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:

On August 24, 1993, the Public Information Policy Analysis Division (PIPA) received a request for an opinion from Mr. Mark Anfinson, attorney for Minnesota Sun Publications. The facts he recited were as follows. His client had learned that the City of Edina had received a subpoena from a federal grand jury seeking information maintained by the City. His client asked for a copy and the request was refused. Mr. Anfinson contacted the attorney for the City, Mr. Jerome Gilligan of the Dorsey and Whitney firm. Mr. Gilligan informed Mr. Anfinson that the City was attempting to ascertain, from the United States Attorney's Office, whether a copy of the subpoena could be disclosed to the newspaper. Mr. Anfinson waited three weeks for a further reply from the City and when none was forthcoming he wrote asking for a Commissioner's Opinion.

In response to Mr. Anfinson's request, PIPA, on behalf of the Commissioner, wrote to the City of Edina and Mr. Gilligan, in a letter dated August 10, 1993, informed them of Mr. Anfinson's request, acquainted them with the Commissioner's authority to issue opinions, asked for any information the City might be able to provide to support its position of withholding this data and informed them of the date on which the Commissioner was required to issue this opinion.

On August 14, 1993, PIPA received a letter from Mr. Gilligan. He cited to Rule 6 of the Federal Rules of Criminal Procedure and expressed concern that release of the subpoena might constitute a violation of the Federal Rule. He also suggested, based on the rule, that the City as the recipient of an authorized disclosure under Rule 6 might be bound by the Rule 6 secrecy provisions. He also indicated that he had contacted the U. S. Attorney's Office and received advice that it was the strong preference of the U.S. Attorney's Office that the subpoena not be released.

After some research into the issues presented by Mr. Anfinson's request, personnel of PIPA tried to reach Mr. Gilligan by phone to secure some additional information. So far, they have not been able to reach him. This failure to secure additional information leads to some conditional language in the opinion that is explained below.

Issue:

Discussion:

All issues of classification of data under the Minnesota Government Data Practices Act have the same starting place. Minnesota Statutes Section 13.03, subdivision 1, states a presumption that all government data is public unless there is a state statute, temporary classification of data or federal law that says certain data is not public. The subpoena is government data for purposes of the Data Practices Act because it has, within the definition of government data been received by the City of Edina. (See Minnesota Statutes Section 13.02, Subdivision 7.) Review of Chapter 13 of Minnesota Statutes, and other statutes classifying data do not reveal any state statute that classifies this data as not public. Records of temporary classifications of data are maintained by PIPA and there is no temporary classification covering this data.

This process of eliminating either state statute or temporary classifications of data as a basis for classifying this data as not public coupled with the issues raised by the City Attorney lead then to a question of whether or not this subpoena is classified as not public by the provision of any federal law. For purposes of this discussion, it should be noted that federal law is defined, for purposes of the Data Practices Act, as . . . United States Code, rules and regulations of federal agencies as published in the Code of Federal Regulations and federal case law including decisions of any court in the federal judicial system. ( Minnesota Agency Rules, Section 1205.0200, subpart 7.) Rules of federal criminal procedure are clearly part of federal law.

Federal Rule 6, that deals with grand jury operations, does contain provisions relating to the secrecy of grand jury proceedings. Subdivision (e) (2) of the rule reads as follows:

(2) General Rule of Secrecy. A grand juror, an interpreter, a stenographer, an operator of a recording device, a typist who transcribes recorded testimony, an attorney for the government, or any person to whom disclosure is made under paragraph (3) (A) (ii) of this subdivision shall not disclose matters occurring before the grand jury, except as otherwise provided in these rules. No obligation of secrecy may be imposed on any person except in accordance with this rule. A knowing violation of Rule 6 may be punished as a contempt of court.

The rule also provides that disclosures of matters occurring before a grand jury may be made in specific instances.

The City Attorney points out that this part of the rule allows disclosure of grand jury matters to government personnel, including personnel of political subdivisions, when the attorney for the federal government deems it necessary to disclose information to assist in the performance of the attorney's duty to enforce federal criminal law. However, the latter part of paragraph (e) (3) (B) of Rule 6 makes it very clear that if a government attorney has disclosed matters to personnel of a political subdivision to assist in the attorney's duty to enforce criminal law the attorney must provide the federal district court that impaneled the grand jury with the names of persons to whom the disclosures have been made and must certify that these persons have been advised of their obligation of secrecy. (See Federal Rules of Criminal Procedure, Rule 6 (e) (3 ) (B).)

Mr. Gilligan makes no mention of any statements made to his client by the U.S. attorney that would invoke the obligation under this part of the rule to maintain secrecy. Personnel of PIPA were not able to reach Mr. Gilligan to a certain the name of the Assistant U.S. attorney so the attorney could be contacted to determine if the certification required by the rule has been filed in U.S. District Court. The only information provided to the Commissioner on this point is the statement from Mr.Gilligan that the U.S. Attorney's office had a strong preference that the subpoena not be released.

Based on the information provided it also seems plausible that if the U.S. attorney were seeking assistance from personnel of the City of Edina to perform duties in relation to enforcement of federal criminal law and, by doing so, to bring into play possible secrecy matters under the (e) (3) (B) provision of Rule 6, that a subpoena would not be issued for documents. A subpoena does not seek assistance for a U.S. attorney. It directs compliance.

This leads back then to the basic secrecy requirements of the federal rule and whether the rule requires, for purposes of Chapter 13, that this subpoena not be disclosed. Rule 6 itself contains part of the answer to that question. It qualifies the rule of secrecy by saying: No obligation of secrecy may be imposed on any person except in accordance with this rule. If city personnel are not required to keep the subpoena secret because they are not rendering assistance to a government lawyer under the (e) (3) (B) provision of Rule 6, does the general language of the rule requiring nondisclosure of matters occurring before a federal grand jury obligate the City to keep this subpoena secret?

This issue has been dealt with by federal courts that have addressed the issue of whether or not the recipient of a federal grand jury subpoena is obligated to keep the subpoena secret, particularly from the person who is the object of the grand jury inquiry. (See for example: In re Grand Jury Proceedings, 814 F.2d 61, (CA1 1987.)) These cases discuss Rule 6 and conclude that secrecy will not be imposed on recipients of subpoenas except in certain circumstances. One of the cases reaching this conclusion is an Eighth Circuit case. In this case, In re Grand Jury Subpoena Duces Tecum, 797 F. 2d 676, (CA8 1986), the federal government sought to reinstate an order, initially issued by a district court and then vacated, that directed a financial institution not to disclose to its customers, whose records were the subject of a subpoena, either of the fact of the subpoena or the specifics of the records that were sought.

The Court upheld the decision to vacate the order but remanded the matter to district court to allow the government to provide additional information as to why the information ought to be kept secret. In doing so, the Eighth Circuit Court of Appeals established a procedure to be followed when an attorney for the government seeks to impose a requirement of secrecy on the recipient of a grand jury subpoena. The Court stated that: To impose an order of secrecy upon a grand jury witness, there must be a 'compelling necessity . . . shown with particularity.' (In re Grand Jury Subpoena Duces Tecum, at page 681.)

Because of the rule in this case, lawyers for the federal government can get orders extending secrecy requirements to persons who receive grand jury subpoenas by going into district court and making the compelling necessity showing. The Commissioner has not been provided with any information that could lead her to reasonably conclude that the government attorney in this case has sought or received such an order. Therefore the secrecy provision of Rule 6, as interpreted by the Eighth Circuit Court of Appeals, would not extend to the City of Edina as a recipient of the subpoena.

It is possible that the subpoena, if revealed to the public, might adversely affect an ongoing active criminal investigation. Some federal courts have held that under these circumstances, it may be possible for grand jury information to be withheld from disclosure under the exemption provisions of the federal Freedom of Information Act , 5 U.S.C. 552, that deal with information made not public by other federal statutes (exemption 3) or information relating to investigatory files (exemption 7). (For example, see Fund for Constitutional Government v. National Archives and Records Service, 656 F. 2d 856 (DCCA 1981).) PIPA personnel have not been able to get information from the City that could assist in deciding whether this information might be subject to those provisions of federal law.

Lastly, there is the possibility that the data sought in the subpoena is data that is protected by provisions of Chapter 13. For example, if the subpoena sought personnel data, it is possible that, given the definition of personnel data and the classification of personnel data under Minnesota Statutes Section 13.43, information about the subpoena might reveal private personnel data. PIPA personnel have not been able to secure information from the City that could lead to that conclusion.

Opinion:

Based on the correspondence in this matter, subject to the qualifications discussed above, it is my opinion that this subpoena is public data for purposes of the Minnesota Government Data Practices Act. If further information is provided to me by the City of Edina or the U.S. Attorney's Office, this opinion may be modified.

I do wish to take note of the fact that this request for opinion has revealed an issue that was not considered by the legislature when it enacted this authority. Although my opinions provide to a government unit, who acts in conformance with them, protection from payment of damages and attorneys fees, it cannot provide that protection when part of the issue involves a possible violation of federal law. In this case, a violation could subject personnel of the City of Edina to a contempt citation. PIPA personnel will address this issue with the legislature in the next legislative session.

Signed:

Debra Rae Anderson
Commissioner

Dated: August 24, 1993