The Minnesota Supreme Court today backed a lower court which had refused to allow a former state employee to sue officials in the Dayton administration for information and remarks given to a Minnesota Public Radio reporter about conditions at the state security hospital in St. Peter.
Michael Harlow, a psychiatrist at the hospital, was fired in the wake of a November 2011 incident in which a patient at the psychiatric hospital was placed in restraints and stripped naked.
“[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,” then hospital boss David Proffitt told MPR reporter Madeleine Baran in her February 2012 story. “Those are things that are not common for this facility. They’re not acceptable for this facility.”
A state deputy commissioner in the Department of Human Services said there were human rights violations at the hospital.
A story from Baran four months later indicated that a state maltreatment investigation “found the facility and Dr. Harlow violated licensing standards, but that the violations were not serious or recurring.”
Harlow sued the DHS for defamation, claiming the “private personal data” released to MPR News is protected under the state’s data privacy laws, but the Minnesota Court of Appeals threw the case out, saying the top officials with the Department of Human Services are immune from such suits when acting in their capacity as cabinet officers.
Today, the Minnesota Supreme Court agreed with the Court of Appeals that Harlow’s employment report was public data once Harlow was fired.
Writing for the majority, Justice Christopher Dietzen rejected the notion that confidential information was leaked to Baran. “Harlow has failed to produce any credible evidence that the individual respondents relied upon the confidential report in making their statements, his claims relating to this data fail,” he wrote.
First, it appears that these statements may simply reflect the personal opinions and mental impressions of Proffitt and [DHS Deputy Commissioner Anne] Barry. The opinions and mental impressions of a person do not constitute government data, and thus their disclosure does not violate the MGDPA.
Second, there is no evidence in the record to support Harlow’s assertion that Barry and Proffitt relied upon the DHS maltreatment investigation when making these statements. In support of his argument, Harlow relies on portions of the deposition testimony filed in this case, but that testimony leads to the opposite conclusion. According to their deposition testimony, neither Barry nor Proffitt worked in DHS’s licensing division, and they both testified that they were unfamiliar with the contents of the DHS maltreatment investigation report. Barry testified that at the time the investigation was occurring, she “could no longer supervise the licensing activities of the agency” because her time was taken up with overseeing the MSH.
And the court rejected Harlow’s claim that state DHS officials– in this case: deputy commissioner Anne Barry — aren’t immune from suits such as his. “The underlying rationale is that a cabinet-level state governmental official is responsible for the operation of a state agency and the official should be free to speak on matters relating to the operation of the agency without fear of civil liability,” Dietzen said, adding that such immunity does not extend to Proffitt, the hospital administrator.
That part of the decision sends Harlow’s case against Proffitt, who resigned in March 2012, back to the Court of Appeals.
In his dissent, Justice G. Barry Anderson, joined by Justice David Lillehaug, disagreed with giving immunity to Barry.
“In providing absolute privilege to the governor and cabinet-level officials, we reasoned that ‘government can best be held accountable by assuring that its top-level representatives have no excuse not to speak out in the performance of their duties,’” Anderson said.”But we have consistently rejected attempts to expand absolute immunity beyond these limits.”
Although the court notes that Deputy Commissioner Barry had “all the powers and authority of the commissioner,” its decision to extend absolute privilege to officials below the cabinet level based on the official’s powers and responsibilities opens the door to further expansion of the doctrine. This raises the question of where to draw the line. Does absolute privilege attach when an official, Deputy Commissioner or otherwise, has 70 percent of the Commissioner’s power? Ninety percent? We do not know. What we do know is that it would be unnecessary to draw any additional lines if the doctrine of absolute privilege remained confined to cabinet-level officials.
If an official’s access to absolute privilege turns on how many of the Commissioner’s powers that official holds, the court’s reasoning could be employed to provide absolute privilege to an unknown and undefined group of government officials. Indeed, the most troubling aspect of the court’s opinion is that it lays the groundwork for vesting the scope of absolute privilege in unelected Commissioners rather than our court; those Commissioners may soon be able to provide the shield of absolute privilege to their subordinates with the stroke of a pen.