Dillard v. City of Springdale, Arkansas

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FAYETTEVILLE DIVISION

JILL DILLARD; JESSA SEEWALD;

JINGER VUOLO; and JOY DUGGAR PLAINTIFFS

V. CASE NO. 5:17-CV-5089

CITY OF SPRINGDALE, ARKANSAS;

WASHINGTON COUNTY, ARKANSAS;

KATHY O'KELLEY, in her individual and

official capacities; ERNEST CATE, in his

individual and official capacities; and RICK HOYT,

in his individual and official capacities DEFENDANTS

MEMORANDUM OPINION AND ORDER

Before the Court are two ripe Motions for Summary Judgment. The first (Doc. 137)

was filed by Washington County, Arkansas; and Rick Hoyt, in his individual and official

capacities (hereinafter, “the Washington County Defendants”). The second (Doc. 140)

was filed by the City of Springdale, Arkansas; Kathy O’Kelley, in her individual and official

capacities; and Ernest Cate, in his individual and official capacities (hereinafter, “the

Springdale Defendants”). For the reasons explained below, both Motions are

GRANTED.1

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1 In addition, Plaintiffs filed evidentiary objections to some of Defendants’ facts, see Docs.

156 & 157. The Washington County Defendants then filed a Motion to Strike these

objections (Doc. 165), and the Springdale Defendants filed a brief requesting that the

Court overrule the objections (Doc. 169). Plaintiffs replied with an amended set of

objections (Doc. 170), which appears to have addressed the arguments in the

Washington County Defendants’ Motion to Strike. Therefore, the Motion to Strike (Doc.

165) is DENIED.

I. BACKGROUND

Most of the material facts relevant to the issues on summary judgment are

undisputed by the parties,2 and the Court has relied on those agreed facts in resolving

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the dispositive motions. However, the parties obviously dispute some of the remaining

material facts, and those are stated and considered here in the light most favorable to

Plaintiffs, who are the non-movants on summary judgment.

The Plaintiffs are Jill Dillard, Jessa Seewald, Jinger Vuolo, and Joy Duggar (now

Forsythe). They are adult sisters who hail from a very large, religious family. Though they

are now married with families of their own, they once shared the last name “Duggar” and

lived in a household with their mother, father, and many siblings. This case involves what

happened to Plaintiffs when they were children.

From approximately March of 2002 until March of 2003, the Plaintiffs were sexually

abused by their brother, Joshua. He was 14 years old when the abuse began and 15

years old when it ended. At the time of the abuse, the Plaintffs ranged in age from 5 to

11 years old. Their parents, Jim Bob and Michelle Duggar, discovered the abuse but did

not report it to the police or any state agency. Instead, they decided to keep it a secret

and discipline Joshua privately. Unfortunately, whatever Mr. and Mrs. Duggar tried to do

to stop Joshua’s behavior did not work, and by 2003, they turned to their closest friends,

Jim and Bobye Holt, for advice and support. The Holts and Duggars were leaders in their

2 First, the parties each filed their own, supposedly “undisputed,” statements of fact.

Then, they exhaustively responded to one another’s statements of fact. Then, they

objected to one another’s statements of fact. Then, they offered clarifications and subtle

amendments to one another’s facts, followed by “supplemental” facts in response. They

even went so far as to agree with the substance of one another’s facts but disagree as to

whether the evidence cited in support of a particular fact was exactly right. All of this was

exceedingly tiresome and of little assistance to the Court.

small religious community, which was composed of several families who shared the same

beliefs and met at one another’s homes for church services, which they called

“gatherings.” Once Mr. and Mrs. Duggar told Mr. and Mrs. Holt about Joshua’s repeated

abuse of his sisters, the relationship between the two families became strained.

For the next several years, it appears very few people outside of the Holt family

knew the Duggars’ secret. However, in 2003, the Holts’ daughter, Kaeleigh, wrote a

summary of what she had heard from her parents about the abuse in a letter to her favorite

author. Instead of mailing the letter, she placed it in a book, which she left on her

bookshelf. There the secret remained until 2006, when Kaeleigh loaned the book to a

friend and fellow church member. Kaeleigh’s friend found the letter and shared its

contents with her parents. From that point on, the Duggars’ family secret spread by word

of mouth to the other members of their close-knit church community. It is unknown exactly

how many church members learned of the abuse, but the news caused factions to form

within the church, and certain church members evidently disagreed with how the matter

was being handled.

On December 7, 2006, the Arkansas Department of Human Services Hotline

received two tips that Joshua had molested his sisters. The first tip came from an

anonymous caller to the Hotline. The second tip came from Harpo Studios, the producer

of Oprah Winfrey’s talk show. It seems the Duggars had caught the attention of the media

at around that time because of their unusually large family. They were scheduled to

appear on the Oprah Winfrey Show, and they had traveled to Chicago to record an

episode. Harpo Studios received an anonymous email warning that the Duggars were

“not what they seem[ed] to be” because Joshua had sexually abused his sisters. (Doc.

141-9, p. 20).3 Harpo Studios faxed this email to the Arkansas Department of Human

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Services Hotline, and the same day, Sergeant Darrell Hignite of the Springdale Police

Department opened a police investigation into the abuse allegations. Joshua was 18

years old at the time, but Plaintiffs were still minors. Jill, the oldest Plaintiff, was15 years

old, and Joy, the youngest, was 9 years old. Sergeant Hignite contacted Detective Garry

Conner of the Washington County Sheriff’s Department to request that the County assist

the City in the investigation.

State Police Investigator Whitney Taylor called the Duggars and asked them to

bring their children to the Children’s Safety Center in Springdale to be interviewed about

the Hotline reports. According to the redacted copies of the Springdale Police Report and

the Washington County Incident Report, the Duggar family arrived at the Children’s Safety

Center on December 12, 2006, and Mr. and Mrs. Duggar, Joshua, and the Plaintiffs were

interviewed by Investigator Taylor and Sergeant Hignite. Plaintiffs testified in their

depositions that these investigators assured them that the contents of their interviews

would remain confidential. The narrative summaries of each interview appear in the

Springdale Police Report. See Doc. 141-9, pp. 21–37. Only the summary of the interview

with Mr. and Mrs. Duggar appears in the Washington County Incident Report (Doc. 152-

1). According to the Springdale Police Report, after the Duggar family was interviewed,

Sergeant Hignite submitted a Family in Need of Services (“FINS”) Affidavit to the

Washington County Prosecutor’s Office with instructions to open a FINS case. Id. at p.

39. On January 10, 2007, the Washington County Prosecutor filed the FINS petition in

3 Kaeleigh testified at her deposition that the individual who called the Hotline and sent

the email to Harpo Studios was a former member of the Duggars’ and Holts’ religious

community. (Doc. 139-12, pp. 40 & 58).

the Juvenile Court of Washington County under case number J2007-38. Sergeant

Hignite’s affidavit and the 33-page Springdale Police Report were attached to the petition

and became part of the juvenile court record. No criminal charges were ever brought

against Joshua, nor were his sisters removed from the family home.

The following year, 2008, the Duggars began starring in a reality television series

called “17 Kids and Counting.” The name of the show was later changed to “18 Kids and

Counting” and then “19 Kids and Counting” as the family grew. Once the show began

airing nationwide, Mr. and Mrs. Duggar and all their children became minor celebrities.

On May 15, 2015, the City of Springdale and Washington County each received a

Freedom of Information Act (“FOIA”) request seeking all files, documents, notes, and

recordings mentioning Joshua Duggar, his parents, or any of the addresses where the

family had lived over the years. (Docs. 141-10 & 152-15). The requests had been sent

by an Arkansas attorney named Abtin Mehdizadegan. He was representing a tabloid

magazine called In Touch Weekly (though that fact was not revealed in the FOIA request).

Neither the City of Springdale nor Washington County responded immediately to Mr.

Mehdizadegan’s request. In fact, both departments lost track of it and did not address it

for several days. Under the Arkansas FOIA, governmental agencies typically have three

business days to respond to a request. Ark. Code Ann. § 25-19-105(e).

On May 19, 2015, In Touch Weekly posted a “teaser” article on its website entitled,

“‘19 Kids and Counting’ Son Named in Underage Sex Probe.” The identities of Joshua’s

victims were not revealed directly or indirectly in the article. Also on May 19, Chief

O’Kelley was first told about Mr. Mehdizadegan’s FOIA request. She obtained a copy of

the Springdale Police Report on the Duggar family so she could review it. That same

day, Sergeant Hignite of the Springdale Police Department received an email from NBC

Universal inquiring about a police report on Joshua Duggar. Sergeant Hignite forwarded

the email to Chief O’Kelley. She responded by email at 7:54 p.m., stating, “Oh Good Lord

. . . we will soon be in the tabloids!” (Doc. 152-6, p. 2). Then, at 7:58 p.m., she sent the

following email to Springdale Mayor Doug Sprouse:

HERE IS AN INTERESTING TURN OF EVENTS FOR THE DUGGER [sic]

FAMILY—WE ARE PREPAING TO REDACT AND RELEASE THE

INVESTIGATION BUT THIS IS A NEW TWIST TO THE ORIGINAL

REQUEST—NOW WE ARE HEADING TO THE TABLOID NEWS!

(Doc. 152-7, p. 2). Chief O’Kelley also forwarded the email from Sergeant Hignite to

separate Defendant Ernest Cate, who was—and still is—Springdale’s City Attorney.

Chief O’Kelley asked Mr. Cate to be available to have “a conversation about this” the

following day because she was “preparing to release the report . . . .” Id.

On the morning of May 20, 2015, Mr. Cate and Chief O’Kelley met to discuss the

FOIA request. Mr. Cate agreed the police report should be released, provided that the

names of the juvenile victims were redacted. He did, however, seem to harbor some

doubt about his decision—at least initially—because he “proceeded that afternoon to

obtain as much legal advice and opinions as was [sic] possible on the FOIA Request.”

(Doc. 141-1, p. 4).4 He asked Sarah Sparkman, the Deputy City Attorney, for her opinion,

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and she advised that it would be appropriate to redact the child victims’ names and

4 The summary judgment record is silent as to exactly what Mr. Cate told each of these

advisors about the case before asking their opinions. For example, Mr. Cate does not

claim he showed anyone the actual police report, nor does he claim he supplied his

advisors with the critical facts they would have needed to arrive at an informed opinion,

namely, that the child perpetrator and child victims were from the same family and lived

in the same household and that the police report noted the family would be referred to

juvenile court on a FINS petition.

release the report. Mr. Cate also asked Terra Stephenson, the juvenile prosecutor at the

time, and based on what he told her about the case, her opinion was that the report should

be released. Mr. Cate then states he “attempted to contact the Arkansas Department of

Human Services” to ask for advice, but no one from that agency called him back that day.

Id. Finally, he placed a telephone call that afternoon to Mark Hayes, the General Counsel

of the Arkansas Municipal League. According to Mr. Cate’s memory of the call, he

provided Mr. Hayes with “the relevant facts related to the FOIA Request and the SPD

Offense Report,” and Mr. Hayes responded that he believed the report would have to be

redacted and released—but that he “would look further into the issue.” Id. at p. 5.

Also on May 20th, Chief O’Kelley directed Captain Ron Hritz to reach out to Mr.

and Mrs. Duggar and explain to them what was going on with the FOIA request. Captain

Hritz did this, but Chief O’Kelley had no direct contact with the Duggars.

At another point on May 20th, Chief O’Kelley telephoned Mr. Mehdizadegan and

told him “SPD would need more time to comply” with his request because he sought such

a wide variety of records. (Doc. 141-2, p. 5). In response, according to Chief O’Kelley’s

declaration, “Mr. Mehdizadegan told [her] that he was only interested in the SPD Offense

Report and not with any of the other records which would be responsive to this request.”

Id. City Attorney Cate and Chief O’Kelley then reviewed and redacted the report to make

sure the names and ages of all the minors and Joshua had been removed. Mr. Cate

states that he and Chief O’Kelley “discuss[ed] that we would prefer to over-redact, rather

than to under-redact, the report.” Id. at p. 6. The pair then learned that Doug Thompson,

a local reporter from the Arkansas Democrat-Gazette, had heard about the Duggar police

report and was requesting a copy of it under the FOIA. Chief O’Kelley telephoned Mr.

Thompson to let him know she was redacting the report and would contact him later.

Just before 9:00 p.m. that same evening, May 20th, Chief O’Kelley emailed a final

version of the redacted Springdale Police Report to both Mr. Mehdizadegan and Mr.

Thompson. She also sent a copy to Mr. Cate.

At 6:19 a.m. the next morning, May 21st, Mr. Hayes of the Arkansas Municipal

League—believing the report had not yet been released—emailed his staff attorneys and

directed them to review Mr. Mehdizadegan’s FOIA request and the redacted police report,

which he had attached, and advise whether the report should be disclosed under

Arkansas law. Attorney Amanda LaFever emailed him back on her way to work at 7:45

a.m., stating she was “[a]t a stoplight” but knew there were laws “protecting the identity of

victims of sex crimes.” (Doc. 152-10, p. 3). By 9:01 a.m., Ms. LaFever had made it to the

office, done some quick research, and composed and sent an email to Mr. Hayes advising

him that documents that directly or indirectly identified the victim of a sex crime would not

be subject to disclosure under the FOIA. Id. Ms. LaFever then forwarded her email to

Mr. Cate, who forwarded it to Chief O’Kelley. Though Chief O’Kelley quickly reached out

to Mr. Mehdizadegan to ask that he not use the redacted offense report she had sent him

the night before, it was too late. He had already forwarded it to his client. That same

morning, at 11:10 a.m., In Touch Weekly posted an online article entitled, “Bombshell

Duggar Police Report: Jim Bob Duggar Didn’t Report Son Josh’s Alleged Sex Offenses

for More Than a Year.” The article reproduced the 33-page redacted Springdale Police

Report.

Also on May 21st, the Washington County Sheriff’s Department first learned of Mr.

Mehdizadegan’s FOIA request. Kelly Jensen, whose official title is “Enforcement

Secretary,” presented the request to separate Defendant Major Rick Hoyt, who was in

charge of responding to such requests on behalf of the Department. Major Hoyt

believed—without consulting the FOIA or any other legal materials—that Washington

County’s Incident Report on the Duggars should be disclosed. He admitted in his

deposition that he reviewed the unredacted Incident Report for about ten minutes and

then asked Ms. Jensen if there had been any arrests in the case. She said no. Then

Major Hoyt looked at Joshua’s current age (18) and decided he “didn’t know of anything

in the law that would let [him] not release this.” (Doc. 152-4, p. 8). Major Hoyt’s initial

opinion was that the report should be released without any redactions. It appears he

thought better of this decision after a while and told Ms. Jensen to “go back and take out

the juvenile information,” and then the report would be “good to go.” Id.5

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Major Hoyt went home that evening without reviewing the final redactions to the

report. He had no idea that the same FOIA request had been sent to the Springdale

Police Department and that Springdale had already sent a redacted report to Mr.

Mehdizadegan. After Major Hoyt arrived home, he turned on the six o’clock news and

saw a report about In Touch Weekly’s publication of the Springdale Police Report. The

local news explained that Washington County Juvenile Judge Stacy Zimmerman entered

an order that very day expunging the offense report from the public record to protect the

5 Major Hoyt was asked in his deposition whether he was “aware” at the time he decided

to release this report that “there were laws in Arkansas protecting victims who were

minors . . . from their identities being disclosed.” (Doc. 152-4, p. 19). He replied, “No.”

Id.

identities of the victims. That prompted Major Hoyt to make a series of phone calls to

figure out if the Washington County Incident Report he had ordered released had already

been mailed. He (or someone else in the Sheriff’s Department) contacted the 24-hour

dispatch unit and directed one of the officers on call to search the outgoing mail bin for

the report. Unfortunately, the mail had already been picked up that day, and the bin was

empty.

The following day, May 22nd, Judge Zimmerman called the Sheriff’s Department

and ordered that the report not be released. But once again, it was too late. Mr.

Mehdizadegan received the redacted Washington County Incident Report in the mail on

May 27 and forwarded it to his client. On June 3, In Touch Weekly published a follow-up

article entitled, “Josh Duggar Chilling Molestation Confession in New Police Report,”

which reproduced the redacted Washington County Incident Report.

In general, the Springdale Police Report was redacted more heavily and more

carefully than the Washington County Incident Report. Springdale’s Chief O’Kelley and

Mr. Cate redacted all the children’s names and ages (including Joshua’s) from the

Springdale Police Report, although they did not redact Mr. and Mrs. Duggar’s names and

the family’s home address. The Washington County Incident Report was shorter than the

Springdale Report because it did not contain the interviews of Joshua and the Plaintiffs;

however, the Washington County Report contained a summary of the interview of Mr. and

Mrs. Duggar—which was not well redacted. One of the victim’s ages was left unredacted

in the Washington County Report; Joshua’s name was disclosed once; and the child

victims were variously referred to as Joshua’s “sister[s],” Jim Bob’s “daughter[s],” and,

more generally, as “the girls in the family.” (Doc. 152-1, p. 3). The Springdale Police

Report did not include all of these details, but a casual reader of the Springdale Report

could, nevertheless, have discerned the following information about the victims: (1) they

were sexually abused on multiple different occasions over the course of a year; (2) the

abuse took place in the Duggar home; (3) the perpetrator of the abuse was Mr. and Mrs.

Duggar’s child, who lived in the home; and (4) the victims of the abuse were Mr. and Mrs.

Duggar’s children, who also lived in the home. (Doc. 141-9, pp. 21–37).

Plaintiffs maintain the publication of these two police reports caused them damage.

The original complaint brought a large variety of claims against an array of private and

public defendants. In the first round of dispositive motions, the Court winnowed the

parties and claims subject to suit. (Doc. 62). On interlocutory appeal, the Eighth Circuit’s

en banc rulings further narrowed the field of claims. (Doc. 89-1).

As we now approach the scheduled trial, Plaintiffs are left with three remaining

causes of action: invasion of privacy (intrusion upon seclusion), invasion of privacy (public

disclosure of a private fact), and outrage. Defendants now seek summary judgment on

all counts. Below, the Court will set forth the legal standard used to evaluate motions for

summary judgment. Next, the Court will analyze whether Plaintiffs established genuine,

material disputes of fact as to each of the three torts. Finally, the Court will consider

whether Defendants are entitled to immunity for their actions under state law.

II. LEGAL STANDARD

Under Rule 56(a) of the Federal Rules of Civil Procedure, “[t]he court shall grant

summary judgment if the movant shows that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.” On such a motion, the

Court reviews the facts in the light most favorable to the opposing party and gives that

party the benefit of any inferences that can be drawn from those facts. Canada v. Union

Elec. Co., 135 F.3d 1211, 1212–13 (8th Cir. 1997). The moving party bears the burden

of proving that no genuine dispute of material fact exists and that it is entitled to judgment

as a matter of law. See Fed. R. Civ. P. 56(c); Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 586–87 (1986); Nat’l Bank of Commerce of El Dorado v. Dow Chem.

Co., 165 F.3d 602 (8th Cir. 1999).

If the moving party meets its burden, the non-moving party must then “come

forward with ‘specific facts showing that there is a genuine issue for trial.’” Matsushita,

475 U.S. at 587 (quoting Fed. R. Civ. P. 56(c)). However, “the mere existence of a scintilla

of evidence in support of the [non-moving party’s] position will be insufficient” to survive

summary judgment. Anderson v. Durham D&M, L.L.C., 606 F.3d 513, 518 (8th Cir. 2010)

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). The non-moving

party must instead produce sufficient evidence “such that a reasonable jury could return

a verdict” in their favor. Allison v. Flexway Trucking, Inc., 28 F.3d 64, 66 (8th Cir. 1994)

(quoting Liberty Lobby, 477 U.S. at 248).

III. DISCUSSION

A. Invasion of Privacy (Intrusion upon Seclusion)

To prove intrusion upon seclusion, a plaintiff must establish:

(1) that the plaintiff sustained damages; (2) that the defendant intentionally

intruded physically or otherwise upon plaintiff's solitude or seclusion and

believed or was substantially certain that the defendant lacked the

necessary legal authority or personal permission, invitation, or valid consent

to commit the intrusive act; (3) that the intrusion was of a kind that would be

highly offensive to a reasonable person, as the result of conduct to which a

reasonable person would strongly object; (4) that the plaintiff conducted

himself or herself in a manner consistent with an actual expectation of

privacy; and (5) that the defendant's intrusion was the proximate cause of

the plaintiff’s damages.

Duggar v. City of Springdale, 599 S.W.3d 672, 683 (Ark. Ct. App. 2020).

The record presents questions of fact for the jury as to four of the five elements.

However, the Court finds that Plaintiffs have not presented any direct proof or reasonable

inference that would place the second element of the tort in dispute, and for this reason,

the entire claim must be dismissed. Element Two requires proof that Defendants

“believed or w[ere] substantially certain that [they] lacked the necessary legal authority or

personal permission, invitation, or valid consent to commit the intrusive act.” Id. If the

question is whether Defendants were ignorant of the law or grossly negligent in its

application, the answer is: Absolutely. But that is not the question. The inquiry focuses

on whether Defendants engaged in conduct which they knew (believed) to exceed the

boundaries of their authority. Here, the proof and all reasonable inferences point to the

opposite conclusion.

Although profoundly wrong about the law, Defendants were motivated by a belief

that they were legally obligated to release these reports, and to do so quickly. By the time

Chief O’Kelley from Springdale and Major Hoyt from Washington County discovered the

existence of the FOIA requests, the three-day response deadline had already passed.

Chief O’Kelley testified she was “embarrassed” that her department had missed the

request and deadline, (Doc. 141-2, p. 5), and Major Hoyt testified that his first glimpse at

the request revealed “we were over our limit of time.” (Doc. 152-4, p. 8). It is undisputed

that Defendants’ actions were motivated by fear of possible legal consequences for a

missed deadline. In other words, they worried exclusively about compliance with one part

of the FOIA and failed to investigate the other parts (and other relevant state law). There

is no evidence of an alternate motivation for Defendants’ actions that would show some

consciousness of wrongdoing.

In their sudden rush to release the reports, Defendants failed to adequately

investigate the applicable law. Neither report should have been released, even with

redactions. The Arkansas FOIA is not all-inclusive, which is to say, other Arkansas

statutes contain provisions that either expressly or effectively allow additional exemptions

and exceptions to the FOIA. The individual Defendants were seasoned government

officials tasked with the responsibility of deciding which governmental records should be

publicly released and which should not. Yet all individual Defendants were seemingly

ignorant of the privacy rights Arkansas affords to sexual assault victims and to families

that are identified as “in need of services.”

Under Arkansas Code § 16-90-1104(b):

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.

(emphasis added). In the instant case, even though the Springdale Police Report and

Washington County Incident Report contained redactions, both reports quite obviously

identified the victims of a sex offense. The redacted reports revealed that the victims

were the minor children of Jim Bob and Michelle Duggar, that the perpetrator of the sexual

abuse was also a child of the same parents, and that the victims lived in the same home

with the perpetrator.6

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Moreover, the disclosure of the reports was not required by law. Because the

Duggars were the subject of a FINS case, the police reports affiliated with that FINS case

were specifically exempted from disclosure under the FOIA, pursuant to the Arkansas

Child Maltreatment Act, which states:

Any 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 Court finds that the two statutes quoted above—§§ 16-90-1104(b) and 12-18-

104(a)—are clear and unambiguous. Nevertheless, the prima facie case requires more

than mere ignorance of the law. To prove intrusion upon seclusion, Plaintiffs must present

not only evidence of intentional intrusion but also evidence of the tortfeasor’s culpable

mens rea. There must be evidence that one or more Defendants had some awareness—

whether a mere belief or a substantial certainty––that they lacked the legal authority to

disclose these records. Plaintiffs failed to meet their burden. Because there is no

evidence on which a jury could rely to show that Defendants believed that disclosing the

reports would be illegal, this claim is DISMISSED WITH PREJUDICE.

6 Both reports also listed the address where the abuse took place and the new address

where the victims were residing when they were interviewed by the police.

B. Invasion of Privacy (Public Disclosure of Private Fact)

There are very few cases in Arkansas that discuss this particular tort. Recently,

however, the Arkansas Court of Appeals confirmed that Arkansas Model Civil Jury

Instruction 422 correctly sets forth the elements. They are:

(1) that [plaintiff] sustained damages; (2) that [defendant] made a public

disclosure of a fact about [plaintiff]; (3) that prior to disclosure the fact was

not known to the public; (4) that a reasonable person would find the

disclosure highly offensive; (5) that [defendant] knew or should have known

that the disclosed fact was private; (6) that the fact was not of legitimate

public concern; and (7) that the public disclosure was the proximate cause

of the plaintiff’s damages.

Duggar, 599 S.W.3d at 684.

After reviewing the summary judgment record, the Court finds there are genuine,

material disputes of fact as to each element of this tort. As explained above, Defendants

did not know the disclosed facts were private––in the sense that Defendants incorrectly

believed the FOIA laws required disclosure to the public upon request. However, in

contrast to the tort of intrusion upon seclusion, public disclosure of a private fact does not

require evidence of a culpable mens rea. The tort may alternately be proved by showing

Defendants should have known the law and were negligent in releasing private facts

about Plaintiffs that were not of legitimate public concern.7

6F

Despite the fact that Plaintiffs have met their evidentiary burden to survive

summary judgment, this claim is, nonetheless, subject to dismissal due to Defendants’

statutory immunity. In Trammell v. Wright, the Supreme Court observed—generally—

7 Here, the Court specifically distinguishes facts about Plaintiffs from facts about their

brother. Defendants have repeatedly conflated the two sets of facts in their summary

judgment briefing. See, e.g., Doc. 138, p. 21; Doc. 142, p. 19. Plaintiffs, unlike their

brother, were juvenile victims of sexual assault, and any facts that indirectly identified

them were private under the law.

that Arkansas Code § 21-9-301 provides state actors “with immunity from civil liability for

negligent acts, but not for intentional torts.” 489 S.W.3d 636, 639 (Ark. 2016) (citing

Deitsch v. Tillery, 833 S.W.2d 760 (1992)). In the case at bar, there is no evidence from

which a trier of fact could conclude any Defendant knew that the law prohibited disclosure

of facts contained in the police reports and, despite such knowledge, released the reports

anyway with the intent to cause harm. Instead, all facts point to Defendants’ negligence—

or perhaps recklessness.

According to the Arkansas Supreme Court, an intentional tort “involve[s]

consequences which the actor believes are substantially certain to follow his actions.”

Miller v. Ensco, Inc., 692 S.W.2d 615, 617 (Ark. 1985). In Williams v. Pate, the Arkansas

Court of Appeals reasoned that even when a wrong is

categorized as an “intentional” tort, an analysis of the application of qualified

immunity does not stop with that determination. Simply because an actor's

conduct satisfies the type of intent necessary to establish [a tort], it does not

follow that the same conduct is necessarily an intentional act that bars

application of the doctrine of qualified immunity.

463 S.W.3d 734, 737 (Ark. Ct. App. 2015). For example, in Williams, a school district’s

employees cut down trees adjacent to the school district’s property. It turned out that the

trees rightfully belonged to private landowner Dorothy Williams. The case was ultimately

dismissed on summary judgment because Ms. Williams could not point to facts to show

the school’s employees had “any knowledge that they were trespassing on [her] property”

or “that she objected to the trespass while it was occurring.” Id. at 737. Arguably, the

school district should have surveyed the land before cutting down trees, and the court

found that the district’s failure to do so “may be considered evidence of negligence.” Id.

However, since Ms. Williams “offered no proof to support [an] allegation” that the school’s

employees “deliberately failed to conduct a survey so that they could claim ignorance

later,” the district was entitled to immunity on summary judgment because its employees

trespassed, at most, negligently—and not intentionally. Id. at 737–38.

Trespass, like invasion of privacy, is ordinarily considered an intentional tort; but,

as illustrated in the Williams case, a tortfeasor’s actual conduct may meet the elements

of a tort and yet not qualify as “intentional.” In the instant case, when Defendants moved

to dismiss under a Rule 12(b)(6) standard, the Court found Plaintiffs had plausibly alleged

that Defendants disclosed certain facts they knew to be private. See Doc. 62, pp. 21–22.

Now that discovery has concluded, however, and the Court is presented with proof, rather

than mere allegations, it is clear that Plaintiffs have no evidence to demonstrate

Defendants’ knowledge that the facts at issue were (legally) private. Plaintiffs have not

come forward with evidence to satisfy Arkansas’s definition of an intentional tort. Miller,

692 S.W.2d at 617. Defendants are immune from civil liability for unintentional torts under

§ 21-9-301, and for that reason, this claim is DISMISSED WITH PREJUDICE.

C. Outrage

To establish a prima facie case of outrage, Plaintiffs must meet the following four

elements:

(1) the actor intended to inflict emotional distress or knew or should have

known that emotional distress was the likely result of his conduct; (2) the

conduct was extreme and outrageous, beyond all possible bounds of

decency, and was utterly intolerable in a civilized community; (3) the actions

of the defendant were the cause of the plaintiff’s distress; (4) the emotional

distress sustained by the plaintiff was so severe that no reasonable person

could be expected to endure it.

Rees v. Smith, 301 S.W.3d 467, 471–72 (Ark. 2009).

1. Plaintiffs Have Not Created Triable Questions of Fact

The first element requires evidence that Defendants “intended to inflict emotional

distress or knew or should have known that emotional distress was the likely result of

[their] conduct.” Id. As discussed above, there is no evidence that Defendants intended

to inflict emotional distress. Rather, the evidence shows that Defendants were attempting

to conceal (not reveal) Plaintiffs’ identities by redacting their names from the police

reports. The Court is skeptical that a state actor could intend to inflict emotional distress

and at the same time believe he was complying with the law—regardless of how his

resulting professional negligence might affect others.

Plaintiffs have also failed to present proof that Defendants’ conduct was “extreme

and outrageous.” The second element here is not focused on whether the salacious

nature of Plaintiffs’ personally private information in the hands of a tabloid publisher is

extreme and outrageous. Instead, the question is whether the Defendants’ conduct along

the way was extreme and outrageous. The Defendants’ mistaken release of exempt

information––while attempting to comply with the FOIA laws they were legally tasked to

administer––was profoundly negligent, but negligent conduct is not the sort of conduct

that Arkansas law views as “beyond all possible bounds of decency, and utterly

intolerable in a civilized community.” Id.; see also Dowty v. Riggs, 385 S.W.3d 117, 120

(Ark. 2010) (Arkansas does not recognize a cause of action for mere negligent infliction

of emotional distress, even where the perpetrator is incompetent).

Likewise, Plaintiffs failed to satisfy the fourth element of the tort, which requires

proof of unendurable emotional distress. To be sure, Plaintiffs’ deposition testimony

(Docs. 141-3–141-6) confirms they all suffered emotional distress as a result of these

events, but not to the severe degree necessary to satisfy the tort. See Coombs v. J.B.

Hunt Transport, 388 S.W.3d 456, 463 (Ark. Ct. App. 2012) (finding that “discomfort, upset,

embarrassment, anxiety, loss of sleep, and depression do not meet the ‘mental distress’

element of the tort of outrage”).

2. Statutory Immunity

Second, assuming there is sufficient evidence on the first element to establish that

Defendants “should have known” that emotional distress was the likely result of releasing

these police reports, and further assuming there are disputed material facts as to the

second and fourth elements, the Defendants are nevertheless entitled to summary

judgment because they are immune from liability. The Court refers the reader to and

incorporates by reference its earlier discussion of statutory immunity. See supra, Section

IIl.B. This type of negligent conduct fails to satisfy the definition of an intentional tort

under Arkansas law, and Defendants are entitled to statutory immunity for their

unintentional conduct.

This claim is therefore DISMISSED WITH PREJUDICE.

IV. CONCLUSION

IT IS THEREFORE ORDERED that Defendants’ Motions for Summary Judgment

(Docs. 137 & 140) are GRANTED. Plaintiffs’ claims are DISMISSED WITH PREJUDICE,

and judgment will enter concurrently with this Order.

IT IS SO ORDERED on this 9" day of February, 2022.

UNITED STATES DISTRICT JUDGE

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