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G.D. v. Kenny

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  • New Jersey Supreme Court Holds Expungement Statute Does Not Protect Private Facts in Defamation Case: In G.D. v. Kenny, a case raising both defamation and privacy tort claims, the Supreme Court of New Jersey has held that defendants are entitled to assert truth as a defense, even when the relevant facts are subject to an expungement order under a state statute. The Court relied on the fact that criminal conviction information is disseminated before the entry of an expungement judgement. In an amicus brief, EPIC had urged the New Jersey Supreme Court to preserve the value of expungement and further argued that data broker firms will make available inaccurate and incomplete information if expungement orders are not enforced by the state. The case may have implications for the "Right to be Forgotten." For more information, see EPIC - G.D. v. Kenny, EPIC - Expungement. (Jan. 31, 2011)
  • New Jersey Supreme Court to Hear Arguments in Expungement Case: The New Jersey Supreme Court will hear oral arguments on September 14, 2010 in the case of G.D. v. Kenny. In G.D. v. Kenny a lower court dismissed a privacy claim involving publication of information about a prior criminal act, even though the state had issued an expungement order. EPIC has filed a "friend of the court" brief, urging the New Jersey Supreme Court to preserve the right of expungement and allow the privacy case to go forward. EPIC's brief points to the increasing risk that private firms will make available inaccurate, incomplete, and out--of-date information if expungement orders are not enforced. EPIC further argues that courts do not treat truth as a defense in cases involving privacy tort claims. EPIC Advisory Board member Grayson Barber will be arguing on EPIC's behalf at the hearing. For more information, see EPIC: Expungement and EPIC: G.D. v. Kenny. (Sep. 10, 2010)
  • EPIC Urges New Jersey Supreme Court to Safeguard Privacy: EPIC has filed a "friend of the court" brief", urging the New Jersey Supreme Court preserve the value of expungement and allow a privacy case to go forward. In G.D. v. Kenny, a New Jersey court dismissed a privacy claim involving publication of information about a prior criminal act, even though the state had issued an expungement order. In the brief, EPIC argued that, "data mining companies ignore judicial determinations and attempt to make conviction records live forever," however, "after someone has been rehabilitated, having paid the prescribed debt to society, he or she should not be penalized in perpetuity." For more information, see EPIC: Expungement and EPIC G.D. v. Kenny.    (May. 12, 2010)

Background

G.D. was an aide to Brian Stack, a member of the Hudson County (NJ) Board of Freeholders. In 2007, Stack decided to run for the New Jersey Senate. However, the Hudson Country Democratic Organization ("HCDO") supported Stack's opponent in the primary election.

HCDO believed that G.D. supported Stack's primary campaign. G.D. denied working on Stack's campaign. HCDO hired Neighborhood Research Corp., a political consulting and advertising firm. The firm obtained a copy of a 1993 judgment of conviction showing G.D.'s conviction for second-degree possession of a controlled dangerous substance with intent to distribute, and G.D's sentence to serve five years in prison.

Using this information, the firm created flyers alleging that Stack surrounded himself with "COKE DEALERS AND EX-CONS." The flyers claimed G.D. was a "DRUG DEALER who went to JAIL for FIVE YEARS for selling coke near a public school." The flyer also displayed G.D.'s photo next to these statements. A second flyer did not mention G.D. by name, but displayed G.D's photo and stated that Stack's team consisted of "COKE DEALERS. GUN RUNNERS. EX-CONS." More than 17,000 copies of each flyer were printed, and copies were sent to more than 8,000 households in Union, NJ.

Unknown to the advertising firm, an order of expungement was entered in June 2006 for G.D.'s conviction. "One portion of the order provided, 'that the arrest which is the subject of this Order shall be deemed not to have occurred . . . .'" 984 A.2d 921, 927 (2009). Even though an order of expungement was entered, the Department of Corrections continued to list information about G.D.'s conviction and sentence as late as August 2008.

G.D. brought claims for defamation, intentional infliction of emotional distress, invasion of privacy, and civil conspiracy. Two defendants (HCDO and its CEO) filed a motion to dismiss. The remaining defendants filed a motion for summary judgment, and G.D. filed a motion to bar the defendants from relying on the defense of truth. The trial court denied all of the motions, and the parties filed motions for leave to appeal.

On review, the appellate court found that because the information on the flyers was true, it could not support a defamation claim. The court stated, "In our judgment, plaintiff's successful expungement of this record does not make defendants' statements about that record 'false.'" 984 A.2d at 929. The court dismissed G.D.'s defamation claims. The court also summarily dismissed the G.D.'s privacy claims.

G.D. filed a petition for writ of certification with the New Jersey Supreme Court, which was granted on April 22, 2010.

EPIC's Interest

As an organization that works on issues involving privacy, civil liberties, and database errors, EPIC has a great interest in this case, which implicates all three. EPIC also has a particular interest in expungement. The social consequences of a criminal record can effectively lead to the denial of an individual's opportunity for employment, housing, education, credit, and the right to civic participation.

EPIC's amicus brief argues that "expungement reflects a judicial determination of fairness that should be respected, regardless of new business practices or technological change." Since criminal records live forever in digital form, omitting expungement judgments from court records introduces errors into databases sold by states as well as commercial databases sold by data mining companies. These errors can lead to a range of consequences - from inconvenience to lost liberties. In its brief, EPIC further argues that when false information, including errors and omissions, is disseminated, individuals should have appropriate civil remedies available such as the torts encompassed in a claim for invasion of privacy.

If the appellate court's decision is upheld, it threatens to perpetuate error-filled databases and leave individuals with expunged records involved in defamation cases without legal recourse.

Legal Documents

New Jersey Supreme Court

G.D. v. Bernard Kenny and the Hudson County Democratic Organization, Inc., C-833-09

Superior Court of N.J. Appellate Division

G.D. v. Kenny, 984 A.2d 921 (N.J. Super. Ct. App. Div. 2009)

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