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April 24, 1990


The opinion of the court was delivered by: Telesca, Chief Judge.


Plaintiffs Mark Soucie, Gregg Soucie, and Virginia Soucie commenced this action pursuant to 42 U.S.C. § 1983, alleging that the defendants unlawfully disseminated and publicized confidential youthful offender information contained in a pre-sentence report. Defendants County of Monroe, County of Monroe Department of Probation and Laura Dennany now move to dismiss plaintiffs' complaint. Defendant Tanzi seeks a vacatur of an earlier entry of default, and a similar order of dismissal. For the reasons discussed below, I find that plaintiffs Gregg and Virginia Soucie, as parents, lack standing to join in this action and that the remainder of Mark Soucie's complaint must be dismissed except with respect to his § 1983 claim against Laura Dennany individually.

In June of 1987, Virginia and Mark Soucie provided personal information to the Monroe County Probation Department in compliance with its pre-sentence investigation of Mark Soucie, a then youthful offender. This information was subsequently incorporated into Mark Soucie's pre-sentence report and placed on file with the County. Under New York law, such a record is considered "confidential" and may not be made available to the public except "by statute or specific authorization of the court." N YCrim.Prac. Law § 720.35 (McKinney 1984).

The plaintiffs allege, however, that defendant Laura Dennany, while an employee of the County, "deceptively" obtained and "maliciously" disclosed the contents of the pre-sentence report without plaintiffs' knowledge or consent. The plaintiffs also claim that Laura Dennany revealed this information to her sister, defendant Vicky Tanzi, who then similarly publicized it.*fn1 The plaintiffs now allege a federal cause of action for violation of their constitutional right of privacy, as well as state law claims for intentional infliction of emotional distress, public disclosure of a private fact, and per se negligence for a statutory violation.


1. Standing

Although not raised by the parties, the requirement of standing comprises an element of subject matter jurisdiction which the court may raise sua sponte. Bender v. Williamsport Area School Dist., 475 U.S. 534, 540-42, 106 S.Ct. 1326, 1330-32, 89 L.Ed.2d 501 (1986), reh'g denied 476 U.S. 1132, 106 S.Ct. 2003, 90 L.Ed.2d 682 (1986). To have standing, a plaintiff must allege "(1) a personal injury in fact, (2) a violation of his or her own, not a third-party's, rights, (3) that the injury falls within the zone of interests protected by the constitutional guarantee involved, (4) that the injury is traceable to the challenged act, and (5) that the courts can grant redress for the injury." In re Application of Dow Jones & Co., Inc., 842 F.2d 603, 606 (2d Cir.), cert. denied, ___ U.S. ___, 109 S.Ct. 377, 102 L.Ed.2d 365 (1988) (citing Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 472-74, 102 S.Ct. 752, 758-60, 70 L.Ed.2d 700 (1982)); Seneca Falls School Dist. v. Liverpool School Dist., 728 F. Supp. 910, 912 (W.D.N Y 1990).

In their complaint, the plaintiffs allege that they have suffered embarrassment and humiliation as a result of defendants' disclosure of confidential personal and family information contained in Mark Soucie's pre-sentence report. Without directly addressing the question of whether each of the plaintiffs has suffered the requisite injury in fact, it is clear that the claims of Virginia and Gregg Soucie do not fall within the zone of constitutionally protected privacy interests at issue here. As discussed more fully below, the plaintiffs' constitutional right of privacy claim is predicated in large part upon the statutory safeguards which prohibit public dissemination of information pertaining to youthful offender adjudications. See N.Y.Crim.Prac.Law § 720.35. These safeguards are designed solely to protect juveniles, and not their parents, from the social stigma of a prior criminal conviction. United States v. Canniff, 521 F.2d 565, 569 (2d Cir. 1975), cert. denied, 423 U.S. 1059, 96 S.Ct. 796, 46 L.Ed.2d 650 (1976); People v. Cruickshank, 105 A.D.2d 325, 333, 484 N.Y.S.2d 328, aff'd, 67 N.Y.2d 625, 499 N YS.2d 663, 490 N.E.2d 530 (1985); People v. Cook, 37 N.Y.2d 591, 595, 376 N.Y.S.2d 110, 338 N.E.2d 619 (1975). Accordingly, Virginia and Gregg Soucie lack standing to rely upon those provisions and the claims on their behalf are dismissed from this action.

2. Right of Privacy

It is by now well established that the Constitution accords individuals some right of privacy. Nixon v. Administrator of General Services, 433 U.S. 425, 455-65, 97 S.Ct. 2777, 2796-2801, 53 L.Ed.2d 867 (1977); Whalen v. Roe, 429 U.S. 589, 598-604, 97 S.Ct. 869, 875-879, 51 L.Ed.2d 64 (1977); Igneri v. Moore, 898 F.2d 870, 873 (2d Cir. 1990). Although rather "difficult to articulate precisely," id., this privacy right clearly protects at least two kinds of privacy interests: "[o]ne is the individual interest in avoiding disclosure of personal matters, and another is the interest in independence in making certain kinds of important decisions." Whalen, 429 U.S. at 599-600, 97 S.Ct. at 876; See also Nixon, 433 U.S. at 457, 97 S.Ct. at 2797.

The plaintiff's privacy claim involving the unauthorized publication of youthful offender information is clearly predicated upon the first strand of this right. Whether the Constitution in fact protects against the type of disclosure alleged to have occurred here depends upon whether the plaintiff had a reasonable expectation of privacy in the information. Nixon, 433 U.S. at 458, 97 S.Ct. at 2797; Kimberlin v. United States Dep't of Justice, 788 F.2d 434, 438 (7th Cir.), cert. denied, 478 U.S. 1009, 106 S.Ct. 3306, 92 L.Ed.2d 719 (1986); Slayton v. Willingham, 726 F.2d 631, 635 (10th Cir. 1984); Doe v. Webster, 606 F.2d 1226, 1238 n. 49 (D.C. Cir. 1979); Plante v. Gonzalez, 575 F.2d 1119, 1135 (5th Cir. 1978), cert. denied, 439 U.S. 1129, 99 S.Ct. 1047, 59 L.Ed.2d 90 (1979). This in turn depends upon the relevant statutory restrictions governing disclosure, Kimberlin, 788 F.2d at 438-39, as well as upon the nature of the information itself, Whalen, 429 U.S. at 605, 97 S.Ct. at 879.

Section 720.35(2) pertaining to the filing of "Youthful Offender Adjudication" reports provides in pertinent part:

  Except where specifically required or permitted
  by statute or upon specific authorization of the
  court, all official records and papers, whether
  on file with the court, a police agency or the
  division of criminal justice services, relating
  to a case involving a youth who has been
  adjudicated a youthful offender, are confidential
  and may not be made available to any person or
  public or private agency, other than an
  institution to which such youth has been
  committed, the division of parole and a probation
  department of this state that requires such
  official records and papers for the purpose of
  carrying out duties specifically authorized by

N YCrim.Prac.Law § 720.35(2). Construed broadly, People v. J.K., 137 Misc.2d 394, 395-96, 520 N.Y.S.2d 986 (N.Y. Sup. Ct. 1987), this provision clearly provides ample ground upon which the plaintiff might reasonably believe that his pre-sentence disclosures would remain private.*fn2 The statute itself declares such information "confidential" and prohibits disclosure except for purposes of ...

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