honor this order entered an order sealing portions of the record reference as appendix three and i will be generally referencing those portions in accordance with local political one of six your honors the district court in this matter ruled that dr karen malice is complaint did not adequately allege privacy interests that are protected in the fourteenth amendment his rationale was that they did not fall into the three categories stated in his opinion medical information hiv information or sexual orientation information this is not the rule in the circuit nor is the rule of the land the rule is let me ask you what why should we pick what the district courts as having to the protections of the fourteenth amendment furthermore the analysis that was provided didn't seem to indicate anything related to a reasonable expectation of privacy which is the rule of the land will tell you can i ask you what's the what precisely is it that your client believes was protected in her communication or was it the assertion that she had a question about her grand nieces on us the what was the the thing that  your clients who have such personal private me truest one constitutional protection you are without going into the sealed portions of the record it is the very nature of that information you just referenced the the statements about her grand niece that were made in the context of this child abuse report that were personal communications and perceptions that she had characterizations of her grand niece that she made during a child abuse reporting commute contrast that with the kinds of information that have been found to be personal and private in other circumstances and if we took just sanchez's list as an exemplary list you would certainly agree that those are the kind of the things you listed are personal and private right well they are in that in terms of whether the context does protect those that kind of information medical information it has been deemed to be protected but it's the context  information where it's protected and if anything that's embarrassing if it gets out called out usually protected i mean if i said something unkind about judge fisher which i never would but if i did and i came out i would certainly be embarrassed about that i would want it to come out but does that mean that that communication is is constitutionally protected one your honor it would depend in the context in which you made such a statement if you made that statement here in this open courtroom of course it would not be protected under the fourteenth amendment because there would be no reasonable expectation of privacy but had you made that conversation to me in your chambers one on one and telling me that this is confidential and you'd rather have me keep it to myself and i was a state actor then my future disclosure of that information very well could have been a violation of fourteenth amendment it is the context that matters constitutionally protected when this is an observation about a person's character or personality we all do that all the time we all size up people we express our opinions about people we all have our opinions about each other and about others and others have opinions of us how could that opinion testimony as to our personality or the terms of a report that's being drawn an observations over coffee of between two people well if it were observations over coffee between two people as opposed to a confidential setting then it would make a difference your honor the nature of the characteristics that are personally held are what is protected and what makes this report confidential in other words this is a public body that's drawing a report this is not a lawyer client relationship this is a public audience and the public has no right to know what's going on in those matters which the which this body is overseeing i think your honor i completely agree that the public has a right to hold public officials accountable for their acts with their failures to act but that's not what happened in this case in this case there was two so there are two separate documents one was the  about i don't accept the premise that as a private citizen she has a individual public policy duty to reveal information but i would say that she personally did feel like she wanted to participate in that confidential audit that what did provide the school district with important information about what went wrong in the two thousand and six investigation and just like other kinds of child abuse audits or child fatality review audits or death review audits those audits have to be open to all kinds of information you have to be able to disclose information freely so that you can correct the errors of the past that's in sound financial and it's like in the old the public open to in terms of disclosing the information open to the public is separate thing altogether now the shoe disk i guess one of the problems i have with this case and your argument is that this whole disclosure started with miss malleus volunteering this information by her grand niece nobody nobody asked her for this information she she volunteered she volunteered it to the people that she initially communicated to in two thousand and six this was a child abuse report your honor she received the information as she was walking into a meeting with the school superintendent school superintendent being the highest a floridian the school district and responsible for child abuse investigation of the child abuse investigation involved another stupid didn't involve or grand the allen as as the court is maybe aware of the child abuse reporting statute says you're to report suspected child abuse she received information from her grand niece that made her believe this is suspected child abuse there's something going on between  teacher and a student i'm going to report this to the highest official ok that's that's not the issue that's in question here it's not that is correct it's not the reporting of that suspected child abuse what's in question here is her opinion about her grand he says propensity to maybe exaggerate that's what's in dispute and that was part and parcel of the child abuse report it was part of the report that she made t now what case the you cite to us as to which is the most analogous to your case that would extend this right to privacy beyond  has been which i've seen it is beyond where it's been extended to passy by the circuit supreme court i'll start with next it here on or nixon clearly provided protection for the president nixon's private communications with his friends colleagues and family members and that was protected by the united states supreme court as informational privacy protection under the fourteenth amendment these were these were presidential communications i mean i'm not i don't mean for a minute to denigrate the public service rendered by your client which is clearly long and logic tory to the school board but is there not a distinction to be drawn between the private papers of the united states president and the school board members comment to the to the school superintendent actually honors of in terms of you know maybe the constitutional protections and issues that might be at stake the issue that was protected in the nixon case were his personal reflections and communications and actually the argument goes the other way you have a highest official in the land who has you know constitutionally protected privacy interests perhaps even more diminished than dr malus is was because of his position where you have all kinds of executive privilege overtones when you're talking about the president might i mean for all her accomplishments i don't think would claim the rights to executive privilege which she of course you're on the case so then doesn't that kind of make nixon a a case apart from what we're talking about here i think what nixon stands for your honor is that the right to privacy extended beyond medical information because when whalen came out well and said you know this medical information has personal information and nixon came out and said well it's beyond that ickle it's about these personal interactions reflections characterisations documents and communications between colleagues and family members that's going to be protected in the case and in slate responding not to judge fisher's question regarding what case do i have that would be the closest in slayton the tenth circuit did find that the diary entries by a wife that were submitted voluntarily by her husband to the police department for the purpose of instituting an investigation regarding her murder were still they contain private information about him even though they were penned by her and it was information about the character and nature of their relationship their relationship with husband wife what their what they did in their relationship and the courts that that's protected he has a privacy interest and that if there isn't one had to assert that her right to privacy under the fourteenth amendment extends to her oppressions and characterizations of her grand niece and that if the state was going to compel her disclosure of this information just like in westinghouse where a subpoena was issued this she was going to resist her ability to observe things and to recount accurately what she had for your position is that she could not answer that she would not have to she claimed not say she has a she is a first amendment privilege not to reveal her limited the pleasure of that information say the the government does not want to and read any agreement they want the information without agreement is i want to use the information i would most likely file a motion to quash limiting providing for protection of that information just balancing of interest of that scrutinizing this particular privacy interests just like they did in westinghouse if i came forward with a motion to quash that subpoena or some sort of confidentiality protection petition the court would have to engage in that analysis question in part refutes your very argument in that the the information in this case that dr malik's is complaining about is information she voluntarily disclosed it's not information that she was forced to give under oath in a deposition she voluntarily disclosed when you fall entirely disclose information you don't automatically it's not automatically stripped of it's private nature or it's personal but hashing but the second problem i have a good system which is your case is that the report which was disclosed was a public was a report prepared for a school district in pennsylvania a public entity was would that report have been subject the right to honor actually it was not subject to the right to know act pursuant to the rect will act would have been excluded as a non criminal investigative report and the opinion letter would have been subject to disclosure i believe but not the cake i report with all may please the court my name is paul c n c and i represent applebee's john george and jill hackman two of the defendants below i believe that judge jordan's example about the derogatory which is this really wasn't a voluntary disclosure this was something required under pennsylvania child abuse reporting statute she as a responsible citizen was under a  duty to communicate this information and she did so on a specific understanding that it was to be dealt with in strictest confidence  so that this was this wasn't just me shooting the breeze about a colleague this was something in the context of statutory obligations and a official investigation and that context makes difference i or made a difference that's what i understand her to be driving i want you address that context based argument sure there are a few points of response first she alleges that it was in the context of a child abuse investigation under the statute that she cites it doesn't qualify as a child abuse investigation she has not she  certainly not in her brief set out why she believes that that is the case with that matter would it matter if it did it would not matter if it did because this court has held as recently as two thousand  in the new yes case which is that five seventy eight every third to twenty eight that a state statute cannot create a constitutional privacy right so even if the child abuse statute applied and even if that statute says the report has to be confidential that statute cannot create under this court precedent a constitutional privacy right  she may have nothing but she could have a state court action but not a constitutional claim she she she needs to have a private statement that is intimately personal and her statement was neither private nor this gorgeous science sanchez draw the lines too tightly oh i don't i don't think the judge sanchez has as has drawn the line to do too tightly no this court and other federal courts have been extremely reluctant to expand these types of privacy rights and this court will will only shield information that is deeply rooted in notions of fundamental personal of reports candid assessments that official investigations particularly in the matters like sex abuse child molestation i don't need i don't think so your honor because we're dealing with a circumstance where the speaker has to expect us to reasonably expect that the information he or she gives may be made public we're talking about a matter of that is very very sensitive and that the public has a it is a very high interest to know about so it doesn't that actually i mean if you if you believe that it's highly likely that it's going to come out then then what's the incentive to share the information the incentive to share the information is to protect the children because you want to get to the right answer in theory you've so you don't see any you don't see a natural difficulty or conflict within the the position you're propounding which is you have to know all this is going to come out and therefore no matter how personal confidential it is you'll give it well i think that that that the context of this case is what makes it unique we're talking about a conversation in the context of me and investigation where an adult teacher who had been allegedly seen kissing a student was caught two years later in a more i wish significan circumstance wish that were unique mr c n c well sadly there are child abuse cases that come out of schools with more regularity than we'd like so this is it and i guess what i'm trying to you is what's the what's the real world ramification of saying yeah you give what you think is confidential information to a school board investigation and you can just expect it's going to be on the front page literally what's the what's the real world ramification of the argument you're making i think the real world where ramification is that the person in that circumstance has to expect that that information might end up on the front page well what person would give the information in this case particularly she gave it under what she thought was a which expresses that was a confidential agreement you think that information just t was just said you think that information would have been forthcoming if she thought it was going to go public i don't know your honor well i just know she said i won't give it you except confidentially and therefore it would have been forthcoming if she didn't think it was going to be confidential but she made that statement to a lot of other people before she made the statement to the investment another question whether she waive the confidentiality by  let's put that aside for a moment that's a separate that's if you guys are confident you are right here it can be way but we're dealing with whether she has one in the first place and your position is that  information should be coming forward but you just told judge jordan that in effect if people thought it was going to be on the front page of the local paper they would give the information maybe the person will make that choice but the speaker will only have a constitutional protection when she talks about intimate personal affairs does the right to privacy symon your as one does it protect only facts or does it also protect  certainly it has only protected facts in the current case law it certainly does not protect opinions about other people is that what we have here yes she's not talking about herself in any way shape or form she's talking about someone else not her spouse like this like the slater case talk about her grand niece when your honor may it please the court counsel my name's len brown and i represent the apple e jeffrey conrad the pole star for the court in deciding this case has been clearly laid out by the united states supreme versus davis justice rehnquist writing for the court said the personal rights found in this guarantee of personal privacy must be limited to those which are fundamental or implicit in the concept of ordered liberty do you accept mr brown that your client though i did citizen was acting with government actors and therefore for purposes of  this case should be viewed as a state actor i don't your honor i think there's a a significant can of worms that gets opened as we get into the analysis of state action here different from the cases that were cited i believe by both sides mr conrad clearly and it's part of the record as a bit see to the complaint explains the reason for his inquiry to the warwick school board he's writing as  republican committee and he asked for redacted report the allegation the allegation is that mr conrad and his hackman are friends and that this was a product of collusion the passing of this report in the opinion letter was a product of collusion because it is hackman and dr i should say dr hackman and dr george should couldn't perhaps release it themselves for fear of repercussions but they were perfectly willing to use your client to do it in an attempt to embarrass and humiliate dr malleus if if that allegation were accepted as true would it be legally acquiescence of a state actors in the conduct of someone else does not allow that person to rise to the level of state action worse here the allegation is not m p s it's active collusion right working with i give you this report so that you can give to the press that is the allegation of the complaint your honor it was it was your client who gave who it's alleged gave it to the press that's the allegation so it's i were there he was just working with the other he was or he was more than he was just working with the board members he was the one who actually released a report that some of the other board members allegedly were happy to see because they were this is really not a battle between them and dr maoists it was a battle between them and mr  there certainly a political aspect to this and it's very evident i believe in the attachment to the complaint that's the attachment it's been there the e mail has been attached to the complaint as to the reasons why this court the report was being  requested and if the court were to assume for the sake of argument that a privacy interest exists i believe that gives the court enough to do a balancing test as to the importance and shows the importance in this community of holding people accountable who are in positions of trust as public school directors and how they're performing their jobs that is the reason the newspapers were interested and i think it's important to point out to the court to something very significant with respect to whether dr malleus believed this was protected at all for privacy reasons if you if you look at the record on pages two fourteen and two fifteen when dr  reporter from the lips record you would expect as her counsels just argued that she would say that stuff is confidential i'm not going to talk about it for reasons which apparently will be alleged if if this is sent back  her reasons that she gave to the reporter for the lips record but lie any privacy answer interest at all she gave three reasons the first reason was that the report was prepared by an attorney who worked with an attorney for the school board so therefore it's questionable the second reason she gave was that she didn't have a chance to review the report for errors before it was released and the third reason she gave was that the superintendent is the one responsible for refuting child abuse reporting child abuse never mentions any concerns about privacy and i think that alone is enough in the record to uphold the decision of the district court because there is no reasonable expectation of privacy that's been shown or pled in this case this court should reject the offer that's been given to expand the substantive due process rights and expand the definition of privacy and affirm the district court's opinion thank you very much when mr brown miss copy of the report even requesting that it be redacted despite the fact that that report was not available to the public no one knew about that report how did he know about that report the allegations in the complaint as judge jordan's pointed out indicate that there was some action in concert and we and dr malleus at that point knew that there was somebody on the inside that was working to get this report well let's let's assume that that's all wrongful behavior is every wrong a constitutional law course not your honor ok so even if we were to assume that that the defendants here were bad actors in some way hit if you would the central issue here why why is mr c n c incorrect when he says to us they might have some state court action but there's nothing in the constitution that protects a comment about one's relative the characteristics of pain and thoughts and impressions they're related from a personal perspective to another entity especially a state actor are protected that's as personal as you get  knowledge that that would be a significant expansion on the current case law i would acknowledge that the case law has not addressed this issue but i would purport that the reason why it has not been addressed is because it's so if the fact that you take advil to cure your allergies is protected by whalen as a fourteenth amendment privacy issue is something that is out there is a matter of law than certainly the reason why you take it your concerns about why you take it the impressions and communications you have with your personal partners or your family members has to be protected and that's what she found we don't have those facts in the circuit and in any particular case but she's made it clear it's about a reasonable expectation of privacy it's about what you say about other people in your personal contacts your relationships that matters and you judge fisher i want to address your concern about the public record let's a minute to look at this circuits opinion fop in fop we had you know a very strong public interest in making sure there wasn't corruption in the philadelphia police department and the questionnaires were being sent out to the police force  screen who was appropriate for the police department they didn't ask for fact information they asked for behavioral information attitudinal information contacts information and the police force resisted the sclerosing that information that's why we have a foe p so it's very clear that context does matter and that it's the reasonable expectation of privacy that really holds the day the court enough a piece said if you were drinking in a public bar it's not protected but if you're in your basement having a beer that very well may be protected that was the nature of the analysis in this circuit's opinion f o p i'm not asking this court to extend