CRS-184 same time, congress has initiated a trend toward requiring greater accountability 6/ for such records and accuracy in their context. Contemporary legislative proposals mark a continuance of this trend, although only along procedural lines. Finally, Congressional interest in reforming or abolishing the suppression doctrine has led to relatively sparse formal proposals. While the Supreme court has begun limiting the use of the suppression doctrine, the lower courts continue to expand its scope. At the same time, the state courts, where a vast majority of Fourth Amendment cases orginiate, have received little attention. While the Chief Justice has specifically articulated a need for Congres8/ sional action, only specific reforms and limited changes have taken place. Historically, the interpretation of the free-press fair trial dilemma, and the interplay of speedy trial rights, has been within the realm of the judiciary. The same has been true of the suppression doctrine. Only the newly introduced area of third party records and privacy rights has been founded on legislative mandates. None of these areas, however, is the sole province of the legislature, executive or courts. 6/ Supra Chapter III notes64-77, 158-169, and accompanying text. 7/ Bivens, supra, Chapter IV, note 103, at 424. 8/ See, e.g., Pub. L. 95-78, supra, Chapter IV, note 132, and accompanying The Library of Congress Congressional Research Service Washington, D.C. 20540 December 14, 1978 TO: FROM: SUBJECT: House Select Committee on Assassinations Attn: Robert Blakey American Law Division Possible Liability for Inclusion of Personal Data in This memorandum has been prepared and is submitted in response to your request, as clarified by the telephone conversation of December 6, 1978, with Robert Blakey, for information concerning the above subject. Specifically, the question is the possible liability of the Public Printer for printing and distributing copies of a report of a congressional committee 1/ which contains personal data about a number of individuals who have been investigated by the committee in the course of its inquiry into the assassinations of President Kennedy and Dr. King. You asked that we not discuss the liability of Members or committee staff, as they appear to be protected by the Speech or Debate Clause (Art. I, Sec. 6, C1. 1) for introducing objectionable material at committee hearings, for preparing the report, and for referring it to the full House. See Doe v. McMillan, 412 U.S. 306, 312 (1973). You also asked that we not discuss Speech or Debate Clause immunity in general, but rather limit our treatment of the Clause 1/ It is assumed that the committee has a legislative purpose in obtaining and reporting the personal data, since the Congress has no power to inquire into private affairs without the possibility of legislating on the basis of what might be learned. See Kilbourn v. Thompson, 103 U.S. 168 (1881). CRS-2 to the question of the extent of distribution of a committee report which may be protected. That question is specifically dealt with in the opinions in Doe v. McMillan, supra, on remand from the Supreme Court The recent decision in Hutchinson v. Proxmire, Nos. 77-1677 and 77-1755 (7th Cir. June 30, 1978), may also be relevant. These cases are analyzed below. Finally, you asked us not to discuss legal issues relating to a libel action for inclusion of personal data in the committee report. Prosser, supra. Apart from a possible defamation action, it appears that the inclusion of personal data in a committee report might result in an action being brought under the branch of the tort of invasion of privacy referred to as the "public disclosure of private facts." Prosser, Handbook of the Law of Torts (4th ed. 1971) [hereinafter cited as Prosser], $117, at p. 809. This tort is based on "publicity, of a highly objectionable kind, given to private information about the plaintiff, even though it is true and no action would lie for defamation." Several points might be made about this tort. First, "the disclosure of the private facts must be a public disclosure, and not a private one; there must be, in other words, publicity. It is an invasion of his rights to publish in a newspaper that the plaintiff does not pay his debts, or to post a notice to that effect in a window on the public street, or to cry it aloud in the highway, but not to communicate the fact to the plaintiff's employer, or to any other individual, or even to a small group...." CRS-3 2/ Prosser, supra, §117, at p. 810. Second, "the facts disclosed to the public must be private facts, and not public ones. The plaintiff cannot complain when an occupation in which he publicly engages is called to public attention, or when publicity is given to matters such as the date of his birth or marriage, or his military service record, which are a matter of public record, and open to public inspection." Prosser, supra, §117, at pp. 810-11. And third, "the matter made public must be one which would be offensive and objectionable to a reasonable man of ordinary sensibilities." Prosser, supra, $117, at p. 811. available. Our research has not revealed any authority which would indicate that an action for invasion of privacy by means of the public disclosure of private facts cannot be maintained against a Government official or a Government agency. However, in such actions against a Government official or agency, some immunity, privilege, or defense may be available. Where the action is brought against a Government agency, sovereign immunity may be See Prosser, $131. Where the action is against an individual Government official, he may be able to assert an absolute or a qualified privilege. See Hanson, Libel and Related Torts (1969), par. 255, at P. 205. And regardless of whether the action is maintained against the agency or an official, a privilege to write about public figures and matters of public interest may be available. See Hanson, supra, par. 257 at p. 206; 62 Am. Jur. 2d, Privacy, $21 (1972). 2/ Hanson, Libel and Related Torts (1969), Vol. 1, par. 253, indicates that such mass publication is not in fact an element of the tort. The extent of the committee's planned distribution of the report would appear to satisfy a publication requirement, if it is indeed a requirement. CRS-4 Where an action is brought against an official for statements made in the course of his duties, he may have an absolute or a qualified privilege. As to executive branch officials, see Prosser, $114 at pp. 782-84; Hanson, par. 118 at p. 91 and par. 132 at p. 100. As to legislative officials, see Prosser, $114 at p. 781-82; Hanson, pars. 115 and 116 at PP. 89-90. Although the authorities cited in the discussion above concerning the availability of an absolute or a qualified privilege of an official in an invasion of privacy action actually relate to assertion of such a privilege in a defamation action, Prosser notes, $117 at pp. 817-18: "Warren and Brandeis [in an often-cited article, The Right to Privacy, 4 Harv. L. Rev. 193 (1890)] thought that the action for invasion of privacy must be subject to any privilege which would justify the publication of libel or slander, reasoning that if there is a privilege to publish matter which is both false and defamatory, there must necessarily be the same privilege to publish what is not defamatory, or true. reason to doubt this conclusion...." There is still no See also Hanson, par. 255 at p. 205. A privilege has specifically been held to be available to State executive branch officials in an invasion of privacy suit. See Carr v. Watkins, 227 Md. 578, 177 A.2d 841 (Ct. of App. 1962). In regard to the privilege to publish information about matters of public interest, it is noted, 62 Am. Jur. 2d, Privacy, $16 (1972), that The right of privacy does not prohibit the publication |