New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

No tort liability for invasion of privacy if information is 'of legitimate concern to the public'

Lovejoy v. Linehan
No. 2010-343, 2/23/2011

Public officials often are faced with questions of "invasion of privacy" when determining whether to withhold documents from public disclosure under the Right to Know Law. RSA 91-A:5, IV. In this case, the Court addressed civil liability for the invasion of privacy for disclosure of a governmental record. While the risk of civil liability is certainly not the only factor in making decisions to withhold or disclose documents under the Right to Know Law, municipal officials should be aware of the tort of invasion of privacy.

Lovejoy challenged Linehan, the incumbent, in the 2009 election for Rockingham County Sheriff. The Portsmouth Herald reported that a record made available to the paper indicated that Lovejoy had been convicted of simple assault in l989 and that his criminal record had been subsequently annulled. Under RSA 651:5, when a criminal record is annulled the person shall, with certain exceptions, be treated as if he had never been arrested, convicted or sentenced. The statute makes it a misdemeanor, with certain exceptions, to disclose another person's annulled criminal record. Lovejoy sued Linehan and others for the tort of invasion of privacy by public disclosure of private facts. The trial court granted the defendants' motion to dismiss, and Lovejoy appealed to the Supreme Court.

Citing Hamberger v. Eastman, 106 N.H. 107 (1964), the Court first noted that there are four distinct torts involving invasion of privacy: (1) intrusion upon the plaintiff's physical and mental solitude or seclusion; (2) public disclosure of private facts; (3) publicity which places the plaintiff in a false light in the public eye; and (4) appropriation, for the defendant's benefit or advantage, of the plaintiff's name or likeness.

The Court then summarized the elements of invasion of privacy by public disclosure of private facts: "One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public."

The Court noted that, while RSA 651:5 imposes criminal liability on one who discloses an annulled record, it does not provide a civil remedy to the person whose record is disclosed. The Court held that Lovejoy's annulled criminal record was a matter of legitimate public concern in the county sheriff election race and, thus, its disclosure, although criminal, did not give rise to civil liability for invasion of privacy.

Please be advised that the foregoing summaries of New Hampshire Supreme Court cases are based on slip opinions. Slip opinions are subject to change following motions for rehearing and/or motions for reconsideration. The Court may also modify an opinion without motion. The final version of the Court's opinion is that which appears in the New Hampshire Reports. A yearly compilation of municipal law cases is presented each fall at LGC's annual conference. For your copy of the 2010 Court Update, call 800.852.3358, ext. 100.

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