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Ninth Circuit:
Maintaining Old Press Releases on Website Telling of Crimes Doesn’t Invade Privacy
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday denied the bid by a Los Angeles County resident for reinstatement of his action to force the U.S. Department of Justice and the Federal Bureau of Investigation to remove from their websites four press releases issued between 2007 and 2011 telling of the prosecution, conviction, and sentencing of him for mortgage fraud.
Identified in the civil action as “John Doe,” he contended that maintaining the press releases on the websites invades his right to privacy. That contention and others were rejected in an opinion by District Court Judge David A. Ezra of the District of Hawaii, sitting by designation.
“Doe” said in his complaint, filed by Pasadena attorney Richard G. Novak:
“Plaintiff pled guilty over a decade ago to allegations of non-violent federal crimes related to purported mortgage fraud, the conduct at issue itself occurring nearly twenty (20) years ago. Plaintiff served a brief term of imprisonment, which ended with his release in 2014. His post-release supervision ended in 2017. Plaintiff paid all restitution ordered by this Court. Both before and since his alleged fraudulent criminal conduct nearly twenty (20) years ago. Plaintiff has not been implicated in any other criminal behavior of any sort at any time in his life. Plaintiff indisputably has fully paid his debt to society.”
It continues:
“However, as a result of the ubiquitous nature of the internet, and the ease of availability to anyone of the preserved digital information—the subject press releases—related to those long-ago events, Plaintiff has been unfairly subjected to arbitrary, oppressive, unfair and unintended stigma and impairment of his right and ability to lead a productive life. The stale press releases regarding Plaintiffs indictment, unilaterally issued by a press officer for the federal government years ago, are still continuously maintained in an open digital space easily accessible to anyone with a Wi-Fi connection, without any applicable legal standards or requirements as to their maintenance, preservation and availability to the public at large. As a result, a simple Google search of Plaintiff by any person interested in any aspect of Plaintiff s life yields immediately the decades-old press releases about Plaintiffs alleged conduct, long-since fully punished, yet immortalized as a functional scarlet letter and a form of ‘digital punishment,’ despite the absence of any intention by the sentencing court that he be subjected to such punishment at all. let alone for the rest of his life.” The complaint says the plaintiff has suffered emotional distress, humiliation, and loss of business opportunities as a result.
Carney’s Ruling
His claims were dismissed without leave to amend by District Court Judge Cormac J. Carney of the Central District of California. Carney said of the privacy claim:
“Plaintiff’s conviction and sentencing here are public records of official acts. Accordingly, they are not protected by a constitutional right to privacy.”
Earlier, Cormac ordered “that Plaintiff may proceed in this litigation under the pseudonym ‘JOHN DOE.’ ”
Ninth Circuit Decision
Ezra wrote:
“While individuals may have a constitutional privacy interest in certain, highly sensitive information, Appellant simply does not have such an interest in the information at issue in this case. Tellingly, Appellant never challenged the constitutionality of the Press Releases at the time they were published. And he cites no authority supporting his claim that a press release, after being available for years, can somehow transform into an unconstitutional disclosure simply because it is now ‘stale.’ ”
He also agreed with Cormac that maintaining the press releases on websites does not constitute cruel and unusual punishment in contravention of the Eighth Amendment, saying:
“Because the Press Releases’ continued availability is not punishment at all, it cannot amount to cruel and unusual punishment under the Eighth Amendment. However, even if we found Appellant was being punished, that punishment would not be the type of government action forbidden by the Eighth Amendment.”
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The case is Doe v. Garland, 20-56063.
Copyright 2021, Metropolitan News Company
UPDATE: A May 1, 2022 letter from Novak has facilitated the ascertainment of Doe's identity. He is Richard Maize. His earlier effort to cause removal of the press releases is discussed in a Nov. 25, 2019 article, Judge Had No Jurisdiction Over Motion to Block Access to Releases.