Sheriff’s Talk Radio Comments Do Not Violate Right To Privacy Statute

David Clarke is the Sheriff of Milwaukee County, Wisconsin. A lawsuit against Clarke arose from a pair of on-air phone calls to a popular Milwaukee, Wisconsin radio show, one from Deputy David Hutchins and the other from Clarke. On May 17, 2007, a discussion regarding Clarke’s avoidance of certain African-American groups took place on the “Eric Von Show,” a listener-interactive radio show which is broadcasted on WMCS AM 1290. On that day, Hutchins, a routine listener and caller, called the show in response to the critical comments regarding Clarke’s involvement with an African-American community organization dedicated to reducing crime. Hutchins was likewise critical of Clarke, stating words to the effect that Clarke was not a good fit for the Milwaukee County Sheriff position. In response to Hutchins’ comments, Clarke called the Eric Von Show and retorted by calling Hutchins a “slacker” who did not deserve to be an employee of the Sheriff’s Department. Clarke expressed the view that Hutchins was bitter and carried a grudge against him because of a disciplinary action taken in 2004 by him against Hutchins. Clarke identified this disciplinary action on air as a step taken as a result of Hutchins’ “sexual harassment” of another employee. In actuality, the disciplinary action was for Hutchins’ violation of a Department rule that prohibited offensive conduct or language toward the public or toward County officers or employees.

Hutchins sued Clarke, alleging (among other things) that Clarke’s comments violated Wisconsin’s Right to Privacy Statute. The federal Seventh Circuit Court of Appeals disagreed, and rejected Hutchins’ claims.

The Right to Privacy statute defines “invasion of privacy” as “publicity given to a matter concerning the private life of another, of a kind highly offensive to a reasonable person, if the defendant has acted either unreasonably or recklessly as to whether there was a legitimate public interest in the matter involved, or with actual knowledge that none existed. It is not an invasion of privacy to communicate any information available to the public as a matter of public record.”

The Court found that the statute provided no protection for Hutchins because Clarke’s comments concerning the disciplinary action concerned “information available to the public as a matter of public record.” As the Court analyzed it, “the public interest in disclosure of this information is not outweighed by the public interest in maintaining it as a closed record. Many of the factors that favor nondisclosure of police officers’ personnel files are not present in Hutchins’ case. Nevertheless, some factors favoring non-disclosure do apply. For example, the release of Hutchins’ disciplinary file could jeopardize the personal privacy of the employee who made the complaint about his offensive conduct.”

“The public policies favoring disclosure include (1) the intent of Wisconsin’s Open Records Law states that the denial of public access generally is contrary to the public interest, and only in an exceptional case may access be denied, (2) the public has a particularly strong interest in being informed about its public officials, especially in the case of law enforcement officers, and (3) the public has entrusted its police officers to protect the community from any wrongdoings, and the misconduct for which Hutchins’ was disciplined occurred in the location where the public has entrusted the employees to work and during the performance of their public duties, and therefore should be more subject to public scrutiny.”

“In addition to these factors, there are additional relevant facts favoring disclosure in this case. Whether the County Sheriff is performing his job in a satisfactory manner is particularly relevant to the public interest. Criticism of the sheriff’s performance, especially from an individual who freely identified himself on air as a deputy within the Sheriff’s Department, gives the public a heightened interest in the origin and motives behind that criticism.”

Though the Court ultimately rejected Hutchins’ lawsuit, it was clearly less than thrilled with Clarke’s actions: “We note that it is problematic when a government employer openly discusses his employees’ disciplinary files, and Wisconsin’s Right of Privacy statute remains a viable form of relief. However, in this case, after applying the common-law balancing test to Hutchins’ disciplinary file, we conclude that there is no genuine public interest in keeping the record closed to the public. Hutchins’ claim under Wisconsin’s Right of Privacy statute fails.”

Hutchins v. Clarke, 2011 WL 5027236 (7thCir. 2011).

The article appears in our January 2012 issue.