Rosann C. Scheetz Kenneth L. Scheetz, Jr. v. The Morning Call, Inc. Terry L. Mutchler John Doe And/or Jane Doe

OPINION OF THE COURT

NYGAARD, Circuit Judge.

In this section 1983 action, plaintiff-appellants Kenneth and Rosann Scheetz allege that the defendants, a local newspaper, a reporter, and an unnamed state actor, conspired to deprive the Scheetzes of their constitutional right of privacy. The district court granted summary judgment in favor of the defendants. We will affirm.

I.

Kenneth Scheetz is a police officer in the City of Allentown. Rosann Scheetz is his wife. In the course of an argument between them in their home in January of 1988, Kenneth struck Rosann. Rosann left the house, but returned approximately a half an hour later. The argument resumed, and Kenneth again struck Rosann.

Rosann called the Allentown police. Two officers responded and prepared a standard “offense/incident” report, consisting of a face sheet and supplemental reports. The “face sheet” of this report1 stated that Rosann Scheetz had reported a domestic disturbance, that two police cars had responded, and that Rosann had left the home.

In the meantime, Rosann had driven to the Allentown police station, apparently with the intention of filing a Pennsylvania Protection From Abuse Petition. The offi*204cers who interviewed Rosann prepared two “supplemental reports” and made them part of the file. They reveal that Rosann stated that her husband had beaten her before and had refused counseling. The police gave Rosann three options: file criminal charges, request a protection from abuse order, or initiate department disciplinary action against Kenneth. These supplements also note that Rosann had visible physical injuries, that Rosann did not want to return home and that she was permitted to spend the night in the shift commander’s office.

Chief Wayne Stephens filed a third supplement to the report. He had spoken to Kenneth about the incident, and the third supplement memorialized this fact, as well as Kenneth’s statement to the Chief that he and his wife were scheduled to speak with a marriage counselor. None of the supplements indicated that the Chief took any disciplinary action against Kenneth.

Shortly after the incident, Kenneth Scheetz was named “Officer of the Year” by Chief Stephens. Several months later, as part of “Respect for Law Week,” press releases and photos of Kenneth were released. A dinner and official ceremony were held in Kenneth’s honor. The Morning Call (“The Call”), a local newspaper, published a story and photo on this honor.

Terry Mutchler, a reporter for The Call, became interested in investigating the prior incident involving Kenneth and Rosann. Another reporter from the paper had tried to get the police report from the police, who refused to release it. Mutchler’s request for a copy of the report from the department was also formally refused. Mutchler nonetheless managed to get a copy of the report.2

Mutchler then interviewed Chief Stephens about the incident. Chief Stephens initially denied the incident, but when confronted with Mutchler’s information, he claimed that the report was stolen and refused further comment. Chief Stephens did, however, offer his insights into the subject of spousal abuse, stating “people fake it” and “women ... tear their dresses and rip up their bras and say they were raped.” Mutchler also interviewed Deputy Chief Monaghan, who offered assorted rationalizations for why no follow up had been done on the Scheetz incident. The Scheetzes refused comment on the incident.

The Call published an article by Mutchler titled “Police didn’t investigate assault complaint against officer.” Eight paragraphs of the article were comprised of quotes from the police report of the beating incident which detailed the injuries Ro-sann received. The bulk of the article, however, focused on the lack of investigation and follow-up by the police department. Chief Stephens was quoted as saying that the incident had not been investigated. The article also quoted the comments Chief Stephens had made to Mutch-ler about domestic abuse, as well as Deputy Chief Monaghan’s explanations for why no charges were pressed. The last two columns of the article consisted of quotes from Kenneth’s superiors praising his work.

Apparently Chief Stephens’s comments provoked a number of calls to the department questioning his commitment to the protection of women. At Chief Stephens’s request, The Call sent a different reporter to interview Stephens the next day. The Call then published an article entitled “Chief says beating report investigated like others.” In this article, Stephens attempted to clarify his earlier statements. He stated that the incident with Scheetz had *205been investigated. He explained he had initially thought he was being asked if he had personally investigated the complaint, and that was why he said no investigation was done. He also attempted to clarify his statements about domestic abuse. Three paragraphs towards the end of the article briefly recap the events listed in the police reports.

Kenneth and Rosann then sued Mutchler, The Call, and “John or Jane Doe.” The complaint alleged that Mutchler and The Call had conspired with an unknown state actor (the Doe defendant) to deprive the Scheetzes of their constitutional right to privacy in violation of 42 U.S.C. § 1983. The complaint also raised several pendent state law claims.

The Call and Mutchler filed an answer that denied liability and raised jurisdictional and other defenses. After limited discovery, The Call and Mutchler filed a motion to dismiss the Doe defendant and to dismiss the action for lack of subject matter jurisdiction. The district court considered the motion to dismiss and to dismiss the Doe defendant and decided to deny it, but indicated that it would reconsider the issues after reasonable discovery had been completed. 130 F.R.D. 34. After the defendants refused to answer questions about Mutchler’s source, the Scheetzes filed a motion to compel. Defendants then renewed their prior motions, and filed additional motions for judgment on the pleadings, summary judgment and a protective order.

The district court granted the defendants’ motion for summary judgment in part, denied it in part, granted judgment to the defendants on the § 1983 claim, dismissed the pendent state claims, dismissed the Doe defendant and dismissed all remaining motions as moot. 747 F.Supp. 1515. The Scheetzes appeal.

The district court had jurisdiction over the subject matter of this section 1983 action pursuant to 28 U.S.C. §§ 1331 & 1343. We have jurisdiction over this appeal from a final order by the district court pursuant to 28 U.S.C. § 1291.

Our review of a grant of summary judgment is plenary. Summary judgment is appropriate if there is no genuine dispute of material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In reviewing a grant of summary judgment, we accept all of the non-moving party’s allegations as true and draw all factual inferences in the non-moving party’s favor. Erie Telecommunications, Inc. v. City of Erie, 853 F.2d 1084, 1093 (3d Cir.1988).

II.

The district court concluded that the Scheetzes had alleged a prima facie section 1983 violation, but that the first amendment rights of the defendants outweighed the Scheetzes’ privacy interests. The defendants invite this court to affirm on the alternative ground3 that this claim is not actionable under section 1983. Because we conclude that the Scheetzes have not alleged a violation of a constitutionally protected privacy interest, we will affirm.

The defendants rely on dicta in Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976) to support their argument that “garden variety” invasion of privacy claims are not actionable under section 1983. Paul involved a plaintiff who had been arrested for shoplifting and acquitted. His name and photo, however, appeared on a flyer of “known shoplifters” circulated to merchants by a group of police chiefs. The plaintiff sued under section 1983, alleging that he had a due process liberty interest in his reputation and that the police chiefs had violated his constitutional rights by defaming him.

*206The Supreme Court rejected the proposition that reputation alone was a liberty or property interest within the meaning of the due process clause. In dicta, the Court went on to consider the alternative argument that the police chiefs’ action constituted a violation of the plaintiffs right to privacy. After first noting that privacy decisions had been limited in the past to family and procreative matters, the Court concluded that publication by the state of an official act such as an arrest could not constitute invasion 'of the constitutional right to privacy. Paul, 424 U.S. at 713, 96 S.Ct. at 1166.

The very next year, however, the Court held in Whalen v. Roe, that the right to privacy extends to both “the individual interest in avoiding disclosure of personal matters, and ... the interest in independence in making certain kinds of important decisions.” 429 U.S. 589, 599, 97 S.Ct. 869, 876, 51 L.Ed.2d 64 (1977). Whalen recognized that the information contained in medical records is constitutionally protected under the confidentiality branch of the privacy right.

Thus, some confidential information is protected under the confidentiality branch of the right to privacy, the dicta in Paul notwithstanding.4 See, e.g., Nixon v. Administrator of General Services, 433 U.S. 425, 457-58, 97 S.Ct. 2777, 2797-98, 53 L.Ed.2d 867 (1977) (president has constitutionally protected privacy right in personal papers). Accordingly, the Scheetzes in this case contend that the information contained in the police incident report is similarly protected by the federal right.

Although cases exploring the autonomy branch of the right of privacy are legion, the contours of the confidentiality branch are murky. We have recognized that some confidential information, such as medical records, is constitutionally protected under the confidentiality branch of the federal privacy right. United States v. Westinghouse Elec. Corp., 638 F.2d 570 (3d Cir.1980); c.f. Fraternal Order of Police, Lodge No. 5 v. Philadelphia, 812 F.2d 105 (3d Cir.1987) (§ 1983 action by officers challenging various employment tests and questionnaires as violative of privacy rights). Other courts have similarly recognized that § 1983 may be used to redress violations of a constitutional confidentiality right. Borucki v. Ryan, 827 F.2d 836 (1st Cir.1987) (allowing § 1983 action based on disclosure of psychological records, but concluding that qualified immunity shields officers because right was not clearly established at time of violation); Fadjo v. Coon, 633 F.2d 1172, 1175 (5th Cir. Unit B 1981) (plaintiff stated a claim under § 1983 where state officials disclosed intimate, personal information to insurance companies).

Concluding that violations of the confidentiality right of privacy may be actionable under § 1983 does not, however, end our inquiry. Although defendants are wrong in arguing that Paul prohibits any privacy § 1983 action, we conclude that they correctly argue that the Scheetzes did not have a constitutionally protected privacy interest in the information they divulged in a police report.5 We note that the ques: tion of whether a federal constitutional right to privacy has been violated is a distinct question from whether a federal statutory right to privacy (i.e. under the Freedom of Information Act) or a state common law right to privacy has been violated. *207United States Dept. of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 109 S.Ct. 1468, 1476 n. 13, 103 L.Ed.2d 774 (1989). Reference to state law on confidentiality is not particularly useful to this analysis, so case law cited by the parties as to Pennsylvania confidentiality law cannot control the federal constitutional right.

We conclude that the information contained in a police report is not protected by the confidentiality branch of the constitutional right of privacy. Although the outlines of the confidentiality right are not definite, the information that has been protected in other cases was information that the disclosing person reasonably expected to remain private. In reporting this potential crime to the police, Rosann Scheetz could not reasonably expect the information to remain secret. The police could have brought charges without her concurrence, at which point all the information would have wound up on the public record, where it would have been non-confidential. See Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 494-495, 95 S.Ct. 1029, 1045-46, 43 L.Ed.2d 328 (1975) (privacy interest fades when information is in the public record). This information is not like medical or financial records (which have been accorded some constitutional protection by this court, see Fraternal Order of Police, supra) where there is a reasonable expectation that privacy will be preserved. When police are called, a private disturbance loses much of its private character.6 We conclude that the information Rosann Scheetz disclosed in the police reports is not constitutionally protected.

III.

For the foregoing reasons, we will affirm the district court’s grant of summary judgment to the defendants.7

. The "face sheet" is a public document similar to a police blotter. The parties agree that this document is a public record. The parties dispute whether the "supplemental reports” are public records available under Pennsylvania’s Right to Know Law. There is some evidence that these reports were generally available, subject to the approval of a police supervisor.

. There is some dispute as to how Mutchler obtained a copy of the report. Mutchler submitted an affidavit in which she stated that she spoke to various confidential sources to see if any of them had a copy of the report. Mutchler averred that she did not conspire with or encourage anyone to steal the report. A source then showed her a copy of the report, and she copied information from it. Mutchler copied information from both the "face sheet” and the "supplemental reports.” The plaintiffs cannot counter this affidavit, primarily because Mutch-ler's source remains confidential. Chief Stephens stated at his deposition that he told Mutchler that the report was stolen, but he also stated that he did not suspect that Mutchler had stolen it. Because we decide this appeal on other grounds, we need not resolve this dispute over how the report was obtained.

. Defendants also invite this court to affirm on the alternative ground that plaintiffs failed to establish a conspiracy between The Call, Mutch-ler, and a state actor. Such a conspiracy is necessary to establish § 1983 liability on behalf of the private actors. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Labor v. Lalley, 809 F.2d 220 (3d Cir.1987). Because we will affirm on the ground that plaintiffs have failed to allege a violation of a constitutional privacy right, we need not reach this issue.

. Paul can be reconciled with Whalen since the information at issue in Paul (the fact of plaintiffs arrest for shoplifting) is not the kind of information entitled to constitutional protection.

. Our conclusion is bolstered by a line of cases refusing to recognize a section 1983 action because the type of information made public is not "private” in the constitutional sense. See, e.g., Wade v. Goodwin, 843 F.2d 1150 (8th Cir.), cert. denied, 488 U.S. 854, 109 S.Ct. 142, 102 L.Ed.2d 114 (1988) (publication of plaintiffs name on a list of "survivalists” did not establish a constitutional invasion of privacy since privacy only protects the most intimate matters); Davis v. Bucher, 853 F.2d 718, 721 (9th Cir.1988) (concluding that actions of correctional officer, in exhibiting nude photos of inmate’s wife, do not involve type of malfeasance "which demands a constitutional response”); Pesce v. J. Sterling Morton High School, 830 F.2d 789, 797 (7th Cir.1987) (state statute that required school psychologist to disclose that student had engaged in sexual relations with teacher did not violate federal right to confidentiality).

. Of course the police may have an interest in keeping investigative information private. They may protect this interest by appropriate regulation. The police’s interest in the privacy of the information should not be confused with the individual's interest in the information he or she reports.

. The Scheetzes also claim the defendants’ actions interfered with their autonomy privacy right. The Scheetzes' argument is that they have an autonomy right to seek marital counseling, and that the defendants have "chilled" that right by publishing the article. The Scheetzes claim that they would hesitate before seeking further counseling out of fear that the counseling would be reported in the newspaper. We have examined this claim and find it to be without merit.