Chapter 14 - § 14.2 • CONSTITUTIONAL PRIVACY INTERESTS

• Jurisdiction: Colorado

§ 14.2 • CONSTITUTIONAL PRIVACY INTERESTS¹

§ 14.2.1—Interests Protected By The Constitutional Right Of Privacy

While the U.S. Constitution does not explicitly establish a right of privacy, the U.S. Supreme Court has recognized for many decades that a constitutional right of personal privacy does, in fact, exist. See, e.g., Roe v. Wade, 410 U.S. 113 (1973); Union Pacific RR Co. v. Botsford, 141 U.S. 250 (1891); Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992); Lawrence v. Texas, 539 U.S. 558 (2003). As the Court noted in Roe, "the roots of the right of privacy have been found in the First Amendment, Stanley v. George, 394 U.S. 557, 564 (1969); in the Fourth and Fifth Amendments, Terry v. Ohio, 392 U.S. 1, 8-9 (1968); in the penumbras of the Bill of Rights, Griswold v. Connecticut, 381 U.S. 479, 484-85 (1965); . . . or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment, see Meyer v. Nebraska, 262 U.S. 390, 399 (1923)." 410 U.S. at 152 (some citations omitted).

The late Professor Philip B. Kurland of the University of Chicago Law School described the interests protected by the right of privacy as follows:

The concept of a constitutional right of privacy still remains largely undefined. There are at least three facets that have been partially revealed, but their form and shape remain to be fully ascertained. The first is the right of the individual to be free in his private affairs from governmental surveillance and intrusion. The second is the right of an individual not to have his private affairs made public by the government. The third is the right of an individual to be free in action, thought, experience, and belief from governmental compulsion.

Whalen v. Roe, 429 U.S. 589, 599 n. 24 (1977) (quoting "The Private I," University of Chicago Magazine 7, 8 (Autumn 1976)). In Whalen, the U.S. Supreme Court acknowledged Professor Kurland's categories and stated that "the first of the facets which he describes is directly protected by the Fourth Amendment; the second and third correspond to the two kinds of interests referred to in the text [i.e., informational privacy]." 429 U.S. at 599 n. 24.

§ 14.2.2—Substantive Due Process

The federal constitutional right to privacy is protected by the due process clause of the Fourteenth Amendment. See, e.g., Roe, 410 U.S. at 152. As will be seen, claims for violation of the right of privacy are therefore analyzed as claims for violation of substantive due process.

While it did not arise in the employment context, the leading U.S. Supreme Court precedent regarding the privacy right typically implicated by the employment relationship is Whalen v. Roe. In Whalen, the Court considered the constitutionality of New York's policy of maintaining a centralized computer file of the names of persons who had obtained dangerous prescription drugs. In analyzing the constitutionality of that statute, the Court noted:

The cases sometimes characterized as protecting "privacy" have in fact involved at least two different kinds of interests. One is the individual interest in avoiding disclosure of personal matters, and another is the interest in independence in making certain kinds of important decisions.

Id. at 598-600.

It is the first type of privacy interest, the individual interest in avoiding disclosure of personal matters, that most frequently arises in employment situations. Depending on context, this privacy right is variously referred to as "informational privacy" or "the right to confidentiality."

While the Whalen Court acknowledged the notion of informational privacy, it did not expressly hold that such an interest was protected by the Constitution. In that case, the Court held that "the New York program did not, on its face, pose a sufficiently grievous threat to" any protected privacy interest so as "to establish a constitutional violation." Id. at 600. It so held because New York's system furthered the legitimate public interest in reducing prescription drug abuse and because it went to great lengths to maintain the privacy of the prescription drug information at issue. Id. at 598-600. With respect to whether such a right could ever be found in the Constitution, the Court stated:

[The constitutional right to the privacy of personal information] arguably has its roots in the Constitution. . . . We . . . need not, and do not, decide any question which might be presented by the unwarranted disclosure of accumulated private data. . . . We simply hold that this record does not establish an invasion of any right or liberty protected by the Fourteenth Amendment.

Id. at 605-06 (emphasis added).

The Court was equally equivocal regarding informational privacy in deciding Nixon v. Administrator of General Services, 433 U.S. 425 (1977). In that case, former President Nixon challenged a statute that required disclosure of documents and tape recordings kept during his presidency. Id. at 430. With respect to the right of privacy, the Court would do no more than state, "We may agree with appellant that, at least when Government intervention is as stake, public officials, including the President, are not wholly without constitutionally protected privacy rights in matters of personal life unrelated to any acts done by them in their public capacity." Id. at 457 (emphasis added). The Court then held that, even assuming that President Nixon had a legitimate expectation of privacy in the materials, the public interest in preserving the documents was sufficiently important to uphold the act. Id. at 458.

More recently, in United States Department of Justice v. Reporters Committee For Freedom of the Press, 489 U.S. 749 (1989), the Court stated that it has "recognized the privacy interest in keeping personal facts away from the public eye." Id. at 769. However, that discussion was mere dicta. Id.

Because of the uncertainty of these decisions, some courts have expressed skepticism as to whether the Constitution contains a right of privacy in the non-disclosure of personal information. See, e.g., Am. Fed. of Gov't Employees, AFL-CIO v. Dep't ofHousing & Urban Dev., 118 F.3d 786, 793 (D.C. Cir. 1997); Doe v. Wigginton, 21 F.3d 733, 740 (6th Cir. 1994). Nonetheless, despite this uncertainty, both the Colorado Supreme Court and Tenth Circuit have not hesitated to recognize the right to informational privacy or confidentiality.

In this area, the leading case under Colorado law is Martinelli v. District Court, 612 P.2d 1083 (Colo. 1980). In Martinelli, the defendants in an action arising from alleged police misconduct resisted the discovery of relevant personnel files and Staff Investigation Bureau (SIB) reports on the ground that such production would contravene their constitutional right of privacy. Id. at 1086. In assessing the defendants' position, the court noted that such claims are brought pursuant to the due process clause of the Constitution and cited Whalen for the proposition that the right to privacy protects "the individual interest in disclosure of personal matters." Id. at 1091 (citing Whalen, 429 U.S. at 599). Accepting that the Constitution created such a right, the court then referred to the right as the "right to confidentiality." Id.

After recognizing this Constitutional right, the court adopted a three-prong test for determining whether the right of confidentiality prevents disclosure of personal materials or information. To justify such disclosure, the court must analyze the following:

(1) does the party seeking to come within the protection of right to confidentiality have a legitimate expectation that the materials or information will not be disclosed?
(2) is disclosure nonetheless required to serve a compelling State interest?
(3) if so, will the necessary disclosure occur in that manner which is least intrusive with respect to the right of confidentiality?

Id. at 1091.

With respect to whether the party asserting the right of privacy has a legitimate expectation of privacy, the court noted that the claimant "must show that he or she has 'an actual or subjective expectation that the information . . . not be disclosed,' as, for example, by showing that he or she divulged the information to the state pursuant to an understanding that it would be held in confidence or that the state would disclose the information for stated purposes only." Id. (quoting Byron, Harless, Schaffer, Reid & Associates, Inc. v. State ex rel. Schellenberg, 360 So.2d 83, 92 (Fla. Dist. Ct. App. 1978)). Having established such an expectation, the plaintiff must also demonstrate that the material or information for which protection is sought is "highly personal and sensitive" and that "its disclosure would be offensive and objectionable to a reasonable person of ordinary sensibilities." Id.

The court then adopted a "descending order of sensitivity and constitutional interests" for such personal and sensitive information. Id. at 1092. According to the court, at the top of that ranking are materials and information that reflect "intimate relationships." Id. Below the highest ranking, "the progressively lower tiers would include . . . beliefs and self-insights; his personal habits; routine autobiographical material; and finally, his name, address, marital status, and present employment, which together may constitute his irreducible identity to anyone who has reason to acknowledge his existence." Id. (quoting Schellenberg, 360 So.2d at 95). Of course, it is much less likely that information in the lower tiers of the ranking will be protected by the right of confidentiality. Id.

With respect to the third prong regarding least intrusive means, the court noted that "[d]isclo-sure must only be made in a manner, consistent with the State interest to be served, which will intrude least on the claimant's right to confidentiality." Id. (citing Schellenberg, 360 So.2d at 96). In that regard, the court recommended the issuance of a protective order under C.R.C.P...