Last Thursday a federal court in Florida noted the existence of a split in authority over whether the Constitution creates a right to privacy in information. See Elkins v. Elenz, Case No.: 8:11-cv-2817-T-23AEP(M.D. Fla. July 19, 2012). In Elkins, the plaintiff sued two of his probation officers and a DEA agent for allegedly violating his Fourth Amendment right to privacy. Specifically, the defendant claimed that the officers coerced him into handing over a copy of his personal psychological evaluation by threatening jail time if he refused.
To determine whether the federal officers were entitled to qualified immunity, the district court considered whether there is a clearly established constitutional right to privacy in information. The court turned to the Supreme Court’s 2011 decision in Nasa v. Nelson for guidance, but found none because the Court decided Nelson on narrow grounds, leaving the broad constitutional question for another day. 131 S. Ct. 746, 757 n.10 (2011). “In short,” the district court remarked, “the verdict on informational privacy is an unequivocal ‘who knows.’”
As a result, the following circuit split still exists over the question:
Many courts hold that disclosure of at least some kinds of personal information should be subject to a test that balances the government's interests against the individual's interest in avoiding disclosure. E.g., Barry v. New York, 712 F.2d 1554, 1559 (CA2 1983); Fraternal Order of Police v. Philadelphia, 812 F.2d 105, 110 (CA3 1987); Woodland v. Houston, 940 F.2d 134, 138 (CA5 1991) (per curiam); In re Crawford, 194 F.3d 954, 959 (CA9 1999); State v. Russo, 259 Conn. 436, 459-464, 790 A.2d 1132, 1147-1150 (2002). The Sixth Circuit has held that the right to informational privacy protects only intrusions upon interests “that can be deemed fundamental or implicit in the concept of ordered liberty.” J. P. v. DeSanti, 653 F.2d 1080, 1090 (1981) (internal quotation marks omitted). The D. C. Circuit has expressed “grave doubts” about the existence of a constitutional right to informational privacy. American Federation of Govt. Employees v. HUD, 118 F.3d 786, 791 (1997).
Nelson, 131 S. Ct. at 756 n.9.