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Fraternal Order of Police v. City of Philadelphia

filed: February 17, 1987.

FRATERNAL ORDER OF POLICE, LODGE NO. 5, ROBERT S. HURST, INDIVIDUALLY AS RESIDENT AND TAXPAYER OF THE CITY OF PHILADELPHIA AND IN HIS CAPACITY AS PRESIDENT OF FRATERNAL ORDER OF POLICE, LODGE NO. 5, JOHN DOE, POLICE OFFICER, INDIVIDUALLY AND IN HIS CAPACITY AS A UNIFORMED, SWORN CIVIL SERVICE EMPLOYEE OF THE PHILADELPHIA POLICE DEPARTMENT ASSIGNED TO THE MAJOR INVESTIGATIONS DIVISION, ETHICS AND ACCOUNTABILITY DIVISION AND INTERNATIONAL AFFAIRS DIVISION OF THE PHILADELPHIA POLICE DEPARTMENT, JANE DOE, INDIVIDUALLY AS THE SPOUSE OF POLICE OFFICER, JOHN DOE,
v.
CITY OF PHILADELPHIA, KEVIN M. TUCKER, INDIVIDUALLY AND IN HIS CAPACITY AS POLICE COMMISSIONER PHILADELPHIA POLICE DEPARTMENT, ROBERT MITCHELL, INDIVIDUALLY AND IN HIS CAPACITY AS POLICE INSPECTOR AND COMMANDER, SPECIAL INVESTIGATIONS BUREAU PHILADELPHIA POLICE DEPARTMENT, AND EDWARD MCLAUGHLIN, INDIVIDUALLY AND IN HIS CAPACITY AS POLICE INSPECTOR AND COMMANDER, INTERNAL AFFAIRS DIVISION PHILADELPHIA POLICE DEPARTMENT; CITY OF PHILADELPHIA, KEVIN M. TUCKER, ROBERT MITCHELL AND EDWARD MCLAUGHLIN, APPELLANTS



On Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Civil No. 86-1144.

Author: Sloviter

Opinion OF THE COURT

Before: SLOVITER, STAPLETON, Circuit Judges, and FARNAN, District Judge*fn*

SLOVITER, Circuit Judge.

I.

Issue

The Fraternal Order of Police (FOP) has raised constitutional challenges to a questionnaire promulgated by the Philadelphia Police Department for use in selecting applicants to its Special Investigations Unit (SIU). The district court held that portions of the questionnaire seeking information concerning applicants' medical history, gambling habits and alcohol consumption, and seeking information about applicants' and their families' financial status, organizational memberships, and arrest records violate police officers' federal constitutional rights of privacy and association. The court enjoined the City of Philadelphia from including these items in the questionnaire. The City appeals. Because there are no relevant disputed questions of fact, and the decision hinges on application of constitutional principles, our review is plenary. See Cole v. Flick, 758 F.2d 124, 130 (3d Cir.), cert. denied, 474 U.S. 921, 106 S. Ct. 253, 88 L. Ed. 2d 260 (1985).

II.

Facts

On January 31, 1986, Philadelphia Police Commissioner, Kevin M. Tucker, who was appointed at the beginning of that month, sent all police personnel a teletype announcing the formation of a Special Investigations Unit and advising police personnel interested in volunteering for the unit to contact the Deputy Commissioner. The teletype stated that applicants would be required to submit to a polygraph examination and personal interview before acceptance. App. at 34. Shortly thereafter, the Police Department prepared a document, referred to as the Fact Sheet, containing the procedures and questions to be used in the SIU application process.

The Fact Sheet states that SIU applicants must complete and certify a questionnaire, attached thereto, and must undergo an initial personal interview, a background investigation, a polygraph examination, and a final personal interview. The questionnaire contains thirty-nine questions seeking personal information about the applicant and his or her family. The Fact Sheet states:

All answers to this Questionnaire are considered confidential and will not be disclosed to any agency or unauthorized person, nor will they be made part of any departmental record or used against you in any manner in your future career with the department.

App. at 536. In addition, the Fact Sheet informs applicants that they may withdraw from the application process at will with no effect on their "future career in the Department," and that upon withdrawal, their "questionnaire, and all other related paperwork will be destroyed." App. at 534.

The Fraternal Order of Police, the bargaining representative of Philadelphia police personnel, responded to the teletype by filing a grievance with respect to the required polygraph examination. Subsequently, the FOP also filed a complaint in Philadelphia Common Pleas Court seeking an injunction barring use of the polygraph pending arbitration of the grievance. Following the hearings thereon, the City of Philadelphia and the Philadelphia Police Department agreed to refrain from implementing the polygraph requirement pending an expedited arbitration of the polygraph issue, and the FOP withdrew its request for a preliminary injunction in state court.

Immediately thereafter, the FOP, its president, Robert S. Hurst, and two unnamed individuals filed a complaint in federal district court pursuant to 42 U.S.C. § 1983 challenging, inter alia, certain questions contained in the questionnaire, as well as the polygraph examination, as violative of the police officers' federal constitutional rights of privacy and due process under the Fourth, Fifth, and Fourteenth Amendments and of their right to privacy under the Pennsylvania Constitution. The FOP sought declaratory and injunctive relief.

The district court conducted three days of evidentiary hearings on the FOP's request for a preliminary injunction. The City relied primarily on the testimony of Commissioner Tucker to justify the questionnaire. Tucker explained that the SIU would serve to exercise centralized control over internal corruption investigations, internal disciplinary investigations and vice investigations, which are currently the responsibility of three divisions: the Ethics Accountability, Major Intelligence, and Internal Affairs divisions. Tucker believed a centralized unit was needed because of the large numbers of indictments and convictions of Philadelphia police officers, among them high level officers including a deputy commissioner, for corruption. Because the majority of corruption existed in the area of vice and narcotics, he sought "to centralize those units in one organization so there will no longer be fragmentation; there will no longer be vice people working out in districts uncoordinated; a tighter span of control and supervision in a central function." App. at 436. He believed it was necessary to put vice and narcotics officers through a stringent screening selection process, App. at 439, and justified the information sought by the questionnaire as necessary for the selection of officers best suited "for a sensitive unit that's going to be investigating corruption, conduct, vice, narcotics, the things that are very important if we are going to bring integrity back to this City and this police department." App. at 441.

Following the completion of testimony, the district court, pursuant to Fed. R. Civ. P. 65(a)(2) and with the agreement of the parties, consolidated the proceedings on the preliminary injunction with the proceedings on the merits for a final injunction. In ruling, the court divided the questions challenged by the FOP into four distinct groups: (1) those dealing with physical and mental condition, (2) those dealing with behavior, (3) those requiring financial disclosure; and (4) one requiring disclosure of offices and directorships. The court concluded that the information sought by the first three groups of questions was entitled to some privacy protection.

In its opinion, the court expressed its concern about (1) "the lack of adequate safeguards to prevent the subsequent nonconsensual disclosure of the applicant's responses to the public or to other members of the police department"; (2) what it believed was "the lack of specificity of the questions"; and (3) what it termed "Police Commissioner Tucker's inability to clearly explain what may result if it is believed that an applicant provided an inaccurate response to a question." App. at 791-92. The court concluded that the questions at issue violate applicants' federal and Pennsylvania rights of privacy because there was "no evidence in the record that any formal policy has been adopted by the police commissioner concerning the dissemination of the questionnaire information," because the record demonstrated that applicants might be subject to "unknown dangers" from having "private information divulged to persons who [they] never expected would be privy to the information," and because the questions "needlessly include within their scope private information which is not relevant to achieving an honest and efficient police force." App. at 792-93.

The court did not analyze whether the question regarding offices and directorships implicated a right to privacy. Rather, the court concluded that the question violated the applicants' First Amendment right of free association.

The court permanently enjoined the police from requiring SIU applicants to answer all twelve of the challenged questions.*fn1 The court retained jurisdiction over the FOP's challenge to the polygraph requirement pending the result of the arbitration on that issue. The City appeals. We have jurisdiction pursuant to 28 U.S.C. § 1292(a)(1).*fn2

III.

Right to Privacy

A.

Level of Scrutiny

It is now established that the United States Constitution provides some protection of an individual's privacy. See Whalen v. Roe, 429 U.S. 589, 599-600, 51 L. Ed. 2d 64, 97 S. Ct. 869 (1977); United States v. Westinghouse Electric Corp., 638 F.2d 570, 577 (3d Cir. 1980). This constitutional right of privacy extends to two types of interests:

"One is the individual interest in avoiding disclosure of personal matters, and another is the interest in independence in making certain kinds of important decisions." Whalen v. Roe, 429 U.S. 589, 599-600, 51 L. Ed. 2d 64, 97 S. Ct. 869 (1977) (footnotes omitted). The latter decisions have encompassed "matters relating to marriage, procreation, contraception, family relationships, and child rearing and education." Paul v. Davis, 424 U.S. 693, 713, 47 L. Ed. 2d 405, 96 S. Ct. 1155 (1976).

Id. The Supreme Court of Pennsylvania has adopted the same two-pronged analysis of privacy for cases arising under that state's constitution. See Denoncourt v. Commonwealth of Pennsylvania State Ethics Comm'n, 504 Pa. 191, 197-98, 470 A.2d 945, 948 (1983); In re June 1979 Allegheny County Investigating Grand Jury, 490 Pa. 143, 150-51, 415 A.2d 73, 77 (1980). It is the constitutional protection against disclosure of personal matters that is at issue here.

We have previously explained that there is no absolute protection against disclosure. Disclosure may be required if the government interest in disclosure outweighs the individual's privacy interest. Trade Waste Management Ass'n, Inc. v. Hughey, 780 F.2d 221, 234 (3d Cir. 1985); Westinghouse, 638 F.2d at 577.

In addressing claimed violations of confidentiality interests, the Supreme Court has applied a flexible balancing approach. For example, in Nixon v. Administrator of General Services, 433 U.S. 425, 458, 53 L. Ed. 2d 867, 97 S. Ct. 2777 (1977), the Court stated: "But the merit of appellant's claim of invasion of his privacy . . . must be considered in light of the specific provisions of the Act, and any intrusion must be weighed against the public interest in subjecting the Presidential materials of appellant's administration to archival screening." Most circuits appear to apply an "intermediate standard of review" for the majority of confidentiality violations, see Barry v. City of New York, 712 F.2d 1554, 1559 (2d Cir.), cert. denied, 464 U.S. 1017, 78 L. Ed. 2d 723, 104 S. Ct. 548 (1983), with a compelling interest analysis reserved for "severe intrusions" on confidentiality. See Thorne v. City of El Segundo, 726 F.2d 459, 469 (9th Cir. 1983), cert. denied, 469 U.S. 979, 83 L. Ed. 2d 315, 105 S. Ct. 380 (1984); see also Whalen, 429 U.S. at 606-07 (Brennan, J., concurring) ("a statute that did effect such a [serious] deprivation [of privacy] would only be consistent with the Constitution if it were necessary to promote a compelling state interest"). But see Mangels v. Pena, 789 F.2d 836, 839 (10th Cir. 1986) (compelling interest analysis for all privacy violations).

In Westinghouse, this court set out the general balancing test as follows:

We must engage in the delicate task of weighing competing interests. The factors which should be considered in deciding whether an intrusion into an individual's privacy is justified are the type of record requested, the information it does or might contain, the potential for harm in any subsequent nonconsensual disclosure, the injury from disclosure to the relationship in which the record was generated, the adequacy of safeguards to prevent unauthorized disclosure, the degree of need for access, and whether there is an express statutory mandate, articulated public policy, or other recognizable public interest militating toward access.

638 F.2d at 578.

The district court suggested that a test more stringent than this balancing standard should be applied. It read Denoncourt v. Commonwealth of Pennsylvania State Ethics Comm'n, 504 Pa. 191, 470 A.2d 945 (1983), as requiring a least restrictive means analysis for privacy violations under the Pennsylvania Constitution. Although it is not clear which test the district court actually applied, it would have been error not to apply the Westinghouse standard.

In Denoncourt, the Pennsylvania Supreme Court invalidated the provisions of Pennsylvania's Ethics Act which required all public officials to provide financial disclosure with respect to their family members. A majority of the court held that these provisions were violative of due process. A plurality relied as well on the right to privacy. In the privacy portion of the opinion, the plurality looked to the significance of the government interest and whether "there is [an] alternate reasonable method of lesser intrusiveness to accomplish the governmental purpose." Id. at 949. The plurality concluded that as applied to family members the Act was both ineffective and overbroad.

Unlike the district court, we do not read Denoncourt as indicating that the Pennsylvania Supreme Court would apply a standard materially different from that applied by the federal courts in examining the constitutionality of disclosures of confidential information. In the first place, we note that the privacy analysis of the plurality in Denoncourt commanded only three of the seven justices. One justice relied only on the due process ground and did not join in the analysis of the privacy interest. Id. at 950 (Roberts, C.J.). Another justice, while concurring in the result as to spouses only, explicitly disassociated himself from what he considered "the majority's unnecessary discussion of the shadowy reaches of the right of privacy the judiciary has interpolated into our state and federal constitutions." 470 A.2d at 950 (Hutchinson, J., concurring and dissenting). Two other justices dissented because, although they agreed that a right of privacy existed, they believed that the appropriate analysis was "the balancing test and the rational relationship test" under which the challenged statute would stand. 470 A.2d at 951 (Nix, J., dissenting). Thus, there is no indication that a majority of the Pennsylvania Supreme Court would apply a least restrictive means analysis to all claimed violations of the confidentiality interest.

In the second place, nothing in Denoncourt derogates from that court's opinion in Snider v. Thornburgh, 496 Pa. 159, 170-72, 436 A.2d 593, 598-99 (1981), just two years earlier, where it upheld the Ethics Act as it applied to office holders themselves against a privacy challenge. In that case, the Court applied a balancing standard similar to the federal one, looking to the level of intrusion ("not great") and the nature of the legislature's interest ("not small"). Id. at 599.

Finally, the Denoncourt decision must be viewed in light of the Pennsylvania statute at issue which expressly provided that the financial information disclosed, including that of family members, must be available for public inspection and copying, Pa. Stat. Ann. tit. 65, § 404(f). As we noted above, the federal courts also apply ...


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