaintiffs' response to intervenors' motion for summary judgment as hearsay. Third, intervenors move for summary judgment seeking declarations that (1) the Sixth Circuit decision in this case does not prohibit the City from complying with the news organizations' request; (2) the First Amendment prohibits the City from denying a public records request from a member of the press due to the press' ability to disseminate the information; and, (3) the constitutional right of privacy as articulated by the Sixth Circuit does not exist. Finally, defendant moves for summary judgment on plaintiffs' § 1983 claim.

III. DISCUSSION

A. Plaintiffs' Motion to Dismiss Intervenors' Claims as Moot

Plaintiffs argue intervenors' claims should be dismissed as moot following recent actions by the Ohio Supreme Court and the Ohio General Assembly. A case is moot if the requested relief has been granted or no live controversy remains. See Deakins v. Monaghan, 484 U.S. 193, 199, 108 S.Ct. 523, 98 L.Ed.2d 529 (1988); Great W. Sugar v. Nelson, 442 U.S. 92, 93, 99 S.Ct. 2149, 60 L.Ed.2d 735 (1979). Specifically, plaintiffs contend that the Ohio Supreme Court's decision in State ex. rel. Keller v. Cox, 85 Ohio St.3d 279, 707 N.E.2d 931 (1999), prevents intervenors from inspecting plaintiffs' personnel records under Ohio's Public Records Act, Ohio Rev.Code § 149.43. They also argue the General Assembly's amendment of the public records laws to limit...