April 17, 1998; City of Eagan
4/17/1998 10:14:43 AM
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, with the exception of any data classified as not public, are available for public access. On February 20, 1998, PIPA received a letter dated February 17, 1998, from Bea Blomquist. In her letter, Ms. Blomquist requested that the Commissioner issue an opinion regarding her access to certain data maintained by the City of Eagan. PIPA, for the Commissioner, wrote to Thomas Hedges, Eagan City Administrator, in response to Ms. Blomquist's request. The purposes of this letter, dated February 23, 1998, were to inform him of Ms. Blomquist's request and to ask him to provide information or support for the City's position. On March 4, 1998, PIPA received a response, dated March 2, 1998, from Michael Dougherty, one of the City Attorneys. Mr. Dougherty and James Sheldon, also referred to in this opinion, are both City Attorneys for Eagan and are employed by the same law firm. A summary of the facts is as follows. In a letter dated February 17, 1998, Ms. Blomquist requested access to appraisals that were prepared for the Oak Chase Addition relative to Public Improvement Project 725. In a letter dated February 17, 1998, the City Administrator responded that according to the City Attorney, the requested data are a work product of his office and are considered privileged and confidential. As part of his response, Mr. Hedges also gave Ms. Blomquist a copy of documents relating to a similar data request. These documents included a copy of the request, a response from Mr. Hedges, a memo (dated February 5, 1998), and letter (dated February 3, 1998) from Mr. Sheldon to Mr. Hedges, and a memo (dated January 22, 1998) entitled Pre-Project Appraisals/Requirement of Appraiser to Enter Property. Issue:In her request for an opinion, Ms. Blomquist asked the Commissioner to address the following issue:
Discussion:In the comments Mr. Dougherty submitted to the Commissioner regarding Ms. Blomquist's opinion request, he argued that the appraisals are not accessible to her. His first argument was that the appraisals are not government data. He wrote, The appraiser does not provide the City with any report or independent information. He then argued that even if a determination could be made that the appraisals do fall within [Chapter 13], they are not public for the following reasons: they are work product stemming from the attorney/client privilege; they are proprietary; and they are civil investigative data, pursuant to Section 13. The Commissioner respectfully disagrees with Mr. Dougherty's assertion that the appraisals are not government data. Chapter 13 defines government data as data collected, created, received, maintained, or disseminated by a government entity. (See Section 13.02, subdivision 7.) In the present case, while it appears the appraisals were physically kept in the office of Mr. Dougherty and Mr. Sheldon, they collected and possessed the data acting as agents of the City. In his February 3, 1998, letter to Mr. Hedges, Mr. Sheldon wrote: [t]he City authorized our office to obtain pre-project appraisals in anticipation of litigation regarding assessment amounts. The appraiser prepares the appraisal for our office and we in turn share the results of the appraisal with the City. We advise the City of the amount that the City could sustain as a special assessment against the benefited property. The fact that Mr. Sheldon and Mr. Dougherty, as City Attorneys, are employed by a private law firm that has offices separate from city property does not mean the data they collect and maintain are not government data. Mr. Sheldon and Mr. Dougherty were acting as the City's agent in obtaining and maintaining the appraisals. Given the Commissioner's determination that the appraisals are government data, the remaining consideration is their classification. Mr. Dougherty presented three arguments for classifying the appraisals as not public. One argument is that they are work product stemming from the attorney/client privilege. While Chapter 13 does provide that certain data used, collected, stored, and/or disseminated by a government entity's attorney are protected (see Section 13.30), 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.) Another of Mr. Dougherty's arguments is that the appraisals are not public because they are proprietary information of the company preparing the appraisals. He wrote: Additionally, the appraisal is the work product of an individual or company that in and of itself has value. The assumptions and judgment of the appraiser are proprietary. The engagement of the appraiser is with the understanding that our firm would not be copying and distributing the appraisal, unless or until it was used in connection with the appraiser's testimony. To do otherwise, would allow someone to obtain a work of value without directly paying the individual who produced it (e.g. court stenographer). If, as Mr. Dougherty suggests, the appraisals are proprietary, the Commissioner is not aware of any statutory provision that generally classifies proprietary data as not public, once those data become government data. The third reason put forth by Mr. Dougherty is that the appraisals are not public because they are Section 13.39 data, civil investigative data. Subdivisions 1 and 2 of Section 13.39 provide that when the chief attorney acting for an entity determines 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 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 comments to the Commissioner, Mr. Dougherty wrote: Our office retains the services of an appraiser in circumstances wherein we have determined that the levying of the assessments may result in judicial proceedings following Council action. To be clear, we do not obtain appraisals for all City projects which may be assessed....The appraisals that our office obtains are prepared for litigation purposes....Upon receipt of the appraisal, we provide the City with limited information from the appraisal, that is solely what could be produced through litigation discovery. In his February 3, 1998, letter, Mr. Sheldon wrote: [t]he City authorized our office to obtain pre-project appraisals in anticipation of litigation regarding assessment amounts....To release the appraisals would put the City at a tactical disadvantage in any court proceeding which challenges the City's special assessments. In addition, in his February 5, 1998, memo, Mr. Sheldon wrote: [i]t seems that some controversy has arisen in regard to obtaining the written appraisals. In an effort to quell concerns, we no longer will ask the appraisers to produce written appraisals for our office unless and until such time as the levied special assessments are legitimately challenged in court. [Emphasis added.] Pursuant to Section 13.39, subdivision 2, if the Eagan City Attorneys have determined that a civil legal action is actually pending, the appraisal data are classified as not public. The problem is that it is not entirely clear whether Mr. Sheldon and/or Mr. Dougherty have made this determination. If they have, Ms. Blomquist's rights have not been violated because the appraisals are not public and not accessible to members of the public. If Mr. Sheldon and/or Mr. Dougherty have not determined that a civil legal action is pending, the data are public and Ms. Blomquist's rights have been violated. An additional point is important. In previous opinions, the Commissioner has discussed the relationship between Minnesota Statutes Section 15.17, the official records act, and Chapter 13. Subdivision 1 of Section 15.17 requires public officers of this state to [m]ake and preserve all records necessary to a full and accurate knowledge of their official activities. When Section 15.17 is melded together with Section 13.03 (access to public data), they impose an obligation on government entities to preserve records used to conduct public business so that those records will be available for public inspection. In the present case, if the City were to proceed as if the appraisals are not government data or were to cease obtaining written appraisals, it is possible that the City will not have met its obligations pursuant to Section 15.17. (See Advisory Opinion 94-035.) It is also important to note that Section 13.30, attorney data, refers specifically to Section 15.17. In relevant part it provides, [n]or 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. Opinion:Based on the facts and information provided, my opinion on the issue raised by Ms. Blomquist is as follows:
Signed: Elaine S. Hansen
Dated: April 17, 1998 |
Civil investigative data
Chief attorney has substantial discretion to determine
Relationship to Chapter 13
