| Pursuant to Minnesota Statutes, Chapter 13, did the Metropolitan Airports Commission respond appropriately to an October 1, 2002, request to inspect items 2 through 5? |
Discussion:
Pursuant to Minnesota Statutes, Chapter 13, all government data are public unless otherwise classified.
Section 13.393 (formerly section 13.30), attorneys, allows certain data to be protected from disclosure under Chapter 13:
Notwithstanding the provisions of this chapter and section 15.17, the use, collection, storage, and dissemination of data by an attorney acting in a professional capacity for the state, a state agency or a political subdivision shall be governed by statutes, rules, and professional standards concerning discovery, production of documents, introduction of evidence, and professional responsibility; provided that this section shall not be construed to affect the applicability of any statute, other than this chapter and section 15.17, which specifically requires or prohibits disclosure of specific information by the attorney, nor shall this section be construed to relieve any responsible authority, other than the attorney, from duties and responsibilities pursuant to this chapter and section 15.17.
In his comments to the Commissioner, Mr. Voss stated, The requested data consist of communications between MAC and its outside counsel, Thaddeus R. Lightfoot, an attorney associated with The Environmental Law Group, Ltd. MAC declined to produce this data on the grounds that all communications between MAC staff and Mr. Lightfoot are protected from disclosure by the attorney-client privilege. See Minn. Stat. section 13.393.
Mr. Voss referenced two documents discussing the MAC's characterization of the Committee's allegations against MAC. In a letter dated January 29, 2002, MAC's Executive Director, Jeffrey Hamiel, wrote to Mr. Heide: Given the seriousness of the allegations being made, and the fact that the Federal Aviation Administration is being asked to conduct an investigation into these allegations, I must request that all further contact with MAC staff by you or members of your Committee be directed through our General Counsel, Mr. Thomas W. Anderson.
The other document is the minutes of the January 22, 2002, MAC meeting. Under the Announcements section, it states:
Mr. Hamiel reported that the Commission has retained outside counsel to deal with the [Committee] because of the sensitivity and nature of the serious allegations made by the Committee against staff. Thad Lightfoot has been retained by the MAC, and Mr. Hamiel requested that all correspondence and comments received from the [Committee] be directed to Mr. Lightfoot through MAC's Legal Department.
Mr. Voss further stated:
...Mr. Lightfoot's investigation, analysis of the relevant issues, and confidential communications with MAC staff relate to MAC's legal defense in the administrative proceedings initiated by the [Committee] before the FAA. The Committee's November 25 Appeal emphasizes repeatedly that MAC retained Mr. Lightfoot to prepare a report that was submitted to the FAA, and therefore, Mr. Lightfoot was not engaged for the purpose of providing legal advice. The fact that MAC's counsel responded to the FAA with a report on his findings and interpretations of governing legal standards is irrelevant to an analysis of the purpose for which Mr. Lightfoot was retained. When a party's attorney files legal memoranda with a court, his legal advice to his client relating to the matter at issue does not become discoverable.
The confidential nature of MAC's communications with its counsel is plain from the circumstances that prompted Mr. Lightfoot's retention. The Committee has presented no evidence or argument that MAC transferred a function, responsibility or data to Mr. Lightfoot in order to avoid MAC's obligations under [Chapter 13]....
Finally, to the extent the [Committee] is requesting data that cannot be characterized as communications between MAC and its counsel, such data qualifies as attorney work product, and is therefore not to be disclosed absent a showing of substantial need, and that the Committee cannot obtain such information from other sources absent undue hardship....The Committee's threat of litigation is apparent on the face of its correspondence with local, state and federal government representatives.
The Commissioner has the following comments. Section 13.393 does not classify data. Rather, it provides that certain data used, collected, stored, and/or disseminated by a government entity's attorney are excluded from the provisions of Chapter 13. Generally, the data falling under the section 13.393 exemption are data relating to information protected by the attorney/client privilege and/or data that reveal an attorney's work product.
In Advisory Opinion 96-038, the Commissioner wrote:
Before proceeding with an analysis of the College's argument, it is important to discuss the significance of treating data held by a government entity as Section 13.30 data. When a government entity determines that certain data are subject to Section 13.30, the data in question are no longer government data for the purposes of Chapter 13. The government entity is no longer required to follow any of the requirements set forth in Chapter 13 that relate to government data. In other words, none of the data classifications would apply to those data, none of the rights of access would apply to persons requesting those data, none of the rights of subjects of data would apply to persons requesting those data, and none of the duties of responsible authorities would apply to government entities maintaining those data. Given that a Section 13.30 claim has such an extreme result, it is important that such a claim be critically examined.
Because of this result, the Legislature saw fit to include some limiting language in the final clause of Section 13.30. This provision states clearly that Section 13.30 must not be construed to relieve any responsible authority, other than the attorney, from his/her duties and responsibilities under Chapter 13. Therefore, any claim made by a government entity that certain data are subject to Section 13.30 must also be examined to determine if the claim will relieve responsible authorities of their duties under Chapter 13.
In Advisory Opinion 97-009, the Commissioner wrote:
The limiting language related to not relieving responsible authorities of their duties under Chapters 13 and 15 was added to Section 13.30 by the legislature in an attempt to ensure that responsible authorities could not evade certain statutory duties by either having those duties performed by attorneys or transferring data associated with the duties to the custody and control of attorneys.
Thus, in order for the University to protect the data pursuant to Section 13.30, two conditions must hold. One, the law firm Hogan Hartson had to generate the data in the course of acting in its professional capacity for the University, and two, Hogan Hartson was not performing duties that are required to be performed by the University's responsible authority and therefore not relieving the responsible authority of her duties and responsibilities under Chapter 13 and Section 15.17.
The Commissioner does not have sufficient information to determine whether those two conditions apply in the instance of the data created, collected and maintained by Hogan Hartson. In order to make that determination, it would be necessary for the Commissioner to examine the contractual and other relationships between the University and Hogan Hartson and to actually examine the data generated and held by Hogan Hartson. In order to perform those examinations, the University would have to provide all of the relevant data to the Commissioner which it has not chosen to do. Without that examination, it is not possible to make a final determination that would overcome the University's claim that these data are exempt from disclosure under Section 13.30.
In the case of this opinion, the Commissioner does not have sufficient information to determine whether the MAC appropriately denied access to data based on section 13.393. Although Mr. Voss argues, The confidential nature of MAC's communications with its counsel is plain from the circumstances that prompted Mr. Lightfoot's retention, the Commissioner does not know whether Mr. Lightfoot was, indeed, acting in a legal counselor role when he investigated and reported on the Committee's allegations. The information the Commissioner has demonstrates only that Mr. Lightfoot was hired because of the sensitivity and nature of the allegations and that he was hired to investigate and provide an in-depth analysis of the allegations. (At the January 22, 2002, Commission meeting, Mr. Hamiel reported that Mr. Lightfoot had been retained to deal with the [Committee] because of the sensitivity and nature of the serious allegations made by the Committee against staff. In an April 5, 2002, letter to Mr. Heide, Mr. Hamiel wrote, As a result of [the Committee's allegations], I directed...to retain the services of outside counsel to investigate this matter. Mr. Lightfoot...conducted an in-depth analysis of all allegations made by the [Committee]. )
As the Commissioner has opined previously, without more information, such as the terms of Mr. Lightfoot's employment with MAC, the Commissioner is not in a position to make a determination that overcomes the MAC's position.
That said, however, the Commissioner adds the following note. It seems unlikely that part of the second item Mr. Heide requested - The letter...from MAC to Mr. Lightfoot setting forth the terms of his employment - could fall under the purview of section 13.393. Contracts between government entities and the parties with which they do business are public. The Commissioner encourages the MAC to review any such document to determine whether it is exempt from disclosure pursuant to section 13.393.
Opinion:
Based on the facts and information provided, my opinion on the issue that Mr. Heide raised is as follows:
| Pursuant to Minnesota Statutes, Chapter 13, the Metropolitan Airports Commission responded appropriately to an October 1, 2002, request to inspect items 2 through 5. |
Signed:
Brian J. Lamb
Commissioner
Dated: January 27, 2003
