Deputy Loses “False Light” Privacy Claim When Statement Issued By Department Proves To Be True

Earl Busey was a sergeant with the Shawnee County, Kansas Sheriff’s Department for over 20 years, and was in charge of the Narcotics Unit. Busey was appointed to his position by former Sheriff Dave Meneley.

On February 24, 2000, Meneley was removed from office as a result of an “ouster” proceeding. The ouster followed years of adverse publicity about drug use by an employee of the Department and about the abuse of or tampering with drug evidence. Dick Barta was subsequently appointed as Shawnee County Sheriff.

Prior to his ouster, Meneley had asked Busey to follow up on information about a witness that may have used illegal drugs with a deputy. Busey could not locate the witness at that time. However, after Meneley’s ouster, Busey and his lieutenant questioned the witness about the deputy’s drug involvement. Following the interview, Busey and the lieutenant went to a private residence to report the results of the interview to Meneley (who was no longer sheriff).

Sheriff Barta received a citizen complaint about the interview. The complaint alleged that Busey and the lieutenant “intimidated a witness in a criminal case involving former Shawnee County Sheriff’s Department employees.” After the report, Busey was placed on administrative leave while Sheriff Barta evaluated whether Busey had violated the Department’s general order prohibiting the outside communication of confidential information.

The Sheriff’s Department then issued a press release stating that Busey and the lieutenant had been placed on administrative leave with pay. The press release stated that “the action was taken as a result of an internal affairs investigation,” and referred all questions to the County’s attorney. The County attorney was quoted in a newspaper as saying that the administrative leave “does have to do with the Sheriff’s Department drug scandal, but until we get the investigation done, I don’t want to say anything.”

Busey sued the Department for the press release and the statement to the newspaper. The heart of Busey’s claim was that his right to privacy was violated when the press release and the statement placed him in “false light.” One branch of the right to privacy is “false light,” where “one who gives to another publicity which places him before the public in a false light of a kind highly offensive to a reasonable person is subject to liability for invasion of his privacy.”

Busey acknowledged that the press release and the statement were “technically true,” in that his placement on administrative leave was “the result of an internal affairs investigation.” Busey argued, however, that the technical truth of the statements was not determinative if a reader might form a subjective belief that Busey was involved as a principal actor in the drug scandal rather than as an investigator.

The Court rejected this argument. The Court concluded that “Busey cannot carry his burden of establishing ‘false light’ through implication. An actionable false light invasion of privacy does not exist if the publication is based upon truthful information.”

Busey v. Board of County Commissioners of Shawnee County, 2005 WL 1805418 (Kan.App. 2005).

This article appears in the October 2005 issue