WARNER v. TOWNSHIP OF SOUTH HARRISON et al
Filing
57
OPINION FILED. Signed by Chief Judge Jerome B. Simandle on 6/26/12. (js)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
MATTHEW WARNER,
HON. JEROME B. SIMANDLE
Plaintiff,
Civil No. 09-6095 (JBS/JS)
v.
OPINION
TOWNSHIP OF SOUTH HARRISON, et
al.,
Defendants.
APPEARANCES:
Surinder K. Aggarwal, Esq.
William H. Buckman, Esq.
THE WILLIAM H. BUCKMAN LAW FIRM
Moorestown Office Center
110 Marter Ave, Suite 209
Moorestown, NJ 08057
Attorneys for Plaintiff Matthew Warner
A. Michael Barker, Esq.
Todd J. Gelfand, Esq.
BARKER SCOTT & GELFAND
210 New Road
Linwood, NJ 08221
Attorneys for Defendants Township of South Harrison, Colleen
Bianco, Gary Spinner, James McCall and Warren Mabey
Brian Victor Lucianna, Esq.
BRIAN V. LUCIANNA, P.C.
600 South White Horse Pike
Audubon, NJ 08106
Attorney for Defendant Jeannine Campbell
SIMANDLE, Chief Judge:
I.
INTRODUCTION
This matter is before the Court on the motion of Defendants
Colleen Bianco, Warren Mabey, James McCall, Gary Spinner and
Township of South Harrison (collectively the "Defendants") for
summary judgment. [Docket Item 38.]
filed opposition.
[Docket Item 44.]
Plaintiff Matthew Warner
For the reasons stated
herein, the court will grant in part and deny in part Defendants'
motion for summary judgment.
II.
BACKGROUND
A.
Statement of the Facts and Procedural History
The instant action arises out of an incident on April 16,
2008 when Plaintiff Matthew Warner ("Plaintiff") performed a port
scan on the Township of South Harrison's computer network at the
request of Deputy Mayor Robert Campbell.
Plaintiff is a computer
IT professional and served as a member on the Township Planning
and Zoning Board in 2008.
In addition, as a result of his IT
background, the Plaintiff was appointed to the Resident Task
Force in 2007 by the Township Committee.
The purpose of the
Resident Task Force was "to review the needs of the Township
regarding IT architecture, data storage, hardware, software and
disaster recovery requirements."1
(Pl.'s Ex. A, Minutes of the
Township Committee meeting held on June 27, 2007.)
On April 16, 2008, Deputy Mayor Campbell invited the
Plaintiff to attend the Township Committee meeting that night to
discuss the Township's needs for IT services and asked the
1
While the Township Committee moved to proceed with the
establishment of the Resident Task Force, the Resident Task Force
was never officially formed by written resolution.
2
Plaintiff to run a port scan on the Township network prior to the
meeting to assess the security of the Township's computers.
(Defs.' Ex. 3, Deposition of Matthew Warner, February 22, 2011
("Warner Dep.") at 102: 25-103:9; 134:12-134:18).
The Plaintiff
agreed and on April 16, 2008, Plaintiff entered an open door to
the South Harrison Township Clerk's Office during a closed
session part of the Township Committee meeting.
He unplugged the
Cat 5 cable from a computer and inserted it into his personal
laptop in an effort to obtain an IP address to connect to the
internet and check his company email.
58:16-23; 61:17-20; 62:17-19; 69:5-9.)
(Warner Dep. at 53:1-4;
When checking his email,
Plaintiff conducted the port scan which had been requested by
Deputy Mayor Campbell.
(Warner Dep. at 70:24-71:1-9.)
During
the network scan, Plaintiff observed open ports that were
susceptible to viruses.
Id.
While Plaintiff was in the Clerk's Office, Deputy Clerk
Celeste Keen discovered the Plaintiff in the office, shutting
down his computer.
(Warner Dep. at 74:10-25.)
The Plaintiff
then exited the building and met with Deputy Mayor Campbell in
the parking lot and advised Campbell that he had run a port scan
and that what he had seen was "ugly."
(Warner Dep. at 75:23-
76:8.)
After the closed session meeting on April 16, 2008, the
Deputy Clerk Celeste Keen relayed to the Township Administrator
3
Colleen Bianco ("Bianco") that she had observed the Plaintiff
unattended in the Clerk's office and that the Plaintiff was
connected to the computer network.
(Defs.' Ex. 7, Deposition of
Colleen Bianco, March 16, 2011 ("Bianco Dep.") at 42:17-43:7.)
The next morning on April 17, 2008, Bianco circulated an e-mail
to the Township Committee members and administrative employees of
the Township, as well as Police Chief Warren Mabey, about the
situation. (Defs. Ex. 8.)
Aside from Deputy Mayor Campbell, other members of the
Township Committee and Township Administrator Bianco did not know
that the Plaintiff was authorized to access the Township computer
network and were alarmed to find the Plaintiff using the computer
in the Clerk's office unsupervised.
(Defs.' Ex. 9, Emails from
Committee Members, S Harrison, 14-27).
Bianco contacted members of the Township Committee as well
as Chief of Police Warren Mabey ("Mabey") to determine why the
Plaintiff was accessing the Township's computer network without
authorization.
(Defs. Ex. 8.)
Deputy Mayor Campbell did not
disclose to the other members of the Township Committee that he
had authorized the Plaintiff to perform the port scan on the
network. (Defs.' Ex. 9, Emails from Committee Members, S
Harrison, 16-18).
Chief Mabey then contacted the Plaintiff to set up a meeting
to speak with him about the incident on April 16, 2008.
4
(Pl.'s
Ex. 11.)
Prior to meeting with Chief Mabey, the Plaintiff spoke
with Deputy Mayor Campbell.
(Warner Dep. 87:19-90:7).
The
Plaintiff and Deputy Mayor Campbell agreed that the Plaintiff
should tell Chief Mabey that Plaintiff was using the Clerk's
Office computer to check his email.
(Warner Dep. 89:25-90:7.)
In fact, Plaintiff did check his email on the Clerk's office
computer; however, Plaintiff then proceeded to do a port scan of
the Township's network to check for security issues.
Dep. 89:12-18.)
(Warner
When the Plaintiff was asked by Chief Mabey
about his reason for accessing the Clerk's office computer,
Plaintiff maintained that he was checking his email and did not
disclose to Chief Mabey that he also ran a port scan on the
Township's network.
(Warner Dep. at 92:4-92:21.)
After his interview with the Plaintiff, Chief Mabey
contacted the New Jersey State Police Cyber Crimes Unit on April
18, 2008, and the state police subsequently took over the
investigation.
(Defs.'s Ex. 10, Deposition of Chief of Police
Warren Mabey, May 9, 2011 ("Mabey Dep.") at 52:15-53:12.)
The
state police and an attorney from the Gloucester County
Prosecutor's office interviewed the Plaintiff and concluded that
there was no criminal activity involved in this incident and that
the Plaintiff "was asked to scan the network and believed he had
the proper authority to do so."
(Defs.' Ex. 13, Investigation
Report by the New Jersey State Police, June 24, 2008
5
("Investigation Report") at S Harrison 105, 107.) The state
police drafted an internal investigatory report on the incident
and recommended that any further action on the matter be handled
on the administrative level.
(Investigation Report at S Harrison
107.)
Chief Mabey then informed the South Harrison Township
Committee that as a result of the State Police cyber crimes unit
investigation, there would be no criminal charges filed, that the
investigation was closed and that it was recommended the matter
be handled on an administrative level.
(Deposition of James
McCall, June 29, 2011 ("McCall Dep.") at 40:15-41:9).
As a
result, the Township Committee voted to authorize the formation
of a Special Investigative Subcommittee to investigate the
incident further.
(Defs.' Ex. 17, First Investigative
Subcommittee Report.)
Defendants James McCall and Gary Spinner
were appointed as the two exclusive members of the Investigative
Subcommittee.
Id.
The Investigative Subcommittee subpoenaed the testimony of
the Plaintiff.
(Defs.' Ex. 21.)
The Plaintiff asserted his
Fifth Amendment privilege as to any questioning and declined to
testify per the advice of his counsel.
(Defs.' Ex. 22.)
The Investigative Subcommittee also attempted to obtain a
copy of the State Investigatory Report by submitting a request
pursuant to the Open Public Records Act, N.J.S.A. 47:1A-1, et
6
seq.
This request was denied by the State Police who advised the
Investigative Subcommittee that criminal investigatory records
were exempt from release under OPRA absent a court order.
(Pl.'s
Ex. AA.)
Defendants McCall and Spinner then issued a subpoena to the
New Jersey State Police requesting the production of the State
Police investigation report of the April 16, 2008 incident.
(Pl.'s Ex. CC.)
The state police responded by letter and advised
Defendant McCall that the investigation reports are not public
record.
However, the state police could provide the case status
of the report as Unfounded/Closed for a fee of $16.00.
Ex. DD.)
(Pl.'s
A money order for $16.00 was submitted to the New
Jersey State Police.
(Defs.' Ex. 25.)
Defendant McCall testified at his deposition that Defendant
Spinner actually received the State Police investigation report
under OPRA.
(Pl. Ex. D, McCall Deposition, at 106:9-17; 109:20-
25; 110:1-2.).
Defendant Spinner testified at his deposition
that McCall was the one to receive the copy of the New Jersey
State Police investigation report and Spinner further averred
that McCall provided him with a copy.
(Pl. Ex. E, Deposition of
Gary Spinner, March 16, 2011 ("Spinner Dep.")
Despite this inconsistency, it is undisputed that the
Investigative Subcommittee received an unredacted copy of the
state investigatory report on or about December 3, 2008, though
7
it is unclear how Defendants Spinner and McCall gained access to
this document. (Defs.' Ex. 17, "Special Investigatory SubCommittee Report" at S Harrison 47.)
It may have been furnished
to them by Chief Mabey, as now discussed.
It is also undisputed that Defendant Mabey obtained an
unredacted copy of the State Police investigation report in early
July 2008.
(Mabey Dep., 120:22-23; Ex. FF.)
The Plaintiff
argues in its brief that Defendant Mabey provided a copy of the
unredacted report to Defendants Spinner and McCall since their
OPRA requests were denied and they were unable to obtain the
report through subpoena.
Defendants McCall and Spinner maintain
that they received a copy of the unredacted report from the State
Police after submitting the $16.00 money order.
Defendant Mabey
was later advised by the Township Solicitor on December 18, 2008,
that any criminal investigation reports in connection with the
April 16, 2008 incident were not subject to release and were
confidential.
(Pl.'s Exs. O and P.)
On December 29, 2008, the
Investigative Subcommittee consisting of Defendants McCall and
Spinner issued a report setting forth its efforts and findings.
(Defs.' Ex. 17, Investigative Subcommittee Report.)
The
unredacted State Police investigation report was attached as an
exhibit to the Subcommittee report.
(Defs.' Ex. 17.)
The
unredacted State Police investigation report included Plaintiff's
social security number, home address, date of birth, driver's
8
license number and personal telephone numbers.
(Defs.' Ex. 17.)
The report was issued during the course of a public Township
Committee meeting on December 28, 2009.
Defendant Spinner handed
out copies of the report with the incorporated exhibits,
including the unredacted state police investigatory report, to
the Township Committee Members and the Municipal Clerk.
Dep. at 32:10-12.
(Warner
The Municipal Clerk then handed a copy of the
report with the incorporated exhibits to Robert Diaz, who had
been elected to the Township Committee but was not yet serving.
(Defs.' Ex. 26, Deposition of Matthew Warner, Day 2, May 20, 2011
("Day 2 Warner Dep.") at 21:19-22:1.)
Defendant McCall presented the findings of the Subcommittee
report at the meeting in open session by reading the contents of
the Subcommittee report.
(Defs.' Ex. 32, Plaintiff's certified
responses to interrogatories propounded by Defendant James McCall
at Interrogatory No. 3.)
Defendant McCall did not read the
Plaintiff's social security number or driver's license number out
loud, but the Plaintiff testified in his deposition that
Defendants Spinner and McCall did advise the public on how to
obtain the report pursuant to an OPRA request.
(Warner Dep. at
144:23-145:6.)
Following the December 29, 2008 meeting, Plaintiff made a
request for the Investigative Subcommittee report on December 30,
2008.
(Defs.' Ex. 27, Warner OPRA request.)
9
Defendant Jeannine
Campbell also submitted an OPRA request for the Subcommittee
report on December 30, 2008.
(Defs.' Ex. 29, Receipt issued to
Jeannine Campbell for OPRA request.)
The Municipal Clerk
provided a copy of the Subcommittee Report and incorporated
exhibits to Plaintiff and Jeannine Campbell.
29.)
(Defs.' Ex. 28 and
These copies included a copy of the unredacted state
investigatory report as said report was incorporated as an
exhibit to the Subcommittee Report.
Defendant Jeannine Campbell
then made copies of the Subcommittee Report with the incorporated
exhibits and gave these copies to members of the public.
(Day 2
Warner Dep. at 4:22; Deposition of Jeannine Campbell, February
14, 2011 ("Jeannine Campbell Dep.") at 67:18-25; 68:1-16; 84:45.)
Consequently, the unredacted state investigatory report with
the Plaintiff's personal identifying information was distributed
to members of the public.
The Plaintiff objected to the First Investigatory
Subcommittee's failure to redact his social security and driver's
license numbers on the state police investigation report when
attaching the document to the Subcommittee Investigation Report
at the next meeting of the Township Committee on January 5, 2009.
The Plaintiff memorialized his objection by way of letter to the
Township that same day. (Pl.'s Ex. M and GG.)
On January 8, 2009, the Municipal Clerk wrote to the
Government Records Council acknowledging that the Township's
10
failure to redact Plaintiff's private information on the State
Police Investigation Report prior to its dissemination violated
the Open Public Records Act.
(Pl.'s Ex. N.)
During this incident and investigation, Plaintiff testified
that Defendants McCall, Spinner and Bianco referred to the
Plaintiff as a "hacker" and a "liar."
Plaintiff has also
testified that Defendant McCall referred to the Plaintiff as
"corrupt" in a public Township meeting in November, 2008.
Plaintiff also avers that Defendant Mabey has referred to this
incident as a "hacking incident."
After the Investigative Subcommittee report was made public,
the Plaintiff was asked not to renew his term with the Township
Planning and Zoning Board.
It is unclear who in the Township
made the decision to terminate the Plaintiff from the Planning
and Zoning Board.
At the time Plaintiff was asked not to renew
his position, Charles Tyson was the Mayor of the Township and as
Mayor, had the authority to make an appointment to the Planning
and Zoning Board by way of resolution.
(Pl. Ex. E, Deposition of
Gary Spinner, March 16, 2011 ("Spinner Dep.") at 15:12-20; 16:2325; 17:1-4; 17:24-25; 18:1.)
Tyson testified that Defendant
Spinner contacted him to arrange a meeting for the purpose of
having Plaintiff resign from the Planning and Zoning Board.
(Pl.'s Ex. I, Deposition of Charles Tyson, June 10, 2011 ("Tyson
Dep.") at 85:6-89:17.)
Tyson also indicated the purpose of the
11
meeting with Defendant Spinner and a concurrent meeting with
Chief Mabey was to discuss the "Matt Warner Situation" and
Plaintiff's position on the Planning and Zoning Board. (Pl.'s Ex.
J.)
However, in his deposition, Tyson denied having anything to
do with Plaintiff's removal from the Planning and Zoning Board
and denied having any knowledge as to who made the decision not
to renew Plaintiff's position.
(Tyson Dep. at 25:3-25:23.)
The Plaintiff then filed the instant action against the
Defendants Township of South Harrison, Jeannine Campbell, Colleen
Bianco, Gary Spinner, James McCall and Warren Mabey.
In the
First Amended Complaint, the Plaintiff alleges Defendants
violated his right to privacy under both the Federal and State
Constitutions.
The Plaintiff also brings a Fourteenth Amendment
defamation claim against the Defendants.
Lastly, the Plaintiff
brings a Monell claim for violation of federal rights against the
Township of South Harrison and maintains that the municipality
failed to train, supervise and/or discipline the individual
defendants.
The Defendants filed an answer to the First Amended
Complaint and discovery has been completed.
All the Defendants
with the exception of Jeannine Campbell now move for summary
judgment.
B.
The Instant Motion
Defendants Township of South Harrison, Mabey, Bianco, McCall
12
and Spinner move for summary judgment and urge the court to
dismiss all claims against them.2
First, the Defendants argue
that the Plaintiff's right to privacy claim should be dismissed.
The Defendants maintain that there is no evidence Defendants
Bianco or Mabey had any personal involvement in releasing
Plaintiff's personal identifiers contained in the state
investigatory report.
The Defendants also argue that McCall and
Spinner did not disclose or disseminate the state investigatory
report to the public; rather, the non-defendant Municipal Clerk
was responsible for releasing the report to members of the public
at the public meeting and releasing the unredacted report
pursuant to the OPRA requests filed by Plaintiff and Defendant
Jeannine Campbell.
Finally, the Defendants rely on Weisburg v.
Riverside Twp., 180 Fed. Appx. 357, 365 (3d Cir. 2006) and argue
that a plaintiff must show that the disclosure was intentional in
order to prevail on a constitutional right to privacy claim.
Here, the Defendants maintain that the evidence shows any
disclosure of Plaintiff's personal identifiers was at most
negligent and cannot form the basis of a right to privacy claim.
Next, the Defendants argue that the Plaintiff's Monell claim
must be dismissed because the Plaintiff has produced no evidence
of an unlawful policy or custom.
2
The Defendants argue that a
Defendant Jeannine Campbell has not filed a motion for
summary judgment and has not joined the instant motion filed by
her co-defendants.
13
policy or custom cannot be inferred from a single instance of
misconduct by a non-policy making employee, the Municipal Clerk.
The Defendants maintain that none of the Defendants released the
report publicly and therefore, this single instance of disclosure
of personal identifiers cannot serve as a basis for finding an
unlawful municipal policy or custom.
The Defendants next argue that the Plaintiff's defamation
claim must be dismissed because no false statement was made by
the Defendants and the decision to terminate the Plaintiff from
the Planning and Zoning Board was not made by any of the
Defendants in this case.
In addition, Defendants McCall and
Spinner argue that their comments that Plaintiff was a "liar" or
"corrupt" are entitled to legislative immunity as opinions.
Defendants also argue that the term "hacker" is not defamatory.
The Defendants also maintain that a name clearing hearing was
made available to the Plaintiff on two occasions and the
Plaintiff declined to participate.
Further, the Defendants argue
that any stigma was created by the Plaintiff's filing of the
instant lawsuit and not the action of the Defendants.
Finally, the Defendants argue that if the court finds the
Plaintiff's claims for defamation and violation of his right to
privacy are considered viable, the Defendants should be entitled
to qualified immunity as their actions were objectively
reasonable under the circumstances.
14
The Plaintiff, in opposition, argues that he has produced
sufficient evidence to support his claims and genuine issues of
material fact prevent summary judgment.
First, the Plaintiff
argues in his brief that Defendants McCall and Spinner violated
his right to privacy by including the unredacted investigatory
report as an exhibit the publicly available Investigation
Subcommittee Report.
The Plaintiff maintains that Defendants
Spinner and McCall should have redacted his personal identifiers
from the report prior to incorporating it into their public
committee report.
By incorporating his personal identifiers into
a public document, Plaintiff argues that Defendants McCall and
Spinner disclosed his personal information and violated his right
to privacy.
Plaintiff also argues that Defendants McCall and
Spinner directed the Municipal Clerk to make copies and
distribute them to the members of the public at the December 28,
2008 Township Committee meeting.
Plaintiff further argues that
qualified immunity is inappropriate because McCall and Spinner's
actions were clearly unreasonable.
Next, the Plaintiff contends that he has satisfied his
burden to establish Monell liability because Defendants Spinner
and McCall are members of the Township Committee and therefore
are policy makers of the municipality.
The Plaintiff maintains
that a single violation of a constitutional right by a policy
maker is sufficient to trigger municipal liability and establish
15
an unlawful policy.
Therefore, the Plaintiff argues that his
Monell claim should not be dismissed.
Finally, the Plaintiff maintains that his defamation claim
remains viable.
In particular, the Plaintiff argues that
Defendants McCall and Spinner made several false statements
including that the Plaintiff had breached the Township network
and that the Plaintiff had provided false statements and lied to
law enforcement and that the Plaintiff was a hacker.
The
Plaintiff argues that he has satisfied the stigma plus
requirement by producing evidence that he lost his position on
the Planning and Zoning Board due to the defamatory statements of
the Defendants.
The Plaintiff maintains that legislative
immunity is not proper in this case because the Defendants were
acting in an administrative, not legislative capacity, when
certain defamatory statements were made.
Finally, the Plaintiff
contends that the Defendants should not be entitled to qualified
immunity because their actions were not objectionably reasonable.
In addition, both parties have briefed the significance of
the recent Supreme Court opinion, NASA v. Nelson, 131 S. Ct. 746
(2011).
The Defendants argue that the NASA opinion expressed
uncertainty as to the nature of the right to information privacy,
and therefore qualified immunity is appropriate as the right
allegedly violated by the Defendants is not clearly established.
The Plaintiff argues that NASA is factually distinguishable from
16
the instant action because NASA involved government information
collection practices whereas this case deals with the public
disclosure of a confidential state police investigatory report.
Therefore, the Plaintiff argues that qualified immunity is not
appropriate and NASA is inapplicable to the analysis of his right
to privacy claim.
III.
DISCUSSION
A.
Standard of Review
Summary judgment is appropriate “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
P. 56(a).
Fed. R. Civ.
A dispute is “genuine” if “the evidence is such that a
reasonable jury could return a verdict for the non-moving party.”
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
A
fact is "material" only if it might affect the outcome of the
suit under the applicable rule of law.
Id.
Disputes over
irrelevant or unnecessary facts will not preclude a grant of
summary judgment.
Id.
The Court will view any evidence in favor
of the nonmoving party and extend any reasonable favorable
inferences to be drawn from that evidence to that party.
Cromartie, 526 U.S. 541, 552 (1999).
Hunt v.
See also Scott v. Harris,
550 U.S. 372, 378 (2007) (The district court must “view the facts
and draw reasonable inferences in the light most favorable to the
17
party opposing the summary judgment motion.”).
B.
42 U.S.C. § 1983 - Right to Privacy Claim
As discussed in this court's previous July 26, 2010 Opinion,
the Constitution does not expressly protect a right to privacy,
and though the Supreme Court has not found such a generalized
right, the Court has recognized “zones of privacy” in the various
amendments to the Constitution.
C. N. v. Ridgewood Bd. of Educ.,
430 F.3d 159, 178 (3d Cir. 2005).
These zones protect two types
of privacy 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.’”
Hedges v. Musco, 204 F.3d 109, 121 (3d Cir. 2000)
(quoting Whalen v. Roe, 429 U.S. 589, 599-600, (1977)).
It is the first type of privacy -- informational privacy -that is at issue in this case.
“‘The right not to have intimate
facts concerning one's life disclosed without one's consent’ is
‘a venerable right whose constitutional significance we have
recognized in the past.’” C.N., 430 F.3d at 179 (quoting
Bartnicki v. Vopper, 200 F.3d 109, 122 (3d Cir. 1999)).
of a privacy claim requires two steps.
Analysis
First the Court must
determine whether the information is entitled to any privacy
protection.
Id.
In determining whether information is entitled to privacy
protection, [the Third Circuit has] looked at whether it
is within an individual’s reasonable expectations of
confidentiality. The more intimate or personal the
18
information, the more justified is the expectation that
it will not be subject to public scrutiny.
Fraternal Order of Police v. City of Philadelphia, 812 F.2d 105,
112-113 (3d Cir. 1987).
If a privacy interest is implicated,
then the Court must weigh the various competing interests at
issue and decide whether the disclosure was justified.
C.N., 430
F.3d at 179-80.
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.
United States v. Westinghouse Electric Corp., 638 F.2d 570, 578
(3d Cir. 1980); see C.N., 430 F.3d at 180.
In analyzing whether any privacy interest was implicated by
the disclosure of the unredacted state investigatory report, this
court held that disclosure of the substance of the police report
and the related investigation was insufficient to trigger the
protections of the Due Process Clause.
The court noted that it
is well-settled “that criminal records, including police reports,
indictments, guilty verdicts, and guilty pleas, are inherently
public -- not private -- documents and are thus beyond the
purview of the Due Process Clause.”
Nunez v. Pachman, 578 F.3d
228, 233 (3d Cir. 2009); Scheetz v. The Morning Call, 946 F.2d
19
202, 207 (3d Cir. 1991) (no privacy interest in police report
documenting incident of domestic violence, though report never
led to formal charges); see Paul P. by Laura L. v. Verniero, 170
F.3d 396, 403 (3d Cir. 1999) (“[R]ecords of criminal convictions
and pending criminal charges are by definition public, and
therefore not protected.”) (internal citations omitted).
However, the Court found that Plaintiff’s privacy interests
were implicated by the disclosure of his home address along with
other detailed identifying information, such as his social
security number. See Paul P., 170 F.3d at 404 (finding that
people have some nontrivial privacy interest in nondisclosure of
their home addresses) and McCauley v. Computer Aid, Inc., 242 F.
App’x 810, 813 (3d Cir. 2007)(a person has no privacy interest in
their social security number alone).
The Court also noted in the
context of the privacy exclusion to the Freedom of Information
Act (“FOIA”) that “‘the extensive use of Social Security numbers
as universal identifiers in both the public and private sectors
is one of the most serious manifestations of privacy concerns in
the nation.’”
Sheet Metal Workers Int’l Ass’n v. U.S. Dep’t of
Veterans Affairs, 135 F.3d 891, 898-899 (3d Cir. 1998) (quoting
Int’l Bhd. of Elec. Workers v. U.S. Dep’t of Hous. and Urban
Dev., 852 F.2d 87, 89 (3d Cir. 1988)).
The Defendants argue that summary judgment is appropriate to
dismiss the Plaintiff's right to privacy claim on three different
20
grounds.
First, the Defendants argue that the Supreme Court's
decision in NASA v. Nelson, supra, calls into question the
existence of a right to informational privacy under the federal
constitution.
Next, the Defendants argue that intent is required
to trigger the protections of the due process clause and in this
case, the Plaintiff has not produced evidence of an intentional
disclosure of his social security number and home address.
Finally, the Defendants argue that the Plaintiff has not produced
any evidence that any of the Defendants actually disclosed
Plaintiff's private information.
Rather, the Defendants maintain
that any disclosure was done by the Municipal Clerk, who is not a
party to this action, or Jeannine Campbell, who is not a movant
on this motion.
The Court will address each of these arguments
in turn.
1. Effect of NASA v. Nelson
After the issuance of this court's July 2010 Opinion, the
Supreme Court announced its decision in NASA v. Nelson, 131 S.
Ct. 746 (2011).
Both parties have briefed this case and its
potential impact on the court's previous reasoning which found
the Plaintiff had a privacy interest which was implicated in the
public disclosure of his home address, social security number and
other personal identifiers.
For the reasons discussed below, the
court finds that NASA does not impact or alter the court's
previous finding that the Plaintiff had a privacy interest in the
21
non-disclosure of his social security number, home address and
date of birth.
In NASA, the Supreme Court held that certain government
inquiries conducted during a routine background check did not
violate a person's constitutional right to privacy because the
government had a legitimate interest in making these inquiries,
the inquiries were reasonable under the circumstances, and the
information was protected from public disclosure by the Privacy
Act.
131 S. Ct. at 761-62.
Specifically, the Supreme Court
addressed whether the government could inquire about a
prospective civil servant's previous treatment and counseling for
illegal drug use and whether the government could ask open-ended
questions of an applicant's self-designated references.
Id. at
753.
In analyzing this issue, the majority expressly declined to
address the continued viability of the right to privacy
recognized in Whalen, supra, and Nixon, 433 U.S. 425 (1977), and
stated, "we will assume for present purposes that the
Government's challenged inquiries implicate a privacy interest of
constitutional significance."
Id. at 757.
While Justice
Scalia's concurrence, relied upon by the Defendants, casts doubt
about the continued existence of the right to privacy articulated
in Whalen and Nixon, the majority opinion expressly declined to
address this issue as it was not raised by the parties and the
22
majority found it unnecessary to analyze such a broad issue.
The
majority noted that it would utilize the approach set forth in
the Whalen and Nixon decisions as "there is no evidence that
those decisions have caused the sky to fall."
Id. at 757 n.10.
The majority also discussed the state and lower federal
courts' approach to interpreting the constitutional right to
privacy articulated in Whalen and Nixon.
In particular, the
Supreme Court cited Fraternal Order of Police v. Philadelphia,
812 F.2d 105, 110 (3d Cir. 1987), the same case relied upon by
this court in its previous Opinion, and discussed that many
courts hold that disclosure of certain personal information
should be subject to a balancing test weighing the government's
interest in disclosure against the individual's interest in
privacy.
Id. at 756 n.9.
Therefore, the court does not interpret NASA to cast doubt
upon the existence of a constitutional right to informational
privacy.
Rather, the court reads NASA as an affirmation that a
person has a constitutional right to be free from undue
disclosure of private information and that the balancing test
articulated in Fraternal Order of Police, supra, is a proper way
to balance the competing individual and governmental interests at
stake.
2.
Intent Requirement
Next, the court must address whether intent is required to
23
trigger a constitutional violation of an individual's right to
information privacy.
The Defendants rely on Weisburg v.
Riverside Twp., 180 Fed. Appx. 357 (3d Cir. 2006), in support of
their argument that intent to disclose is required to trigger the
protections of the Due Process Clause.
The court finds this
argument unpersuasive.
In Weisburg, the Third Circuit held that an inadvertent
disclosure of a person's medical information did not violate the
constitutional right to informational privacy.
365.
180 Fed. Appx. at
In that case, the plaintiff claimed that his constitutional
right to informational privacy was violated when a school
administrator accidentally put plaintiff's medical report into an
envelope with another teacher's contract.
The Third Circuit held
that this negligent disclosure was insufficient to trigger the
protections of the Due Process Clause.
The Third Circuit relied
on Daniels v. Williams, 474 U.S. 327, 328 (1986), which held that
"the Due Process Clause is simply not implicated by a negligent
act of an official causing unintended loss of or injury to life,
liberty, or property."
Id. at 365 (citing Daniels, 747 U.S. at
328).
The Defendants maintain that Weisburg requires any
disclosure of personal information be intentional in order to
trigger a constitutional violation.
The court does not read
Weisburg as broadly as the Defendants argue.
24
The Third Circuit
and the Supreme Court very clearly articulated that a negligent
disclosure is insufficient to violate a person's right to
information privacy.
These courts did not then conclude that all
disclosures must be intentional in order to state a valid claim.
Rather, these courts confined their holdings to negligent or
accidental disclosures.
The instant matter does not involve a negligent disclosure
of personal information.
The Township Committee in this case
requested the state investigatory report and were told on
multiple occasions that the content of this report was
confidential.
It is unclear how Defendants Spinner and McCall
ultimately obtained the report as the New Jersey State Police
refused to disclose it and the deposition testimony of Defendants
Spinner and McCall is inconsistent.
The inclusion of the state
investigatory report as an exhibit to the Subcommittee's report
was intentional and deliberate.
It is evident that the
Subcommittee read and summarized the report in their own findings
and were therefore aware of the sensitive personal information
contained therein.
While the Subcommittee may not have included
the state investigatory report as an exhibit with the intent of
disclosing Plaintiff's social security number, home address and
birth date, such specific intent is not required to trigger the
protections of the Due Process Clause.
It is sufficient if
evidence demonstrates that a defendant acted knowingly in
25
disclosing the private information, that is, that the official
knew that the document contained such private information and
that the official acted to disclose the document to the general
public.
Thus, an inadvertent or negligent disclosure does not
violate a constitutionally-protected privacy right.
What matters
is that this disclosure was not negligent, and therefore the
Plaintiff's right to informational privacy was implicated.
3. Analysis of Individual Defendants
Finally, the court must analyze whether the Plaintiff has
produced evidence that any of the moving Defendants3 disclosed
his personal information in violation of the Due Process Clause.
The court will first address Defendant Bianco, and then
Defendants McCall and Spinner and finally Defendant Mabey.
As to Defendant Bianco, the Plaintiffs have presented no
evidence that Bianco was involved in the disclosure of the
Plaintiff's personal information in the state investigatory
report.
There is no evidence that Bianco was instrumental in
making the OPRA request, had any role in the receipt of the state
investigatory report or made copies of the report available to
the public.
Therefore, summary judgment is appropriate to
dismiss Plaintiff's right to privacy claim against Defendant
3
The court notes that Plaintiff's brief limits his argument
to Defendants McCall and Spinner. The Plaintiff does not address
the merits of his privacy claim against Defendants Bianco or
Mabey.
26
Bianco.
Defendants McCall and Spinner arguably had the most involved
role in retrieving the state investigatory report and making it
available to the public by attaching it as an exhibit to their
Subcommittee report.
However, there is an issue with whether
McCall and Spinner are entitled to legislative immunity.
Absolute legislative immunity applies to official actions
taken within the scope of legitimate legislative activity.
Schlegel v. Koteski, 307 Fed. Appx. 657 (3d Cir. 2009)(citing
Bogan v. Scott-Harris, 523 U.S. 44, 54 (1998)).
The Third
Circuit has held that absolute legislative immunity extends to
"members of a municipal council acting in a legislative
capacity."
1983).
Aitchison v. Raffiani, 708 F.2d 96, 99 (3d Cir.
Municipal investigation committees established pursuant
to N.J.S.A. 40:28-25 serve a legislative function and are
considered legitimate legislative activities.
In re Shain, 92
N.J. 524, 530 (1983)("A concomitant of the power to legislate is
the power to investigate for legislative purposes.").
Therefore,
legislative immunity applies to bar actions against members of
municipal investigative committees in their individual capacities
for damages pursuant to 42 U.S.C. § 1983.
However, legislative immunity does not bar Section 1983
suits against municipal committee members in their official
capacities.
This is because Section 1983 claims against board
27
members in their official capacities are "in all respects other
than name, to be treated as a suit against the entity."
Bass v.
Attardi, 868 F.2d 45, 51 (3d Cir. 1989)(citing Kentucky v.
Graham, 473 U.S. 159, 166 (1985)).
A township, as a municipal
entity, is not entitled to any form of immunity.
Id. See also
Aitchison, 708 F.2d at 100 ("liability against the municipality
is not precluded simply because the defendants were found immune
in their individual capacities").
In this case, Defendants Spinner and McCall attached the
unredacted state investigatory report to a public document,
thereby disclosing the Plaintiff's home address, social security
number and other personal identifiers to the public.
Significantly, there are no reasons offered by the Defendants in
their briefing or in the record which justify disclosure of
Plaintiff's personal information to the public.
Therefore, a
rational factfinder could conclude that Defendants McCall and
Spinner violated the Plaintiff's substantive due process right to
privacy.
However, their actions in attaching the investigatory report
to their own Subcommittee Findings was taken in the scope of a
legislative function as members of a township investigatory
committee.
Therefore, Defendants Spinner and McCall are entitled
to legislative immunity in their individual capacities with
regard to Plaintiff's privacy claim.
28
Summary judgment will be
entered in favor of Spinner and McCall in their individual
capacities.
Legislative immunity does not preclude the Plaintiff's
Section 1983 claims to proceed against Defendants McCall and
Spinner in their official capacities, however.
Plaintiff's
official capacity claim against Defendants McCall and Spinner for
violation of his right to privacy is in all respects a claim
against the Township itself, which is also a Defendant in this
case.
As the Township is not entitled to any immunity,
Plaintiff's claims against McCall and Spinner in their official
capacity may proceed.
Finally, there is an issue raised by the facts4 that
Defendant Mabey, the Chief of Police, violated Plaintiff's right
to privacy by allegedly disclosing an unredacted copy of the
state investigatory report to Defendants McCall and Spinner.
Defendants McCall and Spinner claim they received the state
investigatory report pursuant to an OPRA request to the State
Police Department and the submission of $16 money order.
Plaintiff claims Defendant Mabey gave them an unredacted copy of
the state investigatory report which Mabey had in his possession
4
This issue was not raised by the Plaintiff in his
opposition as Plaintiff's brief focused solely on the liability
of Defendants McCall and Spinner with regard to Plaintiff's right
to privacy claim. However, the Plaintiff implied such an
argument from his Statement of Undisputed Material Facts [Docket
Item 44-7] and therefore, the court finds it necessary to address
it herein.
29
once the State Police declined the Township's OPRA request and
subpoena.
Viewing all facts in favor of the Plaintiff as the nonmoving party, the court finds summary judgment is appropriate to
dismiss Plaintiff's right to privacy claim against Defendant
Mabey.
Assuming Defendant Mabey was the source of the unredacted
state investigatory report, his disclosure of the report to
Defendants McCall and Spinner did not violate Plaintiff's
constitutional right to privacy.
In particular, Defendants
McCall and Spinner were not members of the public, but rather
were functioning as governmental officials vested with the
authority to investigate the April 16, 2008 incident.
The
sharing of law enforcement investigative information with other
government officials is not prohibited by the constitution, nor
should it be.
See Philadelphia Yearly Meeting of the Religious
Society of Friends v. Tate, 519 F.2d 1335, 1338 (3d Cir.
1975)(holding that the sharing of information by a law
enforcement authority with other agencies of government having a
legitimate law enforcement function does not give rise to a
constitutional violation).
Here, Defendants McCall and Spinner,
as members of the Investigative Subcommittee, were legitimately
investigating Plaintiff's involvement in the April 16, 2008
incident and consequently were entitled to have access to the
report.
30
In addition, there is no evidence that Defendant Mabey made
any public disclosure of the unredacted state police
investigatory report.
The public disclosure occurred when the
unredacted report was attached to the findings of the
Investigative Subcommittee.
There is no evidence in the record
that Defendant Mabey was involved with this decision, authored
the report or authorized its disclosure.
Finally, even assuming Defendant Mabey was wrong in
disclosing the unredacted report to Defendants McCall and
Spinner, he is entitled to qualified immunity.
As an
"accommodation of competing values," qualified immunity strikes a
balance by permitting a plaintiff to recover for constitutional
violations where a governmental defendant was "plainly
incompetent or . . . knowingly violate[d] the law," while
immunizing a state officer who "made a reasonable mistake about
the legal constraints on his actions."
Curley v. Klem, 499 F.3d
199, 206-07 (3d Cir. 2007) (internal quotations and citations
omitted).
The Court must address "whether the right that was
[allegedly] violated was clearly established, or, in other words,
whether it would be clear to a reasonable officer that his
conduct was unlawful in the situation he confronted."
Id.
(internal quotations and citations omitted).
The right to prevent intra-governmental dissemination of
personal information in the context of a law enforcement
31
investigation is not well established, especially after NASA,
supra.
Defendants McCall and Spinner had a legitimate reason to
ask for this information as they were vested with the authority
to investigate the April 16, 2008 incident on behalf of the
Township.
Further, there was no indication at the time Defendant
Mabey allegedly disclosed the unredacted report that this report
would subsequently be disclosed to the public.
Therefore,
Defendant Mabey's actions were objectively reasonable under the
circumstances and he is entitled to qualified immunity.
In conclusion, Plaintiff's substantive due process claim for
violation of his right to informational privacy will be dismissed
in its entirety as to Defendant Bianco and Defendant Mabey.
Summary judgment will also be granted as to the individual
capacity suits against McCall and Spinner.
However, summary
judgment will be denied as to the official capacity claims
against Defendants McCall and Spinner.
This analysis applies with equal force to the Plaintiff's
claim for violation of his right to privacy under the New Jersey
State Constitution.
It is well established that the right to
privacy is broader under the New Jersey Constitution than the
federal Constitution.
See Burnett v. County of Bergen, 198 N.J.
408, 437 (2009)(recognizing a reasonable expectation of privacy
in personal information such as social security numbers contained
in land title records); State v. McCallister, 184 N.J. 17, 32-33
32
(2005)(finding an individual has a reasonable expectation of
privacy in bank records where such a right had not been
recognized under the federal Constitution); State v. Hunt, 91
N.J. 338, 347 (1982)(finding a right to privacy in long distance
telephone records held by telephone company).
Therefore, the
Plaintiff's claims against Defendants McCall and Spinner in their
official capacities remain viable under the New Jersey
Constitution as well.
The Township's liability will be addressed below.
C.
42 U.S.C. § 1983 Monell Claim
Defendant Township argues that summary judgment is
appropriate to dismiss the Plaintiff's claim against it for
violating the Plaintiff's right to privacy because the Plaintiff
has failed to prove an unlawful municipal policy or custom.
The
Plaintiff argues that summary judgment is inappropriate as the
Plaintiff has shown that the policymakers themselves, McCall and
Spinner, violated his constitutional rights by disclosing his
home address and social security number.
It is well-established that municipal liability under § 1983
“may not be proven under the respondeat superior doctrine, but
must be founded upon evidence that the government unit itself
supported a violation of constitutional rights.”
Bielevicz v.
Dubinon, 915 F.2d 845, 850 (3d Cir. 1990) (citing Monell v. New
York City Dep’t of Soc. Servs., 436 U.S. 658 (1978)).
33
As a
consequence, a municipality is liable under § 1983 only when
“execution of a government’s policy or custom, whether made by
its lawmakers or by those whose edicts or acts may fairly be said
to represent official policy, inflicts the injury.”
Monell, 436
U.S. at 694; Pembaur v. City of Cincinnati, 475 U.S. 469, 483
(1986) (plurality opinion).
One circumstance in which municipal liability is appropriate
“occurs where no rule has been announced as policy but federal
law has been violated by an act of the policymaker itself.”
Natale v. Camden County Correctional Facility, 318 F.3d 575, 584
(3d Cir. 2003).
“In order to ascertain if an official has final
policy-making authority, and can thus bind the municipality by
his conduct, a court must determine (1) whether, as a matter of
state law, the official is responsible for making policy in the
particular area of municipal business in question, and (2)
whether the official’s authority to make policy in that area is
final and unreviewable.”
Hill, 455 F.3d at 245 (internal
citations omitted).
In this case, it is clear that Defendants McCall and
Spinner, as members of the Township Committee and the only two
members of the Investigative Subcommittee, are policymakers.
McCall and Spinner were responsible for conducting the
investigation into the Plaintiff's involvement in accessing the
Township's computer network and their findings were final and
34
unreviewable.
As discussed above, the Plaintiff has presented sufficient
evidence to support a viable claim for violation of his right to
privacy against McCall and Spinner because they disclosed his
personal identifiers, such as his social security number and home
address, to the public by attaching them to the unredacted state
investigatory report to their Subcommittee Findings without any
justifiable reason.
Further, Plaintiff has provided evidence
which creates a genuine issue of material fact as to whether
Defendants Spinner and McCall failed to supervise or train the
Municipal Clerk in making the report available to the public.
Defendants McCall and Spinner were aware that the contents of the
investigatory report contained confidential information and had
an obligation to inform the Municipal Clerk about its sensitive
contents in order for the clerk to properly disseminate the
report pursuant to the subsequent OPRA requests.
Therefore it is not necessary for Plaintiff to present
evidence of an additional unconstitutional policy or custom,
where he has sufficiently established that the municipal
policymakers themselves violated federal law.
F.3d at 584.
See Natale, 318
Accordingly, the Township's motion for summary
judgment will be denied.
D.
Fourteenth Amendment Defamation Claim
Finally, all the Defendants move for summary judgment
35
dismissing Plaintiff's constitutional defamation claim.
This
court has previously explained in its July, 2010 Opinion that
“reputation alone is not an interest protected by the Due Process
Clause,” and that a plaintiff must prove “a stigma to his
reputation plus deprivation of some additional right or interest”
in order to establish a due process claim for deprivation of a
liberty interest in reputation.
Hill v. Borough of Kutztown, 455
F.3d 225, 236 (3d Cir. 2006) (citing Paul v. Davis, 424 U.S. 693,
701 (1976)) (emphasis in original).
Sometimes referred to as the
“stigma-plus” test, in the public employment context the “stigma”
is the creation and dissemination of a false and defamatory
impression and the “plus” is generally termination.
Id.
Where a
plaintiff shows “stigma-plus,” he is entitled to a name-clearing
hearing.
Id.
In order to establish the requisite stigmatizing
statement, a plaintiff must show the statements (1) were made
publicly and (2) were false.
See id.
Plaintiff bases his defamation claim on the following
allegedly false statements made by Defendants Spinner and McCall:
(1) the Plaintiff had provided false statements and lied to law
enforcement; (2) the Plaintiff had breached the Township network;
and (3) that the Plaintiff was a hacker.
As to the first statement, it is undisputed that the
Plaintiff did not tell Chief Mabey that he ran a port scan on the
computer network when he was being questioned by Chief Mabey
36
about his access to the Township computers on April 16, 2008.
This omission during Chief Mabey's interrogation was material and
was willfully done by the Plaintiff.
Therefore, the statement
made by Defendants McCall and Spinner that Plaintiff "willingly
lie[d] in an official Police investigation" was not false and
cannot serve as a basis for Plaintiff's defamation claim.
(Def.'s Ex. 17, Subcommittee Report.)
Similarly, statements made by Defendants McCall and Spinner
that the Plaintiff had breached the Township's network are not
inaccurate.
The Plaintiff performed a port scan on the
Township's computer network, and while the Plaintiff did not
access personal information stored on the network, the Plaintiff
still performed a scan that a member of the general public would
not be authorized to do.
The Plaintiff was not given permission
to do this scan from the Township Committee, but rather performed
the scan surreptitiously at the request of Deputy Mayor Campbell.
Plaintiff tried to conceal his breach of the network by claiming
that he had only used the Township's computer to check his own
business email.
Plaintiff's own false exculpatory story is
another reason to believe that he understood the wrongfulness of
his conduct on the Township's network.
This could be understood
as a breach and consequently, the statement that Plaintiff
breached the Township's network cannot be considered so false as
to be the basis for a defamation claim.
37
Though the Plaintiff did
not have the requisite criminal intent necessary for prosecution,
as found by the state police investigation, this does not make
Plaintiff's conduct any less a breach of the Township's network.
Finally, the statement that Plaintiff is a "hacker" is also
insufficient to buttress Plaintiff's defamation claim.
It is
undisputed that the Subcommittee Report does not refer to the
Plaintiff as a "hacker."
There is no evidence in the record that
Defendants McCall or Spinner5 publicly referred to the Plaintiff
as a hacker.
Without any evidence in the record that this
statement was publicly made, it cannot serve as a basis for a
defamation claim.
Therefore, as the Plaintiff has failed to sustain his burden
of proof in showing Defendants Spinner and McCall publicly made
false statements against him, no rational jury could find that
stigmatizing statements were made, and therefore summary judgment
is entered in favor of the moving Defendants on Plaintiff's
defamation claim.
5
The Plaintiff does not argue in his brief that Defendants
Mabey or Bianco publicly made any defamatory statements. By not
responding to the Defendants' moving brief requesting summary
judgment dismissing the defamation claim against all Defendants,
the court finds the Plaintiff concedes that there is no evidence
of defamatory conduct by Defendants Mabey and Bianco in the
record and therefore will summarily dismiss the defamation claims
against these defendants.
38
IV.
CONCLUSION
For the reasons discussed herein, the court will grant in
part and deny in part the Defendants' motion for summary
judgment.
The court will partially grant the Defendants' motion
for summary judgment and dismiss Plaintiff's constitutional right
to privacy claim against Defendant Bianco and Defendant Mabey in
its entirety.
The court will also grant summary judgment and
dismiss Plaintiff's right to privacy claim against Defendants
McCall and Spinner in their individual capacities.
However, the
court will not dismiss the Plaintiff's right to privacy claim
against Defendants McCall and Spinner in their official
capacities.
The court will also deny summary judgment as to Plaintiff's
claim against the Township.
As the Plaintiff has produced
evidence from which a jury could conclude his federal rights were
violated by the final action of policymakers, specifically
Defendants McCall and Spinner, the court finds the Plaintiff may
proceed on his Monell claim and need not show additional evidence
of a municipal policy or custom.
Finally, the court will grant summary judgment as to
Plaintiff's defamation claim.
The Plaintiff has failed to
sustain his burden of proof to establish that false and
defamatory statements were made by the Defendants.
Therefore, as
no rational jury could conclude that stigmatizing statements were
39
made by the Defendants, summary judgment is appropriate to
dismiss this claim.
The accompanying Order will be entered.
June 26, 2012
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
40
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