In a decision issued May 21, 2015, the Sixth Circuit stayed its course in refusing to extend constitutional protection to encompass a right of privacy in financial records and, in doing so, retained its position as the most conservative of the federal circuits to have addressed this issue.
The case, Moore v. WesBanco Bank, Inc., Case No. 13-4477, 2015 U.S. App. LEXIS 8589, arose from allegations that a bank and an assistant county prosecutor violated plaintiff Moore’s Fourteenth Amendment right to substantive due process when the bank provided copies of two canceled checks drawn on his account to the prosecutor without insisting upon a subpoena or seeking his consent. Both defendants denied that the bank provided Moore’s checks to the prosecutor. The district court found no need to resolve the factual dispute because it concluded Moore had no constitutional claim based on prior Sixth Circuit precedent. On appeal, the Sixth Circuit agreed and declined to revisit the issue of whether it should extend the right to informational privacy to financial records.
In previous decisions, the Sixth Circuit has recognized a “right to informational privacy” of constitutional dimension only in two instances: where the release of personal information could lead to bodily harm or where the information is of a sexual, personal or humiliating nature. That precedent, affirmed in Moore, places the Sixth Circuit at the most conservative end of the spectrum on the issue. Eight of its sister circuits have held that the constitutional right of privacy covers some financial disclosures. See Denius v. Dunlap, 209 F.3d 944, 957 (7th Cir. Ill. 2000) (collecting cases). The Court of Appeals for the District of Columbia, meanwhile, has expressed doubt as to the existence of a right to informational privacy but has not decided the issue. AFGE v. HUD, 118 F.3d 786, 791 (D.C. Cir. 1997).
Yet, despite being a minority of one circuit on this issue, the Sixth Circuit’s position stands on solid ground. The United States Supreme Court has ruled, in the context of the Fourth Amendment protection against searches and seizures, that checks, deposit slips and other financial information voluntarily conveyed to financial institutions in the ordinary course of business are not protected by a right to privacy. United States v. Miller, 425 U.S. 435 (1976). While the high Court has referred broadly to a constitutional privacy interest in avoiding the disclosure of personal matters, it has never squarely addressed a constitutional right to informational privacy. And it expressly declined to do so in NASA v. Nelson, 562 U.S. 134, 135 (2011), even though it acknowledged the split among the circuits on this issue. Given the Supreme Court’s reluctance to take an affirmative stand, it is not surprising that the Sixth Circuit is staying the course or that it will continue to do so, absent clear direction to the contrary from the Supreme Court.
Nor is there any compelling reason for the Sixth Circuit, or any other circuit, to extend the right to informational privacy to the routine records maintained by financial institutions. The federal Financial Privacy Act, 12 U.S.C. § 3401 et seq., already regulates the release of financial information to federal authorities, and many states, although not Ohio, have similar laws that regulate the release of financial information to state authorities. These statutory approaches are better suited to allay privacy concerns than creating a constitutional remedy, as constitutional claims, once recognized, tend to resist logical stopping points.
Editor’s Note: Ms. Trafford represented the defendant in Moore v. WesBanco Bank, Inc.