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STATE OF NEW HAMPSHIRE SUPREME COURT
CASE NO. 2010-0343
David J. Lovejoy v.
James Daniel Linehan, et al.
BRIEF OF APPELLANT
DAVID J. LOVEJOY
August 10, 2010 DAVID J. LOVEJOY By his attorneys, Charles G. Douglas, III, Esq. (Bar #669) Jason R.L. Major, Esq. (Bar #14782) DOUGLAS, LEONARD & GARVEY, P.C. 6 Loudon Road, Suite 502 Concord, NH 03301 (603) 224-1988
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TABLE OF CONTENTS
TABLE OF AUTHORITIES......................................................................................................... ii
QUESTIONS PRESENTED ......................................................................................................... 1
CONSTITUTIONAL PROVISIONS .......................................................................................... 1
STATEMENT OF THE CASE ..................................................................................................... 1
STATEMENT OF THE FACTS................................................................................................... 2
SUMMARY OF ARGUMENT .................................................................................................. 14
ARGUMENT............................................................................................................................... 15
CONCLUSION ........................................................................................................................... 32
REQUEST FOR ORAL ARGUMENT...................................................................................... 33
CERTIFICATE OF SERVICE .................................................................................................... 33
ADDENDUM TO BRIEF............................................................................................................. 34
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TABLE OF AUTHORITIES
Cases
Addison v. Holly Hill Fruit Products, 322 U.S. 607 (1944)................................................... 32
Andrus v. Glover Const. Co., 446 U.S. 608 (1980) ................................................................. 32
Dept. of Air Force v. Rose, 425 U.S. 352 (1976) ...................................................................... 24
Fisher v. Hooper, 143 N.H. 585 (1999) .................................................................................... 17
Hamberger v. Eastman, 106 N.H. 107 (1964) ......................................................................... 17
In re “K”, 132 N.H. 4 (1989) .......................................................................................... 26, 27, 30
In re Ryan D, 146 N.H. 644 (2001),............................................................................... 25, 27, 30
Karch v. Baybank, FSB, 147 N.H. 525 (2002) .............................................................. 17, 18, 30
Pivero v. Largy, 143 N.H. 187, 191 (1998) ............................................................................... 26
Provencal v. Vermont Mut. Ins. Co., 132 N.H. 742 (1990)...................................................... 4
St. Joseph Hosp. of Nashua v. Rizzo, 141 N.H. 9 (1996)....................................................... 32
State v. Simone, 151 N.H. 328 (2004) ....................................................................................... 32
Stephens v. Van Arsdale, 608 P.2d 972 (1980).................................................................. 21, 29
U.S. Dept. of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749
(1989)........................................................................................................................................ 22
Union Leader Corp. v. Fenniman, 136 N.H. 624 (1993)........................................................ 27
Statutes
RSA 169-B:37......................................................................................................................... 25, 27
RSA 169-B:46............................................................................................................................... 25
RSA 516:36............................................................................................................................. 26, 27
RSA 651:5.............................................................................................................................passim
RSA 651:5, XII ............................................................................................................................... 4
RSA 91-A:5 .................................................................................................................................. 27
Other Authorities
Chapter 307, Laws of 2010 ........................................................................................................ 29
Restatement (Second) of Torts, § 652D.) ................................................................................. 18
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United States Dept. of Justice v. Reporters Committee for Freedom of the Press, 489 U.S.
749, 767 (1989)....................................................................................................... 20, 22, 24, 30
W. Keeton, Prosser and Keeton on Law of Torts § 117, p. 859 (5th ed. 1984)........................... 30
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QUESTIONS PRESENTED
1. Did the trial court err in dismissing Count II by misconstruing the provisions
of RSA 651:5 regarding the privacy of annulled records?
CONSTITUTIONAL PROVISIONS
See Table of Authorities.
STATEMENT OF THE CASE
The plaintiff filed this action on November 30, 2009, with counts for Libel (Count
I), Public Disclosure of Private Facts (Count II), Intentional Infliction of Emotional
Distress (Count III), and Invasion of Privacy - False Light (Count IV). Count I alleged
against reporter Karen Dandurant only. Counts II, III and IV were originally alleged
against the remaining defendants, Sheriff Daniel Linehan, Deputy Mark Pierce and
their employer.
The defendants filed Motions to Dismiss. The plaintiff thereafter non-suited
Counts I, III and IV as against defendant Karen Dandurant, and moved to Amend to
clarify his allegations in support of the remaining claims.1 The trial court granted the
plaintiffs Motion to Non-suit the claims against defendant Dandurant, and granted the
plaintiff’s Motion to Amend. See Addendum (“Add.”) at p. 44.
In an Order dated April 22, 2010, the trial court (Nicolosi, J.) granted the
defendants’ Motions to Dismiss the plaintiff’s remaining claims.2 The plaintiff
1 The plaintiff’s Motion to Amend and First Amended Declaration are contained in the Addendum at pp. 45 through 75. 2 The trial court’s Order on the Motion to Dismiss is attached in the Addendum at pages 35 to 43.
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thereafter filed this appeal. On appeal, the plaintiff seeks reversal of the trial court’s
dismissal of his claim of Public Disclosure of Private Facts, alleged against the
defendants in this case. The plaintiff hereby takes a voluntary non-suit with prejudice
as to defendant Karen Dandurant, however.
The Statement of Facts set forth below is taken from the plaintiff’s First Amended
Declaration, and is deemed to be true for the purposes of this appeal. See Provencal v.
Vermont Mut. Ins. Co., 132 N.H. 742, 745 (1990).
STATEMENT OF THE FACTS On October 27, 2008, the Portsmouth Herald published several thousand copies
of its newspaper containing a front page article by defendant, Karen Dandurant.
In the article she wrote “A record provided to the Herald said that the
Rockingham County Resident [Lovejoy] was involved in a case of simple assault and
was convicted in 1989.” She continued, the plaintiff said “the case was annulled and
thrown out of Court by the judge.”
Pursuant to RSA 651:5, XII, records of annulled convictions are not to be
disclosed and the person whose record is annulled shall be treated in all respects as if he
had never been convicted. Ms. Dandurant would not have known about the case
involving Mr. Lovejoy if it had not been revealed to her by the county employees.
Defendant Linehan wanted to have research done on his political opponent in
the 2008 Sheriff’s race, David Lovejoy of Hampton. In doing so, he agreed that he used
County personnel in what is classic political opposition research that should be done off
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government premises, after hours, and by non-government staff. A several page matrix
of litigation by or against David Lovejoy was created by employee Jennifer Sorrell.
Major Mark Pierce specifically asked her to prepare the spreadsheet that would
be used for distribution to the press. As she testified:
JS: Late summer, maybe August, September, sometime, Major Peirce asked me to go through some paperwork that he had. He sat me in the conference room. And he had me go through some paperwork that he had and cull through it and try to condense it into a spreadsheet. This was information regarding different court issues that Mr. Lovejoy has been involved in; he wanted me to put together a spreadsheet that showed you know, what the issue was about, when it happened, what the result of it was.
(July 15, 2009, Transcript: Interview of Jennifer Sorrell, p. 160)
RT: Now you started to mention that that was the first, I don’t recall the word you used, phase maybe. Did this spreadsheet – how many times would you say you worked on the spreadsheet?
JS: Oh my goodness. He’d asked me to add little things here and there so maybe five, there were probably 5 times that I updated or changed it.
(July 15, 2009, Transcript: Interview of Jennifer Sorrell, p. 162)
RT: And then there’s maybe 3, 4 or 5 other times that you’re asked to add material to that?
JS: That’s correct. RT: Do you recall those other times, not the first time, but is it always
Major Peirce that approaches you? JS: Yes.
(July 15, 2009, Transcript: Interview of Jennifer Sorrell, p. 162) Some of the information was obtained by Ms. Sorrell directly from courts by her,
such as checking with the federal bankruptcy court in Manchester:
JY: And how did you get the bankruptcy information? JS: I called that 800 number for that.
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JY: So you – you - JS: Mark asked me to call, he gave me some company names and
asked me to call and see if they’ve been bankrupted. JY: If they declared bankruptcy. JS: Thank you. JY: And did you do this during your office hours? JS: Yes.
(July 15, 2009, Transcript: Interview of Jennifer Sorrell, p. 164) County employee Sorrell also checked on licenses that Mr. Lovejoy might have
had during her work hours as well.
JY: And #4 says licensing. How did you get that? JS: Mark got the names of these companies that you see referenced and
asked me to call and see if they had a license, so I did. JY: And again this is done during work hours? JS: Probably.
(July 15, 2009, Transcript: Interview of Jennifer Sorrell, p. 165)
Another individual that was engaged in the research project on company time
while paid by the taxpayers was Lieutenant James Lussier of the Rockingham County
Sheriff’s Department who was asked by Mark Peirce to contact the Civil Division of
Superior Court in Brentwood to see what records they might have on Mr. Lovejoy.
JL: He just asked me to contact somebody with the Civil Division at the Superior Court in Rockingham and ask if there was any file relative to civil judgments against David Lovejoy.
JK: Did you find any? JL: Yes.
(June 2009, Transcript: Interview of Lt. James Lussier, p. 103)
JK: What did you do? JL: I was asked to contact the Clerk of the Civil Division at Superior
Court to see what if any civil judgments were on file for him. JK: Who asked you to do that?
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JL: I believe at the time it was Mark Peirce and I believe he was Major Mark Peirce at the time.
(June 2009, Transcript: Interview of Lt. James Lussier, p. 103) The project was much more involved than the Lieutenant thought it would be
but he did go into the courthouse and found about a foot of files produced for him. He
then turned them over to Deputy Sheriff Christopher Stone who also works for the
Sheriff’s Department as described below:
JL: The Clerk had indicated that she had found several files and that she would, it was the day that I asked her, it was late in the afternoon. She indicated that she would leave those files on a vacant desk up in the Civil Division and that I could make copies of items contained in those files when I came in the next morning.
JK: What did you do? JL: The next morning when I came in, after I opened the building, I
went upstairs and located the files that she had mentioned on that vacant desk. I was surprised to see that there was quite a few files.
JK: You were surprised? JL: Ya, well, I just though she was going to leave a file or two on a desk
and when I got up there there was, there was probably manila folders stacked approximately a foot tall.
JK: And these were all civil cases? JL: Yes. JK: And what did you do with these files? JL: I had one of my deputies who used to work in the Civil Division go
through them and make copies of judgments, basically whether or not…
JK: Who had you do that? JL: Deputy Christopher Stone. JK: Does he work for you? JL: Yes.
(June 2009, Transcript: Interview of Lt. James Lussier, pp. 103-04)
JK: What did he do with the information? JL: I believe he, obviously put everything together in one packet and I
believe he put it in a manila folder or inter-department envelope to send over to Major Peirce.
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(June 2009, Transcript: Interview of Lt. James Lussier, p. 104) All this time Sheriff Linehan was aware that a spreadsheet was being created and
that he was shown the document called “the matrix” by Mark Peirce.
DT: Who prepared that matrix? DL: I don’t know who did that. I think it was somebody in the office. DT: Who shows you that Matrix once it’s done? DL: Mark.
(September 2, 2009, Transcript: Interview of Daniel Linehan, p. 415) Defendant Peirce agrees that the “matrix” or spreadsheet was done by Ms.
Sorrell at the direction of the Sheriff through him:
MP: It was prepared by Jennifer Sorrell. DT: And she is an office clerk? MP: She is clerical staff in our business office. The Sheriff had requested
that she be utilized to prepare the document. DT: And he requested her specifically. MP: He requested it through me.
(September 1, 2009, Transcript: Interview of Mark Peirce, p. 392)
MP: The information was – the Sheriff wanted the information, and I suspected it was good enough to just have it in a file and he was the one that wanted it compiled into a document that was a usable document. And I start thinking it was for his personal use.
(September 1, 2009, Transcript: Interview of Mark Peirce, p. 392) The next step was to move the information forward into the media including a
reporter for the Portsmouth Herald named Karen Dandurant.
JK: So Sorrell has all this information from different people, different sources in the department and then creates this document. What happens next?
MP: I was given a copy of the document and the Sheriff was given a copy of the document.
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JK: Only you two? MP: As far as I know. JK: And what happened after that? MP: And then in the fall, at some point in time, Karen Dandurant spoke
with the Sheriff and had an interview with him. (June 23, 2009, Transcript: Interview of Mark Peirce, p. 87) The goal of course was wide distribution in the press of all of this County so that
Defendant Linehan could impact the November 2008 election. The plan to get it out
was as follows:
DL: No. I’m sure we had a discussion that we need to figure a way to get this out so its widely distributed and easily understood by the people who are going to be making a decision as to who is going to be the next sheriff.
DT: And do you recall what the plan is, or how we want to get it out? DL: I called him up and said that I think I know a way to keep the
Sheriff’s Office out of this. We’ll find a reporter that’s willing to take this and do whatever they want with it and I mentioned Electra Alessio name and he thought that that was a good idea and so from that point on, my assumption was that he would take this, like this, and physically hand it to her….
(September 2, 2009, Transcript: Interview of Daniel Linehan, p. 416) The advance cover-up was to run the piece first through a little weekly
newspaper in Kingston where a woman named Electra Alessio would in turn be
distributing it secondarily to people such as Karen Dandurant and/or to the Lawrence
Eagle-Tribune. The source would be Electra Alessio, not Peirce, Sorrell or Linehan.
Linehan admitted all of this in his transcript of interview dated September 2, 2009:
RT: Who contacts Electra Alessio originally? DL: Me. RT: And how do you contact her? DL: Went and saw her. RT: Met her face to face?
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DL: Yes. RT: And what do you ask her? DL: I said ‘this is the problem I have, I have this information, I want to
get it out there and I want to keep the sheriff’s office out of it’. (September 2, 2009, Transcript: Interview of Daniel Linehan, p. 417)
DT: …you were under the impression that Major Peirce had actually hand delivered this document to Electa Alessio? Any idea what you wanted him to do? You know, to relay to Electra Alessio.
DL: Yeah, cause she had a relationship with Karen Dandarant at the Portsmouth Herald. Electra works at the Kingston little weekly newspaper, you know. The distribution there would not have been wide enough. And so I wanted Karen Dandarant to get it. So apparently at some point in time Karen Dandarant had it in her hand and called me on the phone. On that particular occasion Mark Peirce was standing right in my doorway when I was on the phone with Karen Dandarant.
(September 2, 2009, Transcript: Interview of Daniel Linehan, p. 416) The Sheriff admits talking to reporter Dandurant about the annulment prior to
the article that came out a week before the election.
RV: Now prior to that article, did you speak to Karen Dandarant about Lovejoy or about the campaign?
DL: Probably. But about this specific issue, no. RV: Okay. JY: When you say this specific issue? DL: The [REDACTED] Because when she asked me about it, I told her
I can’t speak to that, do your own due diligence. JY: How did you know to say that to her? DL: How did I know? I just, you know, it was kind of – JY: That’s sort of like the term of our, you got to do your own due
diligence. DL: Right, well it’s the sleazy side of politics I’m trying to separate
myself from a little bit. You know, I wanted her to have the information but I didn’t want to be quoted on it.
(September 2, 2009, Transcript: Interview of Daniel Linehan, pp. 427-28)
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Employee Jennifer Sorrell agrees that she provided the information to the press
at the direction of Chief Deputy Mark Peirce as follows:
JY: Did you ever email it to anyone? JS: Yes I did. JY: Okay. RT: And who did you email it to? JS: [email protected]. RT: And how did you know to email it to that person? JS: Major Peirce asked me to email the document to this person and to
provide her with this other email address which is Kdandarant@SeacoastNewsonline.
MH: Do you have copies of this? JY: And when was that done? JS: October 15, 2008.
(July 15, 2009, Transcript: Interview of Jennifer Sorrell, p. 169) 28. Her activity also included assisting in the hand-off to Dandurant:
JY: Is your memory the only person that you ever sent this to, other than perhaps Peirce and the Sheriff, is Alessio?
JS: Yes. Yes. JY: And does Peirce say to you, email it to Alessio? JS: Yes. JY: Is that how you get the email address? JS: Yes. JY: And how do you get the other email address that’s for Dandarant? JS: He gives it to me. Major Peirce gave that to me.
(July 15, 2009, Transcript: Interview of Jennifer Sorrell, p. 175) 29. Defendant Peirce described the hand-off as follows:
DT: Other than giving it to yourself, and the Sheriff, the document at some point is emailed to Electra Alessio, is that correct?
MP: That’s correct. That was by the Sheriff’s instruction. DT: Does the Sheriff give those instructions directly to Jennifer? MP: That – the email that you’re speaking of – I believe that was given
the instructions, he told me to tell Jennifer to email the document to Electra Alessio. So I went and said the Sheriff would like you to send that document to Electra Alessio.
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DT: And Electra Alessio is? MP: She was the editor of the Carriage Town News and to my
recollection, you know, I think the Sheriff had had contact with her in advance.
(September 1, 2009, Transcript: Interview of Mark Peirce, p. 394)
JY: But if you look down here, it looks like the original was Jennifer Sorrell sends to Electra Alessio per Major Mark Peirce, please see the attached document. Major Peirce also asks that I supply you with the following email address. And there’s an email address of Kdandarant@Seacoast –
MP: SeacoastNewsOnLine.com JY: So if you look at it, it looks like Ms. Sorrell sent that to Electra
Alessio but it also looks like you were copied on it. MP: I may have been, I just don’t recall that but I, you know, recall this
going out to Electra at the Sheriff’s instruction. DT: Well how do you know it went out, Mark? MP: Because the Sheriff told me at some point to send Electra, have
Jennifer send Electra Alessio a copy of the document. (September 1, 2009, Transcript: Interview of Mark Peirce, p. 394)
JY: Who gave the Jennifer, ‘Jennifer, send this’? MP: I believe I did. I believe – JY: And why did you do that? MP: Because the Sheriff instructed me to tell Jennifer, in his words, ‘tell
Jennifer to send Electra Alessio the document and Karen Dandarant’s email address’.
(September 1, 2009, Transcript: Interview of Mark Peirce, p. 395)
JY: Do you know where you would have been when you had that conversation with the Sheriff?
MP: In his office. JY: Which is where? MP: At the Rockingham County Sheriff’s Department.
(September 1, 2009, Transcript: Interview of Mark Peirce, p. 395) After the election, the question of the source of the document given to Dandurant
was raised with the Portsmouth Herald which in turn supplied the spreadsheet to Mr.
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Lovejoy’s counsel along with an assertion that the document had come from the
Sheriff’s Department.
The attempt at covering up Watergate-style follows next. There is a wink and a
nod meeting at some gas pumps located in Brentwood at the County Offices where
Peirce and Linehan discuss what they do now that Lovejoy knows an annulled record
and other information about him was generated by the Sheriff for the media. The gas
pump meeting is described by Peirce including the Sheriff handing him the witness
tampering statute and putting his finger up to his lips to Peirce after previously
handing him the statute concerning annulments:
MP: Of course, I thought ‘what am I going to the – this is ridiculous … why am I going to the gas pumps to talk to you, just come into the office and sit down’ and let’s discuss this, obviously, what’s this surreptitious meet at the gas pumps. That’s what I assumed it was and sure enough, it was. So I go over there and park my car and he rolls in, ‘get in the car’. Okay. Sit in the car. First thing he does is
RR: For the record he’s putting his finger – MP: putting my finger to my lips to indicate that I should not talk. I
looked at him, he hands me the statute regarding [REDACTED] (June 23, 2009, Transcript: Interview of Mark Peirce, p. 92)
MP: 51 – I ought to know that by now. And I looked at him, put my hand up, and said ‘I have it’ and he’s like – just thinking – I thought what is going on here. And then he hands me tampering with witness statute and I said I’m familiar with that.
(June 23, 2009, Transcript: Interview of Mark Peirce, p. 92) The Sheriff at the gas pumps meeting with his Chief Deputy also makes the
statement that the matrix or spreadsheet should be shredded, which makes Peirce
uncomfortable.
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MP: I am He said ‘do you think Jennifer still got that discussion on her computer’. That’s where this occurred.
JY: Right. MP: And I said, ‘I have no idea’. JK: And when he says ‘Jennifer’, he’s talking about Jennifer? JY: Sorrell. MP: Sorrell. JK: Sorrell. MP: Right. And I should back up too. Where we were at the gas
pumps, when he showed me the document in his file, he also made the comment ‘I need to shred these’. And I was pretty uncomfortable at that point. My take on this was that we both get attorneys and call you, and say may we come up and sit down and have an interview please and do the right thing. And it was clear that that was not his thought. And what disturbed me the most was the next comment, and that’s when I was all done talking with him.
JY: Is this at the pumps. (June 23, 2009, Transcript: Interview of Mark Peirce, p. 95) Major Peirce also relates to Jane Young of the Attorney General’s Office an earlier
conversation in the Sheriff’s Office when Linehan asked Peirce to go in and erase the
matrix from her computer:
MP: I apologize for going backwards – I jumped back because I thought it was important.
JY: Okay. So now we’re going back to the – ‘do you think Jennifer still has this on the computer’.
MP: I apologize, you’re absolutely correct. We’re sitting in his office and he said ‘do you think Jennifer still has this in her computer’ and I said, I don’t know, no idea. He said, ‘Well, after work today, if they left, why don’t you go in and erase that from her computer.’ And I said ‘I don’t think that’s wise’. I said ‘I don’t think that’s something we should do’….
(June 23, 2009, Transcript: Interview of Mark Peirce, p. 95) The fact that Sheriff Linehan knew what he did was wrong and said “we’re
going to crawl into a hole and stay here” and they will have to smoke us out:
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MP: After he spoke to Lt. Salega, the comments that I already told you that the Sheriff said through, Steve Shultzes said I’m gonna have the Sheriff, we’re going to crawl into a hole and stay here.
JY: And they’ll have to smoke us out? MP: That’s right. Well, the Sheriff made similar comments to Lt. Salega
on the very day, or within a short period of time after, after Rick Valenti called our office.
(September 1, 2009, Transcript: Interview of Mark Peirce, p. 404). A criminal records check of the New Hampshire Division State Police records
repository on December 1, 2008, revealed that there was no record of any conviction of
the Plaintiff, indicating he has a clean record.
Peirce, Linehan and Sorrell’s conduct occurred on county time, in county offices
and with county equipment, thus providing a clear nexus to their employer.
On November 24, 2009, defendants Linehan and Peirce resigned from their
positions as Rockingham County Sheriff and Deputy Sheriff, respectively, as part of a
plea bargain with the Attorney General.
In a press release that day the Attorney General said:
The investigation revealed that an annulled record of arrest and conviction of David Lovejoy was disclosed or communicated to a member of the media. Mr. Lovejoy, at the time that the disclosure was made, was Linehan’s opponent in the general election for the office of the Rockingham County Sheriff. The investigation further revealed that Major Peirce disclosed or communicated the annulled information to a member of his staff and directed that staff member to provide the information to Electra Alessio, a reporter for the Carriage Towne News. The annulled information was further disclosed to at least another reporter. Karen Dandurant authored an article published in the Portsmouth Herald on October 27, 2008. That article referenced a case and a 1989 conviction, involving Lovejoy, which had been annulled. The investigation also revealed that it was Sheriff Linehan’s intent and request that the annulled information be disclosed or communicated to Ms. Alessio.
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SUMMARY OF ARGUMENT
The trial court improperly dismissed the plaintiff’s claim for public disclosure of
private facts against the remaining defendants. The plaintiff’s First Amended
Declaration clearly set forth all of the required elements of this tort against these three
defendants.
The plaintiff had a recognized legitimate expectation of privacy in his annulled
criminal record. Moreover, unauthorized disclosure of that annulled criminal record
would be highly offensive to a person in the plaintiff’s position.
The trial court erred in ruling that Mr. Lovejoy’s annulled criminal record was a
matter of “public concern” sufficient to override his legitimate expectation of privacy in
that record. It is well-settled that criminal records are considered confidential and that
disclosure of such records constitutes an invasion of privacy.
This Court has on many occasions recognized that it is within the purview of the
Legislature to make a public policy decision that certain information should be kept
private and confidential, even when there the information may be a matter of “public
concern.” The Legislature has made just such a reasoned public policy determination
with regard to the confidentiality of annulled criminal records, and that determination
should be recognized and given deference by the Court in this case. The trial court
erred when it failed to give effect to the Legislature’s policy decision with regard to
annulled criminal records.
The trial court also erred when it misapplied and judicially expanded the narrow
list of exceptions to confidentiality provided in RSA 651:5. It is well-settled law that
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statutory itemization indicates that the Legislature intended a list of exceptions to a
general rule to be exclusive.
Because the New Hampshire legislature has, as a matter of public policy,
determined that annulled criminal records are private matters not open for public use
and disclosure, it was improper for the trial court to substitute its own judgment for
that of the Legislature and hold that annulled criminal records are “of legitimate public
concern.” The trial court’s dismissal of his public disclosure of private facts claim
should therefore be reversed.
ARGUMENT
I. THE TRIAL COURT IMPROPERLY DISMISSED PLAINTIFF’S INVASION
OF PRIVACY CLAIM. A. The Plaintiff’s Declaration Stated the Elements of the Tort of Public
Disclosure of Private Facts.
The New Hampshire Supreme Court recognized the tort of “public disclosure of
private facts” a half century ago in Hamberger v. Eastman, 106 N.H. 107 (1964). This
common law tort is a specific form of invasion of privacy tort. See Karch v. Baybank,
FSB, 147 N.H. 525, 535 (2002) (citing Hamberger and Fisher v. Hooper, 143 N.H. 585
(1999)). A claim alleging public disclosure of private facts, or invasion of privacy,
involves “the invasion of something secret, secluded, or private pertaining to the
plaintiff.” Karch, 147 N.H. at 535. “Liability for [public disclosure of private facts] is
established if ‘one…gives publicity to a matter concerning the private life of
another…[and] the matter publicized is of a kind that (a) would be highly offensive to a
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reasonable person, and (b) is not of legitimate concern to the public.’” Order at p. 41 of
Addendum (quoting Restatement (Second) of Torts, § 652D.)
It is beyond argument that the plaintiff successfully met the “publication”
element of the tort of public disclosure of private facts in this case. For purposes of the
tort of invasion of privacy, a “public disclosure” is one by which a private matter
pertaining to the plaintiff “is made public, by communicating it to the public at large, or
to so many persons that the matter must be regarded as substantially certain to become
one of public knowledge.” Karch, 147 N.H. at 535. While defendants Linehan, Peirce
and county employees might not have directly communicated Mr. Lovejoy’s private
information to the public at large, by disclosing his annulled criminal record to
newspaper journalists, it was “substantially certain” that Mr. Lovejoy’s annulled
criminal record would “become [a matter] of public knowledge.” This certainty was
confirmed as thousands of newspapers discussing Mr. Lovejoy’s annulled record were
subsequently published and distributed throughout his home state of New Hampshire.
The trial court’s Order dismissing the plaintiff’s claims in this case took issue
with the remaining elements of the tort, holding that the plaintiff’s annulled conviction
was not “private,” and that it was “of legitimate concern to the public.” Order at
Addendum p. 40 of Notice of Appeal. The trial court’s decision is in error with regard
to both elements. A person in Mr. Lovejoy’s position does have a recognized
expectation of privacy in his annulled criminal record, and such a record is not a matter
of “legitimate public concern” even though it may be “of interest.” The privacy interest
in criminal records was properly recognized by the New Hampshire Legislature, and
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has also been recognized by the U.S. Supreme Court. The trial court’s failure to
acknowledge the plaintiff’s legitimate privacy interest and the binding public policy
determination made by the legislature with regard to the strict privacy of annulled
criminal records requires reversal of its decision.
The issue now before the court relates solely to disclosing the record and not the
publishing of it post-disclosure to the press.
B. The Plaintiff Had a Recognized Legitimate Expectation of Privacy in His Annulled Criminal Record. Disclosure of His Annulled Record Would Clearly Be Offensive to a Reasonable Person in His Position.
RSA 651:5, I provides as follows:
Except as provided in paragraphs V-VIII, the record of arrest, conviction and sentence of any person may be annulled by the sentencing court at any time in response to a petition for annulment which is timely brought in accordance with the provisions of this section if in the opinion of the court, after hearing, the annulment will assist in the petitioner’s rehabilitation and will be consistent with the public welfare.
(emphasis added). RSA 651:5, X (a) goes on to state:
The person whose record is annulled shall be treated in all respects as if he had never been arrested, convicted or sentenced, except that, upon conviction of any crime committed after the order of annulment has been entered, the prior conviction may be considered in determining the sentence to be imposed, and may be counted toward habitual offender status under RSA 259:39. (emphasis added). RSA 651:5, XII goes on to state that “[a] person is guilty of a
misdemeanor if, during the life of another who has had a record of arrest or conviction
annulled pursuant to this section, he discloses or communicates the existence of such
record….” (emphasis added).
18
In their Motions to Dismiss, the defendants argued that an annulled criminal
record is not “private.” However, given the legislative and judicial policy
determinations inherent in the annulment of a criminal record, and the existence of a
criminal sanction for disclosure of an annulled record, a more serious and meaningful
definition of a “private fact” would be hard to imagine. Two defendants had to leave
office in disgrace solely because they disclosed the private facts pertaining to the
plaintiff in this case.
“The law enforcement profession generally assumes—as has the Department of
Justice—that individual subjects have a significant privacy interest in their criminal
histories.” United States Dept. of Justice v. Reporters Committee for Freedom of the
Press, 489 U.S. 749, 767 (1989). In Reporters Committee, the U.S. Supreme Court turned
down a press request for a public figure’s criminal record, in part, on the basis that a
“request for law enforcement records or information about a private citizen,” or actual
disclosure of such records, “can reasonably be expected to invade that citizen’s
privacy.” Reporters Committee, 489 U.S. at 774 (emphasis added).
Such records contain the inherent power to embarrass and shame an individual,
making it certain that widespread publication of such records – particularly if annulled-
- would certainly be “highly offensive to a reasonable person.” Pursuant to RSA 651:5,
Mr. Lovejoy had the expectation that his criminal conviction was effectively erased
from any possibility of further public discourse because “[t]he person whose record is
annulled shall be treated in all respects as if he had never been arrested, convicted or
sentenced.” RSA 651:5, X (a).
19
Publicizing an effectively erased twenty-year old misdemeanor conviction for the
purpose of discrediting a political opponent is something that any reasonable person
would find offensive. In fact, one of the motivating factors in seeking an annulment is
the fact that simply having a criminal record is generally considered embarrassing and
shameful. As the Supreme Court of Kansas stated in Stephens v. Van Arsdale, 608 P.2d
972 (1980):
It has become common knowledge today that a criminal record is a serious handicap which works against the rehabilitation of the ex-offender. The consequences of a criminal conviction include not only the formal penalties and restrictions imposed by law but also collateral sanctions incidentally imposed by society. Although the criminal offender has paid his debt imposed by law, society stigmatizes him with the ex-convict label. Of course the record of conviction for a serious crime is often a lifelong handicap. There are a dozen ways in which even a person who has reformed, never offended again, and constantly endeavored to lead an upright life may be prejudiced thereby. The stain on his reputation may at any time threaten his social standing or affect his job opportunities.
Id. at 982-83 (internal quotations and citations omitted, emphasis added).
It should go without saying that publicizing a confidential record that has the
potential to expose a person to a “serious handicap” with “collateral sanctions”
including a “stain on his reputation” is a disclosure that would be highly offensive to
any reasonable person. Accordingly, the plaintiff successfully stated the “disclosure of
private fact, highly offensive to a reasonable person” element of the tort.
C. Mr. Lovejoy’s Annulled Criminal Record is Not a Matter of “Legitimate Public Concern,” Sufficient to Overcome His Well-Settled Reasonable Expectation of Privacy.
20
In U.S. Dept. of Justice v. Reporters Committee for Freedom of the Press, 489 U.S.
749 (1989), the United States Supreme Court discussed the unacceptable invasion of
privacy that would result by requiring the public disclosure of a person’s rap-sheet (a
compilation of a person’s criminal records and descriptive information). Although
these dangers were discussed within the context of a Freedom of Information Act
(FOIA) request, the policies underlying the Court’s holding, as well as its considerations
into the issue of what constitutes an invasion of privacy, are equally applicable to the
instant case.
In Reporters Committee, journalists sought the disclosure of rap sheets belonging
to one Charles Medico. Medico was suspected of obtaining a number of defense
contracts with the federal government as a result of improper arrangements with a
corrupt Congressman. Id. at 757. Despite recognizing that “there is undoubtedly some
public interest in anyone’s criminal history, especially if the history is in some way
related to the subject’s dealing with a public official,” a “request for law enforcement
records or information about a private citizen,” or actual disclosure of such records,
“can reasonably be expected to invade that citizen’s privacy.” Id. at 774 (emphasis
added).
This distinction, between “some public interest” and the level of “legitimate
public concern” required to overcome a person’s reasonable expectation of privacy
recognized by the U.S. Supreme Court in Reporters Committee was not fully analyzed
by the trial court in this case. The lower court’s Order effectively concludes that public
figures running for office lose all expectation of privacy, making it open season on
21
disclosure of embarrassing, private records – even records which are declared
confidential by statute. This result is contrary not only to the intent of our State’s
legislature, but also the U.S. Supreme Court’s decision in Reporters Committee, holding
that disclosure of such materials does constitute an invasion of privacy.
Accordingly, although “the public” might have “some interest” in Mr. Lovejoy’s
annulled criminal conviction from 1989, whatever meager relevancy that information
had was not sufficient to overcome his legitimate and well-settled expectation of
privacy in that information.
i. The Fact That The Plaintiff’s Annulled Conviction Was Once A Matter of Public Record Does Not Mean That He Had No Privacy Interest In That Information.
In Reporters Committee, the U.S. Supreme Court held that “the fact that ‘an
event is not wholly ‘private’ does not mean that an individual has no privacy interest in
limiting disclosure or dissemination of the information.’” Id. at 770 (quoting Rehnquist,
Is an Expanded Right of Privacy Consistent with Fair and Effective Law Enforcement?
Nelson Timothy Stevens Lectures, Univ. of Kansas Law School, pt. 1, p. 13 (Sept. 26-27,
1974)). In concluding that criminal rap sheets were confidential records, the disclosure
of which would constitute an invasion of privacy, the Court noted that “47 states place
substantial restrictions on the availability of criminal history summaries, even though
individual events in those summaries are matters of public record.” Id. at 753 (emphasis
added). Clearly, if the disclosure of a matter of current public record can constitute an
unwarranted invasion of privacy, the disclosure of a record which has been effectively
erased from the public record must constitute an even greater invasion of privacy.
22
The Court found support for the conclusion that previously publicized
information can become private with the passage of time in its earlier decision in Dept.
of Air Force v. Rose, 425 U.S. 352 (1976). In Rose, a group of law students sought Air
Force Academy Honor and Ethics Code case summaries for a law review project. The
Academy had previously posted these summaries on 40 squadron bulletin boards,
usually with names redacted. Id. at 373-77. The Court held that the summaries could be
disclosed, but only if it was certain that all identifying information and personal
references were deleted. If such information could not be removed “sufficient to
safeguard privacy, then the summaries should not be disclosed.” Id. at 380-81.
In Reporters Committee, the Court relied on the Rose case to conclude that:
Even though the summaries, with only names redacted, had once been public, we recognized the potential invasion of privacy through later recognition of identifying details, and approved the Court of Appeals’ rule permitting the District Court to delete “other identifying information” in order to safeguard this privacy interest. If a cadet has a privacy interest in past discipline that was once public but may have been “wholly forgotten,” the ordinary citizen surely has a similar interest in aspects of his or her criminal history that may have been wholly forgotten.
Reporters Committee, 489 U.S. at 769 (italics in original, underscore added).
The defendants’s argument that the plaintiff had no privacy interest in his
annulled criminal record because it had once been public is not convincing. The U.S.
Supreme Court held that a privacy interest in such information does exist, and that it
may be violated by disclosure of such information. See Id. The New Hampshire
Legislature has clearly reached the same conclusion. See RSA 651:5.
D. The New Hampshire Supreme Court Has Recognized that the Legislature May Classify Certain Information About Individuals As
23
Private, and Prohibit the Publication of Such Information, Despite the Information Having Some Relevance to Matters of Public Concern.
It would be fair to say that “the public” has “some interest” in virtually every
government record concerning an individual citizen, and that by extension these
records might become “relevant” to some matter of public concern “someday,
somehow.” Nevertheless, individual citizens’ privacy interest in certain types of
information has been deemed sufficiently strong that disclosure may be prohibited –
and punished – except in narrowly-defined circumstances. Such privacy
determinations are routinely, and properly, made by the Legislature, and this Court has
recognized the Legislature’s power to declare certain materials off limits.
For instance, the case of In re Ryan D, 146 N.H. 644 (2001), concerned the
publication of juvenile court records. In that case the Supreme Court held that RSA 169-
B:46 did not require the disclosure of juvenile court records. In reaching its conclusion,
the Court relied in part upon RSA 169-B:37, which makes it unlawful for “any
newspaper to publish, or any radio or television station to broadcast or make public the
name or address” of an arrested juvenile without the permission of a court. The Court
also noted that under RSA 169-B:38, “the publisher of any newspaper or the manager,
owner or person in control of a radio or television station or agent or employee of any
of the above who violates the provisions of RSA 169-B:37 shall be guilty of a
misdeanor.” The parallel between RSA 169-B and RSA 651:5 is obvious.
There is also a distinct parallel between the public policy reasoning underlying
each statute. As noted by the Court in Ryan D,
24
by recognizing the inherent differences between children and adults, our legislature “has provided for special treatment of juveniles under the juvenile justice statute.” According to RSA 169-B:1, the legislature instructs us to construe and interpret the statute liberally to effectuate its purposes, which include encouraging “the wholesome, moral, mental, emotional, and physical development of each minor coming within the provisions of this chapter…”
Id. at 647 (emphasis added); compare with RSA 651:5, I (annulment should be granted if
it will “assist in the petitioner’s rehabilitation and will be consistent with the public
welfare”(emphasis added)).
In another case involving private information prohibited from disclosure by
statute, In re “K”, 132 N.H. 4 (1989), the Supreme Court upheld the confidentiality of
patient medical records. In that case, the Court prohibited disclosure despite the fact
that the person seeking the patient medical records was the patient to whom the records
pertained! Despite the patient’s obvious interest in her own medical records, the Court
upheld the legislature’s public policy choice embodied in RSA 151:13-a to treat such
records as “confidential and privileged,” even from the patient who the records
concerned. Id. at 12. The Court’s decision in In re “K” represents a judicial recognition
that the interests of the public in the disclosure of certain information – even when
relevant to a matter of public interest – must yield to a public policy determination by
the Legislature that such records should kept confidential.
The Supreme Court upheld the strict confidentiality of police internal
investigation files under RSA 516:36 in Pivero v. Largy, 143 N.H. 187, 191 (1998). In
Pivero, the Court held that “public policy concerns in protecting the confidentiality of
investigative files override an officer’s interest in the investigative file.” Like In re “K”,
25
the Supreme Court in Pivero recognized the policy decisions of the Legislature with
regard to the confidentiality of records, despite the fact that the records might be
relevant to a matter of public concern.
Obviously one can always posit why a juvenile record, a medical record or an
annulled minor criminal record, let alone a police internal investigation file would be of
interest to someone sometime. But to rise to the level of “legitimate public concern”
means the public official or public employee making the illegal disclosure is the
decision-maker – not the legislature.
In the same way that RSA 151:13-a, RSA 169-B:37, RSA 516:36, and RSA 91-A:5
make certain records privileged and confidential, RSA 651:5 unequivocally
demonstrates a legislative attempt to remove annulled criminal records from the public
record by treating “the person whose record is annulled…in all respects as if he had
never been arrested, convicted or sentenced.” This Court has previously held, in the
context of the disclosure exemptions listed under RSA 91-A:5, that:
[W]e must honor the expressed intent of the legislature as expressed in the statute itself and reverse the superior court’s ruling [in favor of disclosure]. Although we have often applied a balancing test to judge whether the benefits of nondisclosure outweigh the benefits of disclosure, such an analysis is inappropriate where, as here, the legislature has plainly made its own determination that certain documents are categorically exempt.
Union Leader Corp. v. Fenniman, 136 N.H. 624, 627 (1993)(internal citations omitted
and emphasis added).
In this case the Court should extend the same deference to the Legislature’s
public policy decision to remove to annulled criminal convictions from the public
26
record as it did with the confidential documents at issue in In re “K”, In re Ryan D, and
Fenniman. Accordingly, this Court should hold that criminal records annulled under
RSA 651:5, are private matters with which the public has no “legitimate” concern as a
matter of law.
E. The Legislature Made a Public Policy Choice To Keep Annulled Criminal Records Strictly Confidential, That Should Be Given Recognition and Deference by the Court.
RSA 651:5 embodies a reasoned public policy choice by the New Hampshire
Legislature. That public policy determination is that under certain circumstances, a
person should be granted the right to live free from the stigma of a stale criminal
conviction for a minor crime. Under the appropriate circumstances, the Legislature has
determined that such information has so little value to the public, and does not
outweigh the risk of being unfairly detrimental to the convicted person trying to move
on with their life, that such information should be removed from the public record and
given confidential status, only seeing the light of day in specific circumstances as
enumerated in the statute. See, e.g., RSA 651:5, X (a) and XI.
Other Courts and commentators have recognized the public policy reasons
underlying an annulment statute:
Over the past 50 years American correctional law, turning away from the vengeance concept, has focused increasingly on the rehabilitation of the individual offender and the development of means and practices to that end…. In a general way it may be stated that annulment of conviction statutes, often called expungement statutes, do not merely lift disabilities resulting from conviction and restore civil rights; they have the legal effect of restoring the reformed offender to his status quo existing prior to the conviction… [providing them] an added incentive to conform to social norms and to participate in our society without the added burden of a
27
criminal conviction…. Such statutes are based on the philosophy that fallen men can rise again and should be helped to do so.
Stephens v. Van Arsdale, 608 P.2d 972, 982-84 (1980) (quotations and internal citations
omitted).
The broader legislative public policy determination is then followed up in a
particular case (including this case) with a second, more specific determination by the
judicial branch that the particular individual (in this case Mr. Lovejoy) requesting the
annulment is appropriately seeking, and deserving of, such relief. See RSA 651:5, I. In
addition, the judge must determine that removing the conviction from the public record
is consistent “with the public welfare.” Id. Thus, when an individual like the plaintiff
has a criminal conviction annulled, it is the result of a two-tiered public policy
determination by both the legislature and judiciary that his prior criminal conviction
should be wiped from the public record, and that anyone disclosing the existence of
that conviction would be subject to a criminal penalty.
The New Hampshire General Court has created a study commission that is
currently reviewing the scope of RSA 651:5. See Chapter 307, Laws of 2010, Addendum
at pages 76 to 78. Pursuant to the separation of powers principles embodied in Part I,
Art. 37 of the New Hampshire Constitution, the proper forum for deciding the scope of
privacy and confidentiality provided by this statute is the legislative process, not a case-
by-case expansion of the exceptions as engaged in by the trial court in this case. See
Section F, infra.
28
As with similar public policy determinations made by the Legislature with
regard to the confidentiality of certain materials that have been analyzed and upheld by
this Court in cases like In Re “K” and In Re Ryan D, discussed supra, in this case the
Court should give recognition to the policy decisions underlying the enactment of RSA
651:5, and defer to the Legislature’s action with regard to annulment of criminal records
as it did in the other cases concerning statutorily-provided confidentiality of private
information.
F. The Trial Court Also Erred by Failing to Distinguish “Publication” by the Press from the Initial Unlawful Disclosure Made by Defendants Linehan and Peirce
The trial court erred by failing to appreciate the distinction between the
publication of a news story about the defendants’ unlawful disclosure of the plaintiff’s
annulled conviction, and the actual unlawful disclosure of that protected, private
information by the defendants in the first instance. There is an important difference in
the culpability of defendants Linehan and Peirce for making the initial disclosure, as
compared to a member of the press reporting on the disclosure.
“There is no liability for giving publicity to facts about the plaintiff’s life that are
a matter of public record, such as the date of his birth…. On the other hand, if the
record is not open to public inspection, as in the case of income tax returns, it is not
public and there is an invasion of privacy when it is made so.” Reporters Committee,
489 U.S. at 764, n.15 (quoting W. Keeton, Prosser and Keeton on Law of Torts § 117, p. 859
(5th ed. 1984). This language is helpful in distinguishing the actions of the defendants in
the instant case. The tort of public disclosure of private facts is committed at the
29
moment public light is shed upon “something secret, secluded, or private pertaining to
the plaintiff.” Karch, 147 N.H. at 535. Once this moment occurs and the previously
private matter is made a part of the public record, further liability can rarely be
imposed for subsequent dissemination by the secondary publishers.
The Legislature has determined that annulled criminal records, like income tax
returns, are private matters protected from disclosure. Mr. Lovejoy’s annulled criminal
history was placed back in the public record only when defendants Linehan and Pierce
took advantage of available resources reserved for legitimate law enforcement
purposes. Using such resources, these defendants were able to dig up Mr. Lovejoy’s
confidential history, which included his 20 year old annulled criminal record. Although
these actions by themselves may not have been sufficient to place this private matter on
the public record, the act of disclosing Mr. Lovejoy’s annulled criminal record to local
newspaper journalists certainly did. Accordingly, defendants Linehan and Pierce
became liable for the tort of public disclosure of private facts at the moment, if not
earlier, they disclosed Mr. Lovejoy’s annulled criminal record to newspaper journalists
who were reasonably likely to publish the private and unknown matter.
G. The Trial Court Misapplied the Exceptions Listed Under RSA 651:5 and Therefore Erred in Granting Defendants’ Motion to Dismiss Plaintiff’s Invasion of Privacy Claim.
The trial court erred by judicially expanding the exceptions to nondisclosure
provided by the New Hampshire legislature under RSA 651:5. By doing so, the lower
court ignored “the familiar axiom of statutory construction” that provides, “the
expression of one thing in a statute implies the exclusion of another.” St. Joseph Hosp.
30
of Nashua v. Rizzo, 141 N.H. 9, 11 (1996). “Unless there is evidence to the contrary,
statutory itemization indicates that the legislature intended the list to be exclusive.”
State v. Simone, 151 N.H. 328, 330 (2004).
Under RSA 651:5, the legislature provided a list of exceptions to the general rule
that complete privacy be given to annulled criminal records. There is nothing in the
statute suggesting that the legislature intended for that narrow list of specific exceptions
to be creatively expanded upon by New Hampshire’s trial judges. Accordingly, it was
improper for the lower court to craft a new exception in order to grant the defendants’
Motions to Dismiss.
The practice of judicial expansion of a statute’s specifically enumerated list of
exceptions has been rejected by the U.S. Supreme Court. In Addison v. Holly Hill Fruit
Products, 322 U.S. 607, 617 (1944), Justice Frankfurter explained that where a legislature
takes the time to enumerate a list of exceptions, “enlargement by implication” is
specifically disallowed. See also Andrus v. Glover Const. Co., 446 U.S. 608 (1980). As
noted above, judicial amendments to a statute raises separation of powers concerns
under Part I, Art. 37, of the New Hampshire Constitution. Accordingly, the lower court
erred by effectively creating a new exception to permit “political mudslinging” via the
publication of annulled criminal records.
i. The Trial Court Erred By Justifying Public Disclosure Based on the Language of RSA 651:5, XI(b).
While the trial court correctly acknowledged that “an annulled conviction may
be [ ] relevant ‘in determining the fitness of an individual to serve as a law enforcement
31
officer,” Order at p. 41 of the Addendum (quoting only a portion of RSA 651:5, XI(b)),
the lower court overlooked the statute’s unambiguous language regarding to whom
such annulled information may be provided. RSA 651:5, XI(b) provides:
XI. Nothing in this section shall affect any right: … (b) Of law enforcement officers to maintain arrest and conviction records and to communicate information regarding the annulled record of arrest or conviction to other law enforcement officers for legitimate investigative purposes or in defense of any civil suit arising out of the facts of the arrest, or to the police standards and training council solely for the purpose of assisting the council in determining the fitness of an individual to serve as a law enforcement officer, in any of which cases such information shall not be disclosed to any other person.
(emphasis added).
In ruling on the defendants’ Motion to Dismiss, the lower court broadly created
an exception that “[b]ecause an annulled conviction is relevant in ‘determining the
fitness of an individual to serve as a law enforcement officer,’…and [because] Plaintiff
sought to obtain, via public election, the position of chief law enforcement officer, the
court finds that Plaintiff’s annulled conviction was, as a matter of law, of legitimate
public concern.” Order at p. 41 of Addendum.
The lower court, in quoting only a portion of RSA 651:5, XI(b), completely
ignored the surrounding language that delimits who may be provided with annulled
criminal records by law enforcement to use “in determining the fitness of an individual
to serve as a law enforcement officer.” RSA 651:5, XI(b) specifically provides that only
the Police Standards and Training Council and certain investigative officers may
consider annulled criminal records in determining the fitness of a person to serve as a
32
law enforcement officer or as a part of an investigation. While this case would
obviously have a different outcome if the defendants had made their disclosure to the
Police Standards and Training Council, they instead made an impermissible disclosure
to the press for a non-law enforcement related purpose, thus intentionally and
unlawfully causing the publication of Mr. Lovejoy’s annulled criminal record to
thousands of people via New Hampshire newspapers. Therefore, the defendants cannot
rely upon the “fitness for service” exception of RSA 651:5, XI(b) to excuse their unlawful
disclosure of the plaintiff’s annulled conviction.
The final lines of RSA 651:5 XI(b) remove any chance of ambiguity by providing
that “such information shall not be disclosed to any other person,” reaffirming the
legislative intent that only the Police Standards and Training Council or investigators be
permitted to view annulled criminal records. The legislature did not intend, and
specifically drafted the annulment statute to prohibit, the disclosure made in this case,
going so far as to provide a criminal penalty for it.
CONCLUSION
The trial Court erred by substituting its judgment on whether an annulled
conviction should remain confidential, in place of the judgment of the Legislature,
which made a reasoned public policy choice that such records should be maintained in
strict confidentiality. Because the plaintiff’s annulled conviction was a private fact, that
would cause a reasonable person in the plaintiff’s position to be offended by its
33
unauthorized disclosure, the plaintiff stated a claim for which relief should be granted.
The trial court’s decision should therefore be reversed.
REQUEST FOR ORAL ARGUMENT
The appellee requests fifteen (15) minutes of oral argument and Charles G. Douglas, III, Esquire, will present oral argument. Charles G. Douglas, III (NH Bar #669)
Respectfully submitted:
DAVID J. LOVEJOY By his attorneys:
DOUGLAS, LEONARD & GARVEY, P.C. DATED: August 10, 2010 By: Charles G. Douglas, III (NH Bar #669) Jason R.L. Major, Esq. (NH Bar #14782) 6 Loudon Road, Suite 502 Concord, NH 03301 (603) 224-1988
CERTIFICATE OF SERVICE
I hereby certify that two copies of the within Brief was mailed this date, first class mail, to Michael D. Ramsdell, Esq., counsel for James Daniel Linehan, R. Peter Taylor, Esq., counsel for Mark Pierce, Gregory V. Sullivan, Esq., counsel for Karen Dandurant, and Christopher Cole, Esq., counsel for Rockingham County. __________________________________________ Charles G. Douglas, III