STATE OF MINNESOTA
IN COURT OF APPEALS
A14-1342
A14-1343
Michael Harlow,
Respondent,
vs.
State of Minnesota Department of Human Services, et al.,
Appellants.
Filed April 27, 2015
Reversed
Kirk, Judge
Ramsey County District Court
File No. 62-CV-13-1493
Gregg M. Corwin, Gregg M. Corwin & Associate Law Office, P.C., St. Louis Park,
Minnesota (for respondent)
Lori Swanson, Attorney General, Althea M. Huyser, Michael Goodwin, Anthony R.
Noss, Assistant Attorneys General, St. Paul, Minnesota (for appellants)
Considered and decided by Kirk, Presiding Judge; Ross, Judge; and Reilly, Judge.
SYLLABUS
Data classified as public under one section of the Minnesota Government Data
Practices Act (MGDPA) do not lose that classification when separately classified as
confidential under another section as part of an ongoing investigation.
OPINION
KIRK, Judge
In this consolidated appeal following the district court’s denial of their motion for
summary judgment, appellants argue that (1) the district court erred by denying summary
judgment on respondent’s MGDPA claims because their statements communicated public
data; (2) the district court erred by denying summary judgment on respondent’s
defamation claim because their statements were absolutely privileged; and
(3) alternatively, their statements were qualifiedly privileged. We reverse.
FACTS
Respondent Michael Harlow, M.D., a psychiatrist, was fired from the Minnesota
Security Hospital following a patient incident in November 2011. This appeal concerns
statements about the incident and Harlow’s firing made by appellants David Proffitt, the
former administrator of the security hospital, and Anne Barry, Deputy Commissioner of
the Minnesota Department of Human Services (DHS), to a reporter for Minnesota Public
Radio (MPR) and, in the case of Proffitt, to DHS employees.
On the evening of November 15, 2011, a patient at the Minnesota Security
Hospital began yelling, threatening staff, and using a chair to hit doors, walls, and
windows. Staff contacted Harlow, the on-call doctor, who authorized the staff to seclude
the patient. The patient was put into seclusion in his bedroom, but was later observed to
be cutting his arms with a broken marker and covering his window with his mattress.
Harlow arrived at the hospital and ordered staff to remove all items from the patient’s
2
room, including his MP3 player, personal items, clothing, and mattress. The patient was
handcuffed while staff removed the items and cut off his clothing, per Harlow’s order,
and was left naked in his room for approximately one hour until receiving a tear-proof
gown at 11:00 p.m. The patient then requested a blanket and mattress so that he could go
to sleep, and staff eventually returned his mattress and blanket at 12:40 a.m. The patient
was released from seclusion at 5:15 p.m. on November 16.
DHS immediately opened an investigation (the employment investigation) into the
November 15 incident. It interviewed several staff members, including Harlow, about
the incident, and issued an investigation report on December 8. This report was later
amended to include information from two additional staff members. On December 20,
Proffitt fired Harlow.
On February 28, 2012, MPR reporter Madeleine Baran reported about turmoil at
the Minnesota Security Hospital. Baran reported that “the current concern among staff
was sparked by the firing of psychiatrist Dr. Michael Harlow after an incident in
November during which a patient was put in seclusion, placed in handcuffs, and stripped
naked.” Madeleine Baran, State facility for the mentally ill risks losing license over
turmoil, MPR News, Feb. 28, 2012, available at
http://www.mprnews.org/story/2012/02/28/minnesota-security-hospital-turmoil. Baran
then described the November 15 incident “according to interviews with security
counselors, Harlow, and a newly released 38-page DHS report.” Id. Baran also
3
interviewed Proffitt and Barry. The following excerpt from Baran’s report is at issue in
this case:
Barry, the DHS commissioner assigned to help resolve the
facility’s licensing issues, said Harlow was fired because he
inappropriately used restraints and seclusion. . . .
“We just need to be very clear that we will no longer
allow anyone, staff or . . . psychiatrists, to work in such a way
that they aren’t complying with our policies around restraint
and seclusion,” Barry said.
Proffitt said the decision to fire Harlow had nothing to
do with restraints or seclusion. Staff could have done more to
prevent the situation from becoming violent, he said, but once
things got out of control, they had no choice but to restrain
the patient. . . .
“He was maintained in a dehumanizing condition for
hours without clothing, without [a] blanket, without a
mattress, without a pillow, even though it was documented he
was trying to sleep on the slab and was calm and quiet,”
Proffitt said. “Those are things that are not common for this
facility. They’re not acceptable for this facility.”
Id.
The day after this report, Proffitt sent an e-mail to DHS employees regarding
“safety, seclusion, and restraint” at the security hospital. Proffitt referenced a recent
report that Harlow felt that he was treated unfairly, and responded: “A violation of an
individual’s rights[,] i.e., maintaining a vulnerable person in a denuded state for multiple
hours without adequate justification[,] required the separation of employment.”
DHS’s Division of Licensing opened a separate investigation (the licensing
investigation) following the November 15 incident, and issued its report on May 24,
2012. This report found that both Harlow and the hospital were responsible for the
patient’s maltreatment. But the report concluded that “the substantiated maltreatment
4
was not recurring because it was a single event, and was not serious because there were
no injuries observed as a result of the maltreatment.”
On June 8, 2012, Baran reported on the results of the licensing investigation for
MPR. Baran stated that the report found that the patient suffered maltreatment and that
“the facility and Dr. Harlow violated licensing standards, but that the violations were not
serious or recurring.” Madeleine Baran, Investigation shows complexity of caring for the
state’s most violent and mentally ill adults, MPR News, June 8, 2012, available at
http://www.mprnews.org/story/2012/06/08/investigation-finds-patient-suffered-
maltreatment-at-minnesota-security-hospital. After reporting that Harlow intended to
appeal the decision, Baran stated: “Department of Human Services Deputy
Commissioner Anne Barry, who approved of the decision to fire Harlow, said she was
surprised the licensing division did not classify the violation as serious. ‘There are
human rights violations there,’ Barry said.” Id.
Harlow requested reconsideration from the Division of Licensing. In response to
Harlow’s additional information, the licensing report was amended in December 2012 to
state that the facility was responsible for the patient’s maltreatment but that Harlow’s
responsibility for the incident was “inconclusive.”
Harlow then sued DHS, Proffitt, and Barry, alleging defamation and several
violations of the MGDPA. Appellants moved for summary judgment on all claims, and
the district court denied the motion. The district court found that “there is a genuine issue
of material fact as to whether the data disclosed qualifies for” protection under the
5
MGDPA and concluded that multiple factual disputes precluded resolution of appellants’
claims of absolute and qualified privilege to Harlow’s defamation claim. This appeal
follows.1
ISSUES
I. Did the district court err by denying summary judgment on Harlow’s
MGDPA claims?
II. Did the district court err by denying summary judgment on Harlow’s
defamation claim?
ANALYSIS
A motion for summary judgment shall be granted “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that either party is entitled
to a judgment as a matter of law.” Minn. R. Civ. P. 56.03. When considering a
summary-judgment appeal, this court reviews de novo whether there is a genuine issue of
material fact and whether the district court erred in applying the law. STAR Ctrs., Inc. v.
Faegre & Benson, L.L.P., 644 N.W.2d 72, 76-77 (Minn. 2002); see Sletten v. Ramsey
Cnty., 675 N.W.2d 291, 299 (Minn. 2004) (applying this standard to the district court’s
denial of summary judgment based on immunity). In doing so, “[w]e view the evidence
in the light most favorable to the party against whom summary judgment was granted.”
1
Appellants filed an interlocutory appeal of the district court’s denial of summary
judgment based on absolute and qualified privilege and petitioned for discretionary
review of the district court’s denial of summary judgment under the MGDPA. This court
granted discretionary review and consolidated the appeals.
6
STAR Ctrs., Inc., 644 N.W.2d at 76-77. But “the party resisting summary judgment must
do more than rest on mere averments.” DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn.
1997).
I. The district court erred by denying summary judgment on Harlow’s MGDPA
claims.
The MGDPA
regulates the collection, creation, storage, maintenance,
dissemination, and access to government data in government
entities. It establishes a presumption that government data
are public and are accessible by the public for both inspection
and copying unless there is federal law, a state statute, or a
temporary classification of data that provides that certain data
are not public.
Minn. Stat. § 13.01, subd. 3 (2014). “The purpose of the MGDPA is to reconcile the
rights of data subjects to protect personal information from indiscriminate disclosure with
the right of the public to know what the government is doing. The Act also attempts to
balance these competing rights within a context of effective government operation.”
KSTP-TV v. Ramsey Cnty., 806 N.W.2d 785, 788 (Minn. 2011) (quotation omitted). The
district court’s interpretation of the MGDPA “is a question of statutory interpretation that
we review de novo.” Helmberger v. Johnson Controls, Inc., 839 N.W.2d 527, 531
(Minn. 2013).
In general, personnel data on current and former employees of a government entity
are public under the MGDPA. Minn. Stat. § 13.43, subd. 2(a) (2014). Public personnel
data include “the final disposition of any disciplinary action together with the specific
reasons for the action and data documenting the basis of the action, excluding data that
7
would identify confidential sources who are employees of the public body.” Id., subd.
2(a)(5). Here, the employment investigation documented the basis for Harlow’s
December 2011 firing, and became public data at the time of the firing, a final disposition
regarding Harlow’s employment. See id.; id., subd. 2(b) (2014) (“[A] final disposition
occurs when the government entity makes its final decision about the disciplinary action,
regardless of the possibility of any later proceedings or court proceedings.”). The
employment investigation therefore contained public data at the time of the February
2012 MPR report and e-mail to DHS employees.
Like a final disposition of a disciplinary action, a final licensing decision is public
data, along with its findings of fact and conclusions of law. Minn. Stat. § 13.41, subd. 5
(2014). But “active investigative data relating to the investigation of complaints against
any licensee” are confidential under the MGDPA. Id., subd. 4 (2014). Because the
licensing investigation was active and ongoing until May 2012, its data were confidential
at the time the challenged statements were made. See id.
Appellants argue that the challenged comments from February 2012 were based
solely on public data in the employment investigation. Proffitt and Barry suggested in
their depositions that, at the time of their statements, they were aware that the licensing
investigation was ongoing but were not aware of its findings. They also stated that their
comments were based on the employment investigation alone. Nevertheless, Harlow
argues that the comments could have been based on data from the ongoing and
confidential licensing investigation. The district court agreed with Harlow’s argument,
8
concluding that the challenged statements could have been based on both public data in
the employment investigation and confidential data in the licensing investigation. The
district court then concluded that there was a genuine issue of material fact regarding
whether Proffitt and Barry violated the MGDPA.
The district court’s ruling contradicts an advisory opinion of the commissioner of
administration.2 The commissioner of administration has statutory authority to issue
advisory opinions regarding the MGDPA. Minn. Stat. § 13.072, subd. 1 (2014); Navarre
v. S. Wash. Cnty. Schs., 652 N.W.2d 9, 23 n.5 (Minn. 2002). In a 2008 advisory opinion,
the commissioner addressed whether certain data were public as part of a final disposition
of disciplinary action under Minn. Stat. § 13.43, subd. 2(a)(5), or private as part of a
student maltreatment investigation under Minn. Stat. § 626.556, subd. 11(a). Op.
Comm’r Admin. 08-014 (June 26, 2008). The commissioner concluded that the data
documenting the basis for the disciplinary action were public under Minn. Stat. § 13.43,
subd. 2(a)(5), but that other data that were not the basis for the disciplinary action
remained private under Minn. Stat. § 626.556, subd. 11(a). Because a final disposition
had occurred in the disciplinary action, that data remained public as classified by the
MGDPA, regardless of the separate confidential investigation.
2
The ruling also contradicts an unpublished opinion from this court, which we find
persuasive, where we stated: “Although the data gathered by the [government agency] as
part of its licensing process may have also become part of a separate criminal
investigation file, the classification of the data in the criminal investigation file does not
change the classification of the data in the [agency’s] license investigation file.”
Anjoorian v. Minneapolis Dep’t of Pub. Safety, No. CX-97-242, 1997 WL 527233, at *3
(Minn. App. Aug. 26, 1997), review denied (Minn. Oct. 21, 1997).
9
Harlow is correct that the commissioner’s advisory opinion is not binding on this
court. See Navarre, 652 N.W.2d at 23 n.5. But the opinion can be persuasive authority.
Id. We find the advisory opinion to be persuasive because it addresses the specific
question in this appeal—whether data can lose their public status under the MGDPA due
to a separate and ongoing investigation. In addition, the opinion is consistent with the
MGDPA’s presumption that data can have more than one classification, depending on
their use. See Minn. Stat. § 13.03, subd. 4(d) (2014) (“If a government entity
disseminates data to another government entity, a classification provided for by law at the
entity receiving the data does not affect the classification of the data at the entity that
disseminates the data.”). Data classified as public under one section of the MGDPA do
not lose that classification simply because they are simultaneously part of a separate
ongoing investigation.
We hold that the data in DHS’s employment investigation became public at the
time of Harlow’s firing, regardless of the ongoing licensing investigation. As a result,
any statements about that public data did not violate the MGDPA. See Minn. Stat.
§ 13.43, subd. 2(a)(5); Johnson v. Dirkswager, 315 N.W.2d 215, 222 (Minn. 1982) (“[I]t
is no violation of the [MGDPA] to tell the reporter about the contents of a public
document.”). Given our holding, we next address whether the challenged statements
were based on the public employment investigation.
10
A. Count One
Harlow’s first claim under the MGDPA involves statements attributed to Proffitt
in the February 2012 MPR report. Baran reported:
Proffitt said the decision to fire Harlow had nothing to
do with restraints or seclusion. Staff could have done more to
prevent the situation from becoming violent, he said, but once
things got out of control, they had no choice but to restrain
the patient. However, he said staff should have returned the
patient’s clothes more quickly.
The employment investigation detailed the patient’s violence and Harlow’s decisions
regarding seclusion and restraint. Proffitt’s statements about Harlow’s actions were
therefore based on public data in the employment investigation and did not violate the
MGDPA.
Neither investigation discussed the reason for Harlow’s firing. Proffitt’s statement
that Harlow’s firing “had nothing to do with restraints or seclusion” was a statement of
his opinion. The MGDPA applies only to recorded data, not “mental impressions formed
by public employees.” Keezer v. Spickard, 493 N.W.2d 614, 617 (Minn. App. 1992),
review denied (Minn. Feb. 12, 1993). As this court explained in Keezer:
A plaintiff must point to an actual record whose contents have
been disseminated to give rise to a claim for improper release
of government data under the Act. A plaintiff cannot
establish the Act was violated merely by showing a
government employee said something about him and that the
statement contained information that arguably might be stored
in a government record. If the information in the employee’s
statement was not actually recorded, then “government data”
have not been created or released.
11
Id. at 618. Harlow has shown that Proffitt made statements about him, but he has not
shown that the statement about the reason for Harlow’s firing can be found in a recorded
investigation. See id. We therefore conclude that Proffitt’s statement about Harlow’s
firing was a mental impression that did not violate the MGDPA.
B. Count Two
Harlow’s second claim under the MGDPA involves a direct quote from Proffitt in
the February 2012 MPR report. Baran reported: “‘[The patient] was maintained in a
dehumanizing condition for hours without clothing, without [a] blanket, without a
mattress, without a pillow, even though it was documented he was trying to sleep on the
slab and was calm and quiet,’ Proffitt said.” This information about the patient’s
condition and behavior appears in the employment investigation. Because this
information appears in the employment investigation, which was made public before the
February 2012 MPR report, Proffitt’s statement did not violate the MGDPA.
C. Count Three
Harlow’s third claim under the MGDPA involves Proffitt’s e-mail to DHS
employees, specifically Proffitt’s statement that “[a] violation of an individual’s rights[,]
i.e., maintaining a vulnerable person in a denuded state for multiple hours without
adequate justification[,] required the separation of employment.” The information about
the patient’s “denuded state” appears in both the employment investigation and licensing
investigation. But only the licensing investigation determined that this condition was not
12
justified. The employment investigation did not reach conclusions regarding whether the
patient’s treatment was justified.
Like Proffitt’s statement about the reason for Harlow’s firing, we conclude that
this statement about violating the patient’s rights was Proffitt’s opinion and did not
violate the MGDPA. See id. at 617. There is no evidence in the record that Proffitt had
access to the licensing investigation before its release in May 2012. Proffitt only knew
that there was a separate ongoing licensing investigation, not that it would conclude that
Harlow’s actions were not justified. Given the record, we conclude that Proffitt’s
statement was based on his opinion, rather than a release of confidential data from the
licensing investigation.
D. Count Four
Harlow’s fourth claim under the MGDPA involves statements attributed to Barry
in the February 2012 MPR report. Baran reported: “Barry, the DHS commissioner
assigned to help resolve the facility’s licensing issues, said Harlow was fired because he
inappropriately used restraints and seclusion.” Again, Harlow’s use of restraints and
seclusion was detailed in the employment investigation and was public under the
MGDPA. And, like Proffitt’s statement about the reason for Harlow’s firing, Barry’s
statement was a mental impression that did not violate the MGDPA. See id.
E. Count Five
Harlow’s final claim under the MGDPA involves a direct quote from Barry in the
February 2012 MPR report. Baran reported: “‘We just need to be very clear that we will
13
no longer allow anyone, staff or . . . psychiatrists, to work in such a way that they aren’t
complying with our policies around restraint and seclusion,’ Barry said.” The
employment investigation referenced a restraint-and-seclusion policy, but did not
describe it. In contrast, the licensing investigation described the policy, and determined
that it was not followed.
There is no evidence in the record that Barry had access to the licensing
investigation before its May 2012 release or knew that it would conclude that Harlow
violated DHS policy.3 As with the other statements, Barry gave her mental impression
based on public data, and did not violate the MGDPA. See id.
In sum, the district court erred by denying summary judgment on Harlow’s
MGDPA claims because the challenged statements were either based on public data in
the employment investigation or based on Proffitt’s and Barry’s opinions.
II. The district court erred by denying summary judgment on Harlow’s
defamation claim.
In his defamation claim, Harlow challenged all five statements discussed above, as
well as Barry’s statement in the June 2012 MPR report regarding human rights violations.
Appellants argue that the statements were absolutely privileged, and that the district court
therefore erred by denying summary judgment. Whether absolute privilege applies to
3
At oral argument, Harlow suggested that Barry had access to the licensing investigation
because its results were eventually changed. We disagree. Barry made her challenged
statements in February 2012, and the licensing investigation was completed in May and
amended in December. Even if Barry directed the investigation to be changed between
May and December, and there is no evidence in the record to that effect, there is no
evidence that she had advance knowledge of the investigation’s conclusions at the time
of her statements.
14
allegedly defamatory statements is a question of law that we review de novo. Minke v.
City of Minneapolis, 845 N.W.2d 179, 182 (Minn. 2014). “Absolute privilege bars
liability for even intentionally false statements, coupled with malice.” Id. (quotation
omitted). As a result, absolute privilege “is not lightly granted and applies only in limited
circumstances.” Zutz v. Nelson, 788 N.W.2d 58, 62 (Minn. 2010).
Absolute privilege for an executive-branch official “depends on a number of
factors, including the official’s assigned functions, whether the statements made were
integral to performing those functions, and the public interest furthered by allowing the
official to speak freely about the statement’s subject matter.” Bd. of Regents of Univ. of
Minn. v. Reid, 522 N.W.2d 344, 347 (Minn. App. 1994), review denied (Minn. Oct. 27,
1994). The district court cited this language in Reid, before concluding:
[T]he availability of an absolute privilege defense to Mr.
Proffitt and Ms. Barry will depend upon an analysis of their
statements in the context of their respective jobs (and
appropriate characterizations of their rank) and whether the
statements relate to a topic of public concern or were simply
self-serving, contradictory, inaccurate and unnecessarily
inflammatory disclosures of non-public information.
But “[t]he availability of absolute immunity to an executive official in defamation suits
does not depend on the truth or falsity of the statement or the nature or intent of the
speaker.” Id. By referencing the accuracy of and motivations behind the statements, the
district court misstated the standard for absolute privilege.
No caselaw has specifically determined whether a DHS deputy commissioner and
the administrator of the security hospital are entitled to absolute privilege. In general,
15
only high-level executive-branch officials enjoy absolute privilege and “we have been
reluctant to extend absolute privilege to lower-level officers.” Minke, 845 N.W.2d at
182. But absolute privilege does not depend on an official’s rank or title. Reid, 522
N.W.2d at 347. We have granted absolute privilege to executive-branch officials who
hold positions other than commissioner. See, e.g., Buchanan v. Minn. State Dep’t of
Health, 573 N.W.2d 733, 737 (Minn. App. 1998) (extending absolute privilege to the
Program Manager for the Minnesota Department of Health’s Licensing and Certification
Section), review denied (Minn. Apr. 30, 1998); Reid, 522 N.W.2d at 346-47 (extending
absolute privilege to high-level University of Minnesota officials).
Contrary to Harlow’s assertion, we conclude that Proffitt and Barry held
sufficiently high-ranking positions to qualify for absolute privilege. As the hospital
administrator and the deputy commissioner assigned to supervise state treatment
programs, Proffitt and Barry were responsible for overseeing the management and
operation of the security hospital. Both were higher ranking than the health department
program manager in Buchanan, whom we found entitled to absolute privilege. See 573
N.W.2d at 737 (stating that the program manager supervised “the licensure and
inspection of home health care providers”). And Barry even had statutory authority to
speak on behalf of the commissioner. See Minn. Stat. § 15.06, subd. 7 (2014) (“The
deputy commissioner shall have all the powers and authority of the commissioner unless
the commissioner directs otherwise, and shall speak for the commissioner within and
without the department or agency.”). Because Proffitt and Barry were sufficiently high
16
ranking, we will analyze other factors to determine whether they qualify for absolute
privilege. See Reid, 522 N.W.2d at 347.
Appellants suggest that this case is similar to Reid, in which three University of
Minnesota administrators made statements at a press conference suggesting that two
university professors had committed civil and criminal fraud. See id. at 346. This court
concluded that the administrators had absolute immunity because (1) they were
designated as spokespersons by the University or their job responsibilities included
communicating to the public regarding the subject of the dispute, (2) the statements were
integral to the performance of the administrators’ assigned functions, and (3) the remarks
concerned an issue of critical public concern. Id. at 347.
Appellants argue that, as in Reid, Proffitt and Barry were designated as
spokespersons and made statements integral to the performance of their assigned
functions. Barry stated in her deposition that Baran contacted DHS’s communications
office before her February 2012 report for MPR and that Barry was “assigned the
interview” by the DHS communications director because “[it] would have been either
[her] or the commissioner who did the interview, and [she] was in a better position to do
the interview.” See Minn. Stat. § 15.06, subd. 7. Proffitt similarly stated that he was told
to participate in the MPR interview because it was part of his job. And Proffitt’s former
supervisor stated in an affidavit that “[c]orresponding with staff in response to press
coverage of the facility was one of Proffitt’s job-related functions” as hospital
administrator.
17
We conclude that there are no genuine issues of material fact regarding whether
Proffitt and Barry were designated as spokespersons and gave statements according to
their assigned functions. Harlow cites no fact in the record that disputes Proffitt’s and
Barry’s statements that they were designated as spokespersons by DHS before the MPR
interview.4 See Reid, 522 N.W.2d at 347 (stating that “the uncontroverted evidence
shows that the University designated [three administrators] as spokespersons”). Harlow
also does not dispute the statement of Proffitt’s former supervisor that “[c]orresponding
with staff in response to press coverage of the facility was one of Proffitt’s job-related
functions.” Harlow merely avers that Proffitt and Barry spoke outside of their assigned
duties. See DLH, Inc., 566 N.W.2d at 71 (“[T]he party resisting summary judgment must
do more than rest on mere averments.”).
Because we conclude that Proffitt and Barry made their statements as part of their
assigned functions, we next consider whether the public interest is furthered by allowing
them to speak on this subject. See Reid, 522 N.W.2d at 347; see also Minke, 845 N.W.2d
at 183 (stating that we only extend absolute privilege “based on a compelling public
policy interest”).
In Redwood Cnty. Tel. Co. v. Luttman, we concluded that a sheriff’s statements
about a 911 emergency telephone system were protected by absolute privilege in order to
“serve the public good by keeping the public informed of the public’s business.” 567
4
Harlow cites the presence of a DHS spokesperson at the MPR interview as evidence
that Proffitt and Barry were not designated spokespersons. But the record contains no
reference to a DHS spokesperson attending the MPR interview.
18
N.W.2d 717, 721 (Minn. App. 1997) (quotation omitted), review denied (Minn. Oct. 21,
1997). Harlow argues that, unlike the sheriff in Luttman, Proffitt and Barry “did not
provide sound information on an issue of critical public concern.” As evidence, Harlow
cites allegedly contradictory statements in the February 2012 MPR report, where Barry
stated that Harlow was fired for his use of restraints and seclusion, and Proffitt stated that
the use of restraints and seclusion was irrelevant to Harlow’s firing. But because
absolute privilege is available despite the truth or falsity of the speaker’s statements, the
allegedly contradictory nature of the statements is irrelevant. See Reid, 522 N.W.2d at
347. In addition, Harlow argues that his firing was not a matter of public concern. But
Proffitt and Barry responded to questions regarding conditions at the security hospital,
which, like the 911 system, involved a matter of public concern. See Luttman, 567
N.W.2d at 721. And no caselaw suggests that information about employee firings is
somehow outside the public interest. See Reid, 522 N.W.2d at 347 (providing absolute
privilege to statements regarding the actions of two fired university employees).
We conclude that Proffitt and Barry provided the public with important
information about a matter of public concern. In Johnson, the supreme court provided
absolute immunity to a commissioner in part because his statements about a fired state
hospital employee involved “the administration of the state hospital system, the use of
public funds, the execution of public health care policies, and the welfare of . . . patients
in the state hospitals.” 315 N.W.2d at 221; see Buchanan, 573 N.W.2d at 737 (extending
absolute privilege to a program manager’s statement about a home health care provider in
19
part because “the public could have been hurt directly if the care provided was
inadequate.”). Here, Proffitt and Barry discussed conditions at the security hospital,
which is funded and licensed by the state. See Minn. Stat. § 253.20 (2014) (discussing
DHS’s maintenance of the security hospital). The public had a strong interest in learning
about the hospital’s administration, patient care, and use of public funds. See Johnson,
315 N.W.2d at 221. The information about Harlow’s firing thus provided important
information about hospital operations to the public.
Because Proffitt and Barry were high-ranking officials who made statements
integral to their positions about a matter important to the public interest, they are entitled
to absolute privilege as a matter of law, and the district court erred by denying summary
judgment to them on Harlow’s defamation claim.5
DECISION
Because the data in the employment investigation were public under the MGDPA
regardless of the ongoing licensing investigation, the district court erred by denying
summary judgment to appellants on Harlow’s MGDPA claims. The district court also
erred by denying summary judgment to appellants on Harlow’s defamation claim because
Proffitt and Barry are entitled to absolute privilege.
Reversed.
5
Because we determine that appellants qualify for absolute privilege and are entitled to
summary judgment, we need not address their alternative qualified-privilege argument.
20