I dissent in part, concur in part. The issue is whether government officials in charge of files reflecting the personal histories of private persons are immune from damage liability created by their dissemination of false, defamatory information in their files after its falsity has been brought to their attention by an affected person. In my opinion, they are not immune.
This is a damage action, not one for injunctive relief. The defendants are the State of California and A. L. Coffey, Chief of the Bureau of Criminal Identification and Investigation. The Bureau is a component of the Department of Justice, which is under the directorship of the State Attorney Gen*631eral. I concur in that portion of the decision affirming the nonsuit won by Mr. Coffey, but believe that the nonsuit won by the State of California should be reversed.
Our nation’s current social developments harbor insidious evolutionary forces which propel us toward a collective, Orwellian society. One of the features of that society is the utter destruction of privacy, the individual’s complete exposure to the all-seeing, all-powerful police state. Government agencies, civilian and military, federal, state and local, have acquired miles and acres of files, enclosing revelations of the personal affairs and conditions of millions of private individuals. Credit agencies and other business, enterprises assemble similar collections. Information peddlers burrow into the crannies of these collections. Microfilm and electronic tape facilitate the storage of private facts on an enormous scale. Computers permit automated retrieval, assemblage and dissemination. These vast repositories of personal information may easily be assembled into millions of dossiers characteristic of a police state.1 Our age is one of shriveled privacy. Leaky statutes imperfectly guard a small portion of these monumental revelations. Appellate courts should think twice, should locate a balance between public need and private rights, before deciding that custodians of sensitive personal files may with impunity refuse to investigate claims of mistaken identity or other error which threaten the subject with undeserved loss. The office of judges is to strike that balance rather than pursue sentiments of indignation or sympathy. It is obvious, nevertheless, that an unwarranted record of conviction, even of arrest, may ruin an individual’s reputation, his livelihood, even his life.2
*632The criminal histories stored by the Bureau of Criminal Identification and Investigation are collected under statutory authority, primarily (but not entirely) for the socially important objective of crime control. No reasonable citizen would quarrel with the collection’s primary objective. A statute restricts dissemination of these histories primarily (but not entirely) to those needing them for law enforcement. (Pen. Code, § 11105.) No statute fixes the duties of its custodians when they become aware of error. or falsity threatening an innocent citizen with infamy.
The criminal histories in the Bureau, one surmises, are collections of “raw” fact, received from many sources and recorded without evaluation. No doubt inaccuracy, error and even outright falsity infiltrate the files. There will be little disagreement with the proposition that Bureau personnel are not obligated to investigate error or falsity until error or falsity is claimed. Penal Code section 11005 declares that the Attorney General shall exercise “absolute control and management” over the Bureau. This statute does not permit one to view the Bureau as an automaton, passively preserving all data transmitted to it and helplessly disseminating all information requested of it. Section 11005 supplies the Attorney General and his subordinates within the Bureau ample power to conduct a reasonable investigation into a criminal history which unjustly maligns an innocent citizen and to correct inaccuracies in the Bureau’s records.
At this point the majority opinion states that “the Bureau was under no duty to change or alter its records on the basis of the unsubstantiated word of the concerned individual.” In my view the quoted statement is an incorrect assumption of law.
Plaintiff’s central allegations are these: In 1939 he had been involved in a youthful scrape of the “joy-riding” variety. As a result, a record was established in the Sacramento files of the Bureau showing that a juvenile court had placed him on probation for “grand theft, auto.”3 In 1941, a local *633police department caused a check forgery charge to be entered on his record at the Bureau. Included were notations of five separate aliases used by the forger and of his whereabouts at El Reno (the location and designation of an Oklahoma state prison). The entry was the result of mistaken identity, for plaintiff was not the forger. During the following years the erroneous forgery entry on his record at the Bureau caused rejection of applications for employment as a policeman and the actual loss of one police job. Eventually he discovered the cause of these rejections and in 1967 went to the Bureau, charging that his record was erroneous and requesting correction.4 He was advised to take the matter up with the local police department which had furnished the information 26 years earlier. His effort to enlist the help of state officials proved fruitless and he brought this suit.
Propriety of the nonsuit turns on the adequacy of plaintiff’s attorney’s opening statement to the jury. The public tort liability law provides the state approximately the same liabilities and immunities as its employees. (Gov. Code, § 815.2.) Thus the state will be liable if its participating employees are liable.
Let us get our conceptual bearings. This action simultaneously bears the earmarks of a suit for libel and one for invasion of privacy.5 Each of these theories of action postulates results which vary with the character' of the defendant’s communication, that is, whether it was innocent, malicious in fact, reckless or negligent.
*634For the purpose of a libel action, communications of the Bureau of Criminal Identification and Investigation are conditionally privileged, even if erroneous or inaccurate; malice alone would cause loss of the privilege.6 ‘While mere negligence does not amount to malice, the latter appears when the statement was made with willful disregard for accuracy.7 Were libel plaintiff’s sole theory of recovery, it would be necessary that he satisfy the jury that the Bureau acted with willful disregard of the harm emanating from an untrue report of crime. (See A.B.C. Needlecraft Co. v. Dun & Bradstreet, Inc., supra'.) Its unrealistic advice that plaintiff solicit the benevolence of the local police department which, a quarter-century earlier, had originated the error, was a bland cloak for official indifference, shunting the citizen in Kafkaesque fashion from agency to agency. Willful disregard lay not so much in the Bureau’s communications of the record a§ in its willful immobility when the victim sought correction.8
Alternatively, the lawsuit is one for invasion of privacy. California law recognizes the actionable character of disclosures which unjustifiably expose the plaintiff’s personal affairs to public view. When the disclosure is false or puts the plaintiff in a.false light, his lawsuit may move from the traditional defamation category and seek its legal underpinnings in the privacy cases.9 Although lack of malice is not a defense in a privacy invasion suit, somewhat parallel defenses are available, for example, the public interest in the disclosure or defendant’s furtherance of its own legitimate functions. (See Time, Inc. v. Hill (1967) 385 U.S. 374, 383-390 [17 L.Ed.2d 456, 464-468, 87 S.Ct. 534]; Briscoe v. Reader’s Digest Association, supra; Werner v. Times-Mirror Co., supra; 1 Witkin, Summary of Cal. Law *635(1960) Torts, § 136; Prosser on Torts (3d ed.) p. 851.) In a general way, all these defenses involve judicial balance between the plaintiff’s right to be “let alone” and the public interest in the disclosure. The point here is that the disclosure’s truth, falsity or reckless disregard of truth profoundly alters the array of interests on each side of the lawsuit. (See, e.g., Time, Inc. v. Hill, supra.)
Crucial at this point is plaintiff’s allegation that the Bureau of Criminal Identification and Investigation continued to circulate his history after he claimed its falsity and requested correction. Statutory policy and overriding public interest had originally called upon the Bureau to disseminate defendant’s record to authorized agencies. (Briscoe v. Reader’s Digest Association, quote ante, fn. 2.) That interest suffered a profound alteration when plaintiff in 1967 brought the error of identity to the Bureau’s attention. A minimal inquiry might have sufficed to reveal the error. The public interest in the circulation of criminal histories among enforcement agencies emphatically did not call for a false history. In counterbalance, plaintiff’s private interest—his interest to be free of damaging, unwarranted intrusions—emphatically cried out for suppression of the false report.
In his opening statement to the jury, plaintiff’s attorney described how his client had lost or been denied employment prior to 1967. The attorney went farther. He told the jury: “If that record is being published now, and we understand it has been published since 1967 at least eight or ten times, and it still has an alias on there, then those publications have been made in spite of the fact that CI&I knew there was no alias supposed to be on that record.”
The attorney’s declarations are ambiguous. They do not state specifically that the Bureau continued to give out the damaging information after 1967. In reviewing the nonsuit, we must accept these declarations in the light most favorable to plaintiff and draw all reasonably available favorable inferences. (Van Zyl v. Spiegelberg (1969) 2 Cal.App.3d 367, 372 [82 Cal. Rptr. 689].) Viewing the attorney’s opening statement in the light most favorable to plaintiff, we must infer an allegation that the Bureau continued to give out the damaging information after its falsity had been brought to its attention. That allegation, in my view, sufficed to state a cognizable claim against the State of California, proof of which would justify an award of resultant damage.
Since plaintiff’s suit against the State requires him to establish the liability of its employees, Government Code section 820.2 requires consideration. That section immunizes public employees from liability for injuries resulting from the exercise of discretion. In the sense, intended by section *636820.2, discretionary activity is that involved in basic policy decisions, sometimes characterized as the “planning” as opposed to the “operational” level of decision-making. (Johnson v. State of California (1968) 69 Cal.2d 782, 793-794 [73 Cal.Rptr. 240, 447 P.2d 352]; Ramos v. County of Madera, 4 Cal.3d 685 [94 Cal.Rptr. 421, 484 P.2d 93].) The rejection of plaintiff’s demand for correction of his record and its continued dissemination thereafter do not rise to the level of discretionary activity.
The opening statement described no ground of recovery against A. L. Coffey individually. A public official has no personal vicarious liability fot a wrong committed by his subordinates unless he negligently selected of retained unfit subordinates. (Fernelius v. Pierce (1943) 22 Cal.2d 226, 235 [138 P.2d 12].) The opening statement did not charge Mr. Coffey with that kind of negligence. Except that he signed a letter in 1962 (before the Bureau was notified of the error in its records), there is no allegation that Mr. Coffey personally participated in any of the events. Thus the nonsuit in favor of Mr. Coffey was entirely proper.
I would reverse the nonsuit judgment won by the State of California.
Appellant’s petition for a hearing by the Supreme Court was denied September 2, 1971.
See Packard, The Naked Society (1964); Brenton, The Privacy Invaders (1964); Westin, Privacy and Freedom (1967); Karst, “The Files”: Legal Control over the Accuracy and Accessibility of Stored Personal Data, 31 L. & Contemp. Prob. 342; Note, Credit Investigations and the Right to Privacy: Quest for a Remedy, 57 Geo. L.J. 509; Comment, Preventive Intelligence Systems and the Courts, 58 Cal.L.Rev. 914.
See T.N.G. v. Superior Court, 4 Cal.3d 767 [94 Cal.Rptr. 813, 484 P.2d 981]; Sterling v. City of Oakland (1962) 208 Cal.App.2d 1 [24 Cal.Rptr. 696]; Comment, Guilt by Record, 1 Cal. Western L.Rev. 126.
Dicta in a recent decision of the California Supreme Court describe both the public interest in circulating criminal information and the private interest which, at some point, gains dominance over the former:
“It is also generally in the social interest to identify adults currently charged with the commission of a crime. While such an identification may not presume guilt, it may legitimately put others on notice that the named individual is suspected of having committed a crime. Naming the suspect may also persuade eye witnesses and character witnesses to testify. For these reasons, while the suspect or offender obviously does not consent to public exposure, his right to privacy must give way to the overriding social interest.” (Briscoe v. Reader’s Digest Association, Inc., 4 Cal.3d 529, 536 [93 Cal.Rptr. 866, 483 P.2d 34].)
“. . . We must also be realistic enough to realize that full disclosure of one’s *632inner thoughts, intimate personal characteristics, and past life is neither the rule nor the norm in these United States. . . . [JJust as the risk of exposure is a concomitant of urban life, so too is the expectation of anonymity regained. It would be a crass legal fiction to assert that a matter once public never becomes private again. Human forgetfulness over time puts today’s ‘hot’ news in tomorrow’s dusty archives. In a nation of 200 million people there is ample opportunity for all but the most infamous to begin a new life.” {Id. at pp. 539-540.)
According to current provisions of the Juvenile Court Law, juvenile wardship proceedings do not involve an “arrest” or “conviction.” (Welf. & Inst. Code, § 503; T.N.G. v. Superior Court, supra, 4 Cal.3d 767.) The law also provides for court orders sealing juvenile court records and for destruction of case records in the hands of other agencies. (Welf. & Inst. Code, § 781.) The stigmatic consequences suffered by plaintiff were prophetically described by an official study conducted in 1960: “Much is made of the confidentiality of juvenile court records to avoid stigmatizing *633the juvenile offender, but it is more often the CII and FBI arrest record that haunts him in later years.” (Report of the Governor’s Special Study Commission on Juvenile Justice, Part I (1960) p. 47, quoted in T.N.G. v. Superior Court, supra, 4 Cal.3d at p. 780, fn. 18.) The T.N.G. opinion contains an extensive bibliography dealing with the stigmatic effects of relatively light brushes with the law and the relative ineffectuality of suppression or “expungement” procedures. A simple but effective approach exists in New York. Ever since 1907 a law of that state has required the return of police records upon demand of persons arrested but not convicted of crime. (N.Y. Pen. Law, § 516.)
In a supplementary statement to the jury, plaintiff’s attorney described correspondence between the Bureau and local police agencies from which Bureau personnel might conceivably have inferred as early as 1951 that its record was erroneous. These statements fell far short of fastening the Bureau with knowledge of the error prior to plaintiff’s visit to the Bureau in 1967. Under no reasonable view of the evidence described in the opening statement could the Bureau have been charged with knowledge prior to the 1967 visit.
Conceivably, also, the claim might be classed as one for negligence, i.e., breach of a duty of care arising from the custodian’s recognition that the dissemination of information falsely attributing crime is likely to result in injury. (See Civ. Code, § 1714; Rowland v. Christian (1968) 69 Cal.2d 108, 112 [70 Cal.Rptr. 97, 443 P.2d 561, 32 A.L.R.3d 496].) One commentator suggests that the vocabulary of negligence law is too loose for balancing the competing interests involved in suits for verbal injuries. (Green, The Duty to Give Accurate Information, 12 U.C.L.A. L.Rev. 464, 472-473.)
Civil Code, section 47. See cases collected in Maxey, Police Tort Liability for Defamation, 16 Clev. Mar. L.Rev. 435.
Roemer v. Retail Credit Co. (1970) 3 Cal.App.3d 368, 371-372 [83 Cal.Rptr. 540]. See Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412, 418 [42 Cal.Rptr. 449, 398 P.2d 785]; cf. Pavlovsky v. Board of Trade (1959) 171 Cal.App.2d 110, 114 [340 P.2d 63]; A.B.C. Needlecraft Co. v. Dun & Bradstreet, Inc. (2d Cir. 1957) 245 F.2d 775, 777; Dun & Bradstreet, Inc. v. Robinson (1961) 233 Ark. 168 [345 S.W.2d 34, 39]; Note, Credit Investigations and the Right to Privacy: Quest for a Remedy, 57 Geo.L.J. 509, 515-516.
One. commentator has pointed out: “The subject himself is the best assistant the police agency can have in clearing up cases of mistaken identity or other omissions such as acquittals or other dispositions favorable to him.” (Karst, op. cit. supra, 31 L. & Contemp. Prob. at pp. 367-368.
Prosser, Torts (3d ed.) pp. 837-839; Wade, Defamation and the Right of Privacy, 15 Vand.L.Rev. 1093, 1121; Prosser, Privacy, 48 Cal.L.Rev. 383, 398-401; Bloustein, Privacy as An Aspect of Human Dignity: An Answer to Dean Prosser, 39 N.Y.U.L.Rev. 962; Kalven, Privacy in Tort Law—Were Warren and Brandeis Wrong? 31 L. & Contemp. Prob. 326, 339-341; see Werner v. Times-Mirror Co. (1961) 193 Cal.App.2d 111, 120 [14 Cal.Rptr. 208].