Beaumont v. Brown , 401 Mich. 80 ( 1977 )

401 Mich. 80 (1977) 257 N.W.2d 522

BEAUMONT
v.
BROWN
(BEAUMONT
v.
DIRECTOR OF DEPARTMENT OF LABOR)

Docket No. 57810, (Calendar No. 11).

Supreme Court of Michigan.

Argued February 1, 1977. Decided September 20, 1977.

Newman & Mackay for plaintiff.

Farhat, Burns & Story, P.C. (by Vittorio E. Porco) for defendants.

WILLIAMS, J.

This action for invasion of privacy is based upon derogatory statements in a letter written by plaintiff's employers to the AGUC-TAD, United States Army Reserve Components Personnel and Administration Center. Plaintiff characterizes this letter as an attempt to have him court-martialed or relieved of his position with the United States Army Reserve as a Lieutenant Colonel. Plaintiff was indeed subjected to military review subsequent to the receipt of defendant Zink's letter. This case is before us on a motion for summary judgment brought by the defendants, which was denied by the trial court, for a number of reasons, but granted by the Court of Appeals on the basis that the facts did not support a cause of action for invasion of privacy. Since the Court of Appeals did not reach the other issues presented in the motion for summary judgment, we do not consider them here.

On review of the facts and the law concerning the invasion of privacy issue, we hold that plaintiff has presented sufficient facts to go to the jury, since reasonable persons could differ in determining whether plaintiff has proven an invasion of his privacy. We, therefore, reverse the summary judgment granted defendants on the invasion of privacy cause of action and remand to the Court of Appeals to consider the remaining issues raised by the motion for summary judgment.

I — FACTS

Plaintiff Robert Beaumont was employed as a labor safety supervisor for the Michigan Department of Labor. Defendant Barry Brown was director of the Department of Labor at that time and defendant Arthur Zink was the personnel director. On November 20, 1972, defendant Zink discharged plaintiff upon the recommendation of plaintiff's immediate supervisor. The reasons given were: (1) that plaintiff was absent from his job for a month of military reserve duty without approval of, or notification to, his supervisor; (2) that plaintiff made no plans for the continuation of the training of a new employee while he was gone; and (3) that plaintiff made no plans for the supervision of field personnel while he was gone.

Plaintiff appealed his dismissal to the Michigan Civil Service Commission and hearings were held on January 31 and February 2, 1973. A final hearing was scheduled for March 1, 1973.

On February 14, 1973, in an ostensible effort to verify plaintiff's military duties, defendant Zink wrote a lengthy letter^[1] to the AGUC-TAD, U.S. Army Reserve Components Personnel and Administration Center, requesting confirmation of plaintiff's military schedule and information concerning military procedure for reservists. However, defendant Zink also included in the letter such statements about plaintiff Beaumont as the following:

(a) "was considered to be an extremely disloyal and insubordinate employee";

(b) "has used his reserve status in an abusive and manipulative manner";

(c) "was dismissed because of abandonment of duties and dereliction of supervisory responsibilities with the Michigan Department of Labor";

(d) "was not to attend [the National Safety Congress] as a representative of the Department of Labor because frankly his prior conduct had led us to believe that he would not represent the best interests of the department";

(e) "We have never had any problem with any other employee except Mr. Beaumont";

(f) "Only Mr. Beaumont disappears for a month at a time and later tells us that he was on military leave and that his duty is so secret and delicate that he cannot discuss it";

(g) "One other technique used by Mr. Beaumont when he chooses not to take direction or follow instructions, concerns his health. Although this item has nothing to do with the dismissal I think it significant enough to mention. Mr. Beaumont has presented statements from various doctors to require that he be allowed to travel in his air conditioned Mercedes rather than in a state car. He is unable to fly; he is unable to get up early; he is unable to go into dirty or dusty industrial establishments, etc. We have even received statements that his condition is so delicate that he could keel over at any time. It would lead us to wonder how an individual with such delicate health could pass any army physical to remain in the reserves".

The above statements are among others stated in the letter and bear no relation to the inquiry directed by defendant Zink.

The Army's reply provided the information requested, but the objected-to letter as well as the Army's reply was made a part of the Civil Service Commission's case. Plaintiff's dismissal was subsequently upheld by the Civil Service Commission.

On September 11, 1973 plaintiff filed an invasion of privacy complaint in Ingham County Circuit Court alleging:

"4. That the defendants conspired and actually committed acts of conspiracy by attempting to disparage plaintiff's position with the U.S. Army Reserve, and on February 14, 1973, directed a letter to AGUC-TAD, U.S. Army Reserve Components, Personnel and Administration Center in St. Louis, Missouri; said letter being defamatory and a breach of the plaintiff's right of privacy in an attempt to have the plaintiff court-martialed or relieved of his position with the U.S. Army Reserve as a Lieutenant Colonel, as the plaintiff is informed and believed. A copy of said letter is attached hereto and is incorporated by reference, and referred to as Exhibit 1.

"5. That as a result of said letter being sent to the Army, the plaintiff's military records were ``flagged' which resulted in the plaintiff's being removed from active duty training programs during the period of time while his records were ``flagged.' That he was investigated by a member of the U.S. Army as a result of the letter being sent to the U.S. Army Reserve and he was required to hire an attorney to defend him with resultant expense."

Defendants moved to dismiss the complaint and for summary judgment alleging:

"1. That the complaint fails to state a legally sufficient claim or cause of action upon which relief can be granted.

"2. That, while the complaint seeks to hold the defendants personally liable for the alleged violation of plaintiff's privacy, it is clear that the defendants are being sued in their capacity as employees and officials of the Michigan Department of Labor and the State of Michigan, and that the complaint is, in fact, one against the State of Michigan and the Department of Labor.

"3. That the State or [sic] Michigan and the Michigan Department of Labor are immunized from liability for torts of the nature alleged in this case, while immunity extends to its officials and employees acting for the state in the performance of its governmental functions within the scope of their official duties.

"4. That the complaint fails to state a claim upon which relief can be granted in that it fails to allege that the letter complained of was publicized and further fails to allege that the reply thereto was publicized by the defendants and used for other than official purposes.

"5. That the complaint fails to state a claim upon which relief can be granted in that it shows on its face that the letter complained of and the reply thereto were privileged communications which were written and received by public officers for public purposes.

"6. That the complaint fails to state a claim upon which relief can be granted in that it contains no factual allegations (1) from which it could be determined that the letter was defamatory per se; (2) as to what portion of the letter, if any, was defamatory and responsible for the damages which the plaintiff alleges; (3) wherein the defendants exceeded their authority and duties as public employees and officials in the performance of their governmental duties.

"7. That this court has no jurisdiction over the subject matter for the reason that the Court of Claims has exclusive jurisdiction of suits, ex delicto and ex contractu, brought against the state and any of its departments, commissions, boards, institutions, arms or agencies."

Defendants attached affidavits to their motion and stated:

"This motion is based on the records and files of this court and cause and on affidavits of Arthur J. Zink and Barry C. Brown attached hereto."

Plaintiff filed opposing affidavits, particularly with respect to the allegation that the complaint fails to allege publication of the letter as follows:

"16. Both Exhibit 1 and Exhibit B were introduced into a public hearing and contained in the Civil Service hearing transcript that is a matter of public record and available to any tax payer. Furthermore, it is an acknowledged fact that there are ``no secrets in State government' because someone had to type the original letter, handle it, mail it and the same goes for Army employees in the various offices and headquarters receiving the letter signed by Mr. Zink on February 14, 1973. Additionally, two unsigned letters were distributed in April of 1973 to professional colleagues and fellow members of the Michigan State Employee's Association subsequent to Mr. Zink's February 14, 1973, letter to the Army. Both of these letters alluding to the derogatory material contained in that letter. Furthermore, the affiant did not possess or have any knowledge of Mr. Zink's February 14, 1973 letter to the Army until some five months later and the contents of the letter were obviously leaked or simply spread to employees through lack of security or safeguarding of this document."

On March 21, 1973 the trial judge, after reviewing "the pleadings and briefs", denied defendants' motion for summary judgment stating the complaint raised "a sufficient factual dispute for consideration by a jury". Defendants appealed, and on November 12, 1975 the Court of Appeals reversed the decision of the trial court. The Court of Appeals stated:

"We decide only that plaintiff did not allege sufficient facts in his pleadings and affidavits to allow the case to go to the jury on any recognized theory of invasion of privacy." 65 Mich. App. 455, 466.

The Court found plaintiff had failed to allege facts to meet the public disclosure requirement of invasion of privacy through public disclosure of embarrassing private facts.

"Assuming plaintiff can prove the facts he sets forth in his affidavit, an insufficient showing of public disclosure has been made out by him. Supportive personnel of the sender and receiver of a letter do not constitute the ``general public' or a ``large number of persons' * * *." 65 Mich. App. 455, 464.

The Court also noted:

"[T]he facts disclosed to the Army Reserve do not seem to be ``private' ones. This branch of invasion of privacy does not look to whether the information conveyed is true or false, but whether it is something an ordinary person has a right to keep private. The clear thrust of the letter is that plaintiff manipulated his reserve duty to his employer's detriment and submitted false health reports to either the Army or his employer. Those facts relate to job performance, and defendants had a right, if not a duty, to convey them to the Army." 65 Mich. App. 455, 465.

The court instructed

"the trial judge to enter summary judgment under GCR 1963, 117.2(3) in favor of defendants on the invasion of privacy cause of action." 65 Mich. App. 455, 466.

The Court of Appeals expressly stated:

"We do not reach the two other grounds upon which defendants based their summary judgment motion — governmental immunity and the absolute privilege with respect to statements made by public officials in the performance of their duties." 65 Mich. App. 455, 466.

Plaintiff's application to appeal to the Supreme Court, the order of grant and the briefs and arguments were all limited to the right of privacy issue.

The Court of Appeals, following their decision in Todd v Biglow, 51 Mich. App. 346, 349-350; 214 NW2d 733 (1974),^[2] reviewed the motion as though it were based on GCR 1963, 117.2(3)^[3] rather than on GCR 1963, 117.2(1). Since neither party raises the issue, we do not consider it, but proceed to the merits.

II — INVASION OF PRIVACY IN MICHIGAN AND ELSEWHERE

Michigan was one of the first jurisdictions to acknowledge the concept of "right of privacy". In De May v Roberts, 46 Mich. 160; 9 N.W. 146 (1881), Mrs. Roberts was giving birth in her home. The attending physician, Dr. De May, brought a young man, Mr. Scattergood, to assist in carrying his bags. Mrs. Roberts assumed Mr. Scattergood was a student or physician; he was not. He remained in the room during the delivery and at one point, as directed by Dr. De May, held Mrs. Roberts' hand. When Mrs. Roberts later discovered the true nature of Mr. Scattergood's presence she sued both Dr. De May and Mr. Scattergood. From a verdict for Mrs. Roberts, the defendants appealed.

In affirming the decision for Mrs. Roberts, the court said:

"Dr. De May therefore took an unprofessional young unmarried man with him, introduced and permitted him to remain in the house of the plaintiff, when it was apparent that he could hear at least, if not see all that was said and done, and as the jury must have found, under the instructions given, without either the plaintiff or her husband having any knowledge or reason to believe the true character of such third party. It would be shocking to our sense of right, justice and propriety to doubt even but that for such an act the law would afford an ample remedy. To the plaintiff the occasion was a most sacred one and no one had a right to intrude unless invited or because of some real and pressing necessity which it is not pretended existed in this case. The plaintiff had a legal right to the privacy of her apartment at such a time, and the law secures to her this right by requiring others to observe it, and to abstain from its violation." (Emphasis added.) 46 Mich. 160, 165-166.

Warren and Brandeis, in their 1890 article The Right to Privacy,^[4] provided tort law with the nucleus of the concept, invasion of privacy. The right of privacy, thus less than 100 years old, has yet to cease evolving.^[5]

In Pallas v Crowley, Milner & Co, 322 Mich. 411; 33 NW2d 911 (1948), a cause of action for invasion of privacy was again recognized by this Court. Mrs. Pallas sued for the unauthorized publication of her photograph as part of an advertisement. The defendant moved to dismiss for failure to state a cause of action. The motion was granted. Mrs. Pallas appealed.

This Court found that the weight of authority in most jurisdictions considered an unauthorized publication of this nature an invasion of a person's right of privacy. This Court stated:

"The general rule (to which, of course, there are exceptions) is stated thus in the American Law Institute's 4 Restatement, Torts, p 398, § 867:

"``A person who unreasonably and seriously interferes with another's interest in not having his affairs known to others or his likeness exhibited to the public is liable to the other.'" 322 Mich. 411, 416. (Emphasis supplied by the Pallas Court.)

Since 1948 Michigan has continued to recognize the right of the individual to privacy. An overwhelming majority of state courts^[6] has recognized a common law right to privacy, and the United States Supreme Court has also recognized a constitutional right to privacy.^[7] Several states have enacted legislation protecting the individual's right to privacy.^[8] The federal government has recently enacted such legislation.^[9] In this ever advancing society all are concerned that the individual's integrity and independence are not obliterated by the dissemination of unnecessary information about his private life.

III — EMBARRASSING PRIVATE FACTS

The Court of Appeals in a learned discussion of the law of invasion of privacy noted that Prosser, Torts (4th ed), § 117, p 804, recognized four types of invasion of privacy.^[10] 65 Mich. App. 455, 461. While that Court spoke to all four types it appears that it considered the instant case a type two case — "Public disclosure of embarrassing private facts about the plaintiff". The opinion disposed of the matter on the question of "public disclosure", 65 Mich. App. 455, 464, but also opined the "facts disclosed to the Army Reserve do not seem to be ``private' ones" as follows:

"It should also be noted that the facts disclosed to the Army Reserve do not seem to be ``private' ones. This branch of invasion of privacy does not look to whether the information conveyed is true or false, but whether it is something an ordinary person has a right to keep private. The clear thrust of the letter is that plaintiff manipulated his reserve duty to his employer's detriment and submitted false health reports to either the Army or his employer. Those facts relate to job performance, and defendants had a right, if not a duty, to convey them to the Army. If the facts were indeed false, they would still be non-private, although another type of invasion of privacy claim may be available to redress any injuries to plaintiff." 65 Mich. App. 455, 465.

We review whether plaintiff has alleged sufficient facts to go to the jury on the invasion of privacy cause of action based on "embarrassing private facts".

Defendant Zink's letter sought certain information from the Army to determine whether Beaumont had misled the state about his military duty in order to be excused from state services. Certain orientation information might be necessary to enable the Army to effectively answer defendant Zink's inquiry. However, to say that about all of the derogatory remarks contained in defendant's letter, defendant "had a right, if not a duty, to convey them to the Army" is a statement we are neither bound to, nor do we, accept.

First, that plaintiff "was considered to be an extremely disloyal and insubordinate employee" of the State of Michigan, even if true, was not a necessary statement for defendant Zink to make in order to make clear the information needed. The same may be said of the information that he "was dismissed because of abandonment of duties and dereliction of supervisory responsibilities with the Michigan Department of Labor", although that was a matter of record. In the same category are the following statements:

1. "[W]as not to attend as a representative of the Department of Labor because frankly his prior conduct had led us to believe that he would not represent the best interests of the department."

2. "We have never had any problem with any other employee except Mr. Beaumont."

While the statement "has used his reserve status in an abusive and manipulative manner" may help clarify the matter of defendant's concern, it could justifiably be said that the same information could just as effectively be conveyed without such pejorative overtones. The remark would seem to prejudge plaintiff's actions before receiving the requested information.

The statement "Only Mr. Beaumont disappears for a month at a time and later tells us that he was on military leave and that his duty is so secret and delicate that he cannot discuss it", by itself might be proper for the legitimate purposes of defendant Zink's letter, but in combination with the other statements mentioned it seems only to add fuel to the fire.

Finally, the snide remarks about plaintiff's health in the following quotation certainly, as admitted by defendant Zink in the letter, are not necessary to defendant's request.

"One other technique used by Mr. Beaumont when he chooses not to take direction or follow instructions, concerns his health. Although this item has nothing to do with the dismissal I think it significant enough to mention. Mr. Beaumont has presented statements from various doctors to require that he be allowed to travel in his air conditioned Mercedes rather than in a state car. He is unable to fly; he is unable to get up early; he is unable to go into dirty or dusty industrial establishments, etc. We have even received statements that his condition is so delicate that he could keel over at anytime. It would lead us to wonder how an individual with such delicate health could pass any army physical to remain in the reserves."

The Army, obviously, had not inquired about plaintiff's health and was not looking for commentary on the efficiency of their physical examinations.

In short, in our opinion, defendant was under no duty to make the statements just noted. Furthermore, plaintiff alleged sufficient facts to constitute a question for the jury as to whether "embarrassing private facts" about the plaintiff were involved in a public disclosure, if any.

IV — PUBLIC DISCLOSURE

Plaintiff, in his affidavit in support of his answer to defendants' motion for summary judgment with affidavits attached, alleged in paragraph 16 that there was publication of the letter from defendant Zink dated February 14, 1973 to AGUC-TAD, U.S. Army Reserve Components Personnel and Administration Center, in that (1) the letter was "introduced into a public hearing and contained in the civil service hearing transcript that is a matter of public record", and (2) "``there are no secrets in state government' * * * and the same goes for Army employees". Plaintiff alleged, as proof of the lack of security given the letter, that knowledge of the letter reached him later through rumor.

The Court of Appeals, applying the standard suggested by Prosser, Torts (4th ed), § 117, which requires publicity to more than a few, found plaintiff had "failed to allege facts that would satisfy the publicity requirement", 65 Mich. App. 455, 464, and granted the summary judgment. The Court of Appeals stated the law as to public disclosure to be: "[A]ll the cases recognize a general requirement of communication to the general public as opposed to a few individuals." 65 Mich. App. 455, 463.

In Hawley v Professional Credit Bureau, Inc, 345 Mich. 500, 507; 76 NW2d 835 (1956), this Court stated the publicity requirement as action giving "unnecessary publicity to plaintiff's conduct".^[11] In his dissent Justice TALBOT SMITH stated for himself and Justice BLACK:

"The common denominator in all of these cases is an unreasonable and serious interference with the plaintiff's interest in not having his affairs known to others. 4 Restatement, Torts, § 867. The wrong depends not upon conduct otherwise tortious (i.e., trespass, defamation) nor does it turn upon breach of confidence, or truth or untruths, or an arithmetical measure of the numbers who witnessed the exposure, or the particular method thereof, whether by placard [citations omitted] or by letter [citations omitted]. The wrong is done when the curtain of privacy is lifted." 345 Mich. 500, 514.

Justice SMITH'S opinion made it clear that under circumstances such as those in Hawley, publication of the embarrassing facts to only one person alone was unlawful publication.

We will not now attempt to numerically measure the persons to whom the letter was publicized; instead we will review the pleadings and affidavits, using the standard established by Rizzo v Kretschmer, 389 Mich. 363, 372; 207 NW2d 316 (1973), to determine whether plaintiff has alleged sufficient facts to present a "genuine issue as to material fact", GCR 1963, 117.2(3).

"The courts are liberal in finding that a ``genuine issue' does indeed exist. As Honigman & Hawkins [Michigan Court Rules Annotated (2d ed)] correctly comments, (1) the court will ``give the benefit of any reasonable doubt to the opposing party' and (2) ``the court must be satisfied that it is impossible for the claim or defense to be supported at trial because of some deficiency which cannot be overcome.' (Emphasis added.)"

Only after a careful study of the facts in plaintiff's case will we be able to decide whether a fact question has been presented on the issue of public disclosure.

A look at the manner in which other jurisdictions have dealt with this problem is enlightening. In Biederman's of Springfield, Inc v Wright, 322 S.W.2d 892, 898 (Mo, 1959)^[12] in deciding whether publicity, as defined by Prosser on Torts (2d ed), § 97, "in the sense of communication to the public in general or to a large number of persons, as distinguished from one individual or a few", was met, the Court said "We believe that the oral publication over the three-day period in a public restaurant with numerous customers present satisfies any reasonable requirement as to publicity".

In Santiesteban v Goodyear Tire & Rubber Co, 306 F2d 9, 11 (CA 5, 1962), there was a "demonstrative publication as distinguished from an oral communication" to an admittedly limited number of people. This was a diversity action for invasion of privacy applying Florida law. Appellant was a waiter at the Coral Gables Country Club. He had previously purchased tires from Goodyear; his payments were current. Goodyear agents removed the tires from the automobile while it was located in the country club parking lot, leaving it standing on the rims in full view of fellow employees and country club members. This case was before the United States Court of Appeals on a motion to dismiss for lack of jurisdictional amount. The Court used Prosser, Torts (2d ed), § 97, as a guide for the publication requirement necessary for public disclosure of embarrassing private facts. The Court had no difficulty deciding that "Florida courts would hold this complaint to state a cause of action in tort for invasion of the right of privacy", even though only those who viewed the parking lot of the country club would have had knowledge of the action.

The "publications" in Biederman's and Santiesteban presented instances of oral publication and demonstrative publication, under circumstances much less conducive to public exposure than those alleged by plaintiff. Yet, in both cases the courts held that a cause of action was stated, because unnecessary publicity was given plaintiff's conduct. The facts, as alleged by Mr. Beaumont, present a more compelling picture of private facts being given unnecessary publicity.

Although defendants allege that the letter was addressed only to "United States Army Reserve Adjutant General", it is contended by plaintiff that such an allegation does not present a realistic view of the situation, there being "no secrets in state government" and likewise the Army. Plaintiff implies that letters from or to government agencies are not the same as letters between individuals, even if the letters are addressed to individuals within the government. Plaintiff contends that defendants were attempting to disparage his position with the United States Army Reserve and that as a result of the letter his records were flagged and elimination proceedings were started. Due to the nature of the derogatory remarks contained in the letter, it was sure to be circulated through the Army's bureaucracy.

These circumstances would tend to support the view expressed by plaintiff that this letter, although technically addressed to an individual within the government structure, is a "publication" to more than the addressee.

Plaintiff further contends that the letter was submitted in the civil service transcript and is now a matter of public record for all to view. If this allegation is true it would be strong evidence of unnecessary publicity. It would certainly appear unnecessary for defendants to submit the letter when the information they requested for the hearing was provided in the reply from the Army. The derogatory remarks contained in the letter would have been published to the "public in general"^[13] by being made a part of the transcript of the Civil Service hearing.

In both Biederman's and Santiesteban the instances of exposure were transitory; one was a demonstrative publication, the other an oral publication on three occasions. In the instant case there is a letter which has allegedly been made a part of a public record by defendants, and initiated a military elimination proceeding. This action is certainly more drastic than either Biederman's or Santiesteban and presents an issue of fact upon which reasonable persons could differ as to whether "unnecessary publicity" had been given. As Chief Justice KAVANAGH said in his dissent to Reed v Ponton, 15 Mich. App. 423, 427; 166 NW2d 629 (1968):^[14]

"I do not think it can be said that all reasonable men would agree that the details of such relationship are not private matters, or that the announcement of them in a loud voice in the store was not a publication of them or that this was not an unreasonable and serious interference with plaintiff's privacy. For this reason we cannot say as a matter of law that no cause of action was pleaded.

"I would hold that the jury should have been permitted to determine whether the asserted invasion of plaintiff's privacy was an unreasonable and serious interference with her right to have her private affairs kept from the public."

V — CONCLUSION

This Court and the Court of Appeals have applied the following criteria in discussing the publication requirement for invasion of privacy through public disclosure of embarrassing private facts:

(1) "unnecessary publicity", Hawley, 345 Mich. 500, 507;

(2) "unreasonable and serious interference with the plaintiff's interest in not having his affairs known to others. 4 Restatement, Torts, § 867", Hawley, SMITH, J., dissenting, 345 Mich. 500, 514;

(3) "communication * * * to the public in general or * * * to a large number of people", Reed, 15 Mich. App. 423, 426;

(4) "communication to the general public as opposed to a few", Beaumont, 65 Mich. App. 455, 463.

We believe the Court of Appeals language is unduly restrictive. Both the language of the majority and minority in Hawley, 345 Mich. 500, voice a more liberal standard; "unnecessary publicity" does not call to mind the necessity of publication to everyone and there certainly can be "unreasonable and serious interference" with one's privacy without everyone being informed. This raises a question as to the Court of Appeals language "communication * * * to the public in general or * * * to a large number of people" or "communication to the general public as opposed to a few".

To begin with "communication to the general public" is somewhat ambiguous, because a communication rarely, if ever, reaches everyone. It is therefore in order to consider the significance of communicating to the public. Communication of embarrassing facts about an individual to a public not concerned with that individual and with whom the individual is not concerned obviously is not a "serious interference" with plaintiff's right to privacy, although it might be "unnecessary" or "unreasonable". An invasion of a plaintiff's right to privacy is important if it exposes private facts to a public whose knowledge of those facts would be embarrassing to the plaintiff. Such a public might be the general public, if the person were a public figure, or a particular public such as fellow employees, club members, church members, family, or neighbors, if the person were not a public figure.

Here we have developed the criterion of a particular public, whose knowledge of the private facts would be embarrassing to the plaintiff, and this criterion is not consonant with the two generalizations of the Court of Appeals. As Justice SMITH said, we do not engage in a numbers game and therefore we leave the criterion here announced to be illustrated by this and future cases.

In this case, the plaintiff's affidavits stated that the alleged exposure of embarrassing private facts in defendant's letter was a conspiracy to cause an investigation of him by the Army and that a letter sent with such a purpose to the head of a large bureaucracy would, in the nature of things, have to officially pass through many hands and unofficially pass through many more. We hold that such allegations of publication were sufficient allegations of "unnecessary publicity" and "unreasonable and serious interference" with plaintiff's right to privacy to allow the case to go to the jury.

Plaintiff's affidavits also alleged that defendant Zink's letter, with the alleged embarrassing private facts, was "unnecessarily" and "unreasonably" included in the Civil Service Commission transcript of the case against him, thus making the alleged exposure of the embarrassing private facts a matter of public record. We hold that such allegations of publication were sufficient allegations of "unnecessary publicity" and "unreasonable * * * interference" with plaintiff's right to privacy to allow the case to go to the jury.

We further hold that plaintiff has alleged sufficient facts to constitute a question for the jury as to whether "embarrassing private facts" about the plaintiff were involved in a public disclosure, if any.

Our review was limited to the invasion of privacy issue. We find that plaintiff has presented sufficient facts and that reasonable persons might differ as to whether there was an invasion of plaintiff's right to privacy. For that reason we reverse and remand to the Court of Appeals so that it may consider the remaining issues in defendants' motions for summary judgment which were not previously addressed.

KAVANAGH, C.J., and LEVIN, RYAN, and BLAIR MOODY, JR., JJ., concurred with WILLIAMS, J.

COLEMAN, J. (to affirm).

In his complaint, plaintiff Beaumont charged that defendant Zink, "with the advice, consent and under the direction of" defendant Brown, sent a letter to the Army Reserve, "said letter being defamatory and a breach of the plaintiff's right of privacy". At the time when the letter was written, Arthur J. Zink and Barry C. Brown were personnel officer and director, respectively, of the Michigan Department of Labor, a state agency. Plaintiff has not stated an invasion of privacy case under any recognized concept. No expectation of privacy can properly attach to matters brought forth in a public hearing regarding a person's behavior in employment. Nor is a letter from one employer to another the kind of "publication" to the general public heretofore considered as an actionable evil under this doctrine.

Although we cannot now know, plaintiff may have a defamation claim, but he does not have a valid claim for invasion of privacy.

I would affirm the Court of Appeals.^[1]

I

Beaumont was a labor safety supervisor for the Michigan Department of Labor. He was also a Lieutenant Colonel in the United States Army Reserve. In November, 1972, Zink discharged him on the recommendation of Beaumont's supervisor. The primary reason was that Beaumont had left his job for a month of military duty without telling or receiving the approval of his supervisor. Beaumont also had not arranged for anyone to take over his duties.

Beaumont appealed the discharge. After "a great deal of testimony * * * and a total of 74 exhibits introduced by" Beaumont, a hearing officer said the department "was justified in terminating [Beaumont's] employment under the laws of this state and the rules of the Civil Service Commission".

The hearing report described Beaumont as having "failed in his duties". His conduct was "contrary, not only to departmental policy, but to good standards of conduct in public or private employment". In addition to other reprehensible behavior, he solicited letters from subordinates which criticized departmental standards. This "in and of itself is unsatisfactory conduct". Plaintiff also altered his orders from the army to cover his whereabouts and apparently claimed he was on some classified activity.

The hearings were conducted on January 31, 1973 and February 2, 1973 before being adjourned for final hearing on March 1, 1973.

After the February 2 hearing, Zink wrote a letter to the Army Reserve for information about Beaumont's military status, the amount of time taken for training, the content of certain orders and the employee's obligations. Zink described Beaumont as "an extremely disloyal and insubordinate employee" who "used his reserve status in an abusive and manipulative manner".

This letter is the basis for Beaumont's complaint. The trial court denied defendant's motion for summary judgment. The Court of Appeals reversed as to the invasion of privacy count.

Citing Prosser, Privacy, 48 Cal L Rev 383 (1960), the Court of Appeals said invasion of privacy "is actually a categorization of four separate causes of action". As listed by Prosser, they are:

"1. Intrusion upon the plaintiff's seclusion or solitude, or into his private affairs.

"2. Public disclosure of embarrassing private facts about the plaintiff.

"3. Publicity which places the plaintiff in a false light in the public eye.

"4. Appropriation, for the defendant's advantage, of the plaintiff's name or likeness."

The Court found the complaint not sufficient "to allow the case to go to the jury on any recognized theory of invasion of privacy". The Court did not pass "on any possible defamation claim arising out of this set of facts".

II

Although Justice COOLEY had identified a right "to be let alone",^[2] this was not given a name until 1890 when Warren and Brandeis wrote The Right to Privacy, 4 Harv L Rev 193, 195-197 (1890). They were seeking "a principle which can properly be invoked to protect the privacy of the individual".

Warren and Brandeis were especially concerned with "the evil of the invasion of privacy by the newspapers" and "the question whether our law will recognize and protect the right to privacy in this and in other respects":

"Of the desirability — indeed of the necessity — of some such protection, there can, it is believed, be no doubt. * * * The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury. Nor is the harm wrought by such invasions confined to the suffering of those who may be made the subjects of journalistic or other enterprise. In this, as in other branches of commerce, the supply creates the demand. Each crop of unseemly gossip, thus harvested, becomes the seed of more, and, in direct proportion to its circulation, results in a lowering of social standards and of morality."

The authors recognized limitations to the right. Its general object "is to protect the privacy of private life, and to whatever degree and in whatever connection a man's life has ceased to be private * * * to that extent the protection is to be withdrawn". (Emphasis added.) The right of privacy concerns "the private life, habits, acts, and relations of an individual" which have no legitimate connection with "his fitness for a public office * * * or for any public or quasi public position" or with "any act done by him in a public or quasi public capacity". Warren and Brandeis, supra, 215-216. (Emphasis added.)

As Dean Prosser noted in his article on Privacy, the right is now "declared to exist by the overwhelming majority of the American courts" but "[w]hat has emerged from the decisions is no simple matter". He believed the "law of privacy comprises four distinct kinds of invasion of four different interests of the plaintiff". 48 Cal L Rev 386, 389.

It was these four interests that were noted by the Court of Appeals. Our Court's attention is focused on the second: "public disclosure of embarrassing private facts about the plaintiff". Prosser said this is the interest with which Warren and Brandeis were primarily concerned. He said "[s]ome limits, at least, * * * appear to be fairly well marked out".

First, "the disclosure of the private facts must be a public disclosure, and not a private one". Publicity is required. For example, if plaintiff does not pay a debt, it is not an invasion of privacy to tell his employer or other individual, or even a small group.

Second, "the facts disclosed to the public must be private facts, and not public ones". For example, "no one can complain when publicity is given to information about him which he himself leaves open to the public eye, such as the appearance of the house in which he lives, or to the business in which he is engaged".

Third, "the matter made public must be one which would be offensive and objectionable to a reasonable man of ordinary sensibilities". The law of privacy does not protect "any shrinking soul who is abnormally sensitive about" normal publicity. It does offer protection "when the details of sexual relations are spread before the public gaze, or there is highly personal portrayal of [the person's] intimate private characteristics or conduct".

Although some disagree with Dean Prosser's analysis,^[3] it appears to have prevailed to date. Chapter 28A of the Restatement of Torts, 2d, adopts the analysis commenting that the four wrongs relate to each other only in "that each involves interference with the interest of the individual in leading, to some reasonable extent, a secluded and private life, free from the prying eyes, ears and publications of others". 3 Restatement Torts, 2d, § 652A, comment, p 377.

Section 652D reads:

"One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that

"(a) would be highly offensive to a reasonable person, and

"(b) is not of legitimate concern to the public."

Publicity "means that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge". Matters concerning private life are "the intimate details" such as "[s]exual relations, * * * family quarrels, many unpleasant or disgraceful or humiliating illnesses, most intimate personal letters, most details of a man's life in his home, and some of his past history that he would rather forget". 3 Restatement Torts, 2d, § 652D, comment, pp 384, 386.

III

In its discussion of the "public disclosure of private facts" issue, the Court of Appeals noted several Michigan cases^[4] which "recognize a general requirement of communication to the general public as opposed to a few individuals". The Court said plaintiff made "an insufficient showing of public disclosure". It noted that plaintiff cited "no facts which lead to a reasonable inference that defendants knew or had reason to know the letter would be passed on or even read by anyone other than" the addressee.

In Miller v Gillespie, 196 Mich. 423; 163 N.W. 22 (1917), the plaintiff had been wrongly arrested and the case was dismissed. He sued to have the police department destroy information about him in its files. The lower court refused the request and this Court affirmed, noting that this was different than a case where a photograph was displayed in a rogues' gallery. The Court said "the mere preservation in the files of the police department of a report proper to be made in the first instance — a true report" did not publicly expose plaintiff "to ridicule, obloquy or disgrace".

The plaintiff in Hawley v Professional Credit Bureau Inc, 345 Mich. 500; 76 NW2d 835 (1956), had refused to pay a $21.98 storage charge. A collection agency sent a letter to plaintiff's employer. Plaintiff said this invaded his privacy but the Court disagreed saying defendants "gave no unnecessary publicity to plaintiff's conduct".

In Reed v Ponton, 15 Mich. App. 423; 166 NW2d 629 (1968), the plaintiff said that while in defendant's store with other customers, defendant loudly accused her of not paying for a coat. The trial court dismissed a count for invasion of privacy and the Court of Appeals affirmed. It said "the oral communication must be broadcast to the public in general or publicized to a large number of people".

In our case, the Court of Appeals correctly held that plaintiff failed to show that a public disclosure was made to the public at large. What occurred here is not similar to the Restatement examples: "publication in a newspaper or magazine * * * or in a handbill distributed to a large number of persons, or any broadcast over the radio, or statement made in an address to a large audience". What occurred here is not similar to the publicity discussed by Prosser.

Handling of the Zink letter by a secretary in the recipient's office or even its placement in a file by the recipient is not "publication" as heretofore envisioned. Certainly a "leak" through the recipient's office cannot fairly be attributed to defendants and would not, in any event, be "publicizing" by defendants.

IV

The Court of Appeals also noted that "the facts disclosed to the Army Reserve do not seem to be ``private' ones". The facts related "to job performance, and defendants had a right, if not a duty, to convey them to the Army". I agree that the facts are not the types protected by the right to privacy.

The right of privacy has been traced back to De May v Roberts, 46 Mich. 160; 9 N.W. 146 (1881). One defendant, Dr. De May, had attended the plaintiff while she was giving birth. To assist him, the doctor brought "a young, unmarried man, a stranger to plaintiff and utterly ignorant of the practice of medicine". The house was small (14' X 16') and the young man "could hear at least, if not see all that was said and done":

"It would be shocking to our sense of right, justice and propriety to doubt even but that for such an act the law would afford an ample remedy. To the plaintiff the occasion was a most sacred one and no one had a right to intrude unless invited or because of some real and pressing necessity which it is not pretended existed in this case. The plaintiff had a legal right to the privacy of her apartment at such a time, and the law secures to her this right by requiring others to observe it, and to abstain from its violation."

Also see Bradshaw v Michigan National Bank, 39 Mich. App. 354; 197 NW2d 531 (1972).

In Pallas v Crowley, Milner & Co, 322 Mich. 411; 33 NW2d 911 (1948), plaintiff's picture had been used without her permission for advertising purposes. She said this invaded her "right to be free from unauthorized and offensive publicity". The trial court said she failed to state a cause of action.

We reversed, concluding that "there are circumstances under which one may have a right of privacy in a photographic likeness". There is a difference between using a photograph "as a part of a legitimate news item in a newspaper, and its commercial use in an advertisement for the pecuniary gain of the user".

On remand, there was a verdict of no cause of action. On appeal (334 Mich. 282, 285; 54 NW2d 595 [1952]) we affirmed.

"Here action is brought solely for damages claimed to have resulted from invasion of plaintiff's right of privacy. As we held when the case was here before, recovery is dependent upon a showing of an unreasonable and serious interference with that right. Whether a claimed interference therewith is in fact unreasonable or serious may well depend on whether plaintiff had in any particular or degree abandoned her strictly private character and waived to any extent the right to absolute privacy."

Also see Rice v Winkelman Bros Apparel, Inc, 13 Mich. App. 281; 164 NW2d 417 (1968).

The plaintiff in Earp v Detroit, 16 Mich. App. 271; 167 NW2d 841 (1969), was employed by Michigan Bell Telephone. During an interview with Detroit police officers, he admitted conduct which was contrary to company policy. The company received a copy of the report and plaintiff was discharged. He sued saying his right to privacy was invaded. Michigan Bell received a partial summary judgment and plaintiff appealed.

The Court of Appeals, citing 77 CJS, Right of Privacy, § 3, said the right "does not extend so far as to subvert those rights which spring from social conditions, including business relations, or to prohibit the publication of matter which is of public or general interest or benefit". The Court noted that plaintiff had discussed the interview with a supervisor. This "sufficiently apprised Michigan Bell so as to warrant further investigation".

The Court felt Michigan Bell "had the right to look into what it had been made aware was the possibility of illegal conduct by an employee":

"The information given Bell was not of a private nature. Clearly it was not something one would want to get around but it concerned a matter of public interest. In addition it was not made public or publicized. It was given to Earp's employer and had to do directly with matters of his employment and the use of employer's facilities. Bell had a duty to know if their equipment was being used for criminal activities, to investigate such use and stop it."

Private facts are not all facts one wishes to keep secret. They are facts which are intimate, personal facts which a person may reasonably demand to remain private. Warren and Brandeis spoke of the individual's "private life, habits, acts, and relations". They sought to protect "the privacy of private life". The Restatement spoke of "[s]exual relations, * * * family quarrels, * * * most details of a man's life in his home" and the like.

Plaintiff's conduct and performance on the job are not such private facts. He cannot reasonably demand that his employer suppress an evaluation of his performance. He can only expect that the facts upon which the evaluation is made are accurate. The facts may have been embarrassing but their disclosure did not invade plaintiff's privacy.

If my colleagues determine to expand the present "invasion of privacy" concepts to include personally addressed letters between employers^[5] based upon facts assumed^[6] to be true, I am persuaded that the precedent will produce more harm than good. Therefore, neither as a matter of law nor as a matter of policy would I join with this expansion of the "invasion of privacy" doctrine to include non-private, job-related behavior about which many were aware and further to expand "publication" to include such "embarrassing," "private" facts stated in a personally addressed letter between employers regarding public employment.

I would affirm the Court of Appeals.

FITZGERALD, J., concurred with COLEMAN, J.

NOTES

[1] A copy of the letter is in the appendix to the opinion of the Court of Appeals, 65 Mich. App. 455, 467; 237 NW2d 501 (1975).

[2] This Court has not before spoken specifically to the problem addressed by the Court of Appeals in Todd. There, after depositions were taken, defendants filed a motion for summary judgment stating that "plaintiff has failed to state a cause of action upon which relief can be granted". The trial judge, after viewing the briefs, depositions and oral argument, granted the motion for summary judgment in favor of defendant. Plaintiff alleged error by the trial court in examining the depositions and interrogatories in that a motion brought upon GCR 1963, 117.2(1) is to be tested by the pleadings alone. The Court of Appeals found that neither party had been "misled" concerning the substance of the motion, therefore it would analyze the motion on the basis of GCR 1963, 117.2(3), which requires the court to examine matters beyond the pleadings.

[3] GCR 1963, 117.2(3) states "The motion for summary judgment shall state that the moving party is entitled to judgment in his favor because * * * (3) * * * there is no genuine issue as to any material fact * * *". GCR 1963, 117.2(3) is governed by GCR 1963, 117.3 which requires the moving party and permits the opposing party to submit affidavits. It directs the court to consider the affidavits, pleadings, depositions, admissions and documentary evidence filed in the action before reaching a decision on the motion.

[4] Warren and Brandeis, The Right to Privacy, 4 Harv L Rev 193 (1890).

[5] In Privacy As an Aspect of Human Dignity: An Answer to Dean Prosser, 39 NYU L Rev 962 (1964), Professor Bloustein comments upon the confusion in the area of invasion of privacy by quoting a distinguished federal judge that likened it to a "haystack in a hurricane".

[6] Prosser, Privacy, 48 Cal L Rev 383, 386 (1960).

[7] Griswold v Connecticut, 381 U.S. 479; 85 S. Ct. 1678; 14 L. Ed. 2d 510 (1965).

[8] Prosser, Privacy, 48 Cal L Rev 383, 388 (1960).

[9] The Privacy Act of 1974, 5 USC 552a(b).

[10] "1. Intrusion upon the plaintiff's seclusion or solitude, or into his private affairs.

"2. Public disclosure of embarrassing private facts about the plaintiff.

"3. Publicity which places the plaintiff in a false light in the public eye.

"4. Appropriation, for the defendant's advantage, of the plaintiff's name or likeness." Prosser, Privacy, 48 Cal L Rev 383, 389 (1960).

[11] This Court in Hawley found no cause of action for invasion of privacy based on a letter, sent by a collection agency to plaintiff's employer, requesting assistance in collecting a debt owed by plaintiff. The court found "no unnecessary publicity" was given to plaintiff conduct in that the letter only went to plaintiff's employer and implied that the collection agency acted in a reasonable manner.

[12] The plaintiff-creditor sued for collection of the debt. The defendant-debtor counter-claimed, based on plaintiff's actions in attempting to collect the debt. The trial court dismissed the counter-claim and defendant appealed. The defendant-wife was a waitress in a restaurant. On three separate occasions plaintiff, in attempting to collect the account from defendant, went to the restaurant and made "loud, overbearing, tough, degrading and embarrassing demands" for payment of the account. The Supreme Court of Missouri reversed the trial court's ruling that the counter-claims failed to state claims upon which relief could be granted and remanded the cause.

[13] Defendants cannot now claim as a defense that the information is a matter of public record because it was by their allegedly wrongful acts that it was made public. If defendants had any claim that the letter was a privileged publication because introduced into a Civil Service Commission action they did not argue it.

[14] In Reed, "[t]he plaintiff asserted that when she was in defendant's store on business, defendant's manager charged from his office and in a loud and abusive manner charged her with failing to pay for her layaway purchase". The trial court dismissed the invasion of the right of privacy count and the Court of Appeals found no error.

[1] The Court of Appeals did not discuss the issue of governmental immunity, having reversed on other grounds.

[2] Cooley on Torts (2d ed), p 29.

[3] See Bloustein, Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser, 39 NYU L Rev 962 (1964).

[4] See generally Plant, The Right of Privacy in Michigan, 33 Mich SBJ 8 (March, 1954), and the opinions in Weeren v Evening News Association, 379 Mich. 475; 152 NW2d 676 (1967).

[5] The same reasoning could apply as between officers within one place of employment.

[6] The facts were found by the hearing officer to be true and to warrant plaintiff's dismissal.