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A Massachusetts federal judge has ruled that a private call between an Internal Revenue Service agent and taxpayer Judith Barrigas that was broadcast on The Howard Stern Show was somehow related to collection of taxes and also wasn’t “sufficiently personal or intimate in nature.” Accordingly, Stern and the U.S. government have beaten privacy and negligence claims by the woman.
The lawsuit was filed in February 2017 and put the U.S. government in the odd position of having to defend a leak of tax information just as the White House was alleging that it was illegal for MSNBC host Rachel Maddow to share a leak of Donald Trump’s 2005 tax returns on her show.
This case emanated from what Stern’s radio audience heard on May 19, 2015.
That day, I.R.S. agent Jimmy Forsythe called up The Howard Stern Show, presumably to be a guest. He was put on hold. So Forsythe got back to work and spoke to Barrigas, who had a problem with her taxes. When Stern was ready for Forsythe and put him on air, he was in the midst of a conversation with Barrigas.
“Jimmy, go ahead,” said Stern that day. “You’re on the air in Long Island…Jimmy?”
“$71 due on the 20th,” said Forsythe.
“Jimmy, you’re on the fucking air,” exclaimed Stern.
“What is he doing?” asked Stern’s co-host Robin Quivers. “Making a transaction?”
Forsythe continued to talk to Barrigas for several minutes without being aware that Stern, Quivers and their audience were listening in and making fun of what was being said. “It sounds like a raw deal,” said Stern at one point, and when Forsythe finally finished with Barrigas and checked in on his other line, he heard Stern comment, “Dude, we just heard your whole transaction. What’s going on, man? You got the most boring job, dude.”
In response to the lawsuit, the U.S. government argued it had sovereign immunity under the “tax exception” to the Federal Tort Claims Act. Meaning that it couldn’t be held liable for actions, even wrongful ones, made by a federal government employee while acting within the scope of employment.
“The Court agrees with Plaintiff that Agent Forsythe’s personal telephone call to The Howard Stern Show, and the partial disclosure of his conversation with Plaintiff regarding her taxes, went beyond the scope of his duties as an IRS employee,” writes U.S. District Court Judge Allison Burroughs in an opinion on Friday. “The tax exception is ‘meaningless,’ however, if it does not cover activities that fall outside the scope of an IRS agent’s employment. The pertinent question is whether the complained of conduct is remotely related, or bears a nexus, to the assessment or collection of taxes… Although there may be some circumstances under which a disclosure of an individual’s tax related information may fall outside of the broad reach of the tax exception, Agent Forsythe’s inadvertent disclosure made while he was simultaneously answering Plaintiff’s questions about her tax liability and repayment plan is, at the very least, remotely related to tax assessment and collection.”
That saves the government from the privacy claim, although it will still face a claim for disclosure of tax information after the government failed to convince the judge that venue is improper.
And how about Stern?
First, Burroughs notes that it isn’t clear that Stern disseminated her tax information intentionally.
“Even assuming that the Stern Defendants acted intentionally, for instance, by maintaining a publicly accessible recording of the show segment for a few weeks, Plaintiff has not plausibly alleged an unreasonable, substantial, or serious intrusion into highly personal information,” she continues.
The judge says the disclosed tax information was “imprecise and only roughly identifiable with a particular individual.”
Barrigas‘ name, social security number, address and other identifying information weren’t disclosed. Nor did Stern’s audience hear the sound of her voice. The only thing that might possibly identify her was disclosure of her telephone number, which was publicly listed.
The judge concludes, “There may be circumstances in which the publication of tax related information does constitute an invasion of privacy under Massachusetts law, but for the reasons stated above, the level of the intrusion was significantly diminished here.”
Here’s the full opinion:
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