National Law Journal



National Law Journal

June 18, 1979

Page ____, Column 1

PRESS LAW

By James C. Goodale

Massachusetts Court Grapples With

Criminal Suspects’ Right of Privacy

The Massachusetts Supreme Judicial Court has recently held that the public and the press have no right to obtain an alphabetical list of criminal actions maintained by clerks of Massachusetts courts.[1] The reason given by that court was that disclosure of the list would violate the right of privacy of persons accused of crimes.

For those who do not follow the law of criminal record privacy carefully, it may seem surprising that disclosure of a criminal charge could violate someone’s right of privacy. Yet, in fact, the court’s decision represents one court’s resolution of a conflict that has raged over the last several years between the press and civil libertarians.

Civil libertarians maintain that easy access to criminal history records violates the privacy of persons who have been charged and/or convicted of crimes because (1) an arrest without a conviction constitutes a “badge of infamy” and (2) a conviction when generally known at a later date impedes rehabilitation of a former criminal.[2]

In Massachusetts, the legislature passed a bill covering public records stating that criminal records kept chronologically showing the date of the arrest and conviction date were public, but records kept alphabetically showing the name of the person arrested and/ or convicted were not.[3] The purpose of the law was admittedly to prevent the press and the public from finding out whether particular persons had criminal records. The names sought, of course, were still in public files, but when listed by date of arrest were virtually impossible to find.

The law did not make it illegal, however, for court clerks to continue to maintain alphabetical lists; it was illegal only to make them available to the public.

A newspaper owned by the Wall Street Journal, the New Bedford Standard Times, brought a test suit against a clerk of a local court on the theory the Massachusetts law violated the separation of powers provision of the state constitution as well as the First Amendment.

The argument under the state constitution was that the legislature had taken away the power of the courts to keep its own records as it saw fit. The Massachusetts court disposed of this argument rather quickly -- courts could continue to keep records alphabetically, all the legislature said was that those records could not be made available to the public.

The First Amendment argument did not give the court much trouble either. Noting that the law did not prohibit publication of information already acquired, the court concluded there was no First Amendment right of the press or the public to obtain alphabetized criminal history information because of the privacy interest of the persons involved.[4]

This case is not the first instance of a conflict between the press and the public on one hand and the alleged right of privacy of those with criminal records. The controversy also erupted several years ago when the Law Enforcement Administrative Agency (LEAA) issued proposed regulations which were quite similar to the law passed by the Massachusetts Legislature.[5]

Under the proposed LEAA regulations federal funds would have been denied for crime prevention in those states which kept their computerized criminal records alphabetically rather than chronologically.[6] The press complained loudly that the rules effectively made such criminal information irretrievable. Because of this complaint the LEAA backed off its position and changed its rules so that money is now available for these states that elect to keep computerized criminal history records alphabetically.[7]

It should be noted the LEAA regulations covered only information stored in a computer whereas Massachusetts law also covers criminal history information kept manually. From a press point of view the Massachusetts law is therefore worse. Yet conceptually both the withdrawn LEAA regulation and the Massachusetts law seek the same end: to prevent easy access to criminal records in order to protect alleged privacy.

Yet, whether records of public events, i.e., arrests and convictions, should be public or not seems an easy question. For years, if not for centuries, such records have been kept publicly. They provide a record not only of what happens to private citizens but also of what action public officials take.

The Massachusetts court cited virtually no authority for its position except for its passing reference to a leading but now discredited case, Briscoe v. Reader’s Digest, from the so-called “embarrassing facts” branch of the law of right of privacy.[8] This branch plus three others not relevant to record privacy have grown from the famous Warren and Brandeis article in the Harvard Law Review of 1890.[9]

In an embarrassing facts case the plaintiff must prove that the disclosure of a private fact is “highly offensive to a reasonable man.” In Briscoe, the Supreme Court of California held that a convicted truck driver could sue the Reader’s Digest for using his picture seven years after his conviction for hijacking. The court reasoned the ex-hijacker had become completely rehabilitated and so publication of this embarrassing fact destroyed his privacy.

After the decision, the case was removed to federal court where it was dismissed because the district court found the photo was “newsworthy.”[10] In embarrassing fact cases a finding of newsworthiness will defeat the claim. In real life this happens so much that noted First Amendment expert Harry Kalven once said that this privilege appeared to have “swallowed up the tort.”[11]

As noted, the Massachusetts court cited Briscoe for authority that alphabetization of public records violates convicted criminals’ right of privacy. The theory is that the public interest in a conviction ends when the trial is over, and if that trial has not ended in a conviction, access to the arrest data should also be restricted since general knowledge of arrest information makes rehabilitation very difficult. On the other hand, once records are public it is difficult to make them private again.

How much of Briscoe is good law after the 1975 Supreme Court decision of Cox v. Cohn,[12] case involving the alleged privacy of a rape victim, is an open question. In that case the clerk of a Georgia court gave the press the name of a deceased rape victim and was sued by the victim’s family for violation of right of privacy (the local statute protected the name).

Noting the case involved the tort of “public disclosure,” the Supreme Court held that under the First Amendment the press could not be held liable for the disclosure of a public record. The holding severely undercut Briscoe, since that case is premised on the theory that disclosure of public criminal records can create a cause of action against the press.

It is admittedly possible to differentiate the facts of Cox v. Cohn from the Massachusetts case and the withdrawn LEAA regulations. Cox deals with original records and the LEAA regulations deal with secondary records – or records made from original records. Further, because the secondary records have been alphabetized or computerized they are more easily retrievable than the original records in Cox.

While this is a factual difference, it is hard to see why it should make any legal difference. The question is not one of speed of access but rather whether the records should be public in the first place. If they are, the press and the public should have access to them in whatever form they are kept. Ease of access through alphabetization or computerization should be irrelevant to this concept.

In the Massachusetts case three of the judges in fact adopted this latter point of view while concurring in the result reached by the majority opinion.

They pointed out the Massachusetts courts were bound by the legislature not to “alphabetize” as long as the courts had not otherwise acted. These judges urged that the court quickly act and make the alphabetized list of criminal defendants public. Without public scrutiny of judicial proceedings they pointed out the public loses confidence in the judiciary:

“Since [this law] impairs public access to court records and undermines confidence in the judiciary and in judicial integrity, we should consider the promulgation of rules permitting access to court records of pending cases. [These] restrictions undercut the ‘general principle of publicity’ with respect to judicial proceedings.”[13]

This conclusion seems correct. It would seem unwise to be swept away by the present wave of popularity for record privacy and effectively seal records which have always been public. To do so, as the Massachusetts court points out, may very well undermine public confidence in the judiciary as well as in other public institutions.

Mr. Goodale is a lecturer of law at Yale Law School, chairman of the Special Committee on Communications Law of the Association of the Bar of the City of New York and an executive vice president of the New York Times Company.

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[1] New Bedford Standard-Times Pub. Co. v. Clerk of the Third District Court of Bristol, 4 Med. L. Rptr. 2393 (Mass. Sup. Ct. 1979).

[2] Hearings Before the Federal Law Enforcement Assistance Administration on Regulations Concerning Criminal Justice Information Systems, held December 11, 12 and 15, 1975 (unpublished): “Privacy Debate Pits Press Against Civil-Liberties Groups.” Washington Post, March 29, 1975. Sec. A, page 5.

[3] Criminal Record Information Act, Mass. Gen. Laws ch. 6, Secs. 167-72 (1977).

[4] New Bedford Standard Times Pub. Co. v. Clerk of the Third District Court of Bristol, supra at 2397.

[5] Proposed Law Enforcement Assistance Administration Regs, 40 Fed. Reg. 22114 (May 20).

[6] Id. at Sec. 20.20 (b)(3)

[7] Law Enforcement Assistance Administration Regs., 28 C.F.R. Sec. 20.20.(b)(3) (1976).

[8] Briscoe v. Reader’s Digest Ass’n, Inc., 4 Cal. 3d 529, 483 P.2d 34 (1971).

[9] Warren and Brandeis, “The Right of Privacy.” 4 Harv. L. Rev. 193 (1890). The other three branches of privacy law are (1) commercialization (e.g., use of one’s name or property without consent); (2) intrusion (e.g., wiretapping); and (3) fictionalizing (e.g., making up facts in a biography). See Goodale, “Right of Privacy Commercialization”, N.Y.L.J., July 28, 1977, at 1, col. 1.

[10] Briscoe v. Reader’s Digest Ass’n, Inc., 1 Med. L. Rptr. 1852 (C.D., Cal. 1972).

[11] Kalven, “Privacy in Tort Law: Were Warren and Brandeis Wrong?” 31 Law and Contemp. Prob. 326 (1966).

[12] Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975).

[13] New Bedford Standard-Times Pub. Co. v. Clerk of the Third District Court of Bristol, supra at 3398 (Abrams J. concurring).

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