Harlow v. State Dep't of Human Servs.

• Decision Date: 27 April 2015
• Docket Number: A14–1343.,Nos. A14–1342,s. A14–1342
• Citation: 862 N.W.2d 704
• Parties: Michael HARLOW, Respondent, v. STATE of Minnesota DEPARTMENT OF HUMAN SERVICES, et al., Appellants.
• Court: Minnesota Court of Appeals

862 N.W.2d 704

Michael HARLOW, Respondent

v.STATE of Minnesota DEPARTMENT OF HUMAN SERVICES, et al., Appellants.

Nos. A14–1342

A14–1343.

Court of Appeals of Minnesota.

April 27, 2015.

Review Granted July 21, 2015.

Gregg M. Corwin, Gregg M. Corwin & Associate Law Office, P.C., St. Louis Park, MN, for respondent.

Lori Swanson, Attorney General, Althea M. Huyser, Michael Goodwin, Anthony R. Noss, Assistant Attorneys General, St. Paul, MN, for appellants.

Considered and decided by KIRK, Presiding Judge; ROSS, Judge; and REILLY, Judge.

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 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 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 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 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.” 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 would identify confidential sources who are employees of the public...