Responding to Subpoenas and Court Orders
Government entities may be served with subpoenas or court orders demanding that staff testify about or release government data related to litigation.
If an entity is served with a subpoena or a court order and is a party to the litigation, staff should always first consult legal counsel.
How does a court order differ from a subpoena?
A court order is a document signed by a judge mandating that an entity do as the judge orders. If an entity opposes release of data pursuant to a court order, entity staff should consult legal counsel and look to Minnesota Statutes, section 13.03, subdivision 6.
A subpoena, on the other hand, does not come from a judge and lacks the legal authority of a court order. (See State v. Colonna, 371 N.W.2d 629 (Minn. Ct. App. 1985) (a subpoena is not the equivalent of a court order required to access private personnel data under Minnesota Statutes, section 13.43.) A subpoena often comes from an attorney who represents a party to litigation in which the government entity is not directly involved.
An entity is generally protected if staff release or testify about not public data pursuant to a court order. (See Minnesota Statutes, section 13.08, subdivision 5.) However, this protection does not exist if staff release or testify about not public data in response to a subpoena. Entities should always consult legal counsel upon receipt of a subpoena or court order.
Step 1: Upon receipt of a subpoena, determine the classification of the data
Public data are available to anyone, for any reason. Not public data can be released only with a court order, statutory authority, or – in the case of private/nonpublic data – with the data subject’s consent. Look in Minnesota Statutes, Chapter 13; other state statutes; or federal law to determine whether the data requested in the subpoena are classified as not public.
If the subpoenaed data are public, release them. If not, go to Step 2.
Step 2: Determine the appropriate response to the subpoena
Option one. If the subpoena is for the inspection or copies of not public data, the entity or its legal counsel, may submit a written objection to the requesting party or attorney named in the subpoena. (See Minnesota Rules of Civil Procedure, Rule 45.03(b)(2)). The effect of this action is that the requesting party is unable to access the data and must seek a court order to compel the entity to produce the data. (The Minnesota Rules of Criminal Procedure do not have a provision for this option. In a criminal case, an entity's legal counsel should file a motion to quash. See Option 2.).
Option two. If the subpoena is for either staff testimony or inspection/copies of not public data, an entity’s legal counsel may file a motion with the court to quash the subpoena. (See Minnesota Rules of Civil Procedure, Rule 45.03(c) and Minnesota Rules 1205.0100, subpart 5 – requiring an entity to notify the court upon receipt of a subpoena. See also, Minnesota Rules of Criminal Procedure, Rule 22.01, subdivision 5.)
The Sample Memorandum provides an example of a memorandum to the court accompanying a motion to quash.
A note about access to education data
Federal and state law differs on when an entity can release not public data education data without consent. Under the federal Family Educational Rights and Privacy Act (FERPA), an entity can release records pursuant to a valid subpoena or court order. (See 34 CFR 99.31(a)(9)(i).) However, under state law, an entity must have a court order before releasing any not public education data. (See Minnesota Statutes, section 13.32, subdivision 3(b).)
If your entity receives a federal administrative subpoena or a federal grand jury subpoena, you may be required to release the not public data requested in the subpoena pursuant to the Supremacy Clause of the U.S. Constitution. (See Equal Empl. Opportunity Commn. v. County of Hennepin, 623 F. Supp. 29 (D. Minn., 1985); In re Grand Jury Subpoena, 198 F.Supp.2d 1113 (D. Alaska 2002).)
In certain hearings conducted by the Minnesota Department of Human Services, parties may subpoena (subject to a protective order) private data related to certain types of investigations (see Minnesota Statutes, section 256.045, subdivision 4.)
Also, the fact that a person is involved in litigation with a government entity does not prevent her from requesting and accessing (from that entity) data to which she is entitled under Chapter 13. (See Advisory Opinion 04-074.)
Always consult your legal counsel when responding to state or federal subpoenas.