Are Statements Made In A Background Check Completely Privileged?

Travis Minke was a Community Service Officer (CSO) for the Minneapolis Police Department. In December 2007, Minke resigned from the CSO program after his conditional job offer with the Minneapolis Police Department was rescinded.

After separating from his employment with the City, Minke applied to work for other police departments. Minke applied for a position with the Mounds View Police Department. As part of a background investigation, Minke named Sergeant Janice Callaway as the contact person regarding his prior employment with the City, and authorized her to release information about him. A Mounds View investigator, Officer Kirk Leitch, interviewed Callaway regarding Minke. During the interview, Callaway made several statements that Minke asserted were defamatory, including “attacks on Minke’s honesty, integrity, character, work ethic, and performance.” Minke contended that Callaway’s statements to Officer Leitch caused Mounds View not to hire him.

Minke sued the City and Callaway, claiming he was the victim of defamation of character. The Minnesota Court of Appeals recently had to decide whether Callaway’s statements were “absolutely privileged” – meaning they could never be the basis for a lawsuit – or were “conditionally privileged,” meaning that they could be the basis for a lawsuit if Minke could prove that the statements were made with malice.

The City argued that Callaway’s statements were entitled to absolute privilege because they concerned the fitness of a potential hire for a police department, and that the public interest at stake in ensuring the good character of police officers outweighs Minke’s interest in having his defamation claim vindicated. The City relied on a prior court decision holding that preparing a police report is a key part of an arresting officer’s job, and that without absolute privilege instead of preparing a detailed report, the officer will be tempted to leave out certain details, thus frustrating the execution of a police officer’s important job duties.

The Court was not convinced. The Court noted that the prior case also held that “although statements made by an arresting officer in a police report are absolutely privileged, those same statements are not privileged if given to the media, even if making a statement to the media is allowed under police department policy. Based on this record, we conclude that responding to requests for information regarding the fitness of former employees was not essential to the performance of Callaway’s job duties.

“We have allegedly defamatory statements made within the context of an administrative personnel matter, not unlike those that occur in the private sector. We conclude that the interests raised in this case involve an employment issue that does not implicate the same policy interests that underpinned the decision concerning police reports.

“The City also pointed to a state statute that provides that law enforcement agencies must conduct thorough background checks of officers, and argues that the statute militates in favor of absolute privilege because it demonstrates that there is an important public interest at stake. We disagree. The statute requires employers to provide employment information regarding any current or former employee to a law enforcement agency upon request. The statute also provides that employers are immune from liability for statements made while responding to a background request, in the absence of fraud or malice. Because this statute demonstrates the Legislature’s intent to provide employers with a qualified privilege, which may be defeated by a showing of fraud or malice, this statute supports our conclusion that absolute privilege does not apply in this case.”

Minke v. City of Minneapolis, 2013 WL 3968762 (Minn. App. 2013).