A public employee’s right to privacy was analyzed in some detail by the Pennsylvania Supreme Court in a decision entered October 18, 2016. Pa. State Educ. Ass’n v. Commonwealth. See 41 IER Cases 1310 (Pa. 2016). The Court considered the history of that state’s Right to Know Law (RTKL) as well as federal and state constitutional protections. The court’s deep dig into the privacy issues extends back to 1890 and a regularly cited law review article, Samuel D. Warren and Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890). There, Warren and Brandeis stated that all citizens have the “right to immunity of the person,” the “right to be let alone,” and the “right to one’s personality.” Sometimes referred to as the “right of informational privacy,” the Pennsylvania Supreme Court applied such a right to the home addresses of public school employees. Although the Court struggled with the argument that the RTKL changed the analysis, a majority of the Court determined that the constitutional right to privacy must be considered in any balancing of claims for public records disclosure under the RTKL. As to employee’s home addresses, the Court found no basis to overcome the constitutionally protected privacy interest.

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The Montana Supreme Court recently ruled that public employees have a reasonable expectation of privacy in their identity with respect to internal disciplinary matters, provided that the employee is not in a position of public trust and the misconduct resulting in discipline is not a violation of a duty requiring a high level of public trust. In Billings Gazette v. City of Billings, 313 P.3d 129 (Mont. 2013), the city rejected the local newspaper’s request for the identification of certain city employees who had been disciplined for accessing pornographic materials on city computers during work hours. The city provided the Gazette with materials that were responsive to its request, such as internal investigation documents and information regarding the specific discipline imposed, but it redacted the employees’ identifying information.

The Gazette sued to compel disclosure and argued that “unauthorized computer usage by disciplined [c]ity employees was subject to release under the ‘right to know’ provision of [the Montana Constitution] . . . and that any privacy interest the disciplined employees may have in the information being requested did not clearly exceed the public’s right to know.” After in camera inspection, the district court agreed and ordered the city to disclose the investigative materials, with redactions only for uninvolved third parties.

Continue Reading Montana Supreme Court Upholds Public Employees’ Right to Privacy in Employee Discipline Public Records Case