Lambert v. Hartman: Sixth Circuit Affirms Dismissal of § 1983 Claim Arising from Publication of SSN on County Website

Lambert v. Hartman et al.

Sixth Circuit, February 25, 2007, No. 07-3154
Slip Opinion
District Court Order

On February 25, the Sixth Circuit affirmed a ruling of the U.S. District Court for the Southern District of Ohio dismissing a § 1983 claim brought against the Hamilton County Clerk of Courts and Board of City Commissioners by a victim of identity theft, after the clerk published the victim's Social Security number and other identifying information on a publicly accessible website. The court held that potential financial harm alone was insufficient to implicate the “fundamental liberty interest” necessary to trigger a right to informational privacy.

Online commentary on the appellate decision has been light, despite its potentially serious implications.
The Stanford Law School Center for Internet and Society elucidated the district court opinion.
The circuit court cited Helen L. Gilbert's interesting Chicago Law Review Comment on informational privacy.

Cynthia Lambert received a traffic citation for speeding which included her name, signature, home address, birth date, driver’s license number, and Social Security number. The citation was published on the Clerk of Courts’ publicly accessible website. A woman then purchased approximately $20,000 of merchandise using a driver’s license with Lambert’s information. Both the citation on the website and the forged license contained the same incorrect driver’s license number, proving that the thief obtained the information from the clerk’s website.

In affirming the district court’s ruling, the circuit court maintained its narrow construction of the holdings in Whalen v. Roe, 429 U.S. 589 (1977) and Nixon v. Adm’r of Gen. Servs., 433 U.S. 425 (1977): the right to informational privacy exists only where the interest at stake implicates a “fundamental liberty interest.” Bloch v. Ribar, 156 F.3d 673, 684 (6th Cir. 1998). The presence of this constitutional dimension satisfies the first prong of the Sixth Circuit’s two-part test; the second prong involves balancing “the government’s interest in disseminating the information against the individual’s interest in keeping the information private.”

The court noted that it has only twice recognized a constitutional dimension to interests in informational privacy: once where the release could lead to serious bodily harm, and once where graphic, humiliating details of a rape were released. As a result, the court agreed with the court below that Lambert’s claim, predicated only on the harm to her credit rating, failed to implicate the necessary fundamental liberty interest. As her claim lacked the requisite constitutional dimension, the balancing test was not applied.

Lambert argued that the disclosure of her Social Security number implicated both liberty and property interests by, respectively, affecting her credit rating (and therefore her reputation) and her property interest in her personal information. The court, citing its holding in Bloch, limited its recognition of the right to informational privacy to “implicat[ion of] a fundamental liberty interest,” excluding indirect financial harm.

The Sixth Circuit’s position that disclosure of Social Security numbers is not subject to Fourteenth Amendment protections diverges from the stance offered by the Ninth Circuit in In re Crawford, 194 F.3d 954, 958 (9th Cir. 1999) (“[T]he indiscriminate public disclosure of SSNs, especially when accompanied by names and addresses, may implicate the constitutional right to informational privacy.”). The Ninth Circuit in Crawford also suggests that the Sixth Circuit’s position is in the minority, citing Second, Third, and Fifth Circuit holdings for their broader interpretations of Whalen and Nixon.