BIRD, C. J., Concurring and Dissenting. I write separately because I cannot agree that the Attorney General, with his extensive powers over the enforcement of all state laws, has an absolute privilege to publish defamatory statements in violation of the state Constitution or statutory law. However, newspapers, which reprint this defamatory material released to them by the Attorney General, should not be liable for the republication.
I.
The California Constitution vests the office of the Attorney General with enormous powers over the lives of the citizens of this state. “Subject to the powers and duties of the Governor, the Attorney General shall be the chief law officer of the State. It shall be the duty of the Attorney General to see that the laws of the State are uniformly and adequately enforced. The Attorney General shall have direct supervision over every district attorney and sheriff and over such other law enforcement officers as may be designated by law, in all matters pertaining to the duties of their respective offices, and may require any of said officers to make reports concerning the investigation, detection, prosecution, and punishment of crime in their respective jurisdictions as to the Attorney General may seem advisable. Whenever in the opinion of the Attorney General any law of the State is not being adequately enforced in any county, it shall be the duty of the Attorney General to prosecute any violations of law of which the superior court shall have jurisdiction, and in such cases the Attorney General shall have all the powers of a district attorney. When required by the public interest or [784]directed by the Governor, the Attorney General shall assist any district attorney in the discharge of the duties of that office.” (Cal. Const., art. V, § 13.)
In addition to being “chief law officer” of the state, and head of the Department of Justice (Gov. Code, § 12510), the Attorney General is the state’s chief attorney. As the state’s lawyer, the Attorney General counsels and represents the state’s governmental departments (Gov. Code, §§ 11157, 12511, 12512) as well as numerous commissions and boards. (See, e.g., Gov. Code, § 66748; Food & Agr. Code, §§ 4352, 4357; Bus. & Prof. Code, §§ 2116, 10079; Pub. Resources Code, §§ 25221, 26010.)1 Also, the Attorney General has the power to issue written opinions on legal problems which relate to any governmental office upon the request of the Governor, the Legislature, any state agency prohibited from hiring independent legal counsel or a district attorney. (Gov. Code, § 12519.) The published opinions of the Attorney General are compiled and often cited in court as secondary authority for a given proposition.
The Attorney General has the duty to enforce a wide range of state statutes which require expertise in a variety of legal specialities. (See, e.g., Gov. Code, § 12526, Bus. & Prof. Code, §§ 16750, 17204 [antitrust]; Gov. Code, §§ 12600, 12606, 12607, Pub. Resources Code, § 4603, Code Civ. Proc., § 389.6 [environmental law]; Bus. & Prof. Code, §§ 320, 321, 326, 17508, Ins. Code, § 790.06 [consumer law]; Gov. Code, § 12580 et seq. [charitable trusts]; Lab. Code, §§ 1312, 1399 [labor]; Civ. Code, § 52 [discrimination].)
In the area of criminal law, the Attorney General supervises all district attorneys and sheriffs. (Cal. Const., art. V, § 13; Gov. Code, §§ 12550, 12560.) These supervisory duties include the training and education of district attorneys and police personnel in the proper exercise of their duties and the limits of their authority. (See, e.g., Gov. Code, § 12524; Pen. Code, § 11077, subd. (d); Health & Saf. Code, § 11600.) The Attorney General also has special responsibilities in relation to the Youth Authority (Welf. & Inst. Code, § 1766.5), commitments of and establishments for the mentally ill (id., §§ 4021, 6316.2), the Bureau of Narcotic Enforcement (Health & Saf. Code, [785]§§ 11450-11454, 11600) and the collection and dissemination of records of criminal investigations, arrests and convictions (Pen. Code, §§ 11101-11102, 11103-11105, 11075-11079, 13020-13022; Gov. Code, §§ 15150-15167).
The Attorney General has been given the power to compile and disseminate certain data about individual citizens. This broad grant of power is coupled with the authority to investigate any crime as the chief law officer of the state. (Gov. Code, § 12550.) The Attorney General has authority to inspect all books and records of people and businesses under investigation by a state agency. (Gov. Code, §§ 11180.5, 11181.) Such investigation may include use of special agents whose identities are known only to the Attorney General. (Id., §§ 12570-12574.) An investigation may include enlisting the aid of any governmental agency, bureau or department. (Id., §§ 11180.5, 11181.)
An investigation of any governmental official or agency by the Bureau of Criminal Identification and Investigation may not take place without the prior approval of the Attorney General. (Pen. Code, § 11054.) Some state employees may even be prosecuted for refusing to permit the Attorney General to inspect their records. (See Pen. Code, § 440.) Thus, the person who fills the office of Attorney General has enormous powers to direct how, when, and to what extent an investigation may take place. This power is coupled with an ability to obtain complete access to all governmental information about the individual being investigated.
The Attorney General is specifically authorized to set up and maintain a statewide telecommunications system for law enforcement purposes (Gov. Code, §§ 15151-15160). He also compiles criminal offender record information2 and keeps summary criminal history information on residents of this state.3 The Attorney General is specifi[786]cally charged with the responsibility of ensuring the security of such data and preventing its unlawful dissemination. (Pen. Code, §§ 11077, 11105, subds. (b), (c), (f) and (g).)4 It was the alleged violation of this [787]statutory duty which constituted an improper discharge of an official duty, and, therefore, an unprivileged defamation, according to the plaintiff.5
Having enumerated some of the unique powers and duties of the office of Attorney General, the court must decide if the chief law officer of this state may assert an absolute privilege to defame even if he violates the very statutes and Constitution he is charged with enforcing.
[788]In California, Civil Code section 47, subdivision 1, provides a governmental privilege. “A privileged publication or broadcast is one made—1. In the proper discharge of an official duty.” This privilege protects high-ranking, policy-making executives in state government. (Sanborn v. Chronicle Pub. Co. (1976) 18 Cal.3d 408, 412 [134 Cal.Rptr. 402, 556 P.2d 764].) When it applies, the privilege is absolute and cannot be defeated by a showing of malice. (Saroyan v. Burkett (1962) 57 Cal.2d 706 [21 Cal.Rptr. 557, 371 P.2d 293].)
Executive officials are privileged if the defamatory statement or material they publish bears “‘some relation to the executive proceeding in which the officer is acting.’” (Id., at p. 710, quoting Rest., Torts, § 591.) This privilege applies equally to claims of defamation and other causes of action. (Pettitt v. Levy (1972) 28 Cal.App.3d 484, 489 [104 Cal.Rptr. 650] and cases cited therein.) However, it does not affect cases involving malicious prosecution. (Ibid.)
In the present case, the Attorney General demurred to the complaint and claimed he had an absolute privilege to defame based on his official duty privilege. He claims that he was obliged to report on his activities in the area of organized crime control. (Gov. Code, § 15028.) Therefore, he argues, his release of the OCCC report was merely a “discharge of an official duty.”6
Plaintiff contends that the Attorney General lost the protection of the privilege by improperly discharging his duty and unlawfully publishing defamatory material about him. The Attorney General’s free access to confidential and potentially damaging materials and his special duty to keep it secure make plaintiff’s charge especially serious. Plaintiff contends that the Attorney General may not unlawfully divulge private data and then use the shield of his privilege since the privilege is available only when he is acting in the “proper” discharge of his duties.
The Attorney General relies primarily on Saroyan v. Burkett, supra, 57 Cal.2d 706. He claims that the official duty privilege is absolute and even a showing of unlawfulness will not deprive him of his statutory immunity. However, this position ignores the clear language of the statute which requires a “proper discharge” of duties before a person can invoke its protection.
[789]The Attorney General’s reliance on Saroyan is misplaced. That case merely concluded that if and when the privilege attaches, it is absolute and cannot be defeated by a claim of malice. This is the traditional distinction between absolute and qualified privileges. (See Prosser, Handbook of the Law of Torts (4th ed. 1971) pp. 776-777.) Saroyan did not raise or resolve the issue of an illegal publication by an official. (Cf. Butz v. Economu (1977) 438 U.S. 478, 487-489 [57 L.Ed.2d 895, 903-905, 98 S.Ct. 2894].)7
The weight of authority suggests that an absolute privilege is not always accorded a governmental official. For example, if an official goes outside the grant of authority, such acts are not absolutely privileged. (See, e.g., Spalding v. Vilas (1896) 161 U.S. 483, 498 [40 L.Ed. 780, 786, 16 S.Ct. 631] [“head of an Executive Department, keeping within the limits of his authority” is absolutely privileged]; Cheatum v. Wehle (1959) 5 N.Y.2d 585 [186 N.Y.S.2d 606, 159 N.E.2d 166]; Rest.2d Torts, § 591, com. f.) Also, if an official is fulfilling, only a ministerial and not a policy-making function, he is not absolutely privileged. (Sanborn v. Chronicle Pub. Co., supra, 18 Cal. 3d at p. 413; H & M Associates v. City of El Centro (1980) 109 Cal.App.3d 399, 408 [167 Cal.Rptr. 392].) These authorities illustrate that the bare assertion of an absolute privilege is not sufficient. Certain prerequisites must be shown before entitlement to such a privilege can be established.
Plaintiff contends that one such prerequisite is that the Attorney General’s action must constitute a “proper,” or lawful, discharge of his duties. (See Civ. Code, § 47, subd. 1.) To rule otherwise would mean [790]that the term “proper” encompasses an unlawful act. The Attorney General’s interpretation of the privilege reads the word “proper” out of the statute altogether since any act bearing on the duties of the office would be absolutely privileged regardless of its legality. Plaintiff's contention has merit. This court should not assume that the Legislature used the term “proper” accidentally or superfluously. (2A Sutherland, Statutes and Statutory Construction (Sands rev. 3d ed. 1973) § 46.06, p. 63 [each word should be given its proper effect].)
Thus, the issue is whether an unlawful publication of allegedly defamatory confidential material by the Attorney General, who is responsible for safeguarding its dissemination, can ever be considered a “proper discharge” of his official duties. It would strain the credulity of even a jaundiced observer of the governmental scene if this court were to rule that an unlawful or unconstitutional act by the Attorney General could, nonetheless, be considered a “proper” discharge of his official tasks.
An absolute privilege only applies if the public service or administration of justice requires complete immunity. (Bradley v. Hartford Acc. & Indem. Co., supra, 30 Cal.App.3d at p. 824; see also Butz v. Economu, supra, 438 U.S. at p. 507 [57 L.Ed.2d at p. 916].) The public has an overriding interest in the effective functioning of its government. However, it invests no discretion in its officials to violate the law. Moreover, the public has no interest in shielding high government officials from liability for unlawful or unconstitutional acts engaged in knowingly. On the contrary, when an executive officer engages in illegal activity, the cloak of his or her governmental office should not be used to immunize wrongdoing.
The Supreme Court articulated this important axiom in United States v. Lee (1882) 106 U.S. 196 [27 L.Ed.2d 171, 1 S.Ct. 240], “No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All of the officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it. [¶] It is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives.” (Id., at p. 220 [27 L.Ed. at p. 182].)
[791]The warnings of Chief Justice Groner of the District of Columbia Circuit Court of Appeals should not be ignored. He cautioned that the courts can “... unwittingly create[] a privilege so extensive as to be almost unlimited and altogether subversive of the fundamental principle that no man in this country is so high that he is above the law.” (Glass v. Ickes (D.C. Cir. 1940) 117 F.2d 273, 282 (conc. opn. of Groner, C. J.).)
With the memories of gross abuses by the highest officers of our land still fresh, it is especially important that an illegal act not be approved by this court as an official duty encompassed within the mandate of public office.
The Attorney General’s office is a particularly sensitive office since the holder of that position is the chief law enforcement officer of the state. As the attorney for the state, the Attorney General must take responsibility for his own violations of statutory or constitutional prohibitions. Impeachment is not a useful remedy for the state’s citizenry because it is a cumbersome and unwieldy process which is never used. Also, it may be too great a sanction for every violation. Further, reliance on the criminal prosecution machinery to correct unlawful governmental acts by the Attorney General is inadequate at best. Since Penal Code section 11054 prohibits investigation of criminal acts by government officers without the authorization of the Attorney General, such reliance would be the equivalent of allowing the fox to guard the chicken coop.
The average citizen who commits an unlawful act may be held both criminally and civilly liable. Surely, the Attorney General claiming the protection of his office is no more authorized by that office to commit a crime or an unconstitutional act than is any other citizen of this state. Is it too much to expect that the Attorney General meticulously obey both the letter and the spirit of the law? I think not. The Attorney General is scarcely in a position to claim that he is authorized to violate any provision of the law. Since the Attorney General occupies a unique position, he should not be able through an unlawful act to cause injury to a citizen of this state with impunity. The public interest is not being served and the victim of hi's illegal act should be free to pursue his legal remedy for damages.
In Butz v. Economu, supra, the United States Supreme Court reached a similar conclusion. The Butz opinion rested on the impor[792]tance of the public interest in protecting civil rights from incursions by government personnel. The court pointed out that a cause of action for a constitutional violation would be “drained of meaning” if officials were accorded absolute immunity for their constitutional transgressions. (Id., at p. 501 [57 L.Ed.2d at p. 913].)
“If, as the Government argues, all officials exercising discretion were exempt from personal liability, a suit under the Constitution could provide no redress to the injured citizen, nor would it in any degree deter federal officials from committing constitutional wrongs.... [¶] The extension of absolute immunity from damages liability to all federal executive officials would seriously erode the protection provided by basic constitutional guarantees.” (Id., at p. 505 [57 L.Ed.2d at p. 915].)
Based on public policy considerations, the court concluded that qualified immunity would be sufficient to protect officials invested with discretionary powers.8 “... [C]ases have recognized that it is not unfair to hold liable the official who knows or should know he is acting outside the law, and that insisting on an awareness of clearly established constitutional limits will not unduly interfere with the exercise of official judgment.... [¶] ... Federal officials will not be liable for mere mistakes in judgment, whether the mistake is one of fact or one of law. But we see no substantial basis for holding, as the United States would have us do, that executive officers generally may with impunity discharge their duties in a way that is known to them to violate the United States Constitution or in a manner that they should know transgresses a clearly established constitutional rule.” (Id., at pp. 506-507 [57 L.Ed.2d at p. 916].)
In the present case, the issue before the court involves the privilege as it applies to the chief law enforcement officer in the state. The Attorney General is not authorized as part of his official duties to violate constitutional mandates or statutory proscriptions. The nondisclosure statutes which are the basis of plaintiffs gravamen and which he alleges were violated in this case specifically prohibit the wholesale dissemination of criminal records.9 They protect the individual’s constitutional right of privacy.
[793]As this court acknowledged in White v. Davis (1975) 13 Cal.3d 757, 775 [120 Cal.Rptr. 94, 533 P.2d 222], the right of privacy amendment to the state Constitution was addressed, in part, to the unlawful dissemination and misuse of an individual’s governmental records. Therefore, the violation of these statutes has constitutional dimensions. When the Attorney General violates a statute by publishing confidential material, he cannot be said to have properly discharged his duties. Since Civil Code section 47, subdivision 1 relates to privileged publications, it is the unlawful publication which is not privileged.
Here, if the Attorney General knew or should have known that the publication of confidential material violated clear constitutional or statutory law when he published it, then he could not be said to be “properly discharging his official duties.” (Cf. Wood v. Strickland (1975) 420 U.S. 308, 322 [43 L.Ed.2d 214, 225, 95 S.Ct. 992].) He has no absolute privilege to do so under Civil Code section 47, subdivision 1.
If unlawful acts committed by the Attorney General are not “proper” within the meaning of Civil Code section 47, subdivision 1, does the plaintiffs complaint sufficiently state a cause of action outside the scope of the official duty privilege? The law is clear. Properly pleaded factual allegations are deemed admitted by the defendant’s demurrer for purposes of appeal. (White v. Davis, supra, 13 Cal.3d at p. 765.) Here, the complaint alleged that the Attorney General “unlawfully distributed, published and circulated” the OCCC report and appendix to the press for republication. It also alleged that the OCCC “gathered, received and reviewed ‘criminal record information,’ within the meaning of California Penal Code § 11075, and ‘state summary criminal history information’ within the meaning of California Penal Code § 11105
Plaintiff contended that the Attorney General invaded his right of privacy by disseminating criminal records about him which the Attorney General was duty-bound under these statutes to keep confidential. These assertions were alluded to in the complaint but were not specifically alleged. As a result, the complaint is defective as to substance. However, the defect may be cured by the inclusion of the missing alle-
[794]gations. Therefore, leave to amend should not have been denied by the trial court. (3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, § 845, p. 2450, and cases cited therein.)
Since there is a possibility that plaintiff can plead a proper legal claim, the cause should be returned to the trial court. It is conceivable that plaintiff can allege a knowing violation of his constitutional right of privacy (Cal. Const., art. I, § 1) by virtue of the Attorney General’s release of his criminal records to the public.10 Also, there are other plausible contentions that need not be hypothesized.11 Since it is possible to allege an unprivileged defamation and/or an improper invasion of privacy, plaintiff must be given the opportunity to amend his complaint. Therefore, the trial court should have granted plaintiff leave to amend his complaint as to the Attorney General.
II.
The trial court was correct in granting a general demurrer without leave to amend as it applies to the media defendants. Since the opinion of the Court of Appeal by Judge Florence Bernstein properly resolved this issue, that portion of her opinion is set out in pertinent part.12
“[][T]he media—that is all defendants except Younger—premised their demurrers on the privilege afforded by subdivisions 4 and 5 of section 47 of the Civil Code: “A privileged publication or broadcast is one made— ... 4. By a fair and true report in a public journal, of (1) a judicial, (2) legislative, or (3) other public official proceeding, or (4) of anything said in the course thereof ... 5. By a fair and true report of (1) the proceedings of a public meeting, if such meeting was lawfully convened for a lawful purpose and open to the public, or (2) the publication of the matter complained of was for the public benefit.”
[795]A parallel privilege contained in the Restatement Second of Torts reads in relevant part as follows: “The publication of defamatory matter concerning another in a report of ... a meeting open to the public that deals with a matter of public concern is privileged if the report is accurate and complete or a fair abridgement of the occurrence reported.” (Id., § 611.)
Clearly, section 47, subdivision 5 provides an adequate basis on which to uphold the trial court’s ruling. It cannot be gainsaid that as far as the press was concerned, the news conference was a legally convened public meeting for a lawful purpose to which the public—by way of the media—had been invited.3
Somewhat more troublesome, however, is the accompanying requirement of [subdivision] 5 that the media articles be “fair and true” reports. [Plaintiff] takes the position that the newspaper reports are substantially misleading in that they wrongfully imply that he was, and is, “engaged in criminal conspiracies involving murder, unlawful motorcycle gangs, prison gangs, terrorists, organized gambling, loan sharking, security thefts, investment frauds, pornography, prostitution and drug trafficking.” He maintains that this is neither fair nor true, because [] the committee’s report may have characterized him as an organized crime figure, [but] it did not suggest that he was now, or indeed had ever been involved in organized underworld activity in the manner and to the extent set forth above.
The media respond by asserting that the protection of the privilege is earned by any report which captures the substance, the “gist” or “sting” of the subject proceedings or documents. (See Hayward v. Watsonville Register-Pajaronian and Sun (1968) 265 Cal.App.2d 255 [71 Cal.Rptr. 295].) Both papers, of course, urge [that] the trial court’s conclusion [be upheld] that in fact the substance of their reports remained true to [the Attorney General’s] statements and the materials released by him.
In assessing this question, “the publications] [are] to be measured by the natural and probable effect [they] would have on the mind of the average reader. [Citations.] The standard of interpretation to be used in [796]testing alleged defamatory language is how those in the community where the matter[s] [were] published would reasonably understand [them]. [Citation.]” (Handelsman v. San Francisco Chronicle (1970) 11 Cal.App.3d 381, 387 [90 Cal.Rptr. 188].)
[Plaintiff’s] attempt to read the reports’ delineation of organized criminal activity as pertaining [in] all respects to himself is unwarranted. [T]he average reader of either paper would reasonably interpret the articles to imply only that [plaintiff] was connected in some fashioñ with organized crime. [T]his is exactly the import of [the] Attorney General[’s] release. [] [Therefore, [] the papers captured the substance of [the] Attorney Generalas] release[.] [T]hus[,] [] the requirement of section 47, subdivision 5, to wit: that the reports be fair and true, was satisfied as a matter of law. The trial court properly so found.4
As far as the second cause of action for the intentional infliction of emotional distress is concerned, the reasoning which makes such a cause of action subject to the absolute privilege of subdivision 2 of section 47 of the Civil Code, applies with equal force to the privileges contained in subdivision 5 of the same section. (See Lerette v. Dean Witter Organization, Inc. (1976) 60 Cal.App.3d 573, at p. 579 [13 Cal.Rptr. 592].)
On the other hand, [plaintiff’s] third cause of action, for invasion of privacy, is not grounded on the alleged inaccuracy of the papers’ reportage. Rather, it is predicated on the charge “that even if accurate the publication of the facts interferes with his ‘right to be left alone.’ [Citation.]” (Kapellas v. Kofman (1969) 1 Cal.3d 20, 35 [81 Cal.Rptr. 360, 459 P.2d 912].) With regard to the media, however, [plaintiff] enjoyed no such rights: [b]y virtue of the release of the report and appendix A thereto, [plaintiff’s] name and alleged criminal involvement became matters of public record. Manifestly, the publication of such “newsworthy” information may not be circumscribed, at least where, as here, the articles carefully noted the “alleged” nature of the report and [plaintiff’s alleged] underworld involvement. (See Cox Broadcasting Corp. v. Cohn (1975) 420 U.S. 469 [43 L.Ed.2d 328, 95 S.Ct. 1029]; see also Rest.2d Torts, § 652D, com. b: “There is no liability [for invasion of privacy] when the defendant merely gives further publicity to informa[797]tion about the plaintiff that is already public.”) On this record, the trial court did not err as to the media demurrers.”
III.
The Attorney General has been entrusted by law with the power and duty to prosecute any violation of state law. He cannot claim an absolute privilege based on an official duty exemption where he is shown to have committed unlawful acts himself. The chief law enforcement officer of this state is not above the law. Since he is responsible for the uniform application of the laws, he cannot be held to be immune from suit when his actions are illegal. His office must set an example for the citizenry by scrupulously obeying all statutory and constitutional mandates.
When the occupant of that office knowingly violates the law, he improperly discharges his functions and loses the protection of his privilege. If the plaintiff can allege facts that show that the Attorney General knew or should have known that his publication violated statutory or constitutional provisions, the complaint states a cause of action that is not covered by the official duty privilege of Civil Code section 47, subdivision 1. The general demurrer granted by the trial court was properly sustained but plaintiff should have been granted leave to amend. The media defendants’ general demurrer was properly sustained since plaintiff failed to state a claim that could withstand a challenge based on the media’s broadcast and publication privilege.
I would reverse the judgment of dismissal and remand this case to the trial court with instructions to permit plaintiff leave to amend the complaint as it relates to the Attorney General’s alleged unlawful acts. In all other respects, I would affirm the judgment.
Tobriner, J.,* and Tamura, J.,† concurred.
The Attorney General is also a member of numerous boards and commissions. (See, e.g., Gov. Code, § 8575 [Cal. Emergency Council]; Health & Saf. Code, § 11861 [Advisory Council on Drug Abuse].)
Penal Code section 11075 states: “(a) As used in this article, ‘criminal offender record information’ means records and data compiled by criminal justice agencies for purposes of identifying criminal offenders and of maintaining as to each such offender a summary of arrests, pretrial proceedings, the nature and disposition of criminal charges, sentencing, incarceration, rehabilitation, and release.
“(b) Such information shall be restricted to that which is recorded as the result of an arrest, detention, or other initiation of criminal proceedings or of any consequent proceedings related thereto.”
Penal Code section 11105, subdivision (a) states: “(a)(1) The Department of Justice shall maintain state summary criminal history information.
“(2) As used in this section:
[786]“(i) ‘State summary criminal history information’ means the master record of information compiled by the Attorney General pertaining to the identification and criminal history of any person, such as name, date of birth, physical description, date of arrests, arresting agencies and booking numbers, charges, dispositions and similar data about such person.
“(ii) ‘State summary criminal history information’ does not refer to records and data compiled by criminal justice agencies other than the Attorney General, nor does it refer to records of complaints to or investigations conducted by, or records of intelligence information or security procedures of, the office of the Attorney General and the Department of Justice.”
Penal Code section 11077 states: “The Attorney General is responsible for the security of criminal offender record information. To this end, he shall: [¶] (a) Establish regulations to assure the security of criminal offender record information from unauthorized disclosures at all levels of operation in this state. [¶] (b) Establish regulations to assure that such information shall be disseminated only in situations in which it is demonstrably required for the performance of an agency’s or official’s functions.... ”
Penal Code section 11105 states in relevant part: “(b) The Attorney General shall furnish state summary criminal history information to any of the following, when needed in the course of their duties, ....
“(1) The courts of the state.
“(2) Peace officers of the state ....
“(3) District attorneys of the state.
“(4) Prosecuting city attorneys of any city within the state.
“(5) Probation officers of the state.
“(6) Parole officers of the state.
“(7) A public defender or attorney of record when representing a person in proceedings upon a petition for a certificate of rehabilitation and pardon pursuant to Section 4852.08 of the Penal Code.
“(8) A public defender or attorney of record when representing a person in a criminal case and when authorized access by statutory or decisional law.
“(9) Any agency, officer, or official of the state when such criminal history information is required to implement a statute or regulation that expressly refers to specific criminal conduct applicable to the subject person of the state summary criminal history information, and contains requirements or exclusions, or both, expressly based upon such specified criminal conduct.
“(10) Any city or county, or city and county, or district, or any officer, or official thereof ... [under specified conditions].
“(11) The subject of the state summary criminal history information under procedures established under Article 5 (commencing with Section 11120), Chapter 1, Title 1 of Part 4 of the Penal Code.
“(12) Any person or entity when access is expressly authorized by statute when such criminal history information is required to implement a statute or regulation that expressly refers to specific criminal conduct applicable to the subject person of the state summary criminal history information, and contains requirements or exclusions, or both, expressly based upon such specified criminal conduct.
“(13) Health officers of a city, county, or city and county, or district, when in the performance of their official duties enforcing Section 3110 of the Health and Safety Code.
“(14) Any managing or supervising correctional officer of a county jail or other county correctional facility.
[787]“(c) The Attorney General may furnish state summary criminal history information upon a showing of a compelling need to any of the following, ...
“(1) Any public utility as defined in Section 216 of the Public Utilities Code which operates a nuclear energy facility when access is needed in order to assist in employing persons to work at such facility, provided that, if the Attorney General supplies such data, he shall furnish a copy of such data to the person to whom the data relates.
“(2) To a peace officer of the state other than those included in subdivision (b).
“(3) To a peace officer of another country.
“(4) To public officers (other than peace officers) of the United States, other states, or possessions or territories of the United States, provided that access to records similar to state summary criminal history information is expressly authorized by a statute of the United States, other states, or possessions or territories of the United States when such information is needed for the performance of their official duties.
“(5) To any person when disclosure is requested by a probation, parole, or peace officer with the consent of the subject of the state summary criminal history information and for purposes of furthering the rehabilitation of the subject.
“(6) The courts of the United States, other states or territories or possessions of the United States.
“(7) Peace officers of the United States, other states, or territories or possessions of the United States.
“(8) To any individual who is the subject of the record requested when needed in conjunction with an application to enter the United States or any foreign nation.
“(f) Whenever there is a conflict, the processing of criminal fingerprints and fingerprints of applicants for security guard or alarm agent registrations or firearms qualification permits submitted pursuant to Section 7514 of the Business and Professions Code shall take priority over the processing of applicant fingerprints.
“(g) It is not a violation of this section to disseminate statistical or research information obtained from a record, provided that the identity of the subject of the record is not disclosed.
“(h) It is not a violation of this section to include information obtained from a record in (1) a transcript or record of a judicial or administrative proceeding or (2) any other public record when the inclusion of the information in the public record is authorized by a court, statute or decisional law.”
The plaintiff also alleged an invasion of privacy. He did not specify whether it was his common law or constitutional right which was abridged. However, Central Valley Chap. 7th Step Foundation v. Younger (1979) 95 Cal.App.3d 212 [157 Cal.Rptr. 117], hearing denied, September 20, 1979, held that an unlawful dissemination of an arrest record under Penal Code section 11105 stated a prima facie case of a violation of the state constitutional right of privacy. Throughout this opinion, statutory and constitutional violations are discussed together.
The plaintiff also claims that defendant Younger was not fulfilling an official duty because he was a candidate in the gubernatorial election campaign.
Pettitt v. Levy, supra, is inapposite since it involved the application of a different privilege, not analogous to the privilege in this case. Section 47, subdivision 2 provides a separate privilege for defamatory publications made during the course of a legislative, judicial or other official proceeding authorized by law. This privilege is accorded to all statements made on the privileged occasion; it is not limited to “proper” statements.
This privilege may not be defeated by a showing that the publication was unlawful. (Pettitt v. Levy, supra, 28 Cal.App.3d at p. 488.) Since the language of the two privileges are not parallel, the interpretation of subdivision 2 is not helpful in illuminating the meaning of the term “proper” in subdivision 1. Also, the purposes served by the two privileges differ significantly. (Cf. Butz v. Economu, supra, 438 U.S. 478, 508-517 [57 L.Ed.2d 895, 916-923].) The rules governing the application of these privileges differ as a result.
Of course, the privilege in subdivision 2 requires certain prerequisites which must be met. It does not automatically apply to every case in which it is pleaded. (See Bradley v. Hartford Acc. & Indem. Co. (1973) 30 Cal.App.3d 818, 824 [106 Cal.Rptr. 718], See also Stump v. Sparkman (1977) 435 U.S. 349 [55 L.Ed.2d 331, 98 S.Ct. 1099] [a judge is not privileged if he acts in the clear absence of all jurisdiction or outside his official capacity].)
Since Attorney General Younger raised no other claims of privilege on demurrer, it is not necessary at this time to determine whether other privileges might apply in this case.
See Penal Code sections 11075-11081, 11105, 11140-11144; ante, at pages 785-787, footnotes 2, 3 and 4. As this court noted in Loder v. Municipal Court (1976) 17 Cal.3d [793859], 872-874 [132 Cal.Rptr. 464, 553 P.2d 624], these statutes were intended to control improper dissemination of criminal records. Also, they make criminal any unlawful disclosures. (See Pen. Code, §§ 11141-11143.)
The right of privacy was placed in the state Constitution by the voters in 1972. It is self-executing and creates an enforceable privacy right for each citizen. (White v. Davis, supra, 13 Cal.3d at p. 775.) Such a right of action for a violation of the right of privacy has been alleged .based on the unlawful dissemination of records prohibited by Penal Code section 11105. (Central Valley Chap. 7th Step Foundation v. Younger, supra, 95 Cal.App.3d at p. 240.)
Amici American Civil Liberties Union et al., argue that plaintiff was denied due process of law by the release of the OCCC report. Since this issue was neither pleaded nor argued below, it is not addressed here.
Brackets together, in this manner [], without enclosing material, are used to indicate deletions from the opinion of the Court of Appeal.
While we do not doubt that the publication [here] was intended for the public benefit, this analysis makes it unnecessary to solve the troublesome question [as to] where the alternative provision of subdivision 5—“or (2) the publication of the matter complained of was for the public benefit []”—fits in. (Cf., Williams v. Daily Review, Inc. (1965) 236 Cal.App.2d 405, 416 [46 Cal.Rptr. 135].)
The media also contend that their actions were privileged under both the United States and California Constitutions. [Since] section 47, subdivision 5 [is] applicable, [this contention is not reviewed].
Retired Associate Justice of the Supreme Court sitting under assignment by the Chairperson of the Judicial Council,
Assigned by the Chairperson of the Judicial Council.