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The article below by Greene Espel attorneys John Baker and Kate Swenson first appeared on Law.com on October 21, 2020. 

The Eighth Circuit, in rehearing en banc, recently held that there is no clearly established due process right to informational privacy. The court therefore reversed the denial of qualified 8th Circuit Spotlight immunity to city and county officials who had disclosed to a tabloid information about childhood sexual abuse allegedly committed against the plaintiffs.

The case—Dillard v. O’Kelley, 961 F.3d 1048 (8th Cir. 2020) (en banc)—began with an anonymous tip made to the Arkansas State Police Child Abuse Hotline in December 2006. In response to the call, County and city law enforcement conducted an investigation into whether an 18-year-old man had, several years ago on various occasions, molested four of his younger sisters and a fifth unnamed individual. The investigation included interviews with the four sisters, their siblings, and their parents. At the time of the interviews, the sisters were all under the age of 16. Law enforcement promised the family that their statements would remain confidential. No criminal charges were filed.

The family—the Duggars—eventually became the subject of the popular reality-television show 19 Kids and Counting. In 2015, a tabloid obtained (through Arkansas FOIA requests) and published the county and city investigation reports detailing the sexual misconduct the oldest Duggar child had allegedly committed against four of his younger sisters when he was 14 or 15 years old. The reports released to the tabloid by the county and city were poorly redacted—that is, they contained sufficient detail (names of the parents, address and ages of the sisters) for the sisters to be identified. Media uproar led to the cancellation of the show and this lawsuit.

The four sisters sued several parties, including the city, the county, and several city and county officials in their individual and official capacities, alleging that the release of the reports had violated the sisters’ constitutional and common-law rights. Specifically, the sisters brought suit under Section 1983 and the Arkansas Civil Rights Act for violations of their right to privacy and under Arkansas tort law for public disclosure of private facts, intrusion upon seclusion, and outrage. The city and county defendants moved to dismiss for failure to state a claim. The district court denied the individual defendants’ motions to dismiss the Section 1983 claims based on qualified immunity and the state-law claims based on official immunity under state statute. Dillard v. City of Springdale, No. 5-17-CV-5089 (W.D. Ark. Sept. 29, 2017). The individual defendants appealed, and an Eighth Circuit panel affirmed the denial of the motions to dismiss. Dillard v. City of Springdale, 930 F.3d 935 (8th Cir. 2019).

The Eighth Circuit then granted the individual defendants’ petition for rehearing en banc of the qualified-immunity ruling. The Eighth Circuit reversed the denial of qualified immunity, holding that the asserted due process right to informational privacy was not clearly established.

Writing for the majority, Judge James B. Loken (joined by Judges Steven M. Colloton, Raymond W. Gruender, Duane Benton, Ralph R. Erickson, David R. Stras, and Jonathan A. Kobes), reviewed precedent involving the protection of privacy and concluded that, notwithstanding many decisions assuming the existence of such a right, a 2011 Supreme Court decision called into question “whether the right Defendants are alleged to have violated even exists.” Dillard v. O’Kelley, 961 F.3d at 1053.

In 1977, in Whalen v. Roe, the Supreme Court upheld a state statute that required the state health department to keep records identifying persons who acquired certain prescription drugs because the record “d[id] not establish an invasion of any right or liberty protected by the Fourteenth Amendment.” 429 U.S. 589, 606 (1977). The court explicitly declined “to decide any question which might be presented by the unwarranted disclosure of accumulated private data—whether intentional or unintentional—or by a system that did not contain comparable security provisions.” Id. at 605-06. Also in 1977, the court held that a federal statute designed to preserve presidential recordings and materials did not unconstitutionally invade former President Nixon’s right of privacy. Nixon v. Administrator of General Services, 433 U.S. 425, 457-58 (1977).

After Whalen and Nixon, Judge Loken explained, a majority of the courts of appeals—including the Eighth Circuit[2]—interpreted those decisions “as recognizing a constitutional right to the privacy of medical, sexual, financial, and other categories of highly personal information, grounded in the Fourteenth Amendment right to substantive due process.” Dillard, 961 F.3d at 1053. But in 2011, the Supreme Court decided NASA v. Nelson, and declined to decide whether there is a constitutional right to informational privacy. 562 U.S. 134, 147 n.10 (2011). Nelson confirmed that the Eighth Circuit (and other circuits) “erred in reading inconclusive statements in Whalen and Nixon as Supreme Court recognition of a substantive due process right to informational privacy.” Dillard, 961 F.3d at 1054.

Judge Loken therefore framed the issue for decision as follows: “[E]ven if the right is assumed to exist, in reviewing the denial of qualified immunity, Nelson raises an essential question: whether a right the Supreme Court has only assumed may exist, and this court has never held to be violated[3], can be a clearly established constitutional right.” Id. The Eighth Circuit held that “the uncertain status of the right to informational privacy means that Defendants are entitled to qualified immunity. If a right does not clearly exist, it cannot be clearly established.” Id. at 1055 (citing Reichle v. Howards, 566 U.S. 658, 664-70 (2012)).

The two active judges on the panel below—Chief Judge Lavenski R. Smith and Judge L. Steven Grasz—concurred with the outcome and in part with the majority opinion. In a separate opinion, Judge Grasz (joined by Chief Judge Smith) reasoned that such a right had been established by Eighth Circuit decisions predating Nelson, and that the panel thus had a duty to have followed those decisions absent an en banc decision overruling them. Yet they agreed with the en banc majority that, after Nelson, “the foundation of those cases is gone,” and thus joined in the result. Dillard, 961 F.3d at 1058-59 (Grasz, J., concurring in part and concurring in the result). Their concurrence noted, however, the existence of a conflict on the qualified-immunity question with decisions from other circuits, perhaps foreshadowing a certiorari petition to the Supreme Court. Id. at 1058 n.6.

The sole dissenting member of the court, Judge Jane Kelly, concluded that “Nelson did not abrogate or overrule pre-existing circuit caselaw,” and did not think that “a reasonable government official could have concluded otherwise.” Id. at 1062 (Kelly, J., concurring in part and dissenting in part).

Read the article at Law.com