Publication Of DOB, Height, Weight, Eye And Hair Color Violates Officers’ Rights

Twenty-one-year-old David Koschman died after an April 25, 2004 altercation with R.J. Vanecko, a nephew of Richard M. Daley, then-Mayor of Chicago. Given Vanecko’s political connections, the subsequent Chicago Police Department investigation was highly publicized. Several weeks after the incident, the Department placed Vanecko in an eyewitness lineup, in which five Chicago police officers participated as “fillers.” The officers closely resembled Vanecko in age, height, build, and complexion. When…

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No Privacy Claim For Officer Whose Disciplinary Records Were Released To Press

Donald J. Huston is a police officer employed by the Meriden, Connecticut Police Department. In April 2011, the City released information from Huston’s personnel file to the press during an interview with reporters of the local newspaper. Among the items released was a letter of reprimand Huston received in 2007. Huston alleged that the letter should have been removed from the personnel file after two years, but never was….

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No Privacy Claim For Officer Whose Disciplinary Records Were Released To Press

Donald J. Huston is a police officer employed by the Meriden, Connecticut Police Department. In April 2011, the City released information from Huston’s personnel file to the press during an interview with reporters of the local newspaper. Among the items released was a letter of reprimand Huston received in 2007. Huston alleged that the letter should have been removed from the personnel file after two years, but never was….

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Mixed Bag On Disclosure Of Retiree Home Addresses

Kenneth Fultz submitted a request to the Pennsylvania State Employees’ Retirement System for the names and home addresses of retired law enforcement officers or judges, the names and addresses of individuals residing with the retirees, and the names and addresses of the beneficiaries of non-law enforcement retirees who were over the age of 60. In addition, Fultz specifically asked for the first names of law enforcement retirees. The System…

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Are Personal Cell Phone Records Public Documents?

Glenda Nissen is a detective with the Pierce County, Washington Sheriff’s Department. Mark Lindquist is the elected Pierce County Prosecutor. Lindquist has a County-provided cellular phone, which he rarely uses, apparently preferring instead to use his personal cellular phone to conduct government business. When Nissen sued the County on a whistleblower claim, the County produced (1) records showing that Lindquist generally used his County-provided cellular phone less than ten…

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Surveillance Does Not Violate Deputy’s Privacy Rights

David Brock was a deputy with the Douglas County, Nebraska Sheriff’s Department. In 2007, Brock sustained injuries to his neck and shoulder when struggling with a suspect while on duty. Brock filed a claim for workers’ compensation benefits. As early as May 2007, the County hired private investigators to periodically place Brock under surveillance and to report on Brock’s physical abilities. By February 13, 2009, Brock was released by…

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Public Records Law Does Not Protect Names Of Officers Involved In Shootings

In 2010, the Los Angeles Times asked the City of Long Beach to produce the names of Long Beach police officers involved in officer-involved shootings from January 1, 2005 to December 11, 2010. The Long Beach Police Officers Association, the bargaining agent for all Long Beach police officers, immediately sought an injunction to prevent the release of the names. When a trial court issued a temporary restraining order prohibiting…

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Cell Phone Searches After The Supreme Court’s Riley Decision

Some employers have had a practice of ordering employees to produce personal cell phones during an internal affairs investigation. Often, this occurs in the course of an investigation into off-duty conduct, and may or may not include misconduct allegations pertaining directly to the employee’s phone. The Supreme Court’s June 2014 decision in Riley v. California will likely greatly change the legal landscape in the area. Riley was a criminal…

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Privacy For Personal Email And Cell Phone Records Of Public Officials

The California Court of Appeals recently issued a significant decision on whether records of communications by public officials on private email and cell phone accounts are considered to be “public records” subject to disclosure. The case involved a citizen named Ted Smith, who requested that the City of San Jose produce “any and all voicemails, emails or text messages sent or received on private electronic devices used by Mayor…

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Medical Privacy Claim Under ADA Requires Proof Of Damages

Cheryl Russell was a dispatcher with the City of Mobile, Alabama Police Department. Russell sued the City, claiming that it engaged in an improper medical inquiry in violation of the Americans with Disabilities Act of 1990. Under the ADA, an employer can only obtain medical information about an employee if it has reasons that are “job related and consistent with business necessity.” An appeals court found that even if…

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Unredacted Emails Sent Through City Email Accounts Given Privacy Protection

“Chief Concerns” is an email account for messages submitted by employees of the Washington, D.C. Police Department to the Chief of Police through the Department’s internal, employees-only intranet. Chief of Police Cathy Lanier created the email account and announced to the Department employees that her office would hold the identities of employees who send email messages to the account in strict confidence, hoping employees would be less reluctant to…

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Employee Can Waive HIPAA Rights

Gary Hopkins was a correctional officer employed by the Connecticut Department of Correction. On April 24, 2008, he went to a medical clinic as a walk-in patient. After an examination by Dr. Kalipatti Balachandran, Hopkins left the clinic with a copy of his “superbill.” A superbill is an itemized form listing various medical services with code numbers that physicians ordinarily submit to insurance companies for reimbursement. The form lists…

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Mandatory Post-Shooting Breathalyzer Testing of NYPD Officers is Legal

The special needs doctrine permits reasonable warrantless, suspicionless searches when there is a governmental interest that outweighs the privacy interest asserted by the person searched. In Skinner v. Railway Execs Association, 489 U.S. 602 (1989), for example, the governmental interest was ensuring that train engineers not operate locomotives while under the influence of intoxicants and that the engineers, knowing testing would occur in the event of any accident, would…

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No ‘High Level Of Privacy’ In Viewing Porn On Work Computer

Like many public records laws, Vermont’s Public Records Act exempts from disclosure “personal records” in which employees may have privacy interests. The limits of the exemption were recently tested in a case involving the Rutland Police Department. The Rutland Herald learned in 2009 that Rutland Police Department computers had been used to view and store pornography. Three employees were involved, referred to as Employees #1, 2, and 3. As…

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Even In ADA Lawsuit, State Not Entitled To See Trooper’s Psychiatric Records

Scott Butler, a trooper with the Louisiana Department of Public Safety and Corrections, sued the State under the Americans With Disabilities Act (ADA). Butler claimed that the State regarded him as disabled in violation of the ADA by requiring him to submit to an excessive psychiatric fitness-for-duty evaluation, denying him overtime opportunities and placing him on involuntary leave. Butler claimed the Department based its decisions on perceived impairments –…

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NY’s Highest Court Approves ‘Reasonable’ GPS Tracking Without Probable Cause In Disciplinary Cases

Michael Cunningham was the Director of Staff and Organizational Development of the New York State Department of Labor. In 2008, the Department began an investigation into Cunningham’s alleged unauthorized absences from duty and the falsification of records to conceal those absences. That investigation led to a disciplinary proceeding that resulted in a two-month suspension; it also led to a second investigation, because, after Cunningham eluded an investigator who was…

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City Has No Right To Request Tax Returns Of Police Officers, Firefighters

The City of Cleveland, Ohio had a residency requirement for its police officers and firefighters. Though a recently-enacted Ohio statute calls that residency requirement into question, for many years the City enforced the residency requirement through its disciplinary system. Ever since the residency requirement has been in effect, the City has directed municipal employees to prove their bona fide residency in Cleveland. As an initial part of the residency…

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Personnel Files Of Other Employees Can Be Redacted, But Not Sealed

Richelle Johnson was a police officer for the City of Baltimore, Maryland. Johnson retired, and then brought a lawsuit against the City, claiming that her retirement was forced, and that the City had violated the Americans With Disabilities Act in its treatment of her. One of Johnson’s claims was that six non-disabled officers had been treated differently than her. When the City filed a motion to dismiss Johnson’s lawsuit,…

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Identity Of Wounded Officers Need Not Be Disclosed To Newspaper

The Iron Horsemen is a nationwide outlaw motorcycle gang that has been based in Cincinnati for about 40 years. The gang deals in drugs, weapons, and prostitution. In the 1980s, threats and tension between the Iron Horsemen and the Cincinnati police were prevalent. One of the members of the Iron Horsemen had created a 12-gauge shotgun within his motorcycle handlebar to threaten police officers. Other members had threatened an…

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Fitness For Duty Evaluations May Not Be Privileged

Oda Poole and Stan North were police officers employed with the Rockford, Illinois Police Department on August 24, 2009 when they fatally shot Mark Barmore. Barmore’s estate sued Poole, North and the City, claiming that Poole and North used excessive force. During depositions, Poole and North refused to answer certain questions about their conversations with mental health professionals based on the psychotherapist-patient privilege. The City also refused to provide…

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Lieutenant’s Thumb Drive Subject To Disclosure

Duane Tompkins was a lieutenant with the Enfield, Connecticut Police Department. Tompkins downloaded certain official departmental forms onto his personal thumb drive for use by one of the officers in the Department’s canine unit. Prior to downloading the forms onto the thumb drive, Tompkins deleted from it all of his personal documents, including the texts of several instant message conversations between himself and other unidentified individuals and other personal…

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Names Of Officers Involved In Shootings Not Protected From

On December 12, 2010, Long Beach police officers shot and killed Douglas Zerby, an intoxicated, unarmed 35-year-old man who was carrying a garden hose nozzle that officers mistook for a gun. Following the shooting, a reporter made a public records act request to the City seeking the names of the officers involved in the shooting. The City notified the Long Beach Police Officers Association of the request. The Association…

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GPS Surveillance In Discipline Cases

The United States Supreme Court recently made headlines with its ruling in United States v. Jones, a criminal case involving the use of a GPS locator on a criminal defendant’s car. The case started in 2004, when Antoine Jones, owner and operator of a nightclub in the District of Columbia, came under suspicion of trafficking in narcotics and was made the target of an investigation by a joint FBI…

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NLRB Offers Additional Guidance on Social Media Issues, Continues To Expand Employee Rights in Social Media Outlets and to Scrutinize Employer Communication Policies

By Doug Hass, Chris Johlie and Amy Zdravecky (Editor’s note: Even though the NLRB does not cover public sector labor organizations, many state labor boards and courts turn to the NLRB’s decisions for guidance on how to interpret state law issues. The NLRB has been extremely active on the topic of an employer’s ability to restrict the off-site use of social media by employees. Because the law in the…

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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….

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