N.H. High Court Shields Daily from Privacy Suit in Expunged Criminal Recs Case

Image by jimmywayne via FlickrThe N.H. Supreme Court this week ruled in Lovejoy v. Linehan et al. (Case No. 2010-343) that RSA 651: 5 XII (2007), which imposes misdemeanor criminal liability on anyone who discloses an annulled arrest or conviction record, cannot support a political candidate's invasion of privacy claim against a daily newspaper and a rival who purportedly leaked information about the candidate's expunged criminal record.

David Lovejoy was an unsuccessful 2009 candidate for Rockingham County Sheriff. He sued then-incumbent Sheriff James Linehan, Deputy Sheriff Mark Peirce and The Portsmouth Herald for invasion of privacy after Herald reporter Karen Dandurant published a story on October 27, 2008, that contained the following statement: "A record provided to the Herald said Lovejoy was involved in a case of simple assault and was convicted in 1989. Lovejoy said the case was annulled and was thrown out of court by the judge." Linehan and Peirce stepped down before any criminal proceedings were initiated against them under the statute.

The N.H. Supreme Court concluded that RSA 51:5 XII does not give rise to a civil remedy to the victim of the disclosure. The Granite State's only appellate court found that Lovejoy's expunged criminal record was a matter of legitimate public concern that could not support a privacy action grounded on public disclosure of private facts.

The Portsmouth Herald escaped liability, consistent with the U.S. Supreme Court decision in Bartnicki v . Vopper, 532 U.S. 514 (2001), a 6-3 decision written by Justice John Paul Stevens that held a media defendant was shielded from liability by the First Amendment for disclosing illegally intercepted communications where the media defendant itself was not involved in the illegal interception.

Hats off to the Reporters Committee for Freedom of the Press Web site (www.rcfp.org) for initially reporting on this decision. In the spirit of full disclosure, "TUOL" more decades ago than "TUOL" is willing to admit covered Rockingham County government for a N.H. daily newspaper, during which time, the then-Sheriff was indicted.  Plus ca change, plus que meme chose, as Granite State law enforcement is wont to say.

N.H. High Court Backs Anonymous Blogging, Shield Law for Online Journalists

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In the important 14-page decision last week of The Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc. (Case No. 2009-262), the New Hampshire Supreme Court bolstered protection for preserving the confidentiality of anonymous bloggers.

Implode-O-Meter, a Website that follows the mortgage industry, reported the N.H. Banking Dept. was investigating The Mortgage Specialists, Inc., and linked to an official document addressing the probe that the Website obtained from a confidential source. A pseudonymous blogger, "Brianbattersby," commented on the investigation.

The Mortgage Specialists successfully argued before Rockingham County Superior Court Judge Kenneth McHugh for an injunction ordering the removal of the banking report document and for identification of the anonymous blogger, whose comments the mortgage company claimed were defamatory.

The N.H. High Court said a balancing test must be applied not only to the plaintiff's interests, but also to the interests of  anonymous speakers. The Court wrote: "The fact that Implode operates a Website makes it no less a member of the press...[W]e conclude that Implode's Website serves an informative function and contributes to the flow of information to the public. Thus, Implode is a reporter for purposes of the newsgathering privilege."

The Supreme Court said publication of the loan document did not violate privacy and confidentiality laws. The High Court also raised the bar for requiring the disclosure of the identity of anonymous online speakers.  "TUOL" weighed in on this case,and  the hot-button issue of  the application of First Amendment protection to anonymous bloggers on N.H. Public Radio's The Exchange last November (http://www.nhpr.org/node/27862).

N.H. High Court Boosts Right-to-Know Law

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In a Jan. 29 unanimous decision in Professional Firefighters of New Hampshire v. Local Government Center, Inc. ("LGC") (Case No. 2009-215), the N.H. Supreme Court ordered a private entity that represents public agencies to release its salary information pursuant to a request under the Granite State's right-to-know law [RSA ch. 91-A (2001 & Supp. 2009)].

Chief Justice John Broderick rejected the LGC claim that its salary data was not covered by the statute, writing that information that reveals how an organization spends taxpayer dollars to conduct public business "is essential to the transparency of government, the very purpose underlying the Right-to-Know law." The firefighters union sought the salary figures from LGC, which represents municipalities and schools, to follow how taxpayer money was being spent by LGC on health insurance. The parties have been embroiled in an eight-year fight as the firefighters union has tried to obtain documents to gauge whether the LGC has been diverting money targeted for health insurance for other purposes.

The Supreme Court denied the union's request for attorneys' fees.