JOHN DOE AND JANE ROE, v. MARSH , 96-7453 (2nd, 1996)

Background

Doe and Roe are HIV-positive individuals who are active in various HIV/AIDS support and advocacy organizations. Among other activities, both Doe and Roe have participated in educational seminars for social workers and educators focusing on HIV prevention. At the time of the incidents underlying this case, the defendant-appellee Naomi Marsh ("Marsh") was employed by the New York State Department of Education ("SED") HIV/AIDS program and was involved in developing and implementing seminars for people teaching HIV prevention in schools and elsewhere. As the director of SED's HIV/AIDS program, the defendant-appellee Arlene Sheffield was Marsh's immediate supervisor. Doe and Roe became known to Marsh and Sheffield through their speaking engagements at several seminars organized by Marsh. At these seminars,Doe and Roe identified themselves as being HIV-positive.

During the spring and summer of 1992, Marsh wrote a manual entitled "Setting up HIV Prevention Education Programs Including People Living With HIV/AIDS." Marsh was prompted to write the manual as a result of requests from seminar attendees and SED regional staff for a manual on how to establish a HIV-prevention education program in schools that would utilize local people who were living with HIV/AIDS. According to Marsh, because she wanted to credit the various persons living with HIV who had participated in the SED seminars and had taught her how to implement the seminars successfully, she included in an "Acknowledgements" page the following expression of gratitude:

Men and women, young and old, living with HIV, have come forward from the beginning of this epidemic, knowing from certain knowledge that their personal risk would have been lessened if someone had talked to them about their behaviors. These courageous people have enhanced HIV prevention efforts immeasurably with their passionate exhortations to all of us to choose behaviors which minimize our risk of becoming infected. Our youth especially deserve this wisdom and insight before they become exposed to HIV. To these teachers, we are forever indebted[.]

There followed a list of individuals, including the full names of Doe and Roe...

Doe and Roe appreciated neither the acknowledgment nor the publicity of their HIV status. In October 1992, Marsh received a letter from Doe's and Roe's counsel expressing outrage at SED's publication of her clients' names, and demanding that SED immediately stop distributing the manual and excise the names of those persons in the Acknowledgments who had not given written consent for their name to appear. Counsel for plaintiffs also demanded that copies of the manual already distributed be retrieved and destroyed. After speaking with plaintiffs' counsel, Marsh revised the Acknowledgements by deleting the names of the persons identified as living with HIV, and destroyed all copies of the original, Acknowledgments in her possession. Further, in February 1993 she remailed a copy of the manual with the revised Acknowledgments to all persons to whom the manual was originally distributed and requested that copies of the original manual be returned to her. According to Marsh, only three copies of the original version were returned. Finally, Marsh sent a letter of apology to all the persons whose names she had listed in the original Acknowledgments.

In May 1993, Doe and Roe commenced the present action under 42 U.S.C. Section(s) 1983, alleging that the defendants violated their right to privacy under the First Amendment to the United States Constitution. They also included a pendant state law claim under New York Public Health Law Section(s) 2782, which generally prohibits the disclosure of an individual's HIV-related information except upon written consent of that individual. After discovery was completed, the defendants moved for summary judgment on the ground of qualified immunity, claiming, inter alia, that: (1) a specific constitutional right to privacy for persons with HIV had not been established at the time the defendants' manual was published in September 1992, and (2) in any event, Marsh and Scheffield had acted "objectively reasonable" in listing Doe's and Roe's names because Doe and Roe had waived any such right to privacy by publicly identifying themselves as persons living with HIV....

[An "objectively reasonable" standard is used to determine the liability of public officials acting in their official capacity. If the conduct meets the standard the officials are protected.]

The district court in the instant case concluded that the defendants acted "objectively reasonable" because reasonable officials would disagree about whether the plaintiffs had waived their right to privacy. Its conclusion was premised upon, among other things: (1) Doe and Roe were extensively active in promoting HIV prevention awareness among health officials and others who were at-risk in contracting HIV; (2) Doe and Roe had identified themselves at numerous training seminars and conferences organized by the SED as persons with HIV; (3) Doe's full name and telephone number were listed in a February 1992 letter sent to community health officials in the Albany area notifying them of a group representing men, women, and children with HIV called HIV/AIDS Organizers Maintaining Empowerment, which officials could utilize as a resource; and (4) in a voluntary appearance on an educational videotape about HIV produced by Albany Educational Television for adult literacy programs, Roe disclosed that she was HIV-positive, signed a release authorizing the videotape to use her face, voice and first name, and acknowledged that the tape would be used in a variety of educational settings. See 918 F. Supp. at 586-87.

We agree with the district court that, at least as of the time the SED manual was first distributed to educators in September 1992, the law regarding waiver of the right to privacy was not clearly stated, and, therefore, the plaintiffs' conduct of identifying themselves before seminar and conference audiences as persons living with HIV could reasonably be construed by state officials as a waiver of their right to privacy....

[O]ur decision in Doe v. City of New York indicates that a plaintiff with HIV may have waived his right to privacy by entering into a settlement agreement that he knew would become a matter of public record, see id., 15 F.3d at 269, cf. Doe v. Southeastern Pennsylvania Transportation Authority, 72 F.3d 1133, 1138-39 (3d Cir. 1995) (disclosure of employee's HIV-related medication in company health plan report does not constitute a waiver of employee's right to privacy from disclosure of his medical condition to co-workers), cert. denied, 117 S. Ct. 51 (1996), the defendants here did not have the benefit of whatever clarity these cases afford on the issue of waiver.