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33 Comm. Law. 1 (2017-2018)

handle is hein.journals/comlaw33 and id is 1 raw text is: ommuniccihons Publication of the Forum oCommunications Law American Bar Association Volume 33, Number 1 Summer 2017 The Myth of Police Officer Privacy In this issue COVER STORY The Myth of Police Officer Privacy ..................................1 Chair's Column ................. 2 Courts Split on Whether ADA Applies to Websites, as Litigation Continues to Rise ................................13 The Long Arm of the European Privacy Regulator: Does the New EU GDPR Reach U.S. Media Companies?........................16 COURTSIDE: The Supreme Court Ends Its Term With Two Broad First Amendment Rulings..................................22 Prosecution of Journalists Under the Espionage Act? Not So Fast...........................24 Overclassification Meets the Constitutional Access Right.....................30 STEVE ZANSBERG AND DANA GREEN Upon careful review, we have deter- mined that disclosure of the files you have requested -- the police depart- ment's internal affairs investigation into former officer Smith's conduct (which resulted in his placement on administrative leave, prior to his resignation) -- would constitute an unwarranted invasion of officer Smith's privacy. Accordingly, we hereby deny your request to inspect those records. he statement above is not the denial of an actual request to 7Ihie Ntaevertheless, ist ilhe inspect a police internal affairs file. Nevertheless, it will be familiar to many of you as the type of denial that police departments, across the land, issue with regularity.' Officer privacy has also been cited as a potential basis for withholding footage shot on police body-worn cameras.2 This purport- ed officer's right to privacy has even been invoked as the basis for preventing ordinary citizens and journalists from photographing or videotaping an officer in discharging his or her official duties.3 While some states have explicit statutory provisions mandating the public availability of completed police internal investigation files,4 several states either categorically close all such records to the public,5 or they allow records custodians varying degrees of discretion.6 And, as the hypothetical denial above demonstrates, police chiefs and sheriffs regularly (though not uni- formly) cite officers' right to privacy Steve Zansberg is a partner at Levine Sullivan Koch & Schulz LLP in Denver, Colorado and past Chair of the ABA Forum on Communications Law. Dana Green is an associate at Levine Sullivan Koch & Schulz LLP in Washington, D. C. as their reason for withholding police internal investigation files, even when those records reflect the officer's official conduct performed on a public street, sidewalk, or park. So, is there any legitimacy to this claim? Unfortunately, the argument has had some traction, with some courts giving deference to police de- partments' (and police unions') asser- tions of officer privacy. This article argues that those outlier decisions are erroneous as a matter of law. This arti- cle examines the claim of officer priva- cy as it has been raised in a variety of related contexts: state and federal open records laws, officers' claims of civil rights violations following the uncon- sented-to governmental release of such information, and common-law invasion of privacy claims. Although these are distinct areas of law, each with its own doctrinal foundations, we believe that a fair and objective review of the case law leads to one inescapable conclusion: law enforcement officers do NOT have a reasonable expectation of privacy with respect to records memorializing or dis- cussing their official conduct, while on duty. Thus, it is time to lay the myth of police officer privacy to rest, once and for all. STATE AND FEDERAL FOI LAWS State and federal freedom of infor- mation (FOI) laws routinely contain exemptions from the right of public access for records where disclosure would constitute an unwarranted invasion of personal privacy (or words to that effect).' Often, these are general exemptions, not restricted to police or public employee records, that apply to any records containing personal (Continued on page 5) 0 Communications Lawyer 0 Summer 2017 1

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