Public disclosure

The public disclosure of private facts that are objectionable consists of facts that would be offensive and objectionable to a reasonable person [see: 429.39], and that are not of legitimate public concern. The terms “legitimate public concern” and “newsworthiness” are often used interchangeably by the courts. The general rule is that a truthful publication will be constitutionally protected if (1) it is indeed newsworthy, and (2) it does not reveal facts so offensive as to shock the community’s notions of decency. (Briscoe v. Reader’s Digest Ass’n, Inc. (1971) 4 Cal.3d 529, 541, 93 Cal.Rptr. 866, 483 P.2d 34). However, the publication of truthful information obtained from official public court records of a criminal proceeding is constitutionally protected regardless of any claim that the information is not newsworthy. (Gates v. Discovery Communications, Inc. (2004) 34 Cal.4th 679, 692–697, 21 Cal.Rptr.3d 663, 101 P.3d 552). The privilege of publication of private facts may apply even when the private facts were declared confidential by statute. (Nicholson v. McClatchy Newspapers (1986) 177 Cal.App.3d 509, 516–521, 223 Cal.Rptr. 58). The burden of proving that the publication is not constitutionally protected — that is, that it is not newsworthy — is on the plaintiff. (Diaz v. Oakland Tribune, Inc. (1983) 139 Cal.App.3d 118, 130, 188 Cal.Rptr. 762). In general, arrests and prosecutions of criminal suspects are matters of legitimate public concern. (Cox Broad. Corp. v. Cohn (1975) 420 U.S. 469, 493, 95 S.Ct. 1029, 43 L.Ed.2d 328). In conclusion, even if police reports, interviews, expert witness reports and the like were in some way not considered “public record” in the traditional sense, and thus protected under the privacy acts set out in our Constitution — if it can be shown that there is a legitimate public interest in revealing their content, it supersedes the individual’s and/or institution’s right to privacy.