                               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.

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