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 IPA and, except for any data classified as not public, are available for public access.
On May 2, 2000, IPA received a letter dated April 28, 2000, from Nancy Barsness, Clerk of New Prairie Township. In her letter, Ms. Barsness discussed her attempts, on behalf of New Prairie Township, to gain access to certain data that Pope County maintains. IPA staff asked Ms. Barsness to clarify her request for assistance, which she did in a letter dated May 4, 2000. Ms. Barsness asked that the Commissioner issue an advisory opinion.
IPA, on behalf of the Commissioner, wrote to Belvin Doebbert, Pope County Attorney, in response to Ms. Barsness' request. This letter, dated May 15, 2000, served to inform him of Ms. Barsness' request and to ask him to provide information or support for the County's position. On May 17, 2000, IPA received a response, dated same, from Mr. Doebbert.
A summary of the facts is as follows. In a note dated April 27, 2000, Ms. Barsness requested certain data from Mr. Doebbert. She wrote, "Please send me a copy of any correspondence from or to Enron Gas Company concerning the exposed gasline in New Prairie Township."
Mr. Doebbert responded in a letter dated April 27, 2000. He wrote, "I must respectfully decline to furnish any such information pursuant to Minnesota Statutes Section 13.30..."
Ms. Barsness, on behalf of New Prairie Township, then requested an opinion.
In her request for an opinion, Ms. Barsness asked the Commissioner to address the following issue:
Pursuant to Minnesota Statutes, section 13.03, subdivision 1, government data are public unless otherwise classified by state statute, federal law, or temporary classification (not applicable to this opinion).
Section 13.39 (civil investigative data), subdivisions 1 and 2, provide that when the chief attorney acting for a government entity determines that a civil legal action is pending, the following data are classified as confidential and/or protected nonpublic while the investigation is active: data collected as part of an active investigation undertaken for the purpose of the commencement or defense of a pending civil legal action; or data which are retained in anticipation of a pending civil legal action. Once the investigation is inactive, most of those data become public. (See Section 13.39, subdivision 3.)
In his response to the Commissioner, Mr. Doebbert characterized the relationship between Pope County and Enron Corporation. He stated, "Pope County is currently in a dispute with Enron Corporation regarding a property rights conflict involving a drainage right of way owned by the County and pipeline right of way owned by Enron."
Mr. Doebbert attached to his response several exhibits. One is a letter dated February 4, 2000, from Enron to Dale Wegner, Pope County Highway Department. The County provided this letter to Ms. Barsness. Regarding this letter, Mr. Doebbert wrote:
By correspondence dated February 4, 2000, Enron denied all responsibility for lowering or proper burial of the pipeline and unequivocally threatened litigation as follows:
"If the County refuses to reimburse Northern for the costs involved, Northern will commence an inverse condemnation action."
The February 4, 2000, letter was treated as a notice of claim...
Two other exhibits were published in a newspaper. The County withheld the remaining exhibit(s) from Ms. Barsness.
Mr. Doebbert wrote, "We have no correspondence about the subject matter of this conflict with Enron, other than that mentioned in this letter, between February 4 and the date hereof."
Mr. Doebbert then argued that the County appropriately denied Ms. Barsness access to the data at issue. He wrote:
With some limmited exceptions, data and communications with attorneys relating to the subject matter of threatened and pending litigation are not public data. See, generally, Minn. Stat. Section 13.30 and 13.39. Section 13.39, governing the release of data collected in connection with civil investigations, indicates that authority to classify a conflict as "pending litigation" is vested exclusively with the "chief attorney acting for the...political subdivision." In this case, that is me....
We believe that the public was entitled to notice of Enron's unsolicited claim and the February 4, 2000 and, as noted by the complainant, that letter was made available to the public. It was upon receipt of this letter, however, that the County was placed under imminent threat of litigation, and information relating to the matter which was collected and retained after that point is clearly "nonpublic" within the meaning of Chatper 13. Both the plain words of the statute and the court's clearly articulated policy compel retention of data collected and retained after that date.
Mr. Dobbert added, "[w]e believe our actions to be absolutely consistent with the requirements of [Chapter 13]."
As the Commissioner has stated in previous advisory opinions, once the chief attorney acting on behalf of a govenrment entity has made a determination that a civil legal action is pending, that entity may approriately treat certain investigative data as not public. See also St. Peter Herald v. City of St. Peter, 496 NW2d 812 (Minn. 1993). However, once the investigation becomes inactive, most of those data become public.
In this case, Mr. Doebbert, acting as the chief attorney, determined that a civil legal action is pending. Therefore, the following data are classified as confidential and/or protected nonpublic while the investigation is active: data collected as part of an active investigation undertaken for the purpose of the commencement or defense of a pending civil legal action; or data which are retained in anticipation of a pending civil legal action.
One final note is in order. In his response to Ms. Barsness' request, Mr. Doebbert denied her access to data based on section 13.30, attorney data. However, in his response to the Commissioner, Mr. Doebbert's discussion centered around section 13.39. It is the Commissioner's opinion that the data are appropriately classified as not public under section 13.39; section 13.30 does not appear to apply.
Therefore, although the County appropriately denied Ms. Barsness access to the data, Mr. Doebbert did not cite the correct statuory section.
Based on the facts and information provided, my opinion on the issue raised by Ms. Barsness is as follows:
David F. Fisher
Dated: June 29, 2000