Infringement of Fundamental Right to Privacy: U.S. Government Employeess Right to Privacy Regarding the Record Release of Unsubstantiated Allegations of Misconduct

Abstract

The issue at hand is whether U.S. government employees’ fundamental right to privacy protects a record of an unsubstantiated allegation of misconduct from being released through the Public Records Act (PRA). A narrower version of this question has been brought before the Court several times, but not completely answered. In 2008, the Court reasoned that because the public records request was broad and included many government employees, redacting the names would provide sufficient privacy. The Court held that “[t]he teachers' identities are clearly “personal information” because they relate to particular people.” However, in practice that meant that the report was still released, only with all of the names redacted. The Court’s holding side stepped the issue of constitutional privacy rights that the teachers raised. Next, in 2011, the Court held that “[u]nder the PRA, [the government employee, a police officer] maintains his right to privacy in his identity, regardless of the media coverage of this unsubstantiated allegation. An agency should look to the contents of the document, and not the knowledge of third parties when deciding if the subject of a report has a right to privacy in their identity.” Again, in practice this meant that the report was still released, but that the officer’s name was redacted. The question of a fundamental right to privacy was not raised. Finally, in 2015, in Predisik v. Spokane Sch. Dist., the Court found that the records of unsubstantiated allegations of misconduct by government employees did not implicate a privacy interest and were not subject to the personal information exemption. However, the Court did state that “[a]gencies and courts must review each responsive record and discern from its four corners whether the record discloses factual allegations that are truly of a private nature, using the Restatement as a guide.” Even after the above three landmark cases on this issue, there is still an open question regarding privacy as a fundamental right and how that should affect the release of unsubstantiated allegations of government employee misconduct.The following four sections are covered below: First, the definition of a record for purposes of the PRA. Second, the federal and state constitutional right to privacy and related analysis. Third, the applicable exemptions within the PRA. Fourth, and finally, a closing argument calling for privacy as a fundamental right, resulting in records of unsubstantiated allegations of government employee misconduct being withheld from release through the PRA.