Opinion
REGAN, J.Plaintiff brings this action for damages against the State of California and certain designated employees and agents thereof, acting through the Department of Justice, Bureau of Criminal Identification and Investigation (hereafter referred to as Bureau), alleging that the Bureau negligently posted to plaintiff’s record, and negligently disseminated and published erroneous information relating to plaintiff. After plaintiff’s opening statement the court granted defendants’ motion for a nonsuit. Plaintiff appeals from the judgment.
There having been no objection raised to the statement of facts as set forth in defendants’ brief, we adopt the same as the true statement of facts herein.
Plaintiff was arrested, made a ward of the juvenile court, and placed on probation for grand theft auto in San Diego in 1939. As indicated by a 1951 letter from a Merced Police Department inspector, Robert L. Kellerer, in 1941 plaintiff had been identified from a photograph as the person who had passed a forged check at a Merced chain store. The photograph of plaintiff was obtained by Merced from the San Diego Police Department bearing its identification number 12356.
At some time after August 4, 1941, a notation was added to plaintiff’s record at the Bureau, which stated as follows: “8-4-41. Merced P.D. Eugene White, wanted;'fictitious checks. ‘Rep. 285.’ Subject is in El Reno, Oklahoma. Due to small amount involved, D.A. will not extradite. Still wanted if apprehended in California. L.E.T. 8-15-41.” In addition, the following aliases were added to plaintiff’s record: “Enos White,” “Norman Railton,”. “Victor Kemp,” and “J. B. Cabral.” Presumably, these were the names used on the fictitious checks.
In 1951, as a result of plaintiff’s application to the National City Police Department for a police officer’s position, the Bureau notified the Merced Police Department that plaintiff was in National City. Inspector Kellerer of the Merced Police Department replied as follows: “Reference is made *624to your letter of September 1951 relative to Eugene White who was wanted by this department for passing of fictitious checks in 1941. Upon review of this file, I find that suspect had been identified from a photograph as the person who had passed a forged check at one of the local chain stores. However, no complaint was apparently filed against him as he was known to have left the state. As a result, due to the statute of limitations, this department has no further hold on this subject.
“A copy of the photograph of Gene Arthur White, San Diego P.D. 12356, is enclosed herewith for your files. A copy of this letter, as well as photograph, is being forwarded to Chief of Police, National City. Thank you for your information.”
In 1962, in connection with the employment of plaintiff by the Clovis Police Department, the Clovis police chief, Thomas Higgason, after having received the arrest record of plaintiff from the Bureau, wrote the Bureau as follows: “Dear Sir: The subject enclosed states alias names are false. Would you check once again and send the information to us as soon as possible. CII 629212. Eugene Arthur White. Thank you for your attention. Very truly yours, Chief of Police.”
The Bureau replied as follows: “October 9, 1962. Dear Chief: This Bureau has received your recent inquiry concerning Eugene Arthur White, CI&I 629212. Attached is a photostat of a fingerprint card of the subject, showing alias names as reported to this Bureau. If we may be of any further assistance in this matter, please do not hesitate to communicate with us. Yours very truly . . . .”
In 1967, plaintiff went to the Bureau seeking to examine his record as he believed it contained erroneous information. He was shown his file, and he denied that the record was his. He was advised by the Bureau that if information in the file was incorrect he should have the agency which submitted the information so advise the Bureau; that the information would not be deleted solely on his claim that it was false.
In 1967, at plaintiff’s request for assistance, the Governor and others advised plaintiff to go to the Bureau to have the matter looked into, and Assemblyman Zenovich’s office inquired into what the record contained in an attempt to assist plaintiff in his claim that the record was incorrect.
Before turning to the merits of this appeal, we note the following code provisions relating to the duties and responsibilities of the Bureau:
“The Attorney General shall exercise absolute control and management of the bureau.” (Pen. Code, § 11005.)
*625“The Attorney General shall procure from any available source, and file for record and report in the office of the bureau, all plates, photos, outline pictures, descriptions, information and measurements of all persons convicted of a felony, or imprisoned for violating any of the military, naval, or criminal laws of the United States of America, and of all well-known and habitual criminals.” (Pen. Code, § 11101.)
' “The Attorney General shall file all plates, photographs, outline pictures, measurements, information and descriptions received and shall make a complete and systematic record and index, providing a method of convenience, consultation and comparison.” (Pen. Code, § 11104.)
“(a) The Attorney General shall furnish, upon application in accordance with the provisions of subdivision (b) of this section, copies of all information pertaining to the identification of any person, such as a plate, photograph, outline picture, description, measurement, or any data about such person of which there is a record in the office of the bureau.
“(b) Such information shall be furnished to all peace officers, district attorneys, probation officers, and courts of the state, to United States officers or officers of other1 states, territories, or possessions of the United States, or peace officers of other countries duly authorized by the Attorney General to receive the same, and to any public defender or attorney representing such person in proceedings upon a petition for certificate of rehabilitation and pardon pursuant to Section 4852.08, upon application in writing accompanied by a certificate signed by the peace officer, public defender, or attorney, stating that the information applied for is. necessary for the due administration of the laws, and not for the purpose of assisting a private citizen in carrying on his personal interest or in maliciously or uselessly harassing, degrading or humiliating any person.
“(c) Such information shall not be furnished to any persons other than those listed in subdivision (b) of this section or as provided by law; provided, that such information may be furnished to any state agency, officer, or official when needed for the performance of such agency’s, officer’s or official’s functions.” (Pen. Code, § 11105.)
In this appeal from a judgment of nonsuit pursuant to section 581c of the Code of Civil Procedure, special rules are applicable;
“At the outset we note that the judgment of nonsuit operated as an adjudication upon the merits. [Citations.] Although the judgment of nonsuit is an adjudication upon the merits it is not treated on appeal like most appeals when it is the duty of the appellate court to indulge every reasonable intendment in favor of sustaining the trial court. The appro*626priate rule which the reviewing court‘must follow is that the court must view the evidence in the light most favorable to the appellant, must disregard all inconsistencies and draw only inferences from the evidence which can reasonably be drawn which are favorable to the appellant. [Citations.] It is only when the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of the plaintiff that the granting of a motion for nonsuit is warranted. [Citations.]” (Van Zyl v. Spiegelberg (1969) 2 Cal.App.3d 367, 371-373 [82 Cal.Rptr. 689].)
As previously noted, the Bureau is required by law to receive and file information, fingerprints, photographs, crime reports, and other data submitted by law enforcement agencies, and to furnish, upon application, such information to authorized persons. (In general, see art. 3 (commencing with § 11100), ch. 1, pt. 4, tit. I, Pen. Code.)
In his complaint plaintiff makes a two-pronged attack. He first alleges that he was damaged by defendants’ libelous utterances1 and, secondly, that he was damaged through defendants’ negligence and carelessness. With this background in mind, we turn to his contentions.
Plaintiff contends that the trial court erred when it held that the publication was absolutely privileged. In this connection, subdivision 1 of section 47 of the Civil Code provides:
“A privileged publication or broadcast is one made—
“1. In the proper discharge of an official duty.” He contends the word “proper” is consistent with a qualified privilege (Saroyan v. Burkett (1962) 57 Cal.2d 706, 708-709 [21 Cal.Rptr. 557, 371 P.2d 293]), and that it means “free of negligence,” and was therefore a question for the jury.
In Saroyan, the court examined the history behind subdivision 1 of section 47,2 and ruled that the Superintendent of Banks was a state official *627corresponding in rank to federal cabinet officers, and thus press releases issued by him were absolutely privileged. Plaintiff contends that the individual defendants did not have a rank corresponding to federal cabinet officers.3
On the other hand, defendants submit that the Saroyan decision did not limit the applicability of the subdivision to state officers of the rank of federal cabinet members. They argue that public officials who are under a mandatory duty to publish information filed with them are entitled to an absolute privilege since they are pubhshing information in the “proper discharge of an official duty.” (Cf. Hale Company v. Lea (1923) 191 Cal. 202, 205-207 [215 P. 900].)
No California case has been cited, and we have found none, which is precisely in point. There is a conflict in the decisions of other jurisdictions.
“The common law immunity of absolute privilege is also allowed to the principal executive officers in the nation and states. A similar rule is applied in England. The policy involved here is the same as that involved in other cases of absolute privilege. In order to insure efficient government, policy-forming officials must be free to exercise their best judgment in the performance of their duties. The chief problem is the determination of *628the officials who should receive the complete immunity. It is clear that the President of the United States and the governors of the various states and territories come within the rule, as do the members of the President’s cabinet and heads of agencies and comparable state officers. As to officials below this rank, the cases are in conflict, some courts applying the rule of absolute privilege, others the more limited protection of qualified privilege in which protection is dependent on the honesty and reasonableness of the official’s conduct.” (1 Harper and James, The Law of Torts, § 5.23, p. 429; see also Note, 26 A.L.R.3d 492.)
The defendants’ position is an appealing one, especially in view of the statutory scheme which requires the Bureau to collect and disseminate information relating to crime. However, there is no indication in Saroyan that absolute privilege is to be extended to executives of lesser rank. We therefore hold that the trial court erred in granting nonsuit on the basis that defendants’ publications were absolutely privileged.
Plaintiff also contends that the trial court erred when it found this publication to be conditionally privileged. This contention has no merit.
Civil Code section 47, defining privileged communications, also includes the following:
“3. In a communication, without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such relation to the person interested as to afford a reasonable ground for supposing the motive for the communication innocent, or (3) who is requested by the person interested to give the information.” (Italics added.)
This subdivision sets forth a qualified privilege. (Kapellas v. Kofman (1969) 1 Cal.3d 20, 28 [81 Cal.Rptr. 360, 459 P.2d 912].) The dissemination of information furnished by the Bureau at an authorized recipient’s request falls within this statute. This privilege, however, is termed “qualified” or “conditional” because it applies only to a communication made “without malice.” (Roemer v. Retail Credit Co. (1970) 3 Cal.App.3d 368, 370-371 [83 Cal.Rptr. 540].) The term “malice” is discussed in McCunn v. California Teachers Assn. (1970) 3 Cal.App.3d 956, 962 [83 Cal.Rptr. 846]:
“The California Civil Code defines ‘actual malice’ as ‘that state of mind arising from hatred or ill will toward the plaintiff; . . .’ (Civ. Code, § 48a, subd. (4) par. (d).)
“Various definitions have also been announced by the California courts, *629among them: ‘[Malice is] a desire' or disposition to injure another founded upon spite or ill will. [While the] absence of malice is the absence of enmity.’ (Siemon v. Finkle, 190 Cal. 611, 618 [213 P. 954].) ‘[The privilege] is lost if the publication is motivated by hatred or ill will . . . [citations], or by any cause other than the desire to protect the interest for the protection of which the privilege is given. . . . [It] is lost if [the publisher] has no reasonable grounds for believing his statements to be true.’ (Brewer v. Second Baptist Church, 32 Cal.2d 791, 797 [197 P.2d 713].) Actual malice or malice in fact, is a state of mind arising from hatred or ill will, evidencing a willingness to vex, annoy, or injure another person. (Davis v. Hearst, 160 Cal. 143, 157 [116 P. 530].) ‘ “Actual malice, . . . means personal hatred or ill will towards the plaintiff, or wanton disregard of the civil obligations of the defendants toward the plaintiff.” ’ (Hearne v. DeYoung, 132 Cal. 357, 361-362 [64 P. 576].) Malice may also be implied if the defamatory remarks, although honestly believed to be true, are ‘exaggerated, overdrawn, or colored to the detriment of plaintiff, or are not stated fully and fairly with respect to the plaintiff, . . .’ (Snively v. Record Publishing Co., 185 Cal. 565, 578 [198 P. 1].)”
In Roemer v. Retail Credit Co., supra, 3 Cal.App.3d at page 371, the court states: “ ‘[0]rdinarily the privilege is lost if defendant has no reasonable grounds for believing his statements to be true’ (Brewer v. Second Baptist Church, 32 Cal.2d 791, 797 [197 P.2d 713]). But this is not to say that mere negligence in making ‘a sufficient inquiry into the facts on which the statement was based’ does, of itself, relinquish the privilege. ‘Mere inadvertence or forgetfulness, or careless blundering, is no evidence of malice.’ (Davis v. Hearst, 160 Cal. 143, 167 [116 P. 530].)”
We note the holding in Smith v. Hatch (1969) 271 Cal.App.2d 39, 47-48 [76 Cal.Rptr. 350]: “Since the qualified privilege creates a presumption that the communication is made innocently and without malice (Jones v. Express Publishing Co., 87 Cal.App. 246, 256 [262 P. 78]; Lesperance v. North American Aviation, Inc., 217 Cal.App.2d 336, 341 [31 Cal.Rptr. 873]), the pleadings must contain affirmative allegations of malice in fact, and malice must exist as a fact in order to destroy the privilege. (Lesperance v. North American Aviation, Inc., supra; Locke v. Mitchell, 7 Cal.2d 599, 602 [61 P.2d 922]; Larrick v. Gilloon, 176 Cal.App.2d 408, 416 [1 Cal.Rptr. 360]; McMann v. Wadler, supra.) Such facts must establish that the person speaking the defamatory words entertained toward the person defamed a feeling of hatred or ill will going beyond that which the occasion for the communication apparently justified and different from that motive which prima facie rendered the communication privileged. [Citations.]”
With these principles in mind, we find nothing in the complaint or the *630opening statement to support plaintiff’s argument. There is no showing of malice on the part of the Bureau or its employees. It is true that the Bureau was advised by unsubstantiated statements that the information in plaintiff’s record was false. However, the Bureau was under no duty to change or alter its records on the basis of the unsubstantiated word of the concerned individual. This is not a case where defendants had no reasonable grounds for believing their statements to be true. The information came from a law enforcement agency, and the Bureau was under a statutory duty to record and disseminate such information to authorized persons. Thus, we hold that the Bureau’s dissemination of information was conditionally privileged. (See Smith v. Hatch, supra, 271 Cal.App.2d at p. 48.) In this connection it must be remembered that plaintiff made no effort to have the contributing agency rectify the alleged error.
Plaintiff alleges a “conspiracy of silence.” A charge of “conspiracy” is easily conjured up. Plaintiff fails, however, to show how he could prove such a conspiracy. In fact, plaintiff was allowed access to his records, but for some reason failed to try and correct the mistake, if any.
Plaintiff further contends that the trial court erred in holding that no tort was demonstrated. The trial judge found, inter alia, that the claims of defamation, intentional infliction of emotional distress, and invasion of privacy were fatally defective since the necessary culpability was lacking. We agree.
The trial court found, and we so hold, that the publication of such material was conditionally privileged. There is no showing whatsoever of malice on the part of the Bureau’s employees, and thus no abuse of the. privilege. We hold that the trial court properly granted a nonsuit.
The judgment is affirmed.
Janes, J., concurred.
“Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.” (Civ. Code, § 45.)
“Section 47 was enacted in 1872, and subdivision 1 has remained the same since that time. The annotation to section 47 made by the Code Commission in 1872 is significant. In a preface to the annotated edition of the Civil Code, it was said that the purpose of the notes to the various sections was to explain the ‘reason’ and ‘intent’ of the law and that, wherever there was an intent to modify existing law, the reasons for the change would be given. With respect to section 47, the annotation consists solely of the citation of a textbook and three New York cases, and according to these authorities an absolute privilege was confined to statements made in the course of judicial or legislative proceedings. The cases that contain language to the effect that the privilege conferred by subdivision 1 is an absolute one, e.g., Hale Co. *627v. Lea, 191 Cal. 202, 205 [215 P. 900]; Snively v. Record Publishing Co., 185 Cal. 565, 577 [198 P. 1]; Irwin v. Newby, 102 Cal.App. 110, 115 [282 P. 810, 283 P. 370], did not consider the background of the subdivision or the meaning to be given to the word ‘proper’ therein, and the only case involving an executive official, Hale Co. v. Lea, supra, held that the official was not privileged because he was acting outside the scope of his authority.
“It thus appears that the problem of the extent, if any, to which executive officials have an absolute privilege cannot be satisfactorily resolved on the basis of the statutory language, the historical background of the subdivision or the California cases cited above, and a solution must be found by considering the treatment of the subject in the law generally. This approach is particularly appropriate in regard to the statute before us because it was evidently intended as a codification of the general principles developed by the courts. 66
“The rule as it has developed with respect to both federal and state officials of high rank is set forth in section 591 of the Restatement of Torts, which reads: ‘The President of the United States and the Governor of any State or Territory thereof, cabinet officers of the United States and the corresponding officers of any State or Territory thereof are absolutely privileged to publish" false and defamatory matter of another in the exercise of an executive function, if the matter has some relation to the executive proceeding in which the officer is acting.’
“We are in accord with the rule granting an absolute privilege to state officials corresponding in rank to federal cabinet members.” (Saroyan v. Burkett, supra, 57 Cal.2d at pp. 709-710.)
Although the Attorney General is required to exercise absolute control and management of the Bureau (Pen. Code, § 11005), he was not named as a party.