Pennsylvania Supreme Court: Public School Employees Have Constitutional Right to Privacy in Their Home Addresses

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.

A concurring opinion was critical of the Court’s application of the rules of statutory construction. The concurring opinion would hold that the matter was controlled by the constitutional right to privacy and that the RTKL had no application. In discussing United States Supreme Court authority, the concurrence stated that “it may well be true that home addresses are publicly available through easily accessible sources. . . . However, '[a]n individual’s interest in controlling the dissemination of information regarding personal matters does not dissolve simply because that information may be available to the public in some form.’” Citing Dep’t of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749 (1989), and Dep’t of Defense v. Federal Labor Relations Auth., 510 U.S. 487 (1994).

In 1987, the Washington Legislature amended the state’s Public Records Act (PRA) to define an invasion of privacy:

A person's “right to privacy,” “right of privacy,” “privacy,” or “personal privacy,” as these terms are used in this chapter, is invaded or violated only if disclosure of information about the person: (1) Would be highly offensive to a reasonable person, and (2) is not of legitimate concern to the public. The provisions of [the PRA] dealing with the right to privacy in certain public records do not create any right of privacy beyond those rights that are specified in this chapter as express exemptions from the public's right to inspect, examine, or copy public records.

RCW 42.56.050. Personal residential addresses of public employees (and their dependents) are considered private and not subject to disclosure under RCW 42.56.250(3). See Public Records Act for Washington Cities, Counties, and Special Purpose Districts (MRSC, 2016), available at http://mrsc.org/Home/Publications.aspx.

Montana Supreme Court Upholds Public Employees' Right to Privacy in Employee Discipline Public Records Case

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.

Upon direct review, the Montana Supreme Court resolved the competing state constitutional interests of the city employees’ right to privacy and the Gazette’s right to know by considering (1) whether the employees had a subjective or actual expectation of privacy, and (2) whether society was willing to recognize that expectation as reasonable. The court explained that not all public employees possess the same level of privacy in disciplinary matters: in circumstances where the status of a public employee requires a high level of public trust (e.g., elected officials or police officers), the expectation of privacy may be significantly lower than for an administrative employee; likewise, an administrative employee may have a lower expectation of privacy in behavior related to a duty of public trust (e.g., spending public money or teaching children). Accordingly, when a public employee has a lower expectation of privacy the burden of the party seeking disclosure is correspondingly reduced.

Here, the city employees were not elected officials, upper management, or department heads, nor was there any indication their misconduct violated any duty or public trust. While the employees had access to government computers and received their wages from tax dollars, the court stated that granting access to a computer does not demonstrate a public trust. Moreover, a public employee’s violation of office policy does not in turn violate a public trust simply because tax dollars pay the employee’s salary. On the facts presented, the court held that the city employees had an actual or subjective expectation of privacy in their identities that society would recognize as reasonable. Also, because the Gazette had already received relevant information related to the misconduct, investigation, and punishment of the city employees, any benefit of disclosing their identities was negligible at best. If the public was not satisfied with the punishment, it had all the information it needed to voice an opinion.

The dissent argued that even if the city employees had some expectation of privacy, society would not recognize that expectation as reasonable because the employees sought out and enjoyed pornographic material on city computers during work hours with full knowledge of the city’s Internet use policy. Part of this policy specified that employee computer usage was not anonymous and that the city could monitor individual accounts. The dissent further maintained that it was absurd to deem the city employees’ expectation of privacy as reasonable because in many cases the employees breached a security device in order to access the pornographic material, thus exposing the city’s computer network to damage from malware and viruses.