Jesse Smith, Appellant,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-0709

Jesse Smith,
Appellant,

vs.

City of Crosby, et al.,
Respondents.

Filed January 18, 2022
Affirmed
Segal, Chief Judge

Crow Wing County District Court
File No. 18-CV-19-1566

Patrick T. Tierney, Collins, Buckley, Sauntry & Haugh, PLLP, St. Paul, Minnesota; and

Timothy W. Andrew, Andrew, Bransky & Poole, P.A., Duluth, Minnesota (for appellant)

William J. Everett, Anna L. Yunker, Everett Law, LLC, Buffalo, Minnesota (for
respondents)

Considered and decided by Frisch, Presiding Judge; Segal, Chief Judge; and Cleary,
Judge.

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
NONPRECEDENTIAL OPINION
SEGAL, Chief Judge
This appeal arises out of the summary -judgment dismissal of a lawsuit brought by
appellant J esse Smith against the City of Crosby (the city), Kim Coughlin, and Kevin
Randolph (collectively respondents). The suit asserts claims against respondents for
defamation and against the city for violating the Minnesota Government Data Practices
Act (MGDPA), Minn. Stat. §§ 13.01-.90 (2020) . Smith argues in this appeal that the
district court erred by granting summary judgment on his defamation claim because there
is a genuine issue of material fact whether the allegedly defamatory statements were made
with actual malice. Smith also asserts that the district court erred by granting summary
judgment on his claim for violating the MGDPA because he claims that the evidence shows
(1) that he neither authorized the release of private data nor waived his privacy rights; and
(2) that the city violated section 13.04, subdivision 4, of the MGDPA by failing to expunge
records related to an employment termination that had been overturned in arbitration. We
affirm.
FACTS
Smith was employed as a police officer with the Crosby Police Department .1 In
addition to his employment for the city, Smith also worked part-time as a police officer for

1 Smith had been a sergeant with the department, but in 2012 he was demoted to the position
of police officer and was terminated from his employment. The police union grieved the
demotion and employment termination. An arbitrator upheld the demotion but overturned
the employment termination and Smith was then reinstated as a police officer for the city.
3
the cities of Cuyuna and Deerwood. Smith was promoted to police chief for Cuyuna in
December 2014. Smith received approval from the city for both part-time positions.
In March 2016, respondent Kevin Randolph , who was a lieutenant in the Crosby
Police Department, discovered that Smith had used his login credentials from the Cuyuna
Police Department while he was on duty for the city. Randolph reported this to respondent
Kim Coughlin, the city’s police chief. Randolph advised Coughlin that Smith may be
doing work for the Cuyuna Police Department while Smith was on duty for the city and
could be receiving double pay. In response, Coughlin arranged for a lieutenant with the
Cass County Sheriff’s Department (the lieutenant) to conduct a criminal investigation into
the matter and placed Smith on administrative leave.
In April 2016, the lieutenant prepared a report summarizing the investigation to
date. The lieutenant noted several discrepancies in Smith’s time sheets. The lieutenant
also reported that there were “numerous” times between 2014 through 2016 when Smith
performed work for Cuyuna by creating Cuyuna incident case reports while on -the-clock
for the city. But the lieutenant stated in the report that he could find “no evidence” that
this was done for the purpose of getting double pay. The lieutenant concluded the report
stating that “[t]his matter will remain under investigation.” F ollowing a meeting with the
lieutenant, Coughlin determined that she would not pursue possible crimina l charges and
instead directed Randolph to conduct an internal-affairs investigation.
In September 2016, Randolph completed his internal -affairs investigation and
prepared a 25-page report. The investigation showed that Smith was double -paid by the
city and Cuyuna for five and one -half hours. The investigation also revealed that
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approximately half of the incident case reports logged by Smith while on duty for the city
during the relevant time frame were for Cuyuna, not the city. Smith indicated that he did
this work while “on break” from his job with the city. But based on the times of the entries
and Smith’s assignment at the time, Randolph concluded that the Cuyuna work did not
coincide with Smith’s break times. Randolph believed that Smith’s conduct violated
internal policy and union contract provisions. Following the conclusion of Randolph’s
investigation, Coughlin sent a letter to the mayor and requested a special meeting of the
council to address the matter. In October 2016, the city council met and terminated Smith’s
employment.
The police union grieved Smith’s employment termination and the matter proceeded
to arbitration. In May 2017, the arbitrator issued an award sustaining the grievance in full
(the arbitration decision) . The arbitrator determined that the city failed to establish by a
preponderance of the evidence that there was just cause to terminate Smith’s employment.
The arbitrator was highly critical of the investigation conducted by Randolph and stated
that he believed Randolph’s report was “ slanted,” “ disingenuous[,] and possibly
untruthful.” The arbitrator ordered the city to reinstate Smith as a police officer, with back
pay. The arbitrator also opined that the city’s actions “did not result in a disciplinary action
within the meaning of [the MGDPA] ,” and ordered the city, “to the extent permitted by
law,” to expunge references to Smith’s termination from Smith’s personnel files.
Smith and the union released the full 52-page arbitration decision to the media, and
Smith also provided copies to some family members and friends. There was widespread
5
attention in the local media related to Smith and the arbitration decision, including as many
as 75 articles and letters to the editor in the three area newspapers.
In September 2017, Smith applied to become a full-time police officer with the City
of Deerwood. As part of the application p rocess, Smith was required to undergo a
background check, which was conducted by a sergeant from another police department (the
employment background investigator). Smith signed two data-release authorizations, one
for the city and one for the Crosby Police Department, authorizing release of private data
to the employment background investigator.
In November 2017, the employment background investigator met with Coughlin
and Randolph. Randolph told the employment background investigator about the criminal
investigation into Smith, the subsequent internal -affairs investigation, the termination of
Smith’s employment, and the arbitration award ordering Smith’s reinstatement. Coughlin
and Randolph also told the employment background investigator that they believed that
Smith had not fulfilled his obligations as a police officer ; he had tipped off a suspect that
law enforcement would be executing a search warrant at the suspect’s house and business;
and Smith was either crooked or corrupt, causing the employment background investigator
to write “criminal cop” in his notes from the meeting.2 The City of Deerwood nevertheless
hired Smith as a full-time police officer in January 2018 and promoted him to sergeant in
2020.

2 The investigator, whose sworn statement was relied on by Smith, did not recall if they
had used the word “crooked” or “corrupt.”
6
Randolph retired in 2019. During his tenure as a lieutenant , Randolph made
monthly appearances on a local radio talk show. In what would be his last appearance in
March 2019, Randolph publicly announced his retirement and discussed, among other
topics, current challenges faced by law enforcement. Randolph expressed his frustration
with arbitration and cited examples from around the country and in Minnesota. He noted
in particular a recent decision of the Minnesota Supreme Court where an arbitrator had
reversed the employment termination of a police officer. The court affirmed the arbitration
award reinstating the officer, noting the limited authority of the courts to reverse arbitration
decisions.
The following are excerpts from comments Randolph made that relate to Smith’s
defamation claim:
Um, when you get into administration, you cannot get rid of
your bad cops. I mean, we saw that here locally. We have,
you know, we have these situations where these cops are
actually committing crimes on duty. We try to fire them and
arbitrators give them their jobs back. And now the State
Supreme Court has said, “Hey, if that ’s the arbitrator ’s
decision, then —then we have no reason to overturn it, no
matter what the facts are” . . . . [O]ver and over these guys get
their jobs back. And it—it’s making . . . all the good cops get
painted as bad because of this. And it’s just so—so good cops
are leaving.

Who wants to . . . I’ve seen it in —In every department
I’ve worked in. You can have one bad guy and he just drags
the whole group down with him. Uh, drags morale down.
Drags performance. And it’s—it, you know, it becomes very
disheartening. And that’s, you know, one of the things that it—
it was in the Star Tribune this week. Um, there—you know,
because of the [Minnes ota] Supreme Court decision, there is
now a big movement growing to get . . . the Legislature to start
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passing laws to restrict the power of these arbitrators and these
crazy decisions that they make.

But if [you are a police officer] paying your union dues
to a union that is fighting to keep these bad cops on the job,
you’re destroying your own future. . . . And I ’d be —you
know, uh and I mean one of the—the ironies of this situation
is—is, as I leave the City here at the end of the month um,
I’m—you know, I—I give up a lot of the restrictions that I ’ve
had in talking about these cases. And fortunately for me, the
one case here, they ’ve uh—they’ve made very public all the
information. So I don ’t need to worry about the privacy on
that. But I intend to make, you know, uh make the case that I
have been through and join ed in with the other cases and
start—start looking at this and saying “Enough is enough. This
is ridiculous in—in how this State treats criminal cops.”

I mean, we have people who have committed just
heinous crimes. The—you know, the uh, assaulting people on
video. Theft. Stealing from the City. You can’t—you can’t
be fired for that. You know, this is—how does this help police
work? How does this help society?

Smith initiated his lawsuit in April 2019 . The respondents moved for summary
judgment, and Smith moved for partial summary judgment on his MGDPA claim. The
district court granted respondents’ motion and denied Smith’s motion. The district court
determined that Smith was a public official for First Amendment purposes and failed to
bring forward evidence sufficient to create a genuine issue of material fact whether the
alleged defamatory statements were made wit h actual malice . The district court also
determined that several of the alleged defamatory statements were not actionable because
they were protected by qualified privilege, constituted statements of opinion, not fact,3 or

3 We note that Smith d id not appeal the dismissal of the statements that the district court
found to be statements of opinion.
8
were too vague. On Smith’s claim for violating the MGDPA, the district court determined
that none of the complained -of statements violated the MGDPA; Smith “waived his
privacy rights under the MGDPA by makin g the 52-page arbitration decision available to
the public”; and “the [c]ity properly retained the private personnel data of Smith ,” despite
the arbitrator’s order “that it be expunged ‘to the extent permitted by law.’” Smith now
appeals.
DECISION
On appeal from the grant of summary judgment, we review de novo whether there
are any genuine issues of material fact and whether the district court erred in applying the
law. Ruiz v. 1st Fid. Loan Servicing, LLC , 829 N.W.2d 53, 56 (Minn. 2013). “We view
the evidence in the light most favorable to the party against whom summary judgment was
granted.” STAR Ctrs., Inc. v. Faegre & Benson, L.L.P. , 644 N.W.2d 72, 76 -77 (Minn.
2002). A genuine issue of material fact exists when there is sufficient evidence that could
lead a rational trier of fact to find for the nonmoving party. DLH, Inc. v. Russ, 566 N.W.2d
60, 69 (Minn. 1997).
Smith challenges both the dismissal of his defamation and MGDPA claims. We
address each challenge below.
I. Defamation Claim
To prevail on a defamation claim, a party must establish that
(1) the defamatory statement was communicated to someone
other than the plaintiff; (2) the statement is false; (3) the
statement tends to harm the plaintiff’s reputation and to lower
the plaintiff in the estimation of the community; and (4) the
9
recipient of the false statement reasonably understands it to
refer to a specific individual.

Larson v. Gannett Co. , 940 N.W.2d 120, 130 (Minn. 2020) (quotation omitted) . When
such a statement concerns “a person’s business, trade, or professional conduct,” i t is
defamation per se, which does not require proof of actual damages. Becker v. Alloy
Hardfacing & Eng’g Co. , 401 N.W.2d 655, 661 (Minn. 1987). But a plaintiff alleging
defamation per se must prove the remaining elements to succeed on his defamation claim.
Bebo v. Delander, 632 N.W.2d 732, 739 (Minn. App. 2001), rev. denied (Minn. Oct. 16,
2001).
True statements are not defamatory. McKee v. Laurion , 825 N.W.2d 725, 730
(Minn. 2013) (explaining that “[t]he plaintiff has the burden of proving falsity in order to
establish a successful defamation claim”). Statements that are “substantially true,” or
“supportable interpretations of ambiguous underlying situations,” are also not defamatory.
Hunter v. H artman, 545 N.W.2d 699, 707 (Minn. App. 1996) (quotation omitted), rev.
denied (Minn. June 19, 1996). And statements , even if untrue, may be protected by a
qualified privilege if made upon a “proper occasion,” with “proper motive,” and are based
on “reasonable or probable cause .” Hunt v. Univ. of Minn. , 465 N.W.2d 88, 92 (Minn.
App. 1991). In such cases, to overcome the qualified privilege, the party seeking relief
must show that an alleged defamatory statement was made with common-law malice. Id.
In his challenge to the dismissal of his claim for defamation, Smith argues that the
district court erred in determining that there was no genuine issue of material fact whether
the alleged defamatory statements were published with actual malice. When the alleged
10
defamatory statements concern a “public official,” as the district court determined was the
case here, the First Amendment requires that the plaintiff prove, with “convincing clarity,”
that the statements were made with “actual malice.”4 Elstrom v. Indep. Sch. Dist. No. 270,
533 N.W.2d 51, 56 (Minn. App. 1995) , rev. denied (Minn. July 27, 1995) ; see also
Connelly v. Nw. Publ’ns, Inc., 448 N.W.2d 901, 903 (Minn. App. 1989), rev. denied (Minn.
Feb. 21, 1990). “Actual malice” for First Amendment purposes is defined as “knowledge
that [the statement ] was false or . . . reckless disregard of whether it was false or not.”
Connelly, 448 N.W.2d at 903 (quoting New York Times, 376 U.S. at 279-80). Mere
“[e]rrors in judgment do not establish actual malice; nor does failure to investigate.”
Elstrom, 533 N.W.2d at 56.
“[W]hen the factual question concerns actual malice the appropriate summary
judgment question will be w hether the evidence in the record could support a reasonable
jury finding either that the plaintiff has shown actual malice by clear and convincing
evidence or that the plaintiff has not .” Connelly, 448 N.W.2d at 903 (quotation omitted).
“Whether the evi dence can support a jury finding of actual malice is a question of law ,”
subject to de novo review. Elstrom, 533 N.W.2d at 56; see also Ruiz, 829 N.W.2d at 56.
Smith’s defamation claim is based on two sets of statements. The first set involves
statements allegedly made in 2017 by Coughlin and Randolph to the employment

4 Smith uses the term “constitutional malice.” In Minnesota, the term “actual malice” is
used to refer to the “constitutional malice” standard that was first articulated in New York
Times v. Sullivan, 376 U.S. 254, 279 -80 (1964). See Jadwin v. Minneapolis Star & Trib.
Co., 367 N.W.2d 476, 482 n.7 (Minn. 1985) (using “the term actual malice . . . to refer to
the ‘constitutional malice’ standard developed in New York Times”).
11
background investigator. Th is set includes alleged defamatory statements that Smith
(1) had not fulfilled his police officer responsibilities properly because he was doing work
for the Cuyuna Police Department when he was on duty for the city ; (2) had warned a
criminal suspect that a search warrant was going to be issued ; and (3) was either a
“crooked” or “corrupt” cop. The second set includes statements made by Randolph in his
final radio show appearance in March 2019 to the effect that “cops are actually committing
crimes on duty” and that “[y]ou can have one bad guy and he just drags the whole group
down with him.”
In granting summary judgment, the district court determined that Smith failed to
provide evidence sufficient to create a genuine issue of material fact that the alleged
statements were made with actual malice . The court also determined that the statements
made to the employment background investigator were not actionable because they were
protected by qualified privilege and that the March 2019 radio show comments were too
general and “veiled” to make it clear that they referred to Smith.
Smith raises several arguments in an effort to show error by the district court. First,
Smith argues that the findings in the arbitration decision provide sufficient evidence of
actual malice to withstand summary judgment . Smith claims that the arbitration decision
established that Smith engaged in no criminal conduct and that respondents are collaterally
estopped from relitigating that question. The district court rejected Smith’s collateral
estoppel argument, as do we.
The arbitrator’s findings and conclusions are not bind ing in this action. Collateral
estoppel applies only when the issue is identical to an issue in a prior adjudication, there
12
was a final judgment on the merits, the estopped party was a party to the prior adjudication,
and the estopped party was given a fu ll and fair opportunity to be heard on the issue.
Hauschildt v. Beckingham , 686 N.W.2d 829, 837 (Minn. 2004). Here, the arbitration
decision focused on whether just cause existed for discharge under the labor contract
between the union and the city. No such issue is involved in this suit. In addition, neither
Coughlin nor Randolph were parties to the arbitration proceeding. The district court thus
correctly rejected the collateral-estoppel claim.
Smith next argues that he submitted evidence showing that Coughlin and Randolph
knew the alleged defamatory statements were false and that this created a genuine issue of
material fact on the issue of actual malice. Turning first to the allegation that Smith was
performing work for two departments while being paid by the city , Smith claims that this
“was fully investigated by [the lieutenant from] Cass County with a finding of no criminal
activity.” He maintains that this provides ev idence that Coughlin and Smith made the
statements knowing they were false. We are not persuaded.
First, the lieutenant’s report did not state that there was “no criminal activity.” The
report, in fact, stated that there were “numerous” instances of Smith performing work for
Cuyuna—logging Cuyuna incident case reports—while being paid by the city. The report
notes that the lieutenant could not find evidence based on the investigation to date that
Smith had an intent to obtain double pay. But the report ends by stating that the matter
will remain under investigation, with no conclusion about wheth er there was or was not
“criminal activity.” In addition, Randolph’s investigation found that Smith was double
paid for at least five and one-half hours, which was not disputed by Smith.
13
Respondents also provided undisputed evidence showing that half of the incident
case reports entered by Smith during his Crosby shifts were for Cuyuna, not Crosby, and
that Smith’s logging of Cuyuna incident case reports did not coincide with Smith’s break-
times from his work for the city. Respondents thus had evidence showing that Smith was
performing work for Cuyuna while being paid to perform work for the city. 5 We thus
conclude that Smith failed to present sufficient evidence regarding the dual -work
statements to establish a genuine issue of material fact under the heightened “clear and
convincing” standard of proof that applies to actual malice.
Turning to the alleged defamatory statement that Smith had warned a suspect about
a search warrant, Smith asserts that “[t]here was no credible evidence to support
Randolph’s claim” and that “Randolph fabricated [the] story.” The claim relates to a search
warrant that was executed in early March 2017. Randolph stated that he met with city
officers about two weeks earlier to discuss the search -warrant plan. When the search
warrant was executed, the officers found an empty safe and found bank bags with cash in
the suspect’s car and on his dining room table. While the amount of cash found was about
$40,000, it was less than law enforcement expected to find. This created the suspicion that
someone had tipped off the suspect about the search warrant.

5 We also note that, during the relevant time frame, Smith was working as the part -time
police chief for Cuyuna. The incident case reports Smith logged into the Cuyuna database
while on duty for the city were for calls that were responded to by law -enforcement
agencies other than Cuyuna officers. Randolph stated that they believed Smith was doing
this to inflate Cuyuna’s statistics. Smith claimed he logged the incident case reports so that
Cuyuna officers would be kept up -to-speed on what was happening in their jurisdiction.
Regardless of motive, it remains that Smith admittedly performed work for the benefit of
Cuyuna while being paid to do work for the city.
14
An internal-affairs investigation was started and phone records were collected. The
phone records showed that, on the evening when Randolph held the search-warrant meeting
with officers, the suspect called Smith (Smith was on duty for Deerwood at the time), Smith
returned the call, and a few minutes later someone using a Deerwood police department
phone called one of the officers who had attended Randolph’s search-warrant meeting.
The phone records also showed that the suspect and Smith spoke by phone three times the
next evening and that no ne of the officers who attended the search-warrant meeting had
any phone contact with the suspect between the date of the meeting and the execution of
the search warrant.
Smith maintains that Randolph never held a meeting about the search warrant and
that the phone records are thus meaningless . But Smith provided no admissible evidence
in support of this assertion. Unsupported allegations are not sufficient to demonstrate the
existence of a genuine issue of material fact . See Harvet v. Unity Med . Ctr., Inc., 428
N.W.2d 574, 579 (Minn. App. 1988) (stating that claims “of malice . . . based on conjecture
and speculation . . . are insufficient to create a jury question”). We therefore affirm the
district court’s conclusion that Smith failed to create a genuine issue of mat erial fact that
the statements about the “tip -off” were made by Coughlin and Randolph knowing their
falsity.
We next address the alleged statement that Smith was a “crooked” or “corrupt” cop.
This presents a closer question . But based on the evidence outlined above, we conclude
that Smith has failed to satisfy his burden to demonstrate a genuine issue of material fact
that Coughlin and Randolph made the statement knowing its falsity. As noted earlier, the
15
standard of proof for actual malice is not just a preponderance of the evidence, but proof
by clear and convincing evidence. Connelly, 448 N.W.2d at 903.
Smith cites Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657 (1989), as
support for reversal. Harte-Hanks is, however, distinguishable. The case involved a claim
of libel based on a front-page newspaper article . The article contained quotes from a
woman who asserted that the libel victim, Connaughton, “had used ‘dirty tricks’” and had
offered “her and her sister jobs and a trip to Florida ‘in appreciation’ for their help ” in
bringing about an investigation of bribery involving a court administrator. Harte-Hanks,
491 U.S. at 660. Connaughton was a candidate for judge and hi s opponent was the
incumbent judge who supervised the court administrator. Id.
A jury found for Connaughton and the newspaper appealed claiming there was not
sufficient evidence of actual malice. Id. at 661. The newspaper asserted that they had
recorded interviews with the woman , and had also interviewed Connaughton and five
others who were present when the alleged statements were made to the woman and her
sister by Connaughton. Id. at 670-72, 682-83. The Supreme Court, however, rejected the
newspaper’s arguments and upheld the jury verdict based on the conclusion that the
newspaper must have entertained serious doubts about the truth of the woman’s story . Id.
at 689-93.
The Court found persuasive that, of the seven other people present when the alleged
statements were made, the six who were interviewed by the newspaper steadfastly denied
the woman’s account. Id. at 682-83. And the newspaper never even tried to interview the
seventh person—the woman’s sister—who was also present when the alleged statements
16
were made and would be the most knowledgeable and logical source to corroborate or
contradict the woman’s claims. Id. The facts relied on by the Court in reaching its
conclusion included that: (1) the newspaper failed to even try to interview the sister; (2) all
other witnesses denied the woman’s story; (3) the newspaper advised the woman that they
would run the story when she first met with them, before any independent investigation by
the paper; and (4) the newspaper endorsed the incumbent in the judicial election while the
paper’s main competitor endorsed Connaughton. Id. at 681-84.
Here, the evidence supporting Coughlin and Randolph’s statements includes
computer entry and payroll records of Smith and phone records for Smith and the officers
who attended Randolph’s meeting on the search warr ant. While Smith contests the
inferences drawn from those records, he does not dispute the accuracy of the records. Thus,
there is a concrete distinction between the nature of the evidence supporting Coughlin and
Randolph’s statements and the evidence relied on by the newspaper in Harte-Hanks. We
therefore affirm the district court’s grant of summary judgment concerning the “tip-off”
allegation.
We note that the district court also determined that the allegations were protected
by qualified privilege. As noted above, qualified privilege applies to communications that
are “made upon a proper occasion, from a proper motive, and . . . based upon reasonable
or probable cause. ” Stuempges v. Parke, Davis & Co. , 297 N.W.2d 252, 256 -57 (Minn.
1980). We need not address this issue, however, having concluded that Smith has failed
to show the existence of a genuine issue of material fact on the question of actual malice
regarding the first set of allegations.
17
Turning to the second set of allegations , the statements made by Randolph in his
final radio show appearance in M arch 2019 , t hese statements are equally subject to
summary judgment for lack of sufficient evidence to create a genuine issue of material fact
under the heightened standard of proof required to demonstrate actual malice. The alleged
defamatory statements in the second set of allegations include comments by Randolph such
as: “these cops are actually committing crimes on duty” ; and “I’ve seen it in . . . every
department I’ve worked in. You can have one bad guy and he just drag s the whole group
down with him.” To the extent that the comments Randolph made in the radio show can
even be said to relate to Smith, they are of the same nature as the comments in the first set
and are subject to summary judgment based on the same reasoning.
Moreover, we agree with the district court that, in addition to the lack of evidence
of actual malice, these statements are too general and too veiled to be actionable on a claim
for defam ation. In the 36 pages of the transcript of Randolph’s comments, Randolph
covered several topics, including his frustration with the arbitration process because it
allowed “bad cops” to remain in their jobs. Th e comments about the arbitration process
were, however, focused on a recent state supreme court opinion that had been in the news
where an arbitrator had reinstated a terminated officer: “the State Supreme Court has said,
‘Hey, if that’s the Arbitrator’s decision, then . . . we have no reason to overturn it.’” While
Randolph referred in his comments to “the one case here,” Smith’s name was n ever
mentioned, and no details were provided . By contrast, as noted by the district court,
Randolph provided significant detail concerning cases that had occurred elsewhere. In
18
addition, the radio show appearance was also almost two years after the 2017 arbitration
award, making any of the fleeting references to the “one case here,” less obvious.
We thus discern no error by the district court in gran ting summary judgment on
Smith’s claim for defamation.
II. MGDPA Claim

Smith challenges the di strict court’s grant of summary judgment on his MGDPA
claim, arguing that the district court erred in concluding that he had authorized the
disclosure of data relating to the alleged grounds for his 2016 employment termination and
had waived his privacy rights by releasing the arbitration decision to the media. He also
contends that the city violated the MGDPA by failing to expunge personnel records related
to his employment termination as ordered in the arbitration decision.
The MGDPA “regulates the collection, creation, storage, maintenance,
dissemination, and access to government data in government entities.” Minn. Stat. § 13.01.
Under the MGDPA, data about disciplinary action that is reversed through an arbitration
process is private personnel data that may not be publicly released by the employer without
permission of the subject of the data, a court order, or other statutory authorization. Minn.
Stat. §§ 13.03, subd. 6, .04, subd. 3, .43, subd. 2(b).
Smith claims the city disclosed private data in violation of the MGDPA at least four
times. These include statements Randolph made in his 2019 radio show, the disclosures
by Coughlin and Randolph to the employment background investigator, and statements
made in two letters to the editor in local newspapers. In one of the letters to the editor, an
attorney for the city wrote that she had advised the city that it had to follow the MGDPA
19
and that the only way it could “respond to the false claims, character assassinations, or the
lies being printed about them in the paper” would be for the “affected employee(s)” to sign
a waiver of their privacy rights and that she “sincerely doubt [s] such a waiver would be
forthcoming.” The second letter to the editor was from a city counci l member who
similarly stated that the city could not respond unless the employee signed a waiver, and
that respondents had “nothing to hide” and “did not lie.”
Addressing first the alleged disclosure of private data to the employment
background investigator, the district court correctly concluded that Smith expressly
authorized the release of private data to the investigator. Smith signed not just one, but
two authorizations. The first, addressed to the city, states that Smith authorizes “to be
released . . . private data, as defined by [the MGDPA], . . . collected by you as a result of
my contacts and associations with you and/or your a gents and representatives.” The
authorization then states that it applies to a variety of data, including “any information
pertinent to a position with the Deerwood Police Department.” The second authorization
is addressed to the Crosby Police Department and again authorizes the release of private
data as defined in the MGDPA, including “all data, which has been collected, created,
received, retained or disseminated in whatever form, wh ich in any way relates to my
dealings with [the department ].” The authorizations are clear and comprehensive and
dispense with Smith’s MGDPA claims related to the disclosure of private data to the
employment background investigator.
As for Randolph’s 2019 radio-show comments and the two letters to the editor, it is
not clear that the alleged disclosures contained private data because of the veiled nature of
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the comments. But even if they contained private data, Smith’s cl aim was properly
dismissed on summary judgment because he failed to bring forward adequate evidence of
damages to withstand a motion for summary judgment . Proof of damages is a requisite
element of a claim seeking compensatory relief for a violation of the MGDPA. Minn. Stat.
§ 13.08, subd. 1; accord Adams v. Harpstead , 947 N.W.2d 838, 842 (Minn. App. 2020),
rev. denied (Minn. Sept. 29, 2020).
Smith argues that he satisfied this requirement because he claims the alleged
disclosures caused him emotional harm , humiliation, and damaged his reputation. A
person may recover damages fo r emotional harm arising from data -practices violations,
but only if he demonstrates “that emotional injury occurred under circumstances tending
to guarantee its genuineness .” Navarre v. S. Washington Cnty. Schs., 652 N.W.2d 9, 30
(Minn. 2002) (quotation omitted). This heightened standard is based on our supreme
court’s historical reluc tance “to expand the availability of emotional -distress damages
because of concerns regarding liability and the potential for abuse.” Adams, 947 N.W.2d
at 843 (citing Navarre, 652 N.W.2d at 30). For this reason, a plaintiff’s conclusory
allegations of em otional distress are not enough to withstand a motion for summary
judgment. Rather, to survive summary judgment, plaintiffs must present additional
evidence to support their emotional distress claim. Navarre, 652 N.W.2d at 16 -18, 30;
Adams, 947 N.W.2d at 844-45.
Here, Smith’s claim that he suffered emotional distress is supported by only
conclusory allegations ; he failed to present any corroborating evidence . A nd, despite
Smith’s claim that his reputation was harmed by the release of his private data, he was still
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hired by the Deerwood Police Department. In addition, the circumstances surrounding the
alleged violation include the fact that Smith himself released the 5 2-page arbitration
decision to the media. Thus, the same information that Smith claims caused him emotional
distress was already in the public sphere , by his own actions, and received wide media
attention. While we agree with Smith that he did not waive his privacy rights under the
MGDPA by releasing the arbitration decision, we conclude that his claim fo r unlawful
disclosure is nevertheless subject to summary judgment because he failed to establish a
genuine issue of material fact on damages.
Smith’s final claim is that the city violated the MGDPA by failing to expunge all
records related to his employment termination as ordered in the arbitration decision. Smith
is correct that Minn. Stat. § 13.04, subd. 4, allows an individual to “contest the accuracy or
completeness of public or private data” and that “[d]ata on individuals that have been
successfully challenged by an individual must be completed, corrected, or destroyed by a
government entity without regard to the requirements of section 138.17.” But Smith did
not contest the accuracy of the data under the requisite procedure set out in section 13.04,
subdivision 4, of the MGDPA.
The procedure in Minn. Stat. § 13.04, subd. 4, among other steps , includes an
administrative appeal to the state commissioner of administration. See Minn. R. 1205.1600
(2021); Minn. Stat. §§ 13.04, subd. 4, 14.62 (2020). If efforts to resolve the claim do not
succeed at this stage, the next step is a contested -case hearing under the Minnesota
Administrative Procedure Act . Minn. Stat. § 13.04, subd. 4. An adverse decision from
that process can only be reviewed by a certiorari appeal in this court. Smith failed to follow
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this procedure and, instead, pursued his claim under the MGDPA in district court. Because
an accuracy-and-completeness challenge does not belong in district court, Smith’s claim
for violating Minn. Stat. §13.04 was properly dismissed on summary judgment.
Affirmed.