Aug 052010
 August 5, 2010  Posted by  Court, Featured News

Remember the “Joe the Plumber” flap over state employees snooping in his records? The Associated Press reports that a court has dismissed his lawsuit alleging privacy invasion against Ohio Department of Job and Family Services employees.

In the order dismissing the case against Helen Jones-Kelley, Doug Thompson, and Fred Williams, Judge Algenon L. Marbley dismissed the claim of retaliation under the First Amendment because Wurzelbacher did not provide evidence of any specific and concrete harms he suffered as a result of their actions:

Plaintiff argues that his allegations that Defendants conducted searches in confidential state databases in order to seek sensitive information about Plaintiff because of the questions he asked of President Obama are sufficient to demonstrate an adverse action, and that whether Defendants publicized or disclosed their investigation is irrelevant because the harm is constituted by the search itself, not its disclosure. Plaintiff also argues that alleging suffering emotional distress, harassment, personal humiliation, and embarrassment is sufficient to maintain his § 1983 retaliation claim. Finally, Plaintiff argues that the allegation that the internal agency review found that Defendants had engaged in a wrongful and inappropriate acts provides support for the claim of an adverse action. While this allegation certainly supports a finding that the Defendants’ actions were improper, and perhaps worthy of discipline, it does not necessarily indicate that the actions rise to the level of a constitutional violation.

The court also dismissed the claims that his 14th Amendment right to informational privacy was violated, using a fairly narrow definition of the right to informational privacy previously used in the Sixth Circuit:

In DeSanti, the court developed a two-step inquiry for informational privacy claims: 1) whether the interest at stake implicates a right that is either fundamental or implicit in the concept of ordered liberty; and 2) whether the government’s interest in releasing the information outweighs the individual’s interest in keeping the information private.


As explained by this Court, the Sixth Circuit, unlike other circuits, “has narrowly construed the holdings of Whalen and Nixon to extend the right to informational privacy only to interests that implicate a fundamental liberty interest.” Bloch, 156 F.3d at 684. Plaintiff points to no case law, and this Court has been unable to find any case law, that would support a determination by this Court that Plaintiff’s privacy interest in the information in the databases maintained by ODJFS in particular would implicate a fundamental right.4 While Plaintiff’s allegations, if found to be true, may have been in violation of Plaintiff’s privacy, they do not amount to a constitutional violation of privacy, and Plaintiff’s interest at stake do not implicate a fundamental liberty interest. As the Sixth Circuit stated in DeSanti, “not all rights of privacy or interests in nondisclosure of private information are of constitutional dimension…” DeSanti, 653 F.3d at 1091; Barber, 496 F.3d at 457. Such is the case here.

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