Proof of actual malice cannot rest on destruction of notes

WISCONSIN–In mid-June, the state Supreme Court in Madison upheld a Court of Appeals decision rejecting a one-time state insurance official’s libel claim against The Milwaukee Journal. The court found a reporter’s destruction of his notes following the official’s initial complaints about the story, which under the circumstances could prove actual malice, was insufficient in this case because of other deposition testimony.

In mid-October 1993, the Journal reported that John Torgerson, the state’s former deputy commissioner of insurance, had been warned twice by the state Ethics Board that his co-ownership of a title insurance company presented a conflict of interest and that he should “stay out of title insurance regulation.” The board was created by the state legislature to examine conflict-of-interest and other ethics charges made against state officials.

The Journal stated that its own investigation found that after Torgerson was warned, he had worked to repeal a rule requiring title insurance companies to disclose their lowest, discounted rates.

Torgerson filed suit in Circuit Court in Eau Claire, claiming that the article was defamatory because it falsely reported that the Ethics Board’s letters prohibited him from involvement in title insurance regulation and implied that he helped to change a rule for the purpose of advancing his private business.

Torgerson further claimed that actual malice — knowledge of falsity or reckless disregard for the truth — could be proven from the fact that the Journal reporter destroyed some of the notes from his interviews following Torgerson’s complaints to the newspaper. The reporter countered that he had disposed of the notes along with other papers during of an intra-office move.

The Supreme Court found that though destruction of selected relevant notes from a story over which litigation has been threatened is “ordinarily” sufficient to support a finding of actual malice and to defeat a news media defendant’s motion for summary judgment,” that “mere inference” was negated by other deposition testimony by the writer of the Ethics Board’s letter, establishing that the reporter’s interpretation of the documents was reasonable.

The court also “expresse[d] its censure” of the reporter’s decision to destroy the notes, but declined to “enforce standards of journalistic accuracy or ethics.” (Torgerson v. Journal/Sentinel, Inc.; Media Counsel: Robert Dreps, Madison)