Disclosure of expunged records does not invade privacy

Disclosure of a political candidate’s expunged criminal record cannot give rise to an invasion-of-privacy claim, the New Hampshire Supreme Court ruled Wednesday.

At issue in Lovejoy v. Linehan was the annulled conviction of David Lovejoy, who challenged then-Rockingham County Sheriff Dan Linehan for the jurisdiction’s top law enforcement post in a 2009 election. Linehan and Deputy Sheriff Mark Peirce, Linehan’s second-in-command, were accused of leaking information about Lovejoy’s 1989 conviction for simple assault to a Portsmouth Herald reporter, who included the information in a published story about Lovejoy’s past. The account included a statement from Lovejoy, who said: "'The case was annulled and was thrown out of court by the judge,'" according to the court opinion, which quoted the story.

In New Hampshire, disclosure of an annulled arrest or conviction record is a misdemeanor. Linehan and Peirce resigned before they were charged criminally, but Lovejoy sued them and the paper, reporter and Rockingham County for invasion of privacy by public disclosure of private facts.

Relying on Bartnicki v. Vopper — a 2001 U.S. Supreme Court case holding that the media cannot be held liable for publishing information of public concern that is obtained unlawfully by a source but where the media are blameless in the illegal interception — the trial court dismissed the case against the media defendants, said New Hampshire media attorney William Chapman, whose firm represented the defendants. The judge also threw out the claims against the ex-sheriff’s officials, a ruling that Lovejoy appealed.

The New Hampshire Supreme Court, the state’s only appellate court, unanimously affirmed dismissal, finding that the disclosure of the annulled conviction record addressed a matter of legitimate public concern and, thus, could not serve as the basis of a suit claiming public disclosure of private facts.

“In determining whether the plaintiff’s annulled conviction was relevant to his qualifications for the county sheriff position, we note that in New Hampshire, ‘the sheriff maintains his common law powers, duties and responsibilities as chief law enforcement officer of the county, ” the court's opinion said, quoting from an earlier state Supreme Court case. “We conclude that a prior assault conviction, whether subsequently annulled or not, is relevant to the qualifications for that position.”

Chapman described the opinion as “excellent” because it clarifies the legal standard governing the private facts tort.

The case “stands for the proposition that if you run for office, your entire record and past are fair game and can be disclosed,” said Chapman, adding that this case prompted the state legislature to reexamine its annulment disclosure statute. A bill that decriminalizes the disclosure of expunged criminal records and thus allows the news media to report on such events without fear of liability has passed the New Hampshire House of Representatives and is pending before its Senate, he said.

The New Jersey Supreme Court recently ruled similarly, holding that reports of expunged criminal records are not necessarily libelous. In that case, G.D. v. Bernard Kenny and The Hudson County Democratic Organization, Inc., the plaintiff unsuccessfully argued that because the record of his conviction was expunged, it never occurred under the law and, as such, defendants could not rely on truth as a defense to his defamation suit.

The high court unanimously disagreed, noting that “[a]lthough our expungement statute relieves a prior offender of some civil disabilities, it does not extinguish the truth.”