March 18, 2005
Supreme Judicial Court Rules that Sheriff's Records Must Be Released
The Cape Cod Times began investigating the goings-on in the Sheriff's Department of Barnstable County when one of its reserve deputies was indicted, and later resigned from the force. When it discovered that the Sheriff had a list of over 200 names of deputies, it sued to obtain the list. The Sheriff refused to divulge them, citing Massachusetts G. L. c. 4, [section] 7, the privacy right of persons not subject to the G. L. chapter 66, [section] 10, the open records law. A lower court judge sided with the Sheriff in 2003. The Supreme Judicial Court on its own initiative took up the case from the Appeals court, and issued its judgment on March 7, ruling that although the records were created by a private entity, the Barnstable County Deputy Sheriffs Association, they were "`made or received' by a public official, the sheriff, as those terms as used in G. L. c. 4 [section] 7, Twenty-sixth, and that no exemption to the statutory definition of public records or other provision of law insulates the records from inspection."
The Court examined, among other things, the history of the practice of appointing deputy sheriffs, in order to establish that the persons involved in the private association served a public, rather than a private function. "In the past, Barnstable County sheriffs have appointed private individuals to serve as "honorary" deputy sheriffs. According to the special sheriff of Barnstable County honorary deputy sheriffs were sworn in as deputy sheriffs, ostensibly engaged in no law enforcement functions, and were not employees of the sheriff's office. Shortly after he took office, Sheriff Cummings largely abolished this practice. In its place he instituted a system of appointing "reserve deputy sheriffs." The sheriff contends that his current practice differentiates more clearly than in the past between deputy sheriffs who are employees of Barnstable County or otherwise have law enforcement powers, and private citizens without law enforcement powers, now designated "reserve deputy sheriffs." The sheriff has appointed more than one hundred reserve deputy sheriffs. A letter, printed on the sheriff's official letterhead and sent as part of an application package, recites the responsibilities of reserve deputy sheriffs: they have "all the powers, duties, authority, responsibility and honors of a Deputy Sheriff when called upon by the High Sheriff or the Special Sheriff, as provided for by [G.L. c. 37, § 13, and G.L. c. 269, § 1]." The appointment of reserve deputy sheriffs is directed by the sheriff and his subordinates. A potential reserve deputy sheriff completes an application, which he or she mails to the sheriff's secretary, an employee of the sheriff's office. The application is then forwarded to the special sheriff, an employee of Barnstable County and the sheriff's highest ranking subordinate. See G.L. c. 37, §§ 4, 5, and note 5, supra. Applicants authorize "the Sheriff of Barnstable County, Massachusetts" to conduct "a background investigation" and the special sheriff directs employees to use the resources of the office to perform such background checks. After the completion of a background check, the special sheriff and two officers of the association review the application before the special sheriff makes a recommendation to the sheriff. The final decision to appoint an applicant is made by the sheriff. Each successful reserve deputy sheriff candidate is notified by the sheriff in a letter bearing the sheriff's letterhead. Each is informed that he or she "takes an oath of public trust." The successful applicant also is given a photographic identification card, made by the sheriff's personnel director and paid for by the sheriff's office, bearing the title "reserve deputy sheriff." The reserve deputy sheriff is informed that he or she may purchase at a police supply store a badge that identifies the holder as a deputy sheriff. The sheriff administers an oath to each reserve deputy sheriff at what is characterized as a "ceremonial gesture without legal consequence."
The Court noted that "it is not disputed that records "made or received" by the sheriff, an elected officer and employee of Barnstable County, a political subdivision of the Commonwealth, are subject to the public records laws. It is not disputed that the records requested by the newspaper are located in the sheriff's office, in a file maintained by, and under the control of, a public employee, the special sheriff. The sole question is whether the sheriff may nevertheless refuse to allow inspection and examination of these records on his assertion that the records are "private." In the circumstances of this case, that claim is untenable. The public records law, G.L. c. 66, § 10, requires that every person permit the inspection and examination of any public records in his or her "custody." See note 1, supra. General Laws c. 4, § 7, Twenty-sixth, in turn, defines "[p]ublic records" as all materials "made or received by any officer or employee" of any "political subdivision" of the Commonwealth unless such materials fall within an exemption specified in that they are:
"(a ) specifically or by necessary implication exempted from disclosure by statute; ... (c ) ... relat[ed] to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; ... (e ) notebooks and other materials prepared by an employee of the commonwealth which are personal to him and not maintained as part of the files of the governmental unit." The Legislature's definition of public records "manifests a legislative intent to provide broad public access to government documents subject only to limited exemptions." General Elec. Co. v. Department of Envt'l Protection, 429 Mass. 798, 802 (1999). The statute provides the operative standard: in any court proceeding "there shall be a presumption that the record sought is public, and the burden shall be upon the custodian to prove with specificity the exemption which applies." G.L. c. 66, § 10 (c ). Against this presumption of production, we address in turn the sheriff's assertion that the records were created in his (and the special sheriff's) "personal" capacities, and his claims that the records are the property of the association. The power to appoint reserve deputy sheriffs inheres in the office of the Barnstable County sheriff. When a public officer's actions are possible only by virtue of the public office he or she holds, they are official acts, and the evidence here is overwhelming that, when he appoints reserve deputy sheriffs, the sheriff acts as a public official and not as a private individual. Reserve deputy sheriffs "serve at the pleasure of the Sheriff"; they do not serve at the pleasure of private Citizen Cummings. Reserve deputy sheriffs agree "to obey the lawful commands of the Sheriff," not the commands of Citizen Cummings. Cummings will have no authority to appoint reserve deputy sheriffs after he leaves office. Rather reserve deputy sheriffs (if any) will serve at the pleasure of his successors. The "real party in interest" here "is the governmental entity" of the Barnstable County sheriff, not Cummings, "the named official." See Hafer v. Melo, 502 U.S. 21, 25 (1991)."
For these reasons, said the Court, "[t]he records requested by the newspaper are public records and must be made available for inspection and examination. The judgment is vacated. The case is remanded to the Superior Court for further proceedings consistent with this opinion.
7th Circuit Affirms Dismissal in HarperCollins Case
In an unpublished order, released March 4, 2005, the U. S. Court of Appeals for the 7th Circuit affirmed a lower court ruling that Gayle Raveling, the ex-sister-in-law of a former Willow Springs, Illinois police chief now in prison after his conviction on conspiracy and RICO charges, had failed to state a claim upon which relief could be granted in her case against HarperCollins Publishers, when she sued for false light invasion of privacy under Illinois law. The plaintiff had originally filed in state court in September 2003, charging that in the book Double Deal: The Inside Story of Murder, Unbridled Corruption, and the Cop Who Was a Mobster, the caption for a photograph of Ms. Raveling holding her godson, the police chief's son, identified her as "my sister-in-law, Gail Barone" in company with the infant's godfather, described in the book as the individual "who ran the Chicago mob's North Side crew." Equally unsavory to Ms. Raveling's mind was the fact that the photograph was on the same page as "a picture of a Cadillac being pulled from a Chicago sanitary canal. According to the caption, the car's trunk concealed the decomposed body of Dianne Masters, the murdered wife of Corbitt's codefendant Alan Masters." HarperCollins removed to federal court later that year.
On February 9, 2004 the district court granted HarperCollins' motion to dismiss, stating that the "mere inclusion" of the photograph did not place Ms. Raveling in a false light. Raveling moved for reconsideration and for leave to file an amended complaint; the district court denied both motions.
The appellate court examined Ms. Raveling's false light claim carefully, using the standard articulated by the Supreme Court of Illinois in Kolegas v. Heftel Broadcasting (plaintiff placed in a false light as a result of defendant's actions; factfinder could decide that the false light would be highly offensive to reasonable person; plaintiff must allege and prove defendants acted with actual malice or reckless disregard). As to the first element, the appellate court concluded that the material published about Raveling was "substantially true." As to the second element, the court held that "a plain statement of one's family relatinoship to another person simply is not highly offensive to the reasonable person." Finally, the court decided that Raveling had not shown actual malice in that she had not demonstrated (indeed could not demonstrate) that HarperCollins had acted with knowledge of or reckless disregard toward the truth or falsity of the statements about her. While the appellate court was mildly critical of the district court's dismissal of Ms. Raveling's motion, saying that procedurally it should have handled it differently, it reiterated that "the factually accurate depiction of Ms. Raveling in this book simply cannot form the basis for a false light invasion of privacy claim. Because Ms. Raveling's proposed amended complain could not have survived another motion to dismiss, we think that the district court did not abuse its discretion by denying her leave to file an amended complaint....Furthermore, although Ms. Raveling indicated her wish to file an amended complaint...under Illinois' Right of Publicity Act, 765 Ill. Comp. Stat. 1075/1 et seq., she did not attach a proposed amended complaint to her motion for reconsideration, nor did she provide anything beyond a cursory citation to the Right of Publicity Act...Therefore, we must conclude that the district court acted within its discretion when it denied Ms. Raveling's motion for leave to file an amended complaint."
The lower court decisions, Raveling v. HarperCollins, U. S. D.C. for the Northern District of Illinois, Eastern Division, dated June 30 and February 10, are available on LEXIS and WESTLAW. Neither is available in the Federal Supplement 2d.
The Illinois Right of Publicity Act is available here.
March 16, 2005
Bush Names FCC Commissioner Kevin Martin New Agency Head
President Bush has named FCC Commissioner Kevin Martin the new head of the FCC, succeeding Michael Powell, who steps down tomorrow. Martin said in a statement, "I am deeply honored to have been designated as the next Chairman of the Federal Communications Commission, and I thank President Bush for this distinct privilege. I look forward to working with the Administration, Congress, my colleagues, and the FCC’s talented staff to ensure that American consumers continue to enjoy the benefits of the best communications system in the world. I thank Chairman Powell for his excellent stewardship of this agency, and I look forward to continuing his efforts in bringing the communications industry into the 21st Century.” In written statements, outgoing FCC head Powell congratulated his successor, as did Commissioner Kathleen Abernathy (see below).
Martin received his BA from the University of North Carolina, Chapel Hill, a master's degree in public policy from Duke University, and a JD from Harvard. He clerked for U. S. District Court Judge WIlliam Hoeveler (11th Circuit), practiced with Wiley, Rein & Fielding in Washington DC, worked on the Bush campaign and then on the Bush-Cheney transition team of 2001 and as Deputy General Counsel. He joined the FCC in 2001.
March 15, 2005
Teenager Loses Defamation Suit Against Boston Magazine
In May 2003 Boston magazine published an article called "The Mating Habits of the Suburban High School Teenager", illustrated with a large photograph of teen Stacey Stanton. Although Stanton was not mentioned in the article, and although the magazine specifically stated that the photograph did not have any connection with the material discussed in the text, she claimed that the article defamed her. She sued Boston magazine and its parent company, Metro Corporation, for defamation and false light invasion of privacy under Mass. General Laws ch. 214 sec. 1B. After a careful analysis of the claims, the judge noted that while Massachusetts courts have accepted invasion of privacy claims, "[t]he bulk of the cases decided under the statute have concerned the dissemination of allegedly private information about a plaintiff... The SJC has also recognized a cause of action under the statute for intrusion into a person's private sphere. ..However, invasion of privacy actions of the "false light" variety are not recognized in Massachusetts . "[foonotes omitted] "Neither the complaint, nor plaintiff's opposition to defendant's motion to dismiss, make any explicit reference to claims for revelation of private information or for intrusion into plaintiff's private sphere, or allege any specific facts to support such claims. The photograph does not, for example, portray her in the ladies' room, or partially dressed, or in any other similar context that would ordinarily be intended to be private. Indeed, aside from the false light assertions, the invasion of privacy claim rests on the bare allegation that the unauthorized publication of plaintiff's photograph constituted an unreasonable, substantial, and serious interference with her privacy. Amended Complaint, PP 8-9. Plaintiff cannot press an invasion of privacy claim based solely on an allegation that amounts to little more than a legal conclusion."
However, the court was clearly troubled by the defendant's use of the photograph of a teenager otherwise unconnected with the story to illustrate this particular article. "[t]he use of plaintiff's photograph in this context appears to have been entirely gratuitous. The photograph was not used to illustrate an article about proms, or anything actually depicted in the photograph itself; it was used to illustrate a sensational article about relatively extreme forms of sexual behavior. It would have been easy to create an illustration with consenting subjects, or to obscure plaintiff's identity. Nor can this be said to be the product of newsgathering in haste; the publication is a monthly magazine, not a newspaper on a daily deadline, and presumably there was ample opportunity for reflective and considered editorial judgment prior to the selection of a photograph that was certain to embarrass its teenage subjects."
The case is Stanton v. Metro Corp., No. 04-10751-FDS (D. Mass. Mar. 7, 2005).
March 14, 2005
FCC Rules "Desperate Housewife" Not Desperate Enough
The FCC has ruled in a Memorandum and Order that a November lead-in during Monday Night Football in which "Desperate Housewives" star Nicolette Sheridan, dropped the towel she was wearing before jumping into the arms of Philadelphia Eagles player Terrell Owens, was not indecent. The FCC ruling describes the encounter thus: "
" At 9:00 p.m. Eastern Standard Time, on November 15, 2004, as the introductory segment to the broadcast of the National Football League game between the Philadelphia Eagles and Dallas Cowboys, ABC aired a scene featuring Eagles wide receiver Terrell Owens and actress Nicollette Sheridan, appearing as her character in the ABC program “Desperate Housewives.” During the scene, Sheridan and Owens, who is fully suited for the game, are alone in the Eagles’ locker room.
Sheridan, wearing only a towel, seeks to seduce Owens. After he rebuffs her advances, telling her that the game is about to start and that his team needs him, she drops her towel. The camera shows her from the back, nude from the waist up. The viewer cannot see her body below the waist. He responds, “Aw, hell, the team’s going to have to win without me” and she then leaps into his arms. The scene concludes with two other characters from “Desperate Housewives” watching the locker room encounter on their television, who remark how “desperate” Sheridan appears and then change the channel to the game, repeating the traditional Monday Night Football introduction, “Are you ready for some football?!” The game broadcast then commences."
In its evaluation, the FCC states: "In our assessment of whether broadcast material is patently offensive, “the full context in which the material appeared is critically important." Three principal factors are significant to this contextual analysis: (1) the explicitness or graphic nature of the description; (2) whether the material dwells on or repeats at length descriptions of sexual or excretory organs or activities; and (3) whether the material appears to pander or is used to titillate or shock. In examining these three factors, we must weigh and balance them to determine whether the broadcast material is patently offensive because “[e]ach indecency case presents its own particular mix of these, and possibly, other factors.” In particular cases, one or two of the factors may outweigh the others, either rendering the broadcast material patently offensive and consequently indecent, or, alternatively, removing the broadcast material from the realm of indecency." [footnotes omitted]...
The order concludes, "[T]he material in question is not patently offensive, and thus, not indecent. In particular, the “Monday Night Football” segment, although sexually suggestive, is not graphic or explicit. Owens is fully dressed throughout the segment, and, with the exception of a moment when her bare back is exposed to the audience, Sheridan is at all times fully covered with a towel. No sexual or excretory organs are shown or described, and no sexual activities are explicitly depicted or described. Furthermore, the scene where Sheridan drops her towel and jumps into Owens’s arms is brief. Although the scene apparently is intended to be titillating, it simply is not graphic or explicit enough to be indecent under our standard." [footnotes omitted].