Ten years after its birth, the right of privacy in Minnesota continues to raise conflicting considerations.
In July 1998, Minnesota joined virtually every other state in recognizing an individual’s right of privacy. After years of unsuccessful effort, privacy advocates enthusiastically greeted the Minnesota Supreme Court’s adoption of a common law right of privacy. Those who viewed the principle as unnecessary and excessive were commensurately disappointed. In the ensuing decade, privacy advocates have been dismayed and privacy skeptics less aghast with how the doctrine has evolved or, as some critics may say, devolved from a rigorous right to a tepid tenet.
Both sides may be partially right and partially wrong. A review of Minnesota privacy law on the 10th anniversary of its birth reflects the paradox that privacy has become.
The Minnesota Supreme Court established a state common law right of privacy in Lake v. Wal-Mart Stores, Inc., 582 N.W.2d 231 (Minn. 1998). The July 30, 1998 ruling reflected a sea change in Minnesota’s law of privacy. But, the right recognized in Lake has hardly developed as either its advocates or its detractors anticipated.
For many years, Minnesota courts rejected common law privacy claims.1
But, as the courts eschewed common law privacy, a statutory concept emerged. The Minnesota Government Data Practices Act, Minn. Stat. § 13.01 et seq. (1974), combined public access to government data with privacy protections. The Minnesota Health Records and Reports Act, Minn. Stat. § 144.335 (1977), supplementing the pre-existing Patients’ Bill of Rights, Minn. Stat. § 144.651, protected against the unauthorized release of an individual’s medical records. By 1998, nearly all jurisdictions around the country had adopted some type of individual privacy rights. By the late 1990s, 47 states, all except Minnesota, Wyoming, and North Dakota, had recognized, by common law or statute, the general right of privacy, leading one commentator to call privacy the “doctrine of the decade.”2
Minnesota joined the bandwagon with the Lake case, which arose when a trio of young women from northern Minnesota returned from vacationing in Mexico. One of them had taken a photograph of the other two naked while emerging from a shower together. The photo was on a roll of film taken to a Wal-Mart store for processing.
Wal-Mart returned the developed photographs with a note saying it had not printed some of the negatives because of their salacious nature. The women learned that the photographs had been developed and shown throughout the community, prompting them to sue for invasion of privacy. Predictably, their case was dismissed by the trial court for failure to state a claim. The Court of Appeals grudgingly affirmed feeling obliged to follow prior case law despite its view that there was no “articulable reason why Minnesota should not recognize this cause of action.” 566 N.W.2d 376, 378 (Minn. App. 1997).
The Supreme Court, in a 5-2 decision, reversed. Chief Justice Kathleen Blatz’s opinion lauded privacy as an “integral part of our humanity” and an “inherent” right that is “worthy of protection” against unreasonable or “offensive” intrusion. Justice Tomljanovich’s dissent, joined by Justice Stringer, preferred to leave to the legislature the recognition of these privacy rights, fearful of recognizing a new tort in a time of increasing litigiousness. 582 N.W.2d at 236-237.
The majority decision articulated three forms of protectable privacy: (1) intrusion against seclusion, a type of trespass; (2) misappropriation or exploitation for commercial purposes, normally known as the “right of publicity,” which generally protects the famous from misuse of their names or identities for pecuniary purposes; and (3) truthful but embarrassing revelations that cause emotional harm to the subject of the disclosures. Notably, the Court refrained from recognizing the tort of false light, which consists of the dissemination of inaccurate materials that are hurtful to the feelings of the subject but do not rise to the level of harm to reputation. Having established new law, the Lake claimants lost their case on the merits when it was tried more than a year after the Supreme Court ruling. A jury found that Wal-Mart employees had invaded the women’s privacy, but that the employees’ actions in developing and distributing the photos were outside the scope and course of their employment, shielding Wal-Mart from liability for the privacy intrusion. No damages were awarded, and the litigation came to a conclusion.
Bodah Bodes Badly
While there has been an increase in the number of privacy-related claims after Lake, the cases have been more of a tepid trickle than a tumultuous torrent. The stagnancy of post-Lake cases is attributable to several reasons: the difficulty of proving damages, high First Amendment barriers to privacy-related claims against the media, and a general reluctance on the part of the judiciary to embrace privacy claims.
But the single most important factor in tempering privacy claims after Lake was the decision of the Supreme Court in Bodah v. Lakeville Motor Express, Inc., 663 N.W.2d 550 (Minn. 2003). Coming five years after Lake, Bodah began as a class action on behalf of 201 truckers who claimed that their employer breached their privacy by wrongfully distributing their Social Security numbers within the company, in violation of federal law, 42 U.S.C. § 1320 et seq. Reversing the Court of Appeals, which had overturned the district court’s dismissal, the Supreme Court unanimously held that the claims were not actionable because the Social Security numbers, though required to be kept confidential under federal law, were not distributed widely enough to invoke a common law privacy claim.
Relying upon § 652D of the Restatement (Second) of Torts, the Court reasoned that an individual’s privacy right is not violated unless there is “distribution to the public at large” of unwarranted or offensive material or that disclosure is “substantially certain to become public knowledge.” Making a “distinction…between private and public communication,” Bodah held that the unauthorized communication of “private” facts about an individual is not tortious if disseminated only “to a single person or even a small group of persons.” 663 N.W.2d at 554.
The means by which the defendant communicated the data, rather than its substance, was central to the privacy constriction in Bodah. Relying again on the Restatement, the Court warned that a privacy claim may be actionable for any unwarranted “publication in a newspaper or magazine, …or in a handbill distributed to a large number of persons, or any broadcast over the radio or statement made in an address to a large audience.” Id. Interestingly, the Court failed to mention the Internet and television, which presumably have sufficiently broad reach to trigger a claim.
Bodah bodes badly for privacy claimants. It virtually precludes common law breach of privacy claims in many intimate or insular contexts, such as the workplace, health care, and other non-media settings. Instead, it limits such claims to media distributed disclosures, with wide-spread distribution, even though such claims almost inevitably run into First Amendment issues that make privacy tort claims difficult to pursue.
Ironically, the Lake claimants probably would not have prevailed under the Bodah standard because the Wal-Mart employees had not distributed the photos to a large group of recipients. Another irony is that the privacy tort recognized in Lake dealt with small-scale dissemination to people who knew the claimants. This limited communication may be more harmful than a more wide-spread publication to persons who are not familiar with the subject of the privacy breach. But, the Lake-Bodah line creates privacy claims that are difficult to pursue, even where the harm is greatest.
The retrenchment on the right of privacy in Bodah was not an aberration. The legacy of Lake, including cases decided both before and after Bodah, imposed restrictions on the right of privacy based upon the scope of the disclosure, rather than the severity of its intrusiveness.
One of the first post-Lake cases reflected this limitation. In C.L.D. v. Wal-Mart Stores, Inc., 79 F.Supp.2d 1080 (D. Minn. 1999), the U.S. District Court rejected a lawsuit asserting common law privacy and other claims by a Wal-Mart employee who alleged improper disclosure of her pregnancy and abortion by one of her supervisors to her co-workers. Her privacy claim, along with other assertions, failed because the woman did not allege “sufficiently wide-spread publication” of the confidential data, a requirement that preceded articulation of that tenet in Bodah.
In Johnson v. Campbell Mithun, 401 F.Supp.2d 964 (D. Minn. 2005), the federal court drew upon Bodah and its own prior ruling in C.L.D., to reject a common law privacy claim by an employee with multiple sclerosis. Her condition, which prompted a leave of absence under the Family Medical and Leave Act (FMLA), was revealed by her employer to “roughly 12 to 15 people,” both internally and to an outside company where she was working on a project. Since that disclosure was not “in the media or in ‘any other form accessible to the public at large,’” the privacy claim failed, although other disability discrimination and FMLA claims survived. 401 F.Supp.2d at 973.
The evolution—or some would say devolution—of the concept of privacy in federal decisions since Lake was reflected earlier this year by the Eighth Circuit. Doe v. Department of Veterans Affairs, 519 F.3d 456 (8th Cir. 2008), affirmed the dismissal of a claim by a Veterans Administration (VA) patient for breach of privacy due to a doctor’s disclosure, to the patient’s union, of his HIV-positive status and use of marijuana for medical purposes. Although the case arose under a federal statute, and involved statutory interpretation, rather than tort law, the restrained privacy analysis in the case reflected a demonstrable deviation from the pro-privacy reasoning of Lake.
In Doe, a physician at a VA facility revealed the employee’s medical information in a meeting to address problems relating to his “frequent absences” from work. The embarrassed employee sued for violation of his rights under the Federal Privacy Act, 5 U.S.C. § 552a(b), which prohibits the disclosure of any private “record” by federal agencies without the consent of the subject of the material. Affirming a district court ruling, the Eighth Circuit held that the divulgence did not offend the statute since the law only protects data “contained in a system of records,” and not any “[p]ersonal knowledge and memories [that] are not included” in official medical records. Since the physician’s disclosure was based upon knowledge he obtained from talking to the employee, and not from medical records, the claim was not actionable. While recognizing the claim to have “some merit as a matter of public policy,” the Court was unwilling to “rewrite the statute,” a matter that should “more probably be addressed to Congress.” 519 F.3d at 464.
But an earlier privacy claimant fared better under a non-privacy statute in Cossette v. Minnesota Power & Light, 188 F.3d 964 (8th Cir. 1999), where a supervisor’s unauthorized disclosure of an employee’s unfavorable medical information resulted in her being denied a new position. The supervisor had informed the employee’s coworkers and a prospective employer that the employee had suffered a back injury and had lifting restrictions. The supervisor had ulterior motives for both of the disclosures. He informed the prospective employer about the employee’s medical conditions for his “own greedy purposes,” to keep from losing her as an employee. He told the employee’s coworkers about her limitations to avoid harming their morale if he had to change their schedules to accommodate her restrictions.
Both rationales failed to ward off a claim of breach of privacy under the Americans With Disabilities Act (ADA), 42 U.S.C. § 12.11(d)(3), even though the employee was not disabled under the ADA. The Court held that liability could be grounded on the provision of the Act which prohibits unauthorized disclosure of confidential medical records, and that a claimant needn’t be disabled to assert a claim for unauthorized gathering or disclosure of confidential medical information under the Act
The U.S. Supreme Court has been hostile to privacy rights, and the statutory actions it has decided since the Lake period have not been very conducive to privacy claimants. In a case reminiscent ofBodah, the Court held in Doe v. Chao, 540 U.S. 614 (2004), that the wrongful dissemination of Social Security numbers by the federal government did not permit a claim for the minimum statutory award of $1,000 under the Federal Privacy Act, 5 U.S.C., § 552a(g)(4), in the absence of proof of actual damage.
Doe is reflective of the Supreme Court’s antipathy to privacy rights.A pair of education cases under the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g, are also illustrative. InOwasso Independent School District v. Falvo, 534 U.S. 426 (2002), the Court held that a school teacher’s practice of allowing students to grade the work of other classmates and to call out their own grades in class does not violate the statutory proscription against revealing “education records.”
The Court in Falvo did not address whether FERPA provides a private right of action. But, it did answer that issue negatively a few months later in Gonzaga University v. Doe, 536 U.S. 273 (2002), finding “no indication that Congress intend[ed] to create new individual rights” for violation of privacy proscriptions in the statute. The claimant was denied a teacher’s license because of information the plaintiff revealed about alleged sexual misconduct. The Court held that the claimant could not pursue a privacy action under FERPA because its statutory provisions “failed to confer enforceable rights” on individual claimants. The measure could be enforced only through regulatory action by the Department of Education.
The Court also rejected privacy claims asserted by students who objected to mandatory drugtesting before being allowed to participate in extra curricular activities. Board of Education of Independent School District #92 of Pottawatomie County v. Earls, 536 U.S. 822 (2002). The Court deemed a school’s policy requiring all participants to submit to urinalysis without suspicion a reasonable means of furthering the school’s goal of “protecting the safety and health of its students” and, therefore, did not violate the Fourth Amendment. The Court found the privacy-related concerns of the students “negligible.” 536 U.S. at 833.
But the Eighth Circuit Court of Appeals, taking a different tack, struck down a school district’s random search of student lockers to ferret out contraband in Doe v. Little Rock School Dist., 380 F.3d 349 (8th Cir. 2004). Contrary to the Supreme Court’s minimization of student privacy rights in Earls, the Eight Circuit held that random locker searches were not permissible under the Fourth Amendment because this type of “full scale suspicionless search” significantly impacted students’ privacy interests
Minnesota state courts have also addressed privacy-related concerns in a number of cases involving schools. These cases typically arise under the Government Data Practices Act, which attempts to balance public accessibility with privacy interests in government data. These decisions have been more protective of privacy interests than those decided by the U.S. Supreme Court have.
In Navarre v. South Washington County Schools, 652 N.W.2d 9 (2002), the Minnesota Supreme Court upheld a portion of a public school teacher’s Data Practices Act claim. The teacher sued after the school district related to parents and the media complaints about the teacher’s competence. The Court determined that some of the disclosures were actionable because they went “beyond the scope of the public data exception for existence and status” of claims against a public sector employee “by describing the type of complaint made against the teacher for her poor classroom oversight and supervision.” 652 N.W.2d at 29.
The failure of a school to protect a student’s educational data led to a large jury verdict and award of attorney’s fees in Scott v. Minneapolis Public Special School Dist. No. 1, 2006 WL 997721 (Minn. App. 2006) (unpublished). The mother of a seventh-grader sued after classmates found the student’s assessment in the school parking lot. The report had apparently blown out of a garbage can. The classmates taunted and humiliated the student because of the negative data in the report. A jury awarded the student $140,000 in damages. The Court of Appeals upheld the verdict because the school had not adopted and implemented “appropriate safeguards” to prevent divulgence of private educational data. The school’s failure to establish any procedures for document destruction constituted a violation of Minn. Stat. § 13.02, subd. 16
Privacy and Investigative Issues
Investigations have spurred a number of privacy claims since Lake. In the first post-Lake case, Summers v. R. & D. Agency, Inc., 593 N.W.2d 241 (Minn. App. 1999), an employee sued his employers, its workers compensation insurer, and a private investigator hired by the insurer to determine whether the employee was cooperating with his workers compensation rehabilitation plan. The court found that the employee had a viable invasion of privacy claim because of harassing telephone calls, surveillance of family members, and trespass by the investigator. The court also held that the right of privacy is retroactive. The defendants’ behavior, which occurred before Lake was decided, was actionable because people whose “privacy rights have been violated would suffer an injustice if Lake is not applied retroactively.” 593 N.W.2d at 246.
An inquiry relating to a credit report did not give rise to common law claims for publication of private facts or intrusion upon seclusion in Phillips v. Grendahl, 312 F.3d 357 (8th Cir. 2002). The privacy claims were based upon the alleged wrongful obtention of a credit report by a man’s perspective mother-in-law, who was suspicious about his background. The claims were dismissed because the telephone conversation underlying them only “mentioned facts that were available from public records.” An intrusion of seclusion claim was not actionable because none of the disclosed information was of a “nature that would [be]…highly offensible to a reasonable person,” and some of it, including the existence of an outstanding child support order, “could just as well have been obtained by proper means” through public records.
Another unusual investigative incident unsuccessfully raised privacy issues in Jaramillo v. Weaver, 207 WL 4303775 (Minn. App. 2007) (unpublished). The case concerned a fugitive, who had been charged with murdering his wife in Minnesota and, while on the lam, lived at a home in Oregon using an alias. The Oregon homeowner befriended the fugitive and received a number of calls from the fugitive’s parents in Minnesota asking about their son’s well-being. After the fugitive was apprehended, the Oregon resident sued the parents in Minnesota for invasion of privacy and other claims.
The Minnesota Court of Appeals upheld dismissal of all of the claims, which were based on the parents’ phone calls. The court held that the phone calls did not amount to an intrusion on seclusion because there was no “substantial intentional interference with [his] seclusion.” The unwitting host also could not sue for intrusion on seclusion because the facts alleged in the lawsuit “did not portray the cause as offensive,” and because the parents were not threatening or offensive. Similarly, the receipt of routine credit card statements at the home “would not be highly offensive to a reasonable person” sufficient to sustain a privacy claim.
The decade of common law privacy in Minnesota has witnessed a number of issues. The courts have decided many of them, but several remain for resolution, including:
- the quantum of conduct necessary to predicate a privacy claim, whether negligence, recklessness, or intentional misbehavior;
- the requisite statute of limitations, whether the two-year provision for intentional torts under Minn. Stat. § 541.07, subd. (2), or the longer six-year period generally applicable to most torts under Minn. Stat. § 541.05, subd. (1);
- the quality of evidence, particularly with respect to emotional distress, that plaintiffs must produce to support substantial awards;
- the availability of injunctive relief in claims in which First Amendment defenses are raised, particularly in cases involving media publication; and
- reconciling overlap in privacy claims arising concurrently under common law and statutes.
Litigants, their lawyers, and judicial decision makers will probably address these and other issues in the years ahead
The law of privacy has come a long way in Minnesota, especially in the last 10 years. It has gone from unrecognized, to adopted, to nearly orphaned. But, privacy is a long-standing principle, dating back at least to 1215, when the Magna Carta recognized privacy rights in an individual’s home. In American jurisprudence, its roots go back to 1890 and a law review article co-authored by Louis Brandeis, entitled “The Right of Privacy,” which launched privacy tort law.3
Lake and progeny may simply be the latest in a long series of peaks and valleys in privacy law, or as the 21st century progresses, privacy may be reaching its penultimate phase. But, the last chapter has not yet been written.
1 Rychie v. Paramount Pictures Corp., 544 N.W.2d 21 (Minn. 1996); Stubbs v. North Memorial Medical Center, 448 N.W.2d 78 (Minn. App. 1989), rev. denied (Minn. Jan. 12, 1990); Howe v. Sportsfilms & Talents, Inc., 351 N.W. 684 (Minn. App. 1984); Hendry v. Connor, 303 Minn. 317, 226 N.W.2d (1975).
2 R. Reuben, “Privacy: The Issue of the 1990s,” 10 CAL. Lawyer 38-39 (March, 1990).
3 S. Warren & L. Brandeis, “The Right to Privacy,” 4 HARV. L. REV. 193 (1890).
MARSHALL H. TANICK is an attorney with the law firm of Mansfield, Tanick & Cohen, P.A., in Minneapolis and St. Paul. He is Certified as a Civil Trial Specialist by the Minnesota State Bar Association (MSBA) and has written extensively, lectured, instructed, and engaged in litigation and privacy-related matters.