## Facts

- Robert P. Borquez worked as an associate attorney at Robert C. Ozer, P.C., a law firm owned by Robert C. Ozer.
- Borquez was gay and kept his sexual orientation and personal life private at the firm because Ozer had an acknowledged dislike of homosexuals.
- Borquez was regarded as a capable attorney and received multiple merit raises, including one shortly before his discharge.
- On February 19, 1992, Borquez learned his partner had been diagnosed with AIDS and was advised to obtain HIV testing immediately.
- Borquez was too upset to handle a scheduled deposition and related work responsibilities and sought coverage from Ozer.
- In explaining why he needed coverage, Borquez told Ozer that he was gay, that his partner had been diagnosed with AIDS and hospitalized, and that Borquez needed immediate AIDS testing.
- Borquez asked Ozer to keep this information confidential; Ozer did not respond with any assurance of confidentiality.
- Ozer disclosed the information to others, beginning with his wife (a shareholder in the firm). Within a couple of days, all employees and shareholders of the firm knew Borquez’s circumstances.
- Borquez was terminated within about a week of the disclosure.
- Borquez sued Ozer and the firm for wrongful discharge based on sexual orientation and for invasion of privacy based on public disclosure of private facts.
- A jury found for Borquez on the invasion-of-privacy claim and awarded damages. The trial court denied Borquez’s request for attorney fees and certain costs.
- Defendants appealed the judgment on the invasion-of-privacy verdict, and Borquez cross-appealed the denial of attorney fees and costs.

## Issues

1. Does Colorado recognize a tort claim for invasion of privacy based on public disclosure of private facts, and if so, did dissemination of an employee’s sexual orientation and AIDS-related information within a law firm satisfy the tort’s “publicity” and offensiveness requirements?
2. Was the evidence sufficient to support the jury’s liability and damages findings on the public-disclosure privacy claim?
3. Was Borquez entitled to attorney fees and costs under the statute governing discriminatory discharge based on sexual orientation, and did the trial court err by denying them?

## Decision

- The court affirmed the judgment entered on the jury’s verdict for Borquez on the invasion-of-privacy (public disclosure of private facts) claim.
- The court held that Colorado would recognize the public-disclosure-of-private-facts tort consistent with Restatement (Second) of Torts § 652D and that the evidence supported the jury’s finding that defendants gave actionable publicity to highly private matters.
- The court reversed the trial court’s denial of attorney fees and costs and remanded for further proceedings to determine an appropriate award.

## Legal Principles

- Colorado recognizes invasion of privacy by public disclosure of private facts as described in Restatement (Second) of Torts § 652D: liability may exist when a defendant gives publicity to matters concerning another’s private life if the publicity would be highly offensive to a reasonable person and the matter is not of legitimate concern to the public.
- “Publicity” for § 652D purposes is broader than mere “publication” to a single person; it can be met by communication to the public at large or to so many people that the matter is substantially certain to become public knowledge. In a workplace setting, distribution to all employees and owners/shareholders may satisfy this requirement.
- The tort can apply even where the disclosed facts are true; it protects privacy interests distinct from reputational interests protected by defamation law.
- Disclosure of intimate information such as sexual orientation, a partner’s AIDS diagnosis, and an employee’s need for testing can qualify as private facts, and a jury may find broad, unwanted dissemination of such information highly offensive.
- A limited disclosure to a supervisor for a work-related purpose, coupled with a request for confidentiality, does not automatically waive privacy rights or authorize wider circulation.
- When a statute authorizes attorney fees and costs for a prevailing plaintiff in an employment-discrimination or discriminatory-discharge claim, a trial court’s refusal to award fees and allowable costs may require reversal and remand for a proper fee determination.

## Conclusion

The Colorado Court of Appeals affirmed a jury verdict finding that a law firm and its principal invaded an associate attorney’s privacy by widely circulating private information about his sexual orientation and AIDS-related circumstances within the firm, formally adopting Restatement § 652D for public disclosure of private facts in Colorado, and it reversed the denial of statutory attorney fees and costs, remanding for an award determination.


Borquez v. Robert C. Ozer, P.C., 923 P.2d 166 (1995)