State Supreme Court rules for city in privacy case

By HASKEL BURNS,

The Mississippi Supreme Court has ruled 5-2 in favor of the City of Hattiesburg, members of Hattiesburg City Council and former Mayor Johnny DuPree in the case of a former municipal court clerk’s claim that her privacy was invaded after some of her medical records were released to the media.

In a ruling issued Jan. 6, the court upheld a previous ruling of the Court of Appeals, saying that former Ward 1 Councilman Kim Bradley did not act with malice when he disclosed Sharon Mark’s breast cancer diagnosis and surgery to the media through the release of her medical release form.

“Turning to Bradley’s action, there is also no evidence for a reasonable juror to conclude that he acted maliciously – that is, with any ill will toward Mark or in wanton disregard of her privacy rights,” the ruling states. “If we were dealing with a simple negligence-based invasion-of-privacy claim against a private individual, our inquiry would end with whether the jury should have been able to consider if disclosing breast-cancer surgery is highly offensive to a reasonable person.

“But we are not dealing with a private individual. We are dealing with a city councilman. To skirt the (Mississippi Tort Claims Act’s) immunity provisions and hold this city councilman individually liable, he must have acted with malice. And his admittedly negligent act does not rise to this level.”

Justices Michael Randolph, Josiah Coleman, Dawn Beam, Robert Chamberlin and David Ishee concurred with the decision, while Justices Leslie King and James Kitchen dissented. Justice Kenneth Griffis did not participate.

Mark’s medical records were released as part of a 2012 internal investigation by the Hattiesburg Police Department, where it was determined some municipal court employees improperly destroyed warrants and were rewarded for dismissing tickets, fines and warrants. The media obtained documents from the investigation, which included a form that indicated Mark had asked for leave to undergo breast cancer surgery.

Distressed by the public disclosure of her medical condition, Mark then sued the mayor and all five council members for invasion of privacy, saying each of them were individually liable because they had acted with malice.

“But at trial, the evidence showed the disclosure of her medical leave form was at most negligence,” the Supreme Court’s ruling states. “Because Mark failed to support her claim that the mayor and council members maliciously invaded her privacy, the trial court did not err by granting these individual defendants a directed verdict.”

After the city was dismissed on summary judgment, Mark proceeded to trial against the mayor and city council members in their individual capacities on claims of slander, invasion of privacy and intentional infliction of emotional distress. At the close of her case-in-chief, the trial court granted the defendants a directed verdict on all claims. Mark appealed, and the Court of Appeals affirmed.

“As part of that judgment, the trial court ruled the city could not be held liable for its employees’ allegedly tortious actions because Mark framed her claims in a way to try to avoid the Mississippi Tort Claims Act and its bench-trial requirement,” the ruling states. “She did this by alleging the mayor and city council members acted intentionally and with malice.”

Although evidence shows that Bradley acted alone in releasing Mark’s medical leave form, the court also found that DuPree did not want to release the court’s investigative report to the council or the media. Because of that, there is no evidence linking Bradley’s action to DuPree or the other council members.

In addition, there is no evidence that Bradley released the reports in wanton disregard of Mark’s privacy rights. Bradley admitted that he gave the investigative reports to the media, but did not know at the time that the medical release form was part of those documents.

In his dissention, Kitchens wrote that he would have allowed Mark’s invasion of privacy claim against the individual council members to go to jury.

“I would find that a jury question exists on whether the public disclosure of Sharon Mark’s breast cancer surgery would have been highly offensive to a reasonable person,” he said. “I further would find that Mark’s evidence of malice was sufficient to create a jury question on that element of her claim.”

Mark had previously sued the city for slander and wrongful termination, but that case was dismissed in 2016 by County Court Judge Michael H. Ward of Gulfport. After reviewing the case and hearing arguments by attorneys representing the city and Mark, the state Court of Appeals ruled in favor of the city and affirmed the circuit court’s decision.