Jill Dillard v. Rick Hoyt , 930 F.3d 935 ( 2019 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 17-3284
___________________________
Jill Dillard; Jessa Seewald; Jinger Vuolo; Joy Duggar
lllllllllllllllllllllPlaintiffs - Appellees
v.
City of Springdale, Arkansas; Washington County, Arkansas; Kathy O'Kelley;
Ernest Cate
lllllllllllllllllllllDefendants
Rick Hoyt, in his individual and official capacities
lllllllllllllllllllllDefendant - Appellant
Steve Zega; Bauer Publishing Company, L.P.; Bauer Magazine, L.P.; Bauer Media
Group, Inc.; Bauer, Inc.; Heinrich Bauer North America, Inc.; Bauer Media Group
USA, LLC; Does, 1-10
lllllllllllllllllllllDefendants
___________________________
No. 17-3287
___________________________
Jill Dillard; Jessa Seewald; Jinger Vuolo; Joy Duggar
lllllllllllllllllllllPlaintiffs - Appellees
v.
City of Springdale, Arkansas; Washington County, Arkansas
lllllllllllllllllllllDefendants
Kathy O'Kelley, in her individual and official capacities; Ernest Cate, in his
individual and official capacities
lllllllllllllllllllllDefendants - Appellants
Rick Hoyt; Steve Zega; Bauer Publishing Company, L.P.; Bauer Magazine, L.P.;
Bauer Media Group, Inc.; Bauer, Inc.; Heinrich Bauer North America, Inc.; Bauer
Media Group USA, LLC; Does, 1-10
lllllllllllllllllllllDefendants
____________
Appeals from United States District Court
for the Western District of Arkansas - Fayetteville
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Submitted: December 12, 2018
Filed: July 12, 2019
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Before SMITH, Chief Judge, WOLLMAN and GRASZ, Circuit Judges.
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SMITH, Chief Judge.
Plaintiff-appellees Jill Dillard, Jessa Seewald, Jinger Vuolo, and Joy Duggar
allege violations of their constitutional right to privacy and of Arkansas tort law in
connection with defendant-appellants’ decisions to release information identifying
them as victims of childhood sexual abuse. The appellees sued several parties and
entities, but this appeal concerns their constitutional and tort claims against City of
Springdale (“City”) officials Kathy O’Kelley and Ernest Cate, and Washington
County (“County”) official Rick Hoyt. O’Kelley, Cate, and Hoyt (collectively, “the
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officials”) moved to dismiss the appellees’ constitutional claims on the basis of
qualified immunity and the tort claims on the bases of qualified and statutory
immunity. The district court1 denied their motion. Because we agree that the officials
were not entitled to either qualified or statutory immunity, we affirm.
I. Background
The appellees are sisters and stars of the popular reality show 19 Kids and
Counting. The show chronicles the lives of Jim Bob and Michelle Duggar and their
19 children. In 2006, the appellees, as well as their siblings and parents, were
interviewed as part of a police investigation into sexual misconduct by the appellees’
brother, Josh Duggar. The appellees were under the age of 16 at the time of the
alleged misconduct and at the time of the investigation. The police promised the
appellees and their family that their statements would remain confidential. The
family’s statements were documented in reports by both the City Police Department
and the County Sheriff’s Department. The County prosecutor also filed a Family in
Need of Services (FINS) petition pursuant to a request by the City police. No charges
were ever filed against Josh.
In 2015, a tabloid publisher submitted Freedom of Information Act (FOIA)
requests to the City and County to access these reports. On May 19, 2015, the tabloid
published an article naming Josh as the target of an “Underage Sex Probe” and
promised more details to follow. Dillard v. City of Springdale, Ark., No.
5:17-cv-05089, 2017 WL 4392049, at *1 (W.D. Ark. Sept. 29, 2017). The original
article identified Josh as the perpetrator and unnamed sisters—later identified as the
appellees—as the victims. On May 20, the City released its report to the tabloid; the
next day, the County released its report as well. O’Kelley, the City Police Chief, and
Cate, the City Attorney, directed the release of the City’s report, while Hoyt, an
1
The Honorable Timothy L. Brooks, United States District Judge for the
Western District of Arkansas.
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officer in the County Sheriff’s Office, directed the release of the County’s report. The
appellees describe the released City report, for example, as containing “graphic
descriptions about their molestation.” Compl. at 17, ¶ 58, Dillard v. City of
Springdale, Ark., No. 5:17-cv-05089 (W.D. Ark. May 18, 2017), ECF No. 1. Though
the appellees’ names were redacted, the reports contained other identifying
information—such as the appellees’ parents’ names and the appellees’ address and
ages.
At the district court, the officials claimed FOIA required them to release the
reports in the time and manner in which they did. However, the appellees alleged that
the officials hastily and wrongfully released the reports. We read the appellees’
complaint as alleging that the officials released the reports in response to pressure
from the press in an effort to promote the appearance of transparency.
Following the officials’ release of the reports, the tabloid published both
reports, as well as several salacious articles based on the reports’ content. Because of
the public’s prior knowledge about the Duggar family, the non-redacted details—i.e.,
the parents’ names, the victims’ ages and address—allowed readers to ascertain the
appellees’ exact identities. While the pre-disclosure March 19 article indicated that
some of the many Duggar children had been abused, the March 20 and 21 reports
confirmed these rumors and enabled the appellees to be specifically identified. A
torrent of media attention followed, and the appellees claim they “were subjected to
spiteful and harsh comments and harassment on the Internet and in their daily lives.”
Compl. at 20, ¶ 68. Joy Duggar subsequently filed a motion in state court to expunge
copies of the City report from the public record; the court granted this motion on the
basis that Arkansas law had prohibited their release. Nonetheless, copies of the report
continued to circulate online.
The appellees then brought this suit in federal court, alleging the officials
violated their constitutional and common law rights by directing the reports’ release.
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They sued under 42 U.S.C. § 1983 and the Arkansas Civil Rights Act (ACRA) for
violations of their right to privacy and under Arkansas tort law for invasion of
privacy—public disclosure of private fact; invasion of privacy—intrusion upon
seclusion; and outrage.2 The officials moved to dismiss under Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim, invoking the protection of qualified
immunity for the constitutional claims and qualified and statutory immunity for the
tort claims. With regard to the constitutional claims, they argued the appellees had not
alleged constitutional violations, or, in the alternative, that the constitutional right at
issue—i.e., the right to informational privacy—was not “clearly established.” The
officials renew this argument on appeal, with an emphasis on the “clearly established”
element. With regard to the state law claims, they argued that Ark. Code Ann. § 21-9-
301 immunized them from suit and likewise renew this argument on appeal.
II. Discussion
A. Constitutional Claims
“A denial of qualified immunity is an appealable final decision only to the
extent it turns on an issue of law. . . . At this early stage of the litigation, to warrant
reversal, defendants must show that they are entitled to qualified immunity on the
face of the complaint.” Dadd v. Anoka Cty., 827 F.3d 749, 754 (8th Cir. 2016)
(internal quotations omitted). “[A] well-pleaded complaint may proceed even if it
strikes a savvy judge that actual proof of the facts alleged is improbable, and that a
recovery is very remote and unlikely.” Braden v. Wal-Mart Stores, Inc., 588 F.3d 585,
594 (8th Cir. 2009) (internal quotations omitted). “Like the district court, we must
review the complaint most favorably to the non-moving party and may dismiss only
if it is clear that no relief can be granted under any set of facts that could be proved
consistent with the allegations.” Alexander v. Peffer, 993 F.2d 1348, 1349 (8th Cir.
1993) (internal quotations omitted).
2
The appellees also sued other parties who have since been dismissed and who
are not subject to this appeal.
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“The obvious function of the qualified immunity rule is to excuse an officer
who makes a reasonable mistake in the exercise of his official duties.” Edwards v.
Baer, 863 F.2d 606, 607 (8th Cir. 1988). “An individual defendant is entitled to
qualified immunity if his conduct does not violate clearly established constitutional
rights of which a reasonable person would have known.” Estate of Walker v. Wallace,
881 F.3d 1056, 1060 (8th Cir. 2018). This court “review[s] de novo the denial of a
motion to dismiss on the basis of qualified immunity, and must consider whether the
plaintiff has stated a plausible claim for violation of a constitutional or statutory right
and whether the right was clearly established at the time of the alleged infraction.”
Dadd, 827 F.3d at 754–55 (internal quotations omitted). Absent either a clearly
established right or a constitutional violation, qualified immunity applies. See Estate
of Walker, 881 F.3d at 1060. We apply the same standard to claims under the
Arkansas Constitution. See Hudson v. Norris, 227 F.3d 1047, 1054 (8th Cir. 2000)
(citing Robinson v. Langdon, 970 S.W.2d 292, 296 (Ark. 1998)).
1. Constitutional Violation
“In Whalen v. Roe, 429 U.S. 589, 97 S. Ct. 869, 51 L. Ed. 2d 64 (1977)
(Whalen), the Supreme Court determined that one component of the protection of the
right to privacy embodied in the [F]ourteenth [A]mendment is an individual’s interest
in avoiding disclosures of personal matters.” Peffer, 993 F.2d at 1349. We have
adopted that understanding of the Fourteenth Amendment, recognizing a “right to
confidentiality” protecting “against public dissemination of information” concerning
“highly personal matters representing the most intimate aspects of human affairs.”
Eagle v. Morgan, 88 F.3d 620, 625 (8th Cir. 1996) (internal quotation omitted).
To violate a person’s constitutional right of privacy the information
disclosed must be either a shocking degradation or an egregious
humiliation of her to further some specific state interest, or a flagrant
breach of a pledge of confidentiality which was instrumental in
obtaining the personal information. To determine whether a particular
disclosure satisfies this exacting standard, we must examine the nature
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of the material opened to public view to assess whether the person had
a legitimate expectation that the information would remain confidential
while in the state’s possession. When the information is inherently
private, it is entitled to protection.3
Id. (cleaned up).
Because of the “limited” nature of the right, we have repeatedly declined to
deny officials qualified immunity for disclosures involving anything short of “the
most intimate aspects of human affairs.” Wade v. Goodwin, 843 F.2d 1150, 1153 (8th
Cir. 1988) (upholding finding of qualified immunity where state official identified
plaintiff as a “survivalist”); Peffer, 993 F.2d at 1351 (finding plaintiff had not alleged
a constitutional violation where city official revealed plaintiff had been rejected from
the police academy); Cooksey v. Boyer, 289 F.3d 513, 516 (8th Cir. 2002) (affirming
qualified immunity finding where mayor revealed police chief was being treated for
stress). We have also declined to deny an official qualified immunity where the
information disclosed was not “inherently private.” Eagle, 88 F.3d at 625 (reversing
denial of qualified immunity where officers publicized information already in the
public domain); see also Riley v. St. Louis Cty. of Mo., 153 F.3d 627, 631 (8th Cir.
3
O’Kelley and Cate claim the constitutional violation prong of this case is
controlled by Hart v. City of Little Rock, 432 F.3d 801 (8th Cir. 2005) rather than our
informational privacy precedent; they urge us to adopt standards applied therein. In
Hart, police officers sued Little Rock for releasing files containing their addresses,
social security numbers, and other sensitive information to a defense attorney, who
then released those files to his incarcerated client; the officers claimed the city had
endangered them by releasing their personal information to a criminal. Id. at 803. We
analyzed the case under a “state-created danger theory,” because “the state owes a
duty to protect individuals if it created the danger to which the individuals are
subjected.” Id. at 805. The instant case does not involve a state-created danger;
therefore, Hart is not the applicable precedent. Hart is further distinguishable in that
much of the information at issue in Hart—such as addresses and names of family
members—was not inherently private.
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1998) (affirming qualified immunity finding where officers released photographs of
the deceased where the deceased’s mother had allowed his remains to be viewed
during a visitation).
The officials suggest that because we have declined to find constitutional
violations in our previous informational privacy cases, we must also decline to find
a violation here. We disagree. We have repeatedly recognized the existence of a right
to confidentiality since the Supreme Court’s pronouncement in Whalen. Just as we
have recognized informational privacy’s limits by denying its application in less-than-
egregious cases, we have also defined its reach by describing the types of cases in
which the right would proscribe official behavior. See Goodwin, 843 F.2d at 1153
(noting that the Constitution protects “privacy” in the context of “the most intimate
aspects of human affairs”); Peffer, 993 F.2d at 1350 (finding right to privacy protects
information that would constitute “a shocking degradation or an egregious
humiliation . . . to further some specific state interest, or a flagrant breech of a pledge
of confidentiality which was instrumental in obtaining the personal information”);
Eagle, 88 F.3d at 625 (explaining that “inherently private” information is protected).
Though we have explained that “protection against public dissemination of
information is limited,” that qualifier applies to information that is not “highly
personal,” does not “represent[] the most intimate aspects of human affairs,” and is
not “inherently private.” Eagle, 88 F.3d at 625 (internal quotations omitted). The
limitation does not swallow the right.
Government officials are entitled to protection from liability for innocuous
disclosures, but we will uphold genuine constitutional limits on governmental
disclosure in the appropriate circumstance. Being identified as a minor victim of
sexual abuse is markedly more intrusive than being identified as a survivalist, failed
police academy applicant, or over-stressed police chief. Releasing already-public
information—particularly information made available by the plaintiff herself, as in
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Riley—is also vastly different than disclosing information that the plaintiffs
themselves jealously guarded from the public.4
Guided by the considerations detailed in Peffer, Eagle, and Cooksey, we hold
that the appellees have alleged a plausible claim for the violation of a constitutional
right. The appellees allege City and County law enforcement obtained information
about Josh’s abuse from the appellees and their family, promising them
confidentiality. They allege the officials then released those law enforcement reports
to the public. They allege they were minors at the time of the molestation and at the
time the reports were created. They allege the reports contained graphic details of
their incestuous sexual abuse. And, they allege the reports were insufficiently
redacted, de facto revealing their names to the public. Finally, they allege the officials
released the reports in an effort to promote the appearance of transparency. Therefore,
the appellees have pleaded sufficient facts to meet Peffer’s “exacting standard.” See
Eagle, 88 F.3d at 625.
The information released by the officials involved “highly personal matters
representing the most intimate aspect of human affair,” Eagle, 88 F.3d at 625
(internal quotation removed), and the appellees had a legitimate expectation of
privacy in that information. Not only did police promise the appellees that the
4
Hoyt submitted separate briefing and argues he could not have violated the
appellees’ right to confidentiality because he released his report after the City,
meaning the information at issue was already public. However, at this stage of the
litigation, “we must review the complaint most favorably to the non-moving party.”
Peffer, 993 F.2d at 1349. The appellees allege that the County report revealed
information not contained in City report, and we take those allegations as true. We
also hesitate to announce a rule that would allow multiple officials to violate a
person’s rights near-simultaneously but would only punish the “first-mover.” We
need not resolve this “first-in-time” issue here, however, because the appellees have
alleged separate violations.
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information would remain private, but Arkansas law also supported this expectation
of privacy.5 In sum, the information was inherently private and is therefore entitled
5
The Arkansas Code provides that
[a] law enforcement agency shall not disclose to the public information
directly or indirectly identifying the victim of a sex offense except to the
extent that disclosure is:
(1) Of the site of the sex offense;
(2) Required by law;
(3) Necessary for law enforcement purposes; or
(4) Permitted by the court for good cause.
Ark. Code Ann. § 16-90-1104(b).
Section 16-90-1104(b)(2) includes an exception for disclosures required by
law, but the exception is clarified by Arkansas’s Child Maltreatment Act, which states
that
[a]ny data, records, reports, or documents that are created, collected, or
compiled by or on behalf of the Department of Human Services, the
Department of Arkansas State Police, or other entity authorized under
this chapter to perform investigations or provide services to children,
individuals, or families shall not be subject to disclosure under the
Freedom of Information Act of 1967, § 25-19-101 et seq.
Ark. Code Ann. § 12-18-104(a).
The City and County’s reports were “documents” “created, collected, or
compiled” by “entit[ies] authorized . . . to perform investigations or provide services
to children, individuals, or families” as defined by the Act. See id. The County
prosecutor’s filing of a FINS petition in response to a City police request also
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to constitutional protection. The appellees have stated a plausible claim for the
violation of their constitutional right to confidentiality.
2. Clearly Established
The “clearly established” analysis “focus[es] . . . on whether the officer had fair
notice that her conduct was unlawful . . . at the time of the conduct.” Kisela v.
Hughes, 138 S. Ct. 1148, 1152 (2018) (per curiam) (quoting Brosseau v. Haugen, 543
U.S. 194, 198 (2004) (per curiam)). “The right the official is alleged to have violated
supports the status of the reports as documents to which the Child Maltreatment Act
exception applies.
The interplay between the two statutes is readily discernible from their plain
language. The absence of Arkansas cases actually applying the Child Maltreatment
Act does not render its plain language ambiguous. None of the officials have denied
that the reports were documents; that these documents were created; that they were
collected or compiled by their respective law enforcement agencies; or that their
agencies were authorized to investigate the allegations against Josh. As FOIA
officers, the officials should reasonably have been aware of the law’s requirements.
Neither is the officials’ attempt to create ambiguity by referencing a change to
the Juvenile Code availing. The Juvenile Code is an entirely different section of the
Arkansas Code than that containing § 16-90-1104 and the Child Maltreatment Act.
See Act of Apr. 4, 2017, No. 891, 2017 Ark. Acts 891 (amending § 9-27-309(j). The
legislature amended the Juvenile Code to exempt from FOIA records of an
investigation conducted when the offender was an adult but relating to juvenile
conduct. This change does tangentially relate to the situation at issue, in that Josh
Duggar was investigated as an adult for juvenile conduct. However, Josh is not a
plaintiff in this suit: his sisters are. The issue here is not whether the appellants acted
improperly vis a vis Josh; the issue is whether they acted improperly vis a vis his
sisters. Perhaps the Arkansas legislature did amend the code to protect juvenile
perpetrators like Josh. But that amendment did nothing to change the language or
rationale of § 16-90-1104 or of the Child Maltreatment Act, which are intended to
protect victims rather than perpetrators.
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must have been clearly established in a particularized sense: The contours of the right
must be sufficiently clear that a reasonable official would understand that what he is
doing violates that right.” Capps v. Olson, 780 F.3d 879, 885–86 (8th Cir. 2015)
(cleaned up).
The contours of a right may be sufficiently clear without “a case directly on
point.” Kisela, 138 S. Ct. at 1152 (quoting White v. Pauly, 137 S. Ct. 548, 551 (2017)
(per curiam)). Though we are “not to define clearly established law at a high level of
generality,” id. (internal quotations omitted), “[g]eneral statements of the law are not
inherently incapable of giving fair and clear warning, and in other instances a general
constitutional rule already identified in the decisional law may apply with obvious
clarity to the specific conduct in question,” Olson, 780 F.3d at 886 (quoting United
States v. Lanier, 520 U.S. 259, 271 (1997)); see also White, 137 S. Ct. at 552 (“Of
course, general statements of the law are not inherently incapable of giving fair and
clear warning to officers, but in the light of pre-existing law the unlawfulness must
be apparent.” (cleaned up)). “[I]n an obvious case, [general] standards can clearly
establish the answer, even without a body of relevant case law.” Olson, 780 F.3d at
886 (alterations in original) (quoting Brosseau, 543 U.S. at 199).
The question now before us, then, is whether our law was “clearly established
in a particularized sense,” that the officials’ alleged conduct was unconstitutional.
Olson, 780 F.3d at 885–86 (cleaned up). Namely, we must decide whether the law
provided fair notice to the appellants that releasing details of minors’ sexual abuse
to a tabloid in a format predictably enabling the victims’ identification was not only
unadvisable, but also unlawful.
We conclude that it did. Inexact boundaries are boundaries nonetheless. The
particular facts alleged here are not near the periphery of the right to privacy but at
its center. Certainly, allegations of incestuous sexual abuse implicate “the most
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intimate aspects of human affairs” and are “inherently private.” Eagle, 88 F.3d at 625
(internal quotations omitted). The content and circumstances of these disclosures do
not just meet the standard of “shockingly degrading or egregiously humiliating,” they
illustrate them. Cooksey, 289 F.3d at 516. And releasing insufficiently redacted
reports detailing minors’ sexual abuse to a tabloid, notwithstanding promises that
these reports would remain private, is “a flagrant breach of a pledge of
confidentiality.” Id. (cleaned up). Despite not having had an informational privacy
case with these same facts, our case law “appl[ies] with obvious clarity to the specific
conduct in question,” Olson, 780 F.3d at 886 (quoting Lanier, 520 U.S. at 271), and
the appellants’ arguments to the contrary are unavailing. This is a case in which
“[general] standards . . . clearly establish[ed] the answer.” Id. (first alteration in
original) (quoting Brosseau, 543 U.S. at 199).6
“[Q]ualified immunity protects officials who make bad guesses in gray areas,
[and] it gives them breathing room to make reasonable but mistaken judgments.”
Estate of Walker, 881 F.3d at 1060 (internal citations omitted). Qualified immunity
does not, however, protect unreasonable mistakes or plain incompetence. See Malley
v. Briggs, 475 U.S. 335, 341 (1986) (explaining that qualified immunity protects “all
but the plainly incompetent or those who knowingly violate the law”). Where, as here,
we are not reviewing split-second, life-or-death decisions characteristic of excessive
force cases, the range of reasonable judgments naturally narrows by virtue of the
officials’ increased opportunity for reasoned reflection. See Brown v. City of Golden
6
Arkansas law further undercuts the appellants’ claim that they lacked fair
notice of their alleged conduct’s illegality. Statutes do not create constitutional rights,
Davis v . Scherer, 468 U.S. 183 (1998), but they may assist in showing that those
rights are clearly established by helping provide fair notice of a particular course of
conduct’s unlawfulness. See Nilson v. Layton City, 45 F.3d 369, 372 (10th Cir. 1995)
(“[S]tate statutes and regulations may inform our judg[]ment regarding the scope of
constitutional rights . . . .”); c.f. Small v. McCrystal, 708 F.3d 997, 1004–05 (8th Cir.
2013). Arkansas disclosure law is especially relevant here since the officials have
argued that the law, in fact, required them to disclose the reports.
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Valley, 574 F.3d 491, 497 (8th Cir. 2009) (noting the fact that “there [was] nothing
to indicate that [the officer] was faced with the need to make any split-second
decisions” as contributing to the court’s denial of qualified immunity); see generally
Awnings v. Fullerton, 912 F.3d 1089, 1100 (8th Cir. 2019) (undertaking qualified
immunity analysis in light of the “facts and circumstances confronting” the official
in question).
We hold that the right of minor victims of sexual abuse not to have their
identities and the details of their abuse revealed to the public was clearly established.
B. State Law Claims
Generally, we will only decide state law claims on interlocutory appeal if those
claims are “inextricably intertwined with interlocutory appeals concerning the defense
of qualified immunity.” Veneklase v. City of Fargo, 78 F.3d 1264, 1269 (8th Cir.
1996) (internal quotation omitted). However, we will also review state law claims for
the limited purpose of determining whether the district court properly denied a state
entity or its agent immunity from suit, “because immunity is effectively lost if a case
is erroneously permitted to go to trial.” Argonaut Great Cent. Ins. Co. v. Audrain Cty.
Joint Commc’ns, 781 F.3d 925, 929 (8th Cir. 2015) (quoting Van Wyhe v. Reisch, 581
F.3d 639, 647–48 (8th Cir. 2009)); see also id. (“The key to our jurisdiction over an
interlocutory appeal addressing sovereign immunity is whether the immunity is an
immunity from suit rather than a mere defense to liability.” (internal quotation
omitted)).
Ark. Code Ann. § 21-9-301 immunizes all political subdivisions of the state
“from liability and from suit for damages except to the extent that they may be
covered by liability insurance” and states that “[n]o tort action shall lie against any
such political subdivision because of the acts of its agents and employees.” The
Arkansas Supreme Court has held and repeatedly reaffirmed that § 21-9-301 provides
public officials with immunity against negligent acts but not against intentional torts.
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See Sullivan v. Coney, 427 S.W.3d 682, 685 (2013). The district court concluded that
because the appellees had alleged intentional torts, § 21-9-301 did not apply.
Though the officials argue that the district court “erroneously interpreted
Arkansas state law” because “[t]he decision in Battle is wrong,” Appellants
O’Kelley’s and Cate’s Br. at 31, 33, their argument is without merit, as federal courts
are bound by a state supreme court’s interpretation of state law. See Curtis Lumber
Co., Inc. v. Louisiana Pac. Corp., 618 F.3d 762, 771 (8th Cir. 2010).
Arkansas defines intentional torts as those “involv[ing] consequences which
the actor believes are substantially certain to follow his actions.” Stewart Title Guar.
Co. v. Am. Abstract & Title Co., 215 S.W.3d 596, 606 (Ark. 2005) (citing Miller v.
Ensco, Inc., 692 S.W.2d 615, 617 (Ark. 1985)). The appellees allege that the officials
committed the intentional torts of invasion of privacy—public disclosure of private
fact; invasion of privacy—intrusion upon seclusion; and outrage. According to
Arkansas law, these torts involve the release of either (1) offensive information in
which the plaintiff has a reasonable expectation of privacy, see Dunlap v. McCarthy,
678 S.W.2d 361, 364 (1984) (citing Restatement (Second) of Torts § 652 et seq.
(1977)), or (2) information likely to cause the plaintiff emotional distress. See
Crockett v. Essex, 19 S.W.3d 585, 589 (Ark. 2000). Read in the light most favorable
to the appellees, the complaint alleges that the officials released the reports with
either the affirmative knowledge or the substantial certainty that the information
contained therein was private and that its release would be offensive or distressing
to the appellees. Therefore, because the appellees have sufficiently pleaded
intentional torts, the officials are not entitled to statutory or qualified immunity on the
appellees’ state law claims at this stage of the proceedings.
III. Conclusion
The judgment of the district court is affirmed.
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