Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Deborah Lynn Foley,
County of Hennepin, et al.,
Filed June 16, 1998
Affirmed in part, reversed in part, and remanded
Hennepin County District Court
File No. 96-5058
Craig A. Goudy, Cox, Goudy, McNulty & Wallace, P.L.L.P., 676A Butler Square, Minneapolis, MN 55403; and
Geri L. Napuck, Napuk Law Offices, P.A., 905 Twelve Oaks Center, 1550 Wayzata Blvd., Wayzata, MN 55391 (for appellant)
Michael O. Freeman, Hennepin County Attorney, Toni A. Beitz, Senior Assistant County Attorney, A-2000 Government Center, Minneapolis, MN 55487 (for respondents)
Considered and decided by Willis, Presiding Judge, Randall, Judge, and Klaphake, Judge.
U N P U B L I S H E D O P I N I O N
Deborah Foley appeals from a grant of summary judgment to respondents Hennepin County and two of its employees, Cleo Herrera and Doneldon Dennis, dismissing Foley's complaint alleging defamation, negligent investigation, and violation of the Minnesota Data Practices Act (Act), Minn. Stat. §§ 13.01-.99 (1994). Because the record fails to establish the existence of any genuine issues of material fact regarding the damages necessary to recover for either defamation or negligent investigation, we affirm dismissal of these claims. Because the record suggests that a genuine issue of material fact exists as to whether a violation of the Act occurred when Herrera disclosed certain information to various people, we reverse the grant of summary judgment on this claim and remand for further proceedings.
On May 10, 1994, Herrera met with J.W. and J.W.'s parents and stated that Foley was mentally unstable, was interested in pornography and the occult, and was involved in a lesbian relationship. When Herrera was contacted several days later by Foley's therapist, she repeated that Foley was in a lesbian relationship.
In a July 1, 1994 progress report filed with the district court in connection with a CHIPS proceeding, Herrera repeated that Foley was mentally and emotionally unstable and that she possessed and displayed pornography. Herrera repeated other allegations, including that Foley had hit one of the children.
On August 2, 1994, Dennis, a family court services supervisor, contacted Herrera after he became responsible for conducting a custody evaluation for the district court in connection with a custody petition Foley had filed. Herrera provided Dennis with a copy of her progress report, which Dennis paraphrased and incorporated into his August 4, 1994 memorandum to the district court. Dennis sent a copy of his memorandum to Foley's ex-husband, who was identified as a pro se respondent in the district court's order.
The district court eventually found Herrera's allegations involving Foley to be unfounded and granted Foley custody of the children.
D E C I S I O N
The district court determined that the statements challenged as defamatory were either absolutely privileged or not defamatory as a matter of law and that Herrera and Dennis were entitled to official immunity on Foley's negligent investigation claim. We need not determine whether any privilege or immunity applies, however, because Foley has failed to establish the requisite damages to withstand summary judgment on these claims. See Minn. R. Civ. P. 56.05 (party opposing summary judgment must present specific facts showing there is genuine issue for trial).
In particular, Foley claims that she has suffered extreme and substantial humiliation and emotional distress because the statements were made not only to J.W. and her parents, but also to Foley's therapist, to Dennis, and eventually to Foley's ex-husband, who repeated them to the Boy Scouts of America (where Foley was a long-standing volunteer), her former employer, the Internal Revenue Service, the Social Security Administration, and others. Besides her deposition statements to this effect, however, the only damages evidence offered by Foley included deposition testimony from J.W. and J.W.'s mother, both of whom stated they did not believe Herrera's statements and considered them unfounded, and from J.W.'s father, who testified that he was confused by Herrera's statements but that he spoke to Foley that same day and was convinced by her denials. Foley offered no other evidence to prove that her ex-husband republished Dennis's memorandum to others or that this republication caused her reputational damage.
The challenged statements are not defamatory per se. See Richie v. Paramount Pictures Corp., 544 N.W.2d 21, 25 n.3 (Minn. 1996) (defamation per se includes false accusation of committing crime, about a person's trade, business, or professional conduct, or imputing serious sexual misconduct to the person). Foley thus must demonstrate actual harm to her reputation in order to recover for humiliation and emotional distress. See id. at 28; Becker v. Alloy Hardfacing & Eng'g Co., 401 N.W.2d 655, 661 (Minn. 1987). The momentary confusion experienced by J.W.'s father, which was resolved within hours, is insufficient to establish a prima facie case that Foley suffered any reputational harm. Summary judgment was thus properly granted to respondents on Foley's defamation claim.
Foley's negligence claim is based upon the failure of Herrera and Dennis to use reasonable care to investigate the allegations against Foley before publishing them as facts in their reports. The damages on this claim mirror those sought for defamation and consist of harm to her reputation, embarrassment, and humiliation. Humiliation and embarrassment, alone, cannot support an action for negligence. See Okrina v. Midwestern Corp., 282 Minn. 400, 404-05, 165 N.W.2d 259, 262-63 (1969) (cause of action for damages does not exist for fright or mental distress alone, unless fright also results in physical injury). Absent some evidence that Foley has suffered actual damages, summary judgment was properly granted dismissing her claim of negligent investigation. See Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995) (summary judgment for defendant appropriate as matter of law "when the record reflects a complete lack of proof on an essential element of the plaintiff's claim").
Foley claims that a violation of the Act occurred when Herrera disclosed data about her to J.W., J.W.'s parents, and Foley's therapist. Herrera's oral statements to these people were protected as investigative and licensing welfare data under Minn. Stat. § 13.46, subds. 3 and 4. Herrera's disclosure of this information was not authorized by statute, court order, or consent. See Minn. Stat. § 13.46, subd. 2 (listing exceptions to nondisclosure rule for private welfare data). Although Foley had consented for her therapist to have "free discussions" with Herrera, verbal consent to disclosure of protected data is generally not valid. See Minn. Stat. § 13.05, subd. 4(d) (person may give informed consent to dissemination of private data by signing statement authorizing disclosure). Thus, regardless of whether the statements were defamatory, Herrera's release of this information to these people violated the Act.
Foley claims a further violation of the Act occurred when Herrera disclosed this information to Dennis. Although the information contained in Herrera's progress report was not a matter of public record, disclosure was authorized by statute. Minn. Stat. § 626.556, subd. 10h (1994) allows a local welfare agency to release child abuse or neglect data to a court services agency on an active case involving common clients. Although Foley argues that the CHIPS proceeding was no longer active because it was dismissed in mid-July and Dennis's conversation with Herrera took place on August 1, the CHIPS proceeding was active on July 12, when the district court directed court services to prepare a custody evaluation.
Foley also claims that a violation of the Act occurred when Dennis sent a copy of his August 4 memorandum to Foley's ex-husband. By statute, a custody evaluator's report must be made available to counsel and to any party not represented by counsel, such as Foley's ex-husband. See Minn. Stat. § 518.167, subd. 3 (1994). Foley nevertheless argues that her ex-husband did not become a party to the custody proceeding until he filed his pleadings in June 1995, and that Dennis's memorandum cannot be considered a true custody evaluation because he failed to conduct an independent investigation and merely paraphrased Herrera's progress report. Dennis cannot be required to determine independently whether the court erred in describing Foley's ex-husband as a party, however, nor should he be penalized because he misinterpreted the court's order. Cf. Kipp v. Saetre, 454 N.W.2d 639, 644 (Minn. App. 1990) (probation officer cannot be held to have either legal expertise to evaluate judge's directives or authority to question their legality), review denied (Minn. June 26, 1990). Because Dennis was authorized by Minn. Stat. § 518.167, subd. 3 to release this information, no violation of the Act occurred. See Minn. Stat. § 13.84, subd. 5(b) (private or confidential court services data may be disclosed under statute authorizing disclosure).
Finally, because Herrera's statements were made within the scope of her employment, the county remains liable "for any damages sustained, plus costs and reasonable attorney fees." Minn. Stat. § 13.08, subd. 1 (political subdivision liable for violation of Act); see Walker v. Scott County, 518 N.W.2d 76, 78-79 (Minn. App. 1994) (Act does not impose liability on individuals, and county not liable where employee acts were outside scope of employment by using data for purposes unrelated to employment and county did not benefit from employee's actions), review denied (Minn. Aug. 24, 1994). The county may be held liable for emotional distress damages under the Act. See Estate of Benson v. Minnesota Bd. of Med. Practice, 526 N.W.2d 634, 637-38 (Minn. App. 1995) (Act allows recovery for damages to privacy interests, such as emotional and physical devastation, professional humiliation, or ostracism). Exemplary damages "of not less than $100, nor more than $10,000 for each violation" are also available "[i]n the case of a willful violation." Minn. Stat. § 13.08, subd. 1.
We therefore affirm the grant of summary judgment dismissing Foley's defamation and negligent investigation claims, and we reverse the grant of summary judgment on part of her claim alleging violation of the Act and remand for further proceedings.
Affirmed in part, reversed in part, and remanded.
 Appellant voluntarily dismissed her claim alleging discrimination under state and federal civil rights laws.
 As respondents note, an allegation of lesbianism does not impute serious sexual misconduct in an era where statutory protection is afforded same-gender orientation. See Minn. Stat. § 363.01, subd. 45 (1994) (definition of sexual orientation in Minnesota Human Rights Act).
 Respondents argue that Foley "displayed no documents to the trial court to establish the requisite foundation" to support a claim for violation of the Act. However, Herrera does not deny making these statements. In addition, with the exception of her statement that Foley was a lesbian, Herrara's statements were documented in her progress report. See Deli v. Hasselmo, 542 N.W.2d 649, 653-54 (Minn. App. 1992), review denied (Minn. Apr. 6, 1996).
 Indeed, Herrera's supervisor recognized that Herrera may have violated the Act, and she instructed Herrera that all subsequent actions were to be reviewed by her before implementation by Herrera.
 Foley moved for sanctions based on the destruction of Herrera's personnel file by her supervisor after Herrera was discharged from her employment. A party's failure to produce evidence within his or her control gives rise to a discretionary inference that the missing evidence is unfavorable. Blumberg v. Palm, 238 Minn. 249, 254, 56 N.W.2d 412, 415 (1953). Because the missing evidence appears to have been duplicated elsewhere, with the exception of an e-mail that Foley claims was sent from Herrera to her supervisor describing her May 10 meeting, the potential for remediation is strong and destruction of the file causes little prejudice. See Patton v. Newman, 538 N.W.2d 116, 119 (Minn. 1995) (sanction for destruction of critical evidence is within discretion of trial court, to be exercised by examining nature of missing item and potential for remediation of any prejudice caused). Thus, the district court did not abuse its discretion by applying an unfavorable inference, rather than a presumption of malice.