This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.
Facts and Procedural History:
For purposes of simplification, the information presented by the person who requested this opinion and the response from the government entity with which the person disagrees are presented in summary form. Copies of the complete submissions are on file at the offices of PIPA and, except for any data classified as not public, are available for public access.
On May 8, 1998, PIPA received a letter dated May 7, 1998, from Cynthia Thomas. In her letter, Ms. Thomas requested that the Commissioner issue an opinion regarding her access to data maintained by the Minneapolis Park and Recreation Board.
PIPA, on behalf of the Commissioner, wrote to David Fisher, Superintendent of the Park Board, in response to Ms. Thomas' request. The purposes of this letter, dated May 18, 1998, were to inform him of Ms. Thomas' request and to ask him to provide information or support for the Board's position. On May 27, 1998, PIPA received comments, dated May 22, 1998, from James Michels, an attorney representing the Park Board.
A summary of the facts is as follows. In a letter dated February 26, 1998, Ms. Thomas wrote to Superintendent Fisher and asked to "review all data that document expenditures by the [Park Board] on the Kondirator project, scrap metal recycling or metal milling machines."
In a letter dated March 11, 1998, Mr. Michels responded to her request and stated that he was "in the process of identifying information in the Park Board's possession that is within the scope of [her] request."
In a letter dated April 2, 1998, Ms. Thomas wrote again to Superintendent Fisher asking when the data would be available.
In a letter dated April 23, 1998, Mr. Michels replied. With his letter he enclosed free copies of some of the data and denied access to other of the data on the basis of Section 13.30, attorney data.
Ms. Thomas then requested an advisory opinion.
In her request for an opinion, Ms. Thomas asked the Commissioner to address the following issue:
One part of the issue in this opinion is whether the Park Board responded within the time frame set forth in statute. Minnesota Statutes Section 13.03, subdivision 2, requires government entities to respond to requests for access to public data in an "appropriate and prompt" manner. In addition, Minnesota Rules Section 1205.0300, requires entities to respond "within a reasonable time."
Ms. Thomas made her first request in a letter dated February 26. Mr. Michels communicated with her in a March 11 letter, informing her that his law firm was in "the process of identifying information in the Park Board's possession that is within the scope" her request. He further added, "Upon gathering applicable data, we will notify you as to categories of data which are available for inspection, and, if any, those categories of data which are classified as not available for inspection."
In a letter dated April 2, Ms. Thomas wrote again to Superintendent Fisher and asked him when she could expect to gain access to the data she had requested. In a letter dated April 23, two months after Ms. Thomas' original request, Mr. Michels responded. He apparently provided her with copies of data. He wrote:
[t]he only expenditures by the Park Board with regard to the Kondirator project are for consultants fees and for legal fees. The only documentation with regard to these expenditures are the invoices submitted by the professionals....I have enclosed, free of charge, copies of the invoices from the project consultants....
Regarding the invoices for legal fees, Mr. Michels wrote, "[t]he invoices include a detailed description of services which contain the thought processes, strategies, and legal theories of the attorneys representing a party engaged in litigation." Mr. Michels cited Section 13.30, attorney data, and stated that the invoices are protected from disclosure by the attorney-client privilege and work product doctrine. He stated, "Although the invoices are not subject to disclosure, the total amount of legal fees is public information." He then provided the total expenditure by the Park Board on legal fees relating to the Kondirator.
As stated above, Chapter 13 and its accompanying rules require government entities to respond to data requests in a timely manner. The Commissioner has opined in previous opinions that a "reasonable" time, although not defined in statute, reasonably should correlate with the volume and/or complexity of a request. However, this does not negate an entity's obligation per Minnesota Rules Section 1205.0900 to be aware of the classification of the various types of data it maintains. (See Advisory Opinion 95-006.)
In his comments to the Commissioner, Mr. Michels asserted that given the "breadth of the scope of the request, the difficulties of the [Park Board] in responding to the request in light of the inaccessibility of the former project manager and...limitations on [Mr. Michels'] time," the Park Board did respond in a timely fashion. While the Commissioner appreciates Mr. Michels' desire to ensure that the response was "thorough, accurate and complete in all respects," she cannot agree that a response time of two months is reasonable or prompt. The Park Board did not respond in a timely manner.
The second part of the issue Ms. Thomas raised is whether the Park Board complied fully with her request. Mr. Michels asserted that the Park Board denied access to the legal services invoices because such data are protected under the "attorney-client privilege and need not be produced pursuant to a subpoena, discovery request or other similar requests for disclosure." Mr. Michels explained that his firm's invoices to the Park Board contain the following four general types of information: the date of service; the name of the person providing the service; the time spent; and a detailed description of the service provided. Mr. Michels' argument is that the entire invoice is not public. However, Chapter 13 regulates government data at the level of individual items or elements of data. It is very likely that individual data elements contained in a single document, such as a legal services invoice, may be classified differently, depending on the content of the data and how Chapter 13 or other statutes classify the data.
Pursuant to Section 13.30, certain data used, collected, stored, and/or disseminated by a government entity's attorney are excluded from the provisions of Chapter 13. However, the Commissioner has previously opined that Section 13.30 applies only to very limited situations. (See Advisory Opinions 95-040, 95-045, 95-048, and 96-038.) Generally, the data falling under the Section 13.30 exemption are data relating to information protected by the attorney/client privilege and/or data that reveal an attorney's work product. Regarding the attorney/client privilege, in Advisory Opinion 95-040, the Commissioner discussed the fact that Rule 1.6 of the Minnesota Rules of Professional Conduct defines privileged information as a confidence or secret that is shared by a client with her/his attorney.
In the case at hand, it is reasonable that a detailed description of legal services provided might reveal confidences shared between the Park Board and Mr. Michel's law firm or disclose the work product of individual attorneys. However, it is also possible that the description of certain services provided may not reveal either any confidence of a client or the work product of an attorney. For example, perhaps an invoice contains only the following as the description of a legal service provided: "Met with [a public official]." It is not reasonable to conclude that this description of a legal service reveals the confidence of a client or the work product of an attorney. On the other hand, if the invoice indicated that the client met with a certain expert for the purpose of evaluating a legal theory, it is highly likely that such a notation would fall within the attorney's work product.
Other data in the legal services invoices, i.e., dates of service, names of the attorneys, and time spent on particular activities, generally, are public.
Based on the facts and information provided, my opinion on the issue raised by Ms. Thomas is as follows:
Elaine S. Hansen
Dated: July 2, 1998