Court of Appeals Holds that Qualified Common Interest Privilege Protects Statements Made in Good Faith by Citizens to District Agencies Conducting Personnel Investigations
On August 4, 2011, the District of Columbia Court of Appeals decided Payne v. Clark, No. 09-CV-1492, slip op. (D.C. Aug. 4, 2011), which held that “a qualified common interest privilege protects statements made by citizens and other third parties who communicate in good faith with District agencies during an investigation into alleged misconduct by District employees.” Id. at 13. The plaintiff in this case was formerly a D.C. employee responsible for conducting inspections of elevators in privately-owned buildings. The plaintiff sued a building owner and one of its employees alleging, inter alia, that the defendant-employee made defamatory statements to a D.C. agency during an investigation regarding whether the plaintiff used his position as a D.C. elevator inspector for private gain. The trial court entered summary judgment for the defendants on the grounds of the qualified common interest privilege which is a complete defense to defamation claims. On appeal, the Court ruled that the trial court correctly found that the statements at issue were within the scope of the privilege and therefore the burden of proof shifted to the plaintiff to overcome the privilege by showing that the statements were made with malice. Id. at 14. The Court, however, reversed the trial court’s entry of summary judgment because it concluded that there was a genuine issue of material fact regarding the defendant-employee’s motive. The Court explained that a properly instructed jury could infer malice from evidence that the defendant-employee made the statements at issue because of the plaintiff’s vigorous reporting of elevator violations at privately-owned buildings, including purported elevator violations at a building owned by the defendant-building owner. The Court remanded the case for further proceedings.