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Midterm #2 - J385 - Winter 99 - Key |
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Midterm #2 - J385 - Winter 99 - Key |
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1. Sally Pitch requested information about "the products purchased by newly married couples as well as health and other relevant information" from several State of Oregon agencies. All of the agencies denied her request citing the personal privacy exemption of the Oregon Public Records Law.
The personal privacy exemption of the Oregon Public Records Law requires that the information be of a "personal nature" and that the requester meets the burden of a balancing test:
Information of a personal nature such as but not limited to that kept in a personal, medical or similar file, if the public disclosure thereof would constitute an unreasonable invasion of privacy, unless the public interest by clear and convincing evidence requires disclosure in the particular instance. The party seeking disclosure shall have the burden of showing that public disclosure would not constitute an unreasonable invasion of privacy.
The first question to address in a personal privacy exemption analysis of is the "personal nature" of the requested information. The Oregon Supreme Court has held that information is of a personal nature if it is information similar in nature to the information found in a medical or personal file, or if it is "specific to one individual." Here is the requested information appears potentially to fall into these categories.
The second question is if the disclosure would constitute an "unreasonable invasion of privacy." While some of the requested information is information individuals generally share with others, e.g. purchased products, is could be argued that the disclosure of such information in this context would constitute an unreasonable invasion of privacy. (See Attorney Gerneral's opinion to W. T. Lemman, chancellor, OSSHE, Oct. 13, 1988). The fact that the purpose of the request is to gather information for a purely commercial use is the strongest argument for the failure of this request. There is a strong and growing resistance to the release of personal information for marketing and advertising purposes. It is quite likely that a "reasonable person" would find this use to be an "unreasonable invasion of privacy.
No. Sally Pitch will not be granted access to the requested information.
| Note: This answer does not address the question of providing the information is a manner that does not reveal the identities of the newly married couples. Another approach to this question would be to say that the state must provide the information in a form that protects the individuals from disclosure. |
2. Tommy Tre is a star in the National Basketball Association. A news organization reports that he is involved in illegal activities. He sues for libel and the question before us is his status as a plaintiff. The defendant argues that Tre is a limited public figure.
In Oregon, the standard for limited public figures was established in Bank of Oregon v. Independent News. The Oregon Supreme adopted the involuntary, or Gertz, standard. In order for Tre to be a limited public figure he would have to voluntarily enter an existing public controversy for the purpose of resolving the controversy. In this instance, Tre is famous because of his status as a NBA star. We have no evidence that he has taken any actions to voluntarily enter this controversy.
No. Tre is not a limited public figure.
3. Cally Controversy’s comments on KWAK-TV result in a libel suit filed by four of the eight members of the UO cheerleading squad. The comments are colorful and clearly opinion-laden. They are made on a call-in talk show, which is a place where we would expect to hear opinion statements.
Each of the four plaintiffs has the burden of showing that the statements were "of and concerning him or her" (Pember, p. 143). As Pember tells us, there is no magic number in a group identification case, "courts will look at the circumstances as well as the number in the group" (Pember, p. 144). Here we have a small group of eight and four members of the group suing.
Controversy’s comments are not a blanket criticism of all the cheerleaders. She said that "some" are an embarrassment, "they" don’t know how to lead a cheer, "they" don’t know the words to the fight song, and "two" are overweight. However, because Controversy’s tone and thrust is sweeping (she isn’t precise in targeting her criticism), the group is small, and its members are highly visible members of the University community (see Pember, p 144.), a court could find that any of the four have been identified.
Pember notes that the common-law defense of fair comment has been subsumed into the constitutional defense of opinion (Pember, p. 218).
Applying the common-law fair comment defense, the statements in question are opinion statements. Each can be interpreted as being a subjective evaluation of the performance of the cheerleaders. With the exception of the statement, "they don’t know the words to the UO fight song," none of the statements are capable of being found to be either true or false. The performance of cheerleaders is a subject of legitimate public concern. Cheerleaders are public performers. Pember notes that "courts have defined public interest very broadly" (Pember, p. 218) Arguably, the fair comment defense could fail because no factual basis is provided.We are not told the specific facts that support the subjective statements about the cheerleaders’ performance.
No, the fair comment defense will fail because no facts are provided to support the opinion statements.
| Note: The best answer to this question would rely on the defenses of rhetorical hyperbole (Pember, p. 211) or "pure opinion" (Pember p. 212). The statements made in the context of a call-in talk show, where we expect to hear outrageous opinion statements that are incapable of being interpreted as statements of fact. Because Pember treats "rhetorical hyperbole," "pure opinion" and "fair comment" as somewhat distinct defenses and the question specifically asks about "fair comment," the model answer focuses on that common-law defense. |
4. A story reporting the departure of executive Sam Slick from the DoMore Corp. reports that he left the company "under a cloud of suspicion," and that "he was lucky to leave when he did" because the company was about to be investigated. While the story, makes no specific allegations of wrongdoing, the headline and the information about the pending investigation strongly imply that Slick was involved in the activities leading to the investigation (see Pember, p. 146) This clearly defames Slick’s professional reputation.
Yes, Slick was defamed
