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Panels ponder privacy problems


“An American has no sense of privacy…  there is no such thing in the country.”

George Bernard Shaw (1933)

The observation by the great British playwright about the dearth of privacy in this country was made during the height of the Great Depression.  It was prompted by the outpouring of interest and   surge of onlookers during his visit to New York City at that time.

Shaw’s point was, at least in legal terms, true under Minnesota common law for a long time.  It was not until 1998 that the state recognized a common law right of privacy, complementing privacy rights already created by statute more than two decades earlier in the Minnesota Government Data Practices Act, Minn. Stat. § 13.01, et seq.  That measure, enacted in 1974, and amended many times since then, established certain privacy rights with respect to governmental information, while providing for procedures for accessing data in the public sector.

But it was not until the Supreme Court decided the case of Lake v. Walmart Stores, Inc., 582 N.W.2d 27 (1998) that Minnesota joined most of the rest of the country, except North Dakota and Wyoming, in recognizing three branches of privacy rights for Minnesotans outside of the narrow confines of the Data Practices Act.

Legal issues often arise in privacy-related disputes under the Data Practices statute and common law tort claims.  Two separate panels of the Minnesota Court of Appeals pondered some of them in a pair of concurrent decisions in the middle of this month.

The cases shared some similarities.  In both cases, the claimants lost at the trial court levels and their appeals were rejected well.

But the cases diverged in several respects.  The common law claimant was seeking damages for revelation of truthful, but embarrassing, information. The plaintiff in the data practices lawsuit challenged the refusal of a municipality to provide him with information about himself prepared by law enforcement authorities.

The two cases reflect variances of privacy law in this state nearly the two decades after Lake.

Viagra vanquished

A man who was receiving Viagra pills for erectile dysfunction was vanquished in a claim against a pharmacy in Willmar that had dispensed the medication. In Doe v. Kmart Corp., 2017 Minn. App. LEXIS 125 (Minn. App. Feb. 6, 2017)(unpublished) he brought an invasion of privacy suit against the pharmacy for unauthorized disclosure of the dispensation of Viagra to his estranged wife, who conveyed it to others. The man and current spouse asserted that a pharmacy technician gave his prescription information to his estranged wife, who was also a registered pharmacist at a different facility, and the wife used it to infer the frequency of his sexual activity outside the marriage, which became an issue in a pending marriage dissolution proceeding. After the divorce was final, the ex-wife made a number of derogatory comments about her ex-husband and his new wife by text, email and social media. The Viagra user and his wife brought the lawsuit against the pharmacy where the technician worked as well as the technician, alleging invasion of privacy through publication of private facts, negligence, malpractice, and breach of contract.    The Kandiyohi County District Court granted summary judgment and dismissed all of the claims.

The appellate court affirmed, holding that none of the claims was actionable.  The invasion of privacy claim could not proceed because the information about the Viagra use was not disclosed “to the public at large,” which is necessary to sustain a breach of privacy claim for publication of truthful but private facts.  The statements made by the ex-wife on social media was “not sufficient” in the absence of evidence about the level of privacy in the statements or “the number of people to whom the statements were disseminated.”  The scope of dissemination was crucial because, under existing privacy law, there must be substantial communications with individuals.

The court declined the invitation to overrule existing privacy case law, including the case of Bodah v. Lakeville Motor Express, Inc.,  663 N.W.2d 550 (Minn. App. June 26, 2003), which established the requirement that a cause of action for dissemination of private facts must be based upon publication to the “public at large.”

Because the claimants could only establish that private facts were disclosed to only one individual, they fell short of satisfying the publicity requirement of the privacy tort and could not withstand summary judgment.

The claims of negligence, as well as malpractice also were not actionable because the claimants sustained no physical injuries and only claimed damages for emotional distress, which failed because courts have “historically” limited liability for such claims … out of concern for the reliability of them. There was insufficient evidence of any “physical manifestation” sufficient to support recovery.  Nor could the claimants recover “reputational damages” for negligence in the absence of proof that their reputation had been harmed.  The alleged economic loss suffered by the claimants including the husband’s testimony that he settled his divorce for a settlement that was disadvantageous due to the disclosure was not persuasive in the absence of any proof to show a genuine issue of economic damages.

Finally, the breach of contract claim also was not viable on grounds that the claimed damages for emotional distress could not be recovered for an alleged breach of contract in the absence of any independent tort.  Because the other torts did not survive summary judgment, there was no basis for damages for breach of contract.

Accordingly, the trial court properly granted summary judgment dismissing all the claims.

Data defeat

A claimant seeking access to information about himself under the Data Practices Act met with defeat on grounds that he did not make a request to the proper personnel to obtain access to the information he sought in Scheffler v. City of Anoka, 2017 Minn. App. LEXIS 23 (Minn. App. Feb. 6,  2017) (unpublished). The claimant, the subject of a police report and a supplemental report, sought a copy of the supplement, which was not given to him by the city where the incident took place on grounds that he did not make a request to the responsible authority, as required by Minn. Stat. § 13.03, subd. 3 or § 13.04, subd. 3.

The claimant’s subsequent suit against the city and its attorney was dismissed by the Anoka County District Court and the appellate court affirmed.  The claim for violation of the Data Practices Act by not providing the supplemental report was properly dismissed because it was not requested from the proper responsible authority.  While the claimant did request the information from the record staff of the city’s police department, it was undisputed that they were not the responsible authority. The request made to persons other than the designated responsible authorities did not trigger the statutory duty to provide data.  The express language of the statute leaves no room for the claimant’s novel apparent-authority theory that persons other than the designated responsible authorities may release the information requested.

The upshot was that the claimant, once he made his request to the proper authority, got the information he wanted; but he did not get the relief he desired in the lawsuit, including his attorney’s fees. To the contrary, the city was awarded its costs and disbursements in connection with defending against the case.

These cases reflect the vagaries of the law of privacy in Minnesota, whether arising under the common law or by statute.


Three privacy prongs recognized in Lake v. Walmart case

 Intrusion upon seclusion;

  • Misappropriation of identity;
  • Publication of truthful but embarrassing facts.


This article was originally published by Minnesota Lawyer