No Invasion of Privacy When Information Was Already Public

A plaintiff cannot claim invasion of privacy based on information that she herself has already disclosed in a public filing.

In Graham v. Archer, No. E2016-00743-COA-R3-CV (Tenn. Ct. App. Aug. 10, 2017), the Court of Appeals affirmed dismissal of an invasion of privacy case. A pro se plaintiff had previously filed an HCLA case against defendants, which was ultimately dismissed. In that case, plaintiff alleged that defendants had failed to provide her with requested medical records, and the defendants responded with affidavits “demonstrating that they had complied with or attempted to comply with each of [plaintiff’s] requests for medical records.” These affidavits were the basis for plaintiff’s subsequent invasion of privacy suit. Plaintiff argued “that, by filing the affidavits, the defendants disclosed her name, address, telephone numbers, and the identity of, and contact information for, her physicians,” constituting an invasion of privacy.

The trial court dismissed the case, finding that plaintiff had no reasonable expectation of privacy for this information because it was contained in pleadings she herself had filed in the HCLA case. That holding was affirmed by the Court of Appeals.

In its analysis, the Court quoted the Tennessee Supreme Court, stating that “it is…unrealistic and illogical to hold that there has been an invasion of the common law right of privacy of an individual by publishing a matter which that individual had already made a matter of public record.” (internal citation omitted). The Court reasoned:

[Plaintiff] herself revealed the information that she now claims the defendants disclosed. Prior to the filing of the affidavits in the ‘health’ lawsuit, [plaintiff] made the information public by including it in documents she filed with the court during the action. …[S]he waived her right to privacy with respect to that information.

The Court thus held that her “factual allegations fail[ed] to establish a cause of action for invasion of privacy.”

Further, the Court noted that even if plaintiff herself had not already disclosed the information, the affidavits were privileged and could not support an invasion of privacy action. Statements made during a judicial proceeding or in a document filed in court may be absolutely privileged, provided they meet two criteria: “(1) it must be in the course of a judicial proceeding, and (2) it must be pertinent or relevant to the issue involved in said judicial proceeding.” (internal citation omitted). Here, there was no dispute that the affidavit was filed in the course of a judicial proceeding, and since plaintiff had raised an issue regarding whether she was provided records, the statements were “relevant to an issue in the case.” Thus, even without the prior disclosure by plaintiff, dismissal was appropriate here.

Finally, plaintiff attempted to allege a HIPAA violation. The Court rejected this claim, finding that the argument was waived because plaintiff failed to raise it in the trial court and that “HIPAA only expressly authorizes the state attorney general to bring HIPAA actions on behalf of state residents,” thus creating “a strong indication that Congress intended to preclude private enforcement.”

Plaintiff here simply did not have the facts to support an invasion of privacy claim. Remember when assessing the viability of a potential invasion of privacy claim based on the disclosure of information that the information disclosed must have not been made public before.

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