Harlow v. State

• Citation: 883 N.W.2d 561
• Decision Date: 10 August 2016
• Docket Number: No. A14–1342.,A14–1342.
• Parties: Michael HARLOW, Appellant, v. STATE of Minnesota, DEPARTMENT OF HUMAN SERVICES, et al., Respondents.
• Court: Supreme Court of Minnesota (US)

883 N.W.2d 561

Michael HARLOW, Appellant,

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

No. A14–1342.

Supreme Court of Minnesota.

Aug. 10, 2016.

Gregg M. Corwin, Grant S. Gibeau, Gregg M. Corwin & Associate Law Office P.C., Saint Louis Park, Minnesota, for appellant.

Lori Swanson, Attorney General, Althea M. Huyser, Assistant Solicitor General, Michael Goodwin, Assistant Attorney General, Saint Paul, Minnesota, for respondents.

OPINION

DIETZEN

, Justice.

Appellant Dr. Michael Harlow, a board-certified psychiatrist, brought suit against respondents for alleged violations of the Minnesota Government Data Practices Act (MGDPA) and common law defamation, based on statements made by the individual respondents regarding the termination of Harlow's employment at the Minnesota Security Hospital (MSH) in Saint Peter, Minnesota. Respondents moved for summary judgment on the basis that: (1) there was no violation of the MGDPA because the statements made were based upon public information, and (2) the individual Respondents have an absolute or qualified privilege. The district court denied the motion, concluding issues of fact precluded summary judgment. The court of appeals reversed, and we granted review. For the reasons that follow, we affirm in part, reverse in part, and remand to the court of appeals for further proceedings.

The relevant facts are undisputed. Dr. Michael Harlow is a board-certified psychiatrist previously employed at the MSH located in Saint Peter, Minnesota, a Department of Human Services (DHS) facility. David Proffitt was the administrator at the hospital and Ann Barry was a deputy commissioner of DHS.

On November 15, 2011, Harlow was on call at the hospital when a vulnerable adult patient became very violent. The patient was placed in a “seclusion room” and Harlow was summoned. By the time Harlow arrived, the patient was destroying items in his room, threatening a nurse, cutting himself with a piece of broken plastic, and blocking his window and door with his mattress. Harlow ordered the patient's personal items and mattress removed from his room and the patient restrained. When two improvised blades were found, a full weapons search was ordered, and the patient's clothing was removed. After releasing the patient from restraints, MSH staff attempted to provide him with a tear-proof gown, which took some time because the patient was uncooperative. Over the following hours, the patient's mattress and some of his belongings were returned.

Following the incident, the MSH commenced an internal investigation, and the DHS's Division of Licensing commenced a maltreatment investigation. The MSH assembled a four-person internal review committee that was given the responsibility of investigating Harlow's handling of the incident and making recommendations. The focus of the investigation was to determine whether disciplinary action against Harlow was warranted. An internal investigation report was completed on December 8, 2011, and was supplemented on January 6, 2012. On December 20, 2011, Proffitt informed Harlow that his “values were not consistent with the direction of where DHS was going,” and Harlow's employment was terminated.

The Licensing Division's maltreatment investigation reviewed the treatment of the patient by staff during the November 15 incident. A maltreatment investigation report, which was issued on May 24, 2012, concluded that suspicions of maltreatment of a vulnerable adult patient by Harlow and DHS staff were “substantiated as to abuse and neglect.” Pursuant to Minn.Stat. § 626.557, subd. 9d (2014)

, Harlow requested reconsideration of that decision. The Division of Licensing later reissued its report and changed its determination with respect to Harlow's responsibility for maltreatment of a vulnerable adult from “substantiated” to “inconclusive.”

On February 28, 2012, Minnesota Public Radio (MPR) published a news report that addressed potential licensing issues at MSH.¹ Harlow, Barry, and Proffitt were interviewed for the report. The DHS was contacted for comment, and Barry and Proffitt spoke for the agency in the interview. The news report quoted Barry as stating, “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.” Further, Barry stated that, “Harlow was fired because he inappropriately used restraints and seclusion.” According to the news report, Proffitt stated:

[T]he decision to fire Harlow had nothing to do with restraints or seclusion.... However, ... staff should have returned the patient's clothes more quickly. [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.... Those are things that are not common for this facility. They're not acceptable for this facility.

Proffitt subsequently sent an email to DHS State Operated Forensic Services staff dated February 29, 2012 that stated:

A recent newspaper article refers to the separation of employment with Dr. Harlow and his claims that he was treated unfairly.... 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.

A second MPR news report was published on June 8, 2012.² The second report indicated that a state maltreatment investigation “found the facility and Dr. Harlow violated licensing standards, but that the violations were not serious or recurring.” Further, the news report stated that Barry “was surprised that the licensing division did not classify the violation as serious,” and that she stated, “[t]here are human rights violations there.”

Harlow brought a lawsuit against respondents, alleging defamation and violations of the MGDPA, based upon the statements made by Proffitt and Barry in February and June of 2012 and Proffitt's email to DHS staff in February 2012. Respondents brought a motion for summary judgment arguing that there was no violation of the MGDPA because the statements made by the individual respondents were based on information that was already public. Specifically, respondents argued that the statements concerned material reclassified as public under Minn.Stat. § 13.43, subd. 2(a)(5) (2014)

. Further, respondents argued that the doctrine of absolute or qualified privilege applied to the statements of the individual respondents, and therefore the defamation claim should be dismissed. The district court denied the motion, concluding that there were fact issues regarding all of the claims that precluded summary judgment.

The court of appeals reversed the district court, concluding that government data that are reclassified as public under Minn.Stat. § 13.43, subd. 2(a)(5)

are public even if they are simultaneously classified as private under Minn.Stat. § 13.46, subd. 3 (2014). Harlow v. State Dep't of Human Servs., 862 N.W.2d 704, 710–14 (Minn.App.2015). The court also held that the individual respondents, Barry and Proffitt, have an absolute privilege. Id. at 714–16.

I.

Harlow first argues that the court of appeals erred in its determination that the dissemination of his private personnel data did not violate the MGDPA. According to Harlow, personnel data is private, and its disclosure violates the MGDPA.

The interpretation of the MGDPA is a question of law that we review de novo. Helmberger v. Johnson Controls, Inc., 839 N.W.2d 527, 531 (Minn.2013)

. The goal of all statutory interpretation “is to ascertain and effectuate the intention of the legislature.” Minn.Stat. § 645.16 (2014). When interpreting a statute, “we give words and phrases ... their plain and ordinary meanings.” Staab v. Diocese of St. Cloud, 813 N.W.2d 68, 72 (Minn.2012). Further, we read the statute as a whole and give effect to all its provisions. Id.

The MGDPA regulates “[a]ll government data collected, created, received, maintained or disseminated by a government entity....” Minn.Stat. § 13.03, subd. 1 (2014)

. Further, the MGDPA creates 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).

Generally, government data falls into one of two main categories: (1) “ ‘data on individuals,’ mean[ing] government data in which any individual is or can be identified as the subject of that data,” Minn.Stat. § 13.02, subd. 5 (2014)

; and (2) “data not on individuals,” meaning all other government data, Minn.Stat. § 13.02, subd. 4 (2014). The MGDPA classifies data from each of these two categories into different levels of access. The levels of access for data on individuals are public, private, and confidential. Minn.Stat. § 13.02, subds. 3, 12, 15 (2014). The levels of access for data not on individuals are public, nonpublic, and protected nonpublic. Minn.Stat. § 13.02, subds. 9, 13, 14 (2014).

A.

Essentially, Harlow makes three arguments which we will address in turn. First, Harlow argues that the data contained in the employment investigation report that the individual respondents relied upon to make their statements was private personnel data, and therefore its disclosure violated the MGDPA. Respondents counter that the employment investigation report was public at the time the statements were made.

Generally, all government data are public and accessible to the public under Minn.Stat. § 13.01, subds. 1

, 3 (2014) unless otherwise provided by law. Johnson v. Dirkswager, 315 N.W.2d 215, 221–22 (Minn.1982). Minnesota Statutes § 13.43 (2014) governs the disclosure of personnel data, and subdivision 2(a)(5) provides, in relevant part, that “the final disposition of any...