New York Law Review

Tag: Privacy Law

  • Hanig v. State of New York Department of Motor Vehicles, 79 N.Y.2d 106 (1992): Defining ‘Medical Histories’ Under FOIL Exemption

    Hanig v. State of New York Department of Motor Vehicles, 79 N.Y.2d 106 (1992)

    Responses regarding current treatment for disabilities on a driver’s license application are considered ‘medical histories’ and are exempt from disclosure under New York’s Freedom of Information Law (FOIL) as an unwarranted invasion of personal privacy.

    Summary

    Hanig, an attorney, sought an unredacted copy of a driver’s license application through FOIL, specifically the section asking about disabilities and treatments. The Department of Motor Vehicles (DMV) redacted the applicant’s responses, citing the medical history exemption under FOIL. The court held that the disability information on the application constituted a ‘medical history’ and was therefore exempt from disclosure. The court reasoned that the plain language of the statute and the intent to protect personal privacy supported this interpretation, regardless of whether the information was provided to a healthcare provider.

    Facts

    Pamela Jo Nielson was injured by a driver, Frank Jordan. Nielson’s attorney, Hanig, requested Jordan’s driver’s license application from the DMV. The DMV provided the application but redacted Jordan’s answers to the question about whether he had or was receiving treatment for any disabilities. The application listed specific conditions such as convulsive disorder, heart ailment, and mental disability. The DMV masked the responses citing Section 89 of the Freedom of Information Law deeming the information confidential.

    Procedural History

    Hanig’s request for an unredacted copy was denied by the DMV. The DMV’s Administrative Appeals Board affirmed the denial, citing a policy to mask medical information without the applicant’s consent. Hanig then filed a CPLR Article 78 proceeding. Supreme Court dismissed the petition, finding the redacted portion concerned Jordan’s medical history. The Appellate Division affirmed, reasoning that the information was the type one would expect in a proper medical history. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    Whether responses to questions regarding current treatment for disabilities on a driver’s license application constitute ‘medical histories’ exempt from disclosure under Public Officers Law § 89(2)(b)(i) of FOIL.

    Holding

    Yes, because the plain language, the intent of FOIL, and the protection of personal privacy dictate that such information falls under the ‘medical histories’ exemption, regardless of whether it was provided to a healthcare provider or included in an employment application.

    Court’s Reasoning

    The Court of Appeals affirmed the lower courts’ decisions, holding that the redacted information was properly withheld. The court reasoned that FOIL exemptions, while narrowly construed, must be given their natural and obvious meaning consistent with legislative intent. The court emphasized that Public Officers Law § 89(2)(b)(i) is written in the disjunctive, meaning the ‘medical histories’ exemption applies independently of employment applications. The court stated, “[E]mployment, medical and credit histories or personal references of applicants for employment each enjoy exemption from disclosure.”

    The court found that the legislative intent behind the exemption is to protect against unwarranted invasions of personal privacy, and that disclosure of ongoing treatment for medical conditions threatens personal privacy. It rejected the argument that the exemption only applies to information provided to a health care provider, noting that the inquiry should focus on the nature of the information itself. “[T]he relevant inquiry is as to the nature of the information, not who compiled it, or where it appears, or whether it is a precise technical evaluation.”

    The court found that there was no need to balance interests since the legislature had determined that the release of such information constitutes an unwarranted invasion of personal privacy. The court quoted Matter of Federation of N. Y. State Rifle & Pistol Clubs v New York City Police Dept., 73 NY2d 92, 97 stating that “Once it is determined that the requested material falls within a FOIL exemption, no further policy analysis is required.”

  • Beverley v. Choices Women’s Medical Center, Inc., 78 N.Y.2d 745 (1991): Use of Physician’s Photo in Calendar is Advertising Purpose

    78 N.Y.2d 745 (1991)

    Using a person’s photograph, name, and professional title in a calendar distributed to promote a for-profit medical services business constitutes use for “advertising purposes” under New York Civil Rights Law § 51, and is not protected by the public interest/newsworthiness or public figure doctrines.

    Summary

    Dr. Cordia Beverley sued Choices Women’s Medical Center for using her photo, name, and title in a promotional calendar without her consent, alleging violation of New York Civil Rights Law § 51. The calendar, distributed to patients and referring physicians, featured Choices’ name and advertised its medical services. The Court of Appeals affirmed the lower courts’ decision that Choices used Beverley’s image for advertising purposes, thus violating her right to privacy. The Court rejected Choices’ arguments that the calendar’s theme of women’s rights or Beverley’s status as a physician provided an exception to the statute.

    Facts

    Choices, a for-profit medical center, created a calendar for 1985 promoting its services related to family planning. Choices distributed 10,000 copies free of charge. Each page featured Choices’ logo, address, and phone number, along with positive statements about the center’s medical care. The calendar highlighted historical dates and figures related to the women’s movement. A photo of Dr. Beverley taken at a 1983 women in medicine conference was used for June, without her consent. Dr. Beverley, an internal medicine and gastroenterology specialist, had no affiliation with Choices.

    Procedural History

    Dr. Beverley sued Choices for invasion of privacy and defamation. The Supreme Court granted summary judgment to Dr. Beverley on the privacy claim and denied Choices’ motion to dismiss the defamation claim. The Appellate Division modified, dismissing the defamation claim, and remitted for a trial on damages for the privacy claim. After the trial on damages, the Supreme Court awarded Dr. Beverley $50,000 in compensatory and $25,000 in punitive damages. The Appellate Division affirmed, and the Court of Appeals granted Choices leave to appeal.

    Issue(s)

    Whether Choices’ use of Dr. Beverley’s photo, name, and professional title in its promotional calendar constituted use for “advertising purposes” within the meaning of Civil Rights Law § 51.

    Whether Choices could avoid liability under Civil Rights Law § 51 by arguing the calendar addressed a matter of public interest (the women’s movement) or that Dr. Beverley was a limited-purpose public figure.

    Holding

    Yes, because the calendar, taken in its entirety, was distributed for use in, or as part of, an advertisement or solicitation for patronage of Choices’ medical services. The pervasive placement of Choices’ information and laudatory statements about its services demonstrated its advertising purpose.

    No, because Choices is a commercial advertiser and cannot unilaterally neutralize the statutory privacy protection by wrapping its advertising message in the cloak of public interest. Dr. Beverley was not a public figure in this context, and the use of her image was a deliberate, later publication in advertising literature, not a simultaneous reporting of a current event.

    Court’s Reasoning

    The Court reasoned that Choices’ calendar was clearly an advertisement because of the prominent placement of its name, logo, address, and positive endorsements. The Court emphasized the distinction between media enterprises reporting on newsworthy events and commercial advertisers using images for direct promotional purposes. The court stated, “[a] picture illustrating an article on a matter of public interest is not considered used for the purpose of trade or advertising within the prohibition of the statute * * * unless it has no real relationship to the article * * * or unless the article is an advertisement in disguise.” Because Choices’ calendar was overtly an advertisement, the public interest exception did not apply. Further, the court distinguished this case from those involving the reporting of current events, noting that the use of Beverley’s image was a “deliberate later publication of a no longer current news item in an individual firm’s advertising literature”. The court concluded that Choices knowingly violated Dr. Beverley’s statutory privacy rights, thus affirming the punitive damages award.

  • Finger v. Omni Publications Int’l, Ltd., 77 N.Y.2d 138 (1990): Newsworthiness Exception to Privacy Law

    77 N.Y.2d 138 (1990)

    The “newsworthiness exception” to New York’s privacy law (Civil Rights Law §§ 50 and 51) protects publications from liability for using a person’s image in connection with a newsworthy article, unless the image has no real relationship to the article or the article is essentially an advertisement in disguise.

    Summary

    The Fingers sued Omni Publications for publishing their family photograph in an article about caffeine and fertility. The New York Court of Appeals held that Omni’s use of the photo was protected by the “newsworthiness exception” to the state’s privacy law. Even though the Fingers had no connection to the research discussed in the article, the court found a reasonable relationship between the photo of a large, healthy family and the article’s theme of fertility. This case illustrates the broad scope of the newsworthiness exception and emphasizes judicial deference to editorial judgment in determining what constitutes a matter of public interest.

    Facts

    Omni magazine published an article titled “Caffeine and Fast Sperm” discussing research on caffeine-aided fertilization. The article included a photograph of Joseph and Ida Finger with their six children. The caption read, “Want a big family? Maybe your sperm needs a cup of Java in the morning. Tests reveal that caffeine-spritzed sperm swim faster, which may increase the chances for in vitro fertilization.” The Fingers had no connection to the research, and none of their children were conceived through in vitro fertilization.

    Procedural History

    The Fingers sued Omni Publications, alleging violations of New York Civil Rights Law §§ 50 and 51. The Supreme Court dismissed the complaint, citing the newsworthiness exception. The Appellate Division affirmed. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    Whether the use of the Fingers’ photograph in connection with an article about caffeine-aided fertilization falls within the “newsworthiness exception” to New York Civil Rights Law §§ 50 and 51, even though the Fingers had no connection to the research discussed in the article.

    Holding

    Yes, because there is a “real relationship” between the photograph of a large family and the article’s theme of fertility, even if the family has no direct connection to the specific research discussed in the article.

    Court’s Reasoning

    The Court of Appeals affirmed the dismissal, reasoning that the “newsworthiness exception” to New York’s privacy law is to be liberally applied. The Court stated, “[a] picture illustrating an article on a matter of public interest is not considered used for the purpose of trade or advertising within the prohibition of the statute * * * unless it has no real relationship to the article * * * or unless the article is an advertisement in disguise.”
    The Court found that the article’s theme was fertility, and the photograph of a large, healthy family bore a “real relationship” to that theme, regardless of the family’s lack of connection to the in vitro fertilization research. The court emphasized that matters of scientific and biological interest, such as enhanced fertility, fall within the scope of the newsworthiness exception. “Questions of ‘newsworthiness’ are better left to reasonable editorial judgment and discretion…judicial intervention should occur only in those instances where there is ‘no real relationship’ between a photograph and an article or where the article is an ‘advertisement in disguise.’” The Court deferred to the magazine’s editorial judgment, finding no basis to conclude that the photograph lacked a real relationship to the article’s subject matter. The Court explicitly stated, “We conclude here that it cannot be said, as a matter of law, that there is no ‘real relationship’ between the content of the article and the photograph of plaintiffs. Thus the use of the photograph does not violate the prohibitions of Civil Rights Law §§ 50 and 51.”

  • Cohen v. Herbal Concepts, Inc., 63 N.Y.2d 379 (1984): Identifiability in Privacy Actions Under New York Civil Rights Law

    Cohen v. Herbal Concepts, Inc., 63 N.Y.2d 379 (1984)

    Under New York Civil Rights Law §§ 50 and 51, a plaintiff’s likeness is identifiable if a person familiar with the plaintiff could recognize them from the photograph or representation, even if the face is not visible.

    Summary

    Susan and Samantha Cohen sued Herbal Concepts, Inc. for using a photograph of them, taken without their consent, in an advertisement for a cellulite treatment. The photograph depicted them nude from the back. The New York Court of Appeals addressed whether the photograph was sufficiently identifiable to sustain a claim under New York Civil Rights Law §§ 50 and 51, which prohibits the use of a person’s likeness for advertising purposes without consent. The Court of Appeals held that the plaintiffs were identifiable because a jury could find that someone familiar with them could recognize them from the advertisement based on their hair, bone structure, body contours, stature, and posture.

    Facts

    Susan Cohen and her daughter Samantha were photographed without their consent while bathing in a stream on private property. James Krieger, the photographer, sold the photos to Herbal Concepts, Inc. Herbal Concepts used one of the photos in an advertisement for a cellulite treatment called Au Naturel, which appeared in several magazines. Ira Cohen, Susan’s husband and Samantha’s father, recognized his wife and daughter in the advertisement while reading one of the magazines.

    Procedural History

    The Cohens sued Herbal Concepts, Inc., James Krieger, and the publishers of the magazines for violating § 51 of the Civil Rights Law, defamation, loss of services, and loss of consortium. Special Term granted summary judgment for the defendants on all claims. The Appellate Division reversed the grant of summary judgment on the privacy claims under § 51 and reinstated those causes of action. Hearst and Conde Nast were granted leave to appeal to the Court of Appeals.

    Issue(s)

    Whether a photograph of nude plaintiffs, mother and child, which shows their bodies full length as viewed from a position behind and to the right of them, and which does not show their faces, reveals sufficiently identifiable likenesses to withstand defendants’ motions for summary judgment.

    Holding

    Yes, because a jury could find that someone familiar with the persons in the photograph could identify them by looking at the advertisement.

    Court’s Reasoning

    The Court of Appeals held that to sustain a claim under § 51 of the Civil Rights Law, the plaintiff must be identifiable from the objectionable material itself. The court clarified that this does not require the plaintiff’s face to be visible. The statute protects a person’s identity, not merely a property interest in their name, portrait, or picture. The court stated, “Manifestly, there can be no appropriation of plaintiff’s identity for commercial purposes if he or she is not recognizable from the picture.”

    The court reasoned that whether a photograph presents a recognizable likeness is generally a jury question, unless the plaintiff cannot be identified because of the limited subject matter revealed in the photograph or the quality of the image. The court emphasized the importance of the identifiable characteristics displayed in the advertisement, such as the clarity of the photograph, the extent to which identifying features are visible, and the distinctiveness of those features.

    Applying these principles to the case, the court found that the photograph of Susan and Samantha Cohen displayed sufficient identifiable characteristics. The court noted the good quality of the picture, the unobstructed view of the subjects, and the visibility of their hair, bone structure, body contours, stature, and posture. “Considering these factors, we conclude that a jury could find that someone familiar with the persons in the photograph could identify them by looking at the advertisement.” The court also considered Ira Cohen’s affidavit, in which he stated that he recognized his wife and daughter immediately, as prima facie sufficient evidence of identification.

    The court distinguished several cases cited by the defendants, noting that in those cases, the photographs either lacked sufficient identifying characteristics or involved fictional characters with only coincidental similarities to the plaintiffs. The court emphasized that in this case, the similarity between the plaintiffs and the persons in the photograph was complete because the plaintiffs were, in fact, the persons in the picture.