Densmore v. City of Boca Raton

• Decision Date: 21 March 1979
• Docket Number: No. 77-1953,77-1953
• Citation: 368 So.2d 945
• Parties: Neal H. DENSMORE, Appellant, v. The CITY OF BOCA RATON, a Florida Municipal Corporation, et al., Appellees.
• Court: Florida District Court of Appeals

Page 945

368 So.2d 945

Neal H. DENSMORE, Appellant, v. The CITY OF BOCA RATON, a Florida Municipal Corporation, et al., Appellees.

No. 77-1953.

District Court of Appeal of Florida, Fourth District.

March 21, 1979.

Richard E. Bosse, of Kurzinger & Honchell, P. A., Boca Raton, for appellant.

M. A. Galbraith, Jr., City Atty., Cormac C. Conahan, Sr., and Robert A. Eisen, Asst. City Attys., Boca Raton, and D. Culver Smith, III, of Adams, Coogler, Watson & Smith, West Palm Beach, for appellants.

ANSTEAD, Judge.

The appellant, Neal H. Densmore, seeks reversal of a final summary judgment entered on appellant's action for defamation and invasion of privacy in favor of appellees, Donald Crawford, the City of Boca Raton, and members of the city commission. We affirm.

Densmore was employed as a building inspector for the City of Boca Raton. In 1975 the city council instructed its attorneys to conduct an investigation of allegations of misconduct in the building department of the city. Subsequently the attorneys filed a written report containing the results of the investigation. That report contained allegations of misconduct on the part of Densmore in the performance of his duties as a building inspector. In a proceeding not involving the same parties this court held the report to be one of public record and hence subject to disclosure. ¹ The city council gave the report to the city manager, Donald Crawford, and instructed him to take whatever action he deemed necessary as a result of the findings in the report. One of the actions taken by Crawford was to discharge Densmore. He did so by writing Densmore a letter which contained some of the same allegations that were contained in the report. Crawford then made the contents of the letter public. ²

Densmore then sued Crawford and his employers for defamation and invasion of privacy based on Crawford's release of the letter of discharge. In addition to other defenses Crawford claimed that his actions were absolutely privileged. After various discovery proceedings the appellees moved for summary judgment which was granted by the trial court. The parties agree that there are no factual disputes.

Densmore claims that the letter written by Crawford showed that a copy was to go to Densmore's personnel file. As a result, he maintains that the letter became a confidential part of his employment record and that its release, absent his consent, constituted an invasion of his right to privacy. Densmore asserts that his right to privacy should prevail over the claim of privilege. In addition to claiming executive privilege, the appellees assert that Densmore enjoyed no right of privacy with respect to disclosure of the reasons for his discharge and that since this court has already held that the information contained in the letter, which was the same as that contained in the attorney's report, was a public record, the letter itself could not be actionable.

First, since Densmore concedes that the same information contained in the letter was made public by our previous decision in a case involving the report upon which the letter was based, ³ we fail to see how Crawford can be held legally liable for any public disclosure of what is now admittedly public information.

Secondly, while Densmore asserts that the primary issue is his right to a cause of action for breach of his constitutional right of privacy, we think the issue is more properly brought into focus by examining the Supreme Court's rulings on executive privilege. In the landmark decision of McNayr v. Kelly, 184 So.2d 428 (Fla.1966) our Supreme Court extended the doctrine of absolute immunity from liability to executive officials with respect to defamatory publications made in connection with the performance of their official duties. The Court recognized that extension of the doctrine would infringe upon some constitutional rights:

Admittedly the question is a difficult one not only for the reasons heretofore stated in this opinion but because of the impact of constitutional provisions such as the provision of our Declaration of Rights which provides that the courts of this State shall be open so that every person for any injury done him in his lands, goods, person or reputation shall have remedy by due...