This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1226

James Lehman,
Appellant,

vs.

The Zumbrota-Mazeppa Public Schools, et al.,
Respondents.

Filed April 19, 2005

Affirmed

Peterson, Judge

Goodhue County District Court

File No. C402677

James Lehman, 215 Trondheim Road, Kenyon, MN 55946 (pro se appellant)

Joseph J. Langel, Ratwik, Roszak & Maloney, P.A., 300 U.S. Trust Building, 730 Second Avenue South, Minneapolis, MN 55402 (for respondent)

Considered and decided by Klaphake, Presiding Judge; Peterson, Judge; and Dietzen, Judge.

U N P U B L I S H E D O P I N I O N

PETERSON, Judge

Appellant James Lehman challenges the district court’s grant of summary judgment dismissing his claims for violation of his right of privacy, intrusion upon seclusion, and violations of the Minnesota Government Data Practices Act (MGDPA) and Health Records Act, all of which arose out of the publication of facts related to the medical condition that caused him to go on paid medical leave from his position as principal of Zumbrota-Mazeppa Middle School. Lehman argues that the district court erred in concluding that the open discussion and publication of a letter from his psychologist did not support his claims. We affirm.

FACTS

Beginning in 1989, Lehman was employed as a principal for respondent school district, initially at a K-8 elementary school and later at a middle school. Beginning May 9, 2001, Lehman was on paid medical leave from work. On May 15, 2001, Lehman saw his family physician, Dr. Robert Nesse, at the Mayo Clinic. Nesse signed an authorization excusing Lehman from work through May 30, 2001, and also referred Lehman to a psychologist, Norman Rasmussen.

In May 2001, the Zumbrota-Mazeppa News Record reported that Lehman would be out of school for the remainder of the year due to illness. The article quoted respondent Roger Rueckert, the school-district superintendent, as saying that the school district did not know when Lehman would return, but “it could be six months or longer.” The article did not indicate the nature of Lehman’s illness.

On May 30, Lehman saw Nesse again, and Nesse signed an authorization excusing Lehman from work through June 30, 2001. Lehman continued to obtain monthly authorizations excusing him from work until his sick leave was exhausted in November 2001.

On June 5, 2001, Rasmussen diagnosed Lehman as suffering from job-related depression.

On July 10, 2001, Lois Ylvisaker wrote to Lehman congratulating him on a letter to the editor and stating, “I am also writing because I have heard you were out on leave for depression. I have no idea where I heard this and I don’t know if it is true, but if it is true, then again you have my support.”

On July 18, 2001, the Zumbrota News Record printed a letter to the editor written by Lehman supporting social worker Bill Autry and opposing the nonrenewal of his contract by the school district. The letter stated that he had “struggled with some issues that have tested my resolve as both a Christian and the middle school principal” and that he was “now confident that the Mayo Clinic will help to correct the problems that are medically related.” On July 25, 2001, an article in the News Record reported that Lehman was “on medical leave related to stress.” The same day, an article in the Red Wing Republican Eagle regarding Lehman’s support of Autry stated, “Lehman said the situation has taken its . . . toll and he currently is being treated at Rochester Mayo Clinic.” An article in the Rochester Post-Bulletin on August 4, 2001, discussed Lehman’s suspension for refusing to attend the Veteran’s Day program and then stated, “Because of that disagreement and the present one [concerning Autrey], he is on sick leave, suffering from depression, [Lehman] said.” On August 8 and 22, 2001, articles in the News Record reported that Lehman was on medical leave for depression.

On August 28, 2001, Autrey held an informational meeting at a local VFW. An article in the Post-Bulletin the following day stated that Lehman was “on medical leave of absence because of depression and stress that he says are related to problems he faced at the school over the past year.” An article in the September 5, 2001, News Record about the informational meeting quoted Lehman as saying he was “emotionally shot.”

In October 2001, the school district advised Lehman that under the principals’ collective bargaining agreement, a request for unpaid medical leave must be accompanied by a doctor’s statement. On November 26, 2001, Rasmussen sent Lehman a letter supporting his request for medical leave. The letter discussed the diagnosis and treatment of Lehman’s condition. Lehman rejected that letter and requested a more generic one. On December 12, 2001, Rasmussen sent a letter stating, “The purpose of this correspondence is to respond to your request for a statement regarding work status. It is my opinion that for medical reasons you are unable to return to work.” Lehman forwarded the letter to his attorney, who forwarded it to the school district. Included with the letter forwarded to the school district was a cover letter from Lehman’s attorney.

Lehman’s medical-leave request was on the agenda for the January 7, 2002, school board meeting. Rasmussen’s letter was included in a packet that was distributed to all board members and everyone attending the meeting, including the press. When the issue of Lehman’s medical-leave request was raised, a board member asked whether the meeting should be closed, and Rueckert responded, “No.” The board then discussed whether Rasmussen’s letter was sufficient under the collective bargaining agreement, which requires “a written doctor’s statement outlining the condition of health and estimated time at which the principal is expected to be able to assume normal responsibilities.” The board approved a one-year medical leave for Lehman contingent upon receiving a doctor’s statement that satisfied the collective bargaining agreement.

On January 9, 2002, an article about Lehman’s request for medical leave was published in the News Record. The article stated:

A letter from Attorney Lawrence R. Altman [Lehman’s attorney] was read requesting that Middle School Principal James Lehman be granted a one-year medical leave of absence. Altman cited a letter from Dr. Norman H. Rasmussen, Ed.D. L.P., ABPP of Mayo Clinic who is a consultant to the Department of Psychiatry and Psychology and the Department of Family Medicine.

The letter from Rasmussen stated that it was his opinion that Lehman was unable to return to work for medical reasons.

Lehman brought this action against respondents, alleging claims for “violat[ion of] his right of privacy” and “intrusion upon his seclusion;” public disclosure of a medical condition in violation of the MGDPA; and disclosure of health records in violation of the Health Records Act. Lehman also alleged three claims under the Minnesota Human Rights Act. The district court granted partial summary judgment and dismissed Lehman’s (1) violation-of-privacy claim because the information that Lehman alleges could be inferred from the school-board disclosure, that Lehman was suffering from depression or stress, was information that Lehman had already disclosed to the press; (2) intrusion-upon-seclusion claim because the undisputed evidence showed that the school district took no affirmative act that intruded upon Lehman’s right to seclusion; (3) publication-of-private-facts claim on the basis that the complaint did not allege that claim; (4) MGDPA claims based on its conclusion that the information disclosed by the school board was not medical data or private personnel data under the statute; (5) Health Records Act claim because respondents are not medical providers, the school board did not receive the information from a provider, and the letter from Lehman’s psychologist was not a health record. In this appeal, Lehman challenges the grant of summary judgment on these claims.

D E C I S I O N

On appeal from a summary judgment, this court must ask two questions: (1) whether there are any genuine issues of material fact in dispute; and (2) whether the district court erred in applying the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). This court views the facts in the light most favorable to the party against whom judgment was granted and accepts as true the facts presented by that party. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

In Lake v. Wal-Mart Stores, Inc., the supreme court recognized the causes of action of intrusion upon seclusion, appropriation, and publication of private facts. 582 N.W.2d 231, 233, 235 (Minn. 1998). Those causes of action are three of the four causes of action that comprise the tort generally referred to as invasion of privacy. Id. at 233. In defining the tort of invasion of privacy, the supreme court used the categories set forth in the Restatement (Second) of Torts § 652 (1997). Id.

Lehman’s brief contains an argument generally addressing invasion of privacy. But there is no reported Minnesota case law that recognizes an invasion-of-privacy tort that is distinct from the causes of action that comprise it. Therefore, we will address Lehman’s general invasion-of-privacy argument within the two specific causes of action of intrusion upon seclusion, and publication of private facts.

“Intrusion upon seclusion occurs when one ‘intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns . . . if the intrusion would be highly offensive to a reasonable person.” Id. (omission in original) (quoting Restatement (Second) of Torts, § 652B (1977)). The tort “has three elements: (a) an intrusion; (b) that is highly offensive; and (c) into some matter in which a person has a legitimate expectation of privacy.” Swarthout v. Mut. Serv. Life Ins. Co., 632 N.W.2d 741, 744 (Minn. App. 2001).

The invasion may be by physical intrusion into a place in which the plaintiff has secluded himself, as when the defendant forces his way into the plaintiff’s room in a hotel or insists over the plaintiff’s objection in entering his home. It may also be by the use of the defendant’s senses, with or without mechanical aids, to oversee or overhear the plaintiff’s private affairs, as by looking into his upstairs windows with binoculars or tapping his telephone wires. It may be by some other form of investigation or examination into his private concerns, as by opening his private and personal mail, searching his safe or his wallet, examining his private bank account, or compelling him by a forged court order to permit an inspection of his personal documents. The intrusion itself makes the defendant subject to liability, even though there is no publication or other use of any kind of the photograph or information outlined.

Restatement (Second) of Torts § 652B cmt. a&b (1977) (providing illustrations of violations: reporter enters hospital room without permission and takes patient’s photograph; private detective uses telescope to take intimate pictures of person or uses recording device to listen to conversations).

Lehman argues that the public disclosure of the letter from Rasmussen was an intrusion upon his seclusion. Lehman contends that the reason for his medical leave was private information and that the letter’s identification of Rasmussen as a consultant to the Department of Psychiatry and Psychology is sufficient to indicate that the reason for his medical leave was a mental-health condition.

But the Restatement requires an invasion, some type of affirmative act by the defendant in obtaining the information. Id. Lehman voluntarily provided the letter to the school district. What he objects to is not the school district obtaining the letter but its publication of the letter. Because there was no affirmative act by respondents to obtain the information, the district court properly granted summary judgment for respondents on Lehman’s intrusion-upon-seclusion claim.

II.

The district court granted summary judgment on Lehman’s claim for publication of private facts on the ground that Lehman’s complaint did not allege a claim for publication of private facts. But the complaint did seek relief for the disclosure of Rasmussen’s letter. “Under the Rules of Civil Procedure, only notice pleading is required. The rules do not require adherence to a mechanistic and rigid formula. Instead, the pleadings are liberally construed to insure that the defending party is given adequate notice of the claim.” L.K. v. Gregg, 425 N.W.2d 813, 819 (Minn. 1988). A complaint is sufficient if it contains “a short and plain statement of the claim showing that the pleader is entitled to relief and a demand for judgment for the relief sought.” Minn. R. Civ. P. 8.01. But this court will affirm a summary judgment if it can be sustained on any ground. Winkler v. Magnuson, 539 N.W.2d 821, 828 (Minn. App. 1995), review denied (Minn. Feb. 13, 1996).

“Publication of private facts is an invasion of privacy when one ‘gives publicity to a matter concerning the private life of another . . . if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.’” Lake, 582 N.W.2d at 233 (omission in original) (quoting Restatement (Second) of Torts § 652D (1977)).

The school board published the letter from Rasmussen by providing it to everyone at the school board meeting, including the press. Lehman alleges that it can be inferred from the letter that he was being treated for a mental condition. But “there is no liability for giving further publicity to what the plaintiff himself leaves open to the public eye.” Restatement (Second) of Torts § 652D cmt. b (1977). Lehman had already disclosed to the press that he was being treated at the Mayo Clinic and that he was on “medical leave related to stress” and “on sick leave, suffering from depression.” The district court properly granted summary judgment on Lehman’s claim for publication of private facts.

III.

Lehman argues that the letter from Rasmussen was medical data under the MGDPA and that the school district violated the MGDPA by discussing the letter at an open meeting. Under the act,

“Medical data” means data collected because an individual was or is a patient or client of a hospital, nursing home, medical center, clinic, health or nursing agency operated by a state agency or political subdivision including business and financial records, data provided by private health care facilities, and data provided by or about relatives of the individual.

Minn. Stat. § 13.384, subd. 1(b) (2002).

The record contains no evidence that the letter resulted from Lehman being a patient of a medical facility operated by a state agency or political subdivision. The clause “data provided by private health care facilities” refers to data provided to a public medical facility by private health care facilities and, thus, does not apply to data provided to a school district. Donald A. Gemberling, et al., Data Privacy: everything you wanted to know about the Minnesota Government Data Practice Act from “A” to “Z”, 8 Wm. Mitchell L. Rev. 573, 619-20 n.174 (1982).

Although the letter was not medical data, it could still support a violation of the MGDPA if it was private personnel data. “Personnel data are data that identify the employee who is the subject of the data.” Navarre v. S. Washington County Sch., 652 N.W.2d 9, 22 (Minn. 2002) (quotation omitted). “All personnel data not delineated . . . as public data” are private data under the MGDPA. Id.

The MGDPA classifies as public “data that are only used to account for employee’s work time for payroll purposes, except to the extent that the release of time sheet data would reveal the employee’s reasons for the use of sick or other medical leave.” Minn. Stat. § 13.43, subd. 2(a)(8) (2002). The fact that a teacher is on paid medical leave is public data. Navarre, 652 N.W.2d at 23.

The letter from Rasmussen did not reveal the reason that Lehman sought unpaid medical leave. Lehman argues that by identifying Rasmussen as a consultant to the department of psychiatry and psychology, the letter revealed that Lehman suffered from a mental-health condition. But the letter also identifies Rasmussen as a consultant to the department of family medicine. The letter, thus, could also support an inference that Rasmussen’s opinion was sought in his capacity of consultant to the department of family medicine. The letter on its face does not make one inference more probable than the other and reveals only that Lehman is on medical leave.

The evidence, as a matter of law, is insufficient to establish a violation of the MGDPA. The district court properly granted summary judgment on Lehman’s claim under the MGDPA. See Lloyd v. In Home Health, Inc., 523 N.W.2d 2, 3 (Minn. App. 1994) (stating “summary judgment on a claim is mandatory against a party who fails to establish an essential element of that claim, if that party has the burden of proof, because this failure renders all other facts immaterial”).

We also note that a government entity that violates a provision of the MGDPA “is liable to a person . . . who suffers any damage as a result of the violation.” Minn. Stat. § 13.08, subd. 1 (2002). “[T]he Plaintiff must establish that he has suffered some injury-in-fact, as a result of the alleged MGDPA violation.” Moubry v. Indep. Sch. Dist. No. 696, 9 F.Supp. 2d 1086, 1112 (D. Minn. 1998). As already discussed, the information revealed by the Rasmussen letter did not go beyond information already revealed to the press by Lehman himself, and therefore, the fact that the school district released the information does not demonstrate that Lehman suffered an injury-in-fact as a result of the release.

IV.

Under the Health Records Act, “[a] provider, or a person who receives health records from a provider, may not release a patient’s health records to a person without a signed and dated consent from the patient or the patient’s legally authorized representative authorizing the release, unless the release is specifically authorized by law.” Minn. Stat. § 144.335, subd. 3a(a) (2002).

Although the statute does not define health record, section 144.335, subdivision 2, which governs a patient’s right to access his or her own health records, states that a health record includes but is not limited to “laboratory reports, X-rays, prescriptions, and other technical information used in assessing the patient’s health condition.” Minn. Stat. § 144.335, subd. 2(b) (2002). The Rasmussen letter did not contain any information regarding diagnosis, treatment, medication, or otherwise relevant to assessing Lehman’s health condition.

Also, by the terms of the statute, the Health Records Act expressly applies only to the release of health records by a provider “or a person who receives health records from a provider.” Minn. Stat. § 144.335, subd. 3a(a).

“Provider” means (1) any person who furnishes health care services and is regulated to furnish the services pursuant to chapter 147, 147A, 147B, 147C, 147D, 148, 148B, 148C, 150A, 151, 153, or 153A, or Minnesota Rules, chapter 4666; (2) a home care provider licensed under section 144A.46; (3) a health care facility licensed pursuant to this chapter or chapter 144A; (4) a physician assistant registered under chapter 147A; and (5) an unlicensed mental health practitioner regulated pursuant to sections 148B.60 to 148B.71.

Minn. Stat. § 144.335, subd. 1(b) (2002). The school district did not receive the letter from a provider but rather from Lehman’s attorney, who received the letter from Lehman, and the letter was addressed to Lehman, not to the school district. Accordingly the district court properly granted summary judgment on Lehman’s claims under the Health Records Act.

Affirmed.