The Washington Court of Appeals this week held that state law does not recognize a cause of action for invasion of privacy based on “negligent dissemination of unsubstantiated information.” Corey v. Pierce County, Case No. 62505-5 (Wash. App. Jan. 25, 2010).
The case is good news for Washington state media. It squarely rejects an expansive reading of the 2008 Bellevue John Does public records case and the emerging theory that truthful reporting about criminal investigations is actionable—a theory that, were it to be accepted by the courts, would upend decades of established defamation law.
The Corey decision arose from the 2004 termination of Pierce County deputy prosecutor Barbara Corey. She claimed that the county wrongfully fired her and that the elected prosecuting attorney, Gerald Horne, defamed her in statements to the press about a criminal investigation into Corey's handling of office funds. At trial, Corey presented evidence that Horne had publicly accused her of criminal conduct, even though he knew, at the time he spoke, that the allegations were false and that the investigation had found no improper conduct.
A jury awarded Corey nearly $3 million at trial. The Court of Appeals affirmed the verdict, including the findings that defendants acted with actual malice and had defamed her. But the court soundly rejected one of Corey’s theories—that her privacy had been invaded by “negligent dissemination of unsubstantiated allegations.”
Corey’s invasion of privacy claim was based on the argument that Horne had a duty to prevent dissemination of the existence of the criminal investigation so long as the charges were unsubstantiated. The theory was based on Bellevue John Does 1-11 v. Bellevue School District No. 405, 164 Wn.2d 199, 189 P.3d (2008), in which the Washington Supreme Court held that the identity of public school teachers accused of sexual misconduct was exempt from disclosure under the Public Records Act, if the wrongdoing was found to be “unsubstantiated.” Corey argued that the First Amendment did not bar a tort claim based on dissemination of harmful information, even if that information was true.
The trial court agreed, but the Court of Appeals reversed on this point, finding that Washington law does not support this type of privacy claim. The court explained that although the Public Records Act in some instances exempts public records from disclosure based on an employee’s privacy, “[n]othing in the case law establishes a tort cause of action” for disseminating such information in other contexts. (The court nevertheless let the jury award stand, finding that the verdict would have been the same even without the erroneous “negligent dissemination” instruction.)
Corey is the second recent opinion to reject the theory that Bellevue John Does supports a privacy tort claim for dissemination of unsubstantiated information. In Cawley-Herrmann v. Meredith Corp., 654 F. Supp. 2d 1264 (W.D. Wash. Sept. 8, 2009), a television station accurately reported that police were investigating claims that a teacher allegedly had assaulted a student in school. The allegation was later found to be unsubstantiated. The teacher sued the station for invasion of privacy (but not defamation), claiming the news report was tortious under Bellevue John Does. A Washington federal district court rejected the argument, finding that Bellevue John Does was limited to public records cases and did not set the standard for privacy in other contexts.
Under the “negligent dissemination” theory, reporting about criminal investigations—even where accurate, and even where based on official sources—would be actionable if the charges at issue were not substantiated. The effect of such a rule would be to bar a great deal of standard news reporting on police and criminal justice matters. Thanks to the Corey and Cawley-Hermann decisions, such reporting can continue in Washington, consistent with traditional principles of defamation law.