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33 Comm. Law. 1 (2017-2018)
The Myth of Police Office Privacy

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                Publication of the Forum
                oCommunications Law
                American Bar Association
       Volume 33, Number 1 Summer 2017

The Myth of Police Officer Privacy

In this issue


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

The  Supreme Court Ends
Its Term  With  Two   Broad
First Amendment

Prosecution of Journalists
Under   the Espionage Act?
Not  So  Fast...........................24

Overclassification Meets
the  Constitutional
Access   Right.....................30

  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 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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