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Advisory Opinion 95-054

December 20, 1995; City of Minneapolis

12/20/1995 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 government entity that requested this opinion is presented in summary form. Copies of the complete submission are on file at the offices of PIPA and are available for public access.

On October 26, 1995, PIPA received a letter requesting this opinion from Louis N. Smith, an attorney representing the Minneapolis Public Housing Authority (MPHA). A summary of the detailed facts of the matter follows.

The MPHA was a defendant in Hollman v. Cisneros, a class action lawsuit filed in Federal District Court in 1992. A consent decree was entered into in April 1995. Mr. Smith enclosed a copy of the Consent Decree in his opinion request.

According to Mr. Smith:

The Consent Decree provides for the release of all claims, subject to the rights of the parties to enforce the Decree. The Decree further provides for court retention of jurisdiction for seven years for the purpose of enabling any party to apply for such orders as may be necessary or appropriate for enforcement of the Decree.

One component of the Consent Decree calls for the MPHA to create an action plan for the redevelopment of 750 units of family public housing on the near north side of Minneapolis. . . .

In conjunction with the defense of the litigation, the settlement discussions, and in pursuit of the preparation of the action plan, the MPHA retained an expert witness. . . . [who] retained a sociologist to perform a survey of the residents in the family housing projects in order to determine their opinions and attitudes about their living environment and their desires with respect to the housing type and location. Some of the survey results, although not necessarily all of them, will probably be used in carrying out the planning studies. . . .

The MPHA has recently received a request for the results of this survey from an organization that is not a party to the lawsuit. It is our position that the survey currently constitutes investigative data gathered in defense of active litigation pursuant to Minnesota Statute Section 13.39.

Mark Anfinson, an attorney representing the newspaper City Pages, in a letter dated November 1, 1995, submitted comments to the Commissioner regarding this opinion request. Essentially, Mr. Anfinson argued that the MPHA should not be able to employ Section 13.39 to classify the survey as not public data. He stated that given that the underlying litigation has been settled, the survey . . . should be classified as inactive investigative data under section13.39, subd. 3. The [MPHA] has plainly decided 'not to pursue the civil action.' Subd. 3(1). Furthermore, by definition, when a settlement has been entered into, the issue of an appeal becomes moot under clause (3) of subdivision 3 [of Section 13.39].

Mr. Anfinson further stated:

Simply because the court retains jurisdiction to enforce the settlement, this does not alter the fact that the matter is inactive; a court nearly always retains jurisdiction, implicitly or explicitly, in order to enforce settlements. . . .

The foregoing interpretation is consistent with the last paragraph of section13.39, subd. 3, which expressly provides that if a civil action is renewed, data determined to be inactive under clause (1) may become active again. This provision might therefore apply if a party did not comply with settlement terms and the other party then sought judicial assistance. For the present, however, there is no longer any active or pending civil legal action in this case, nor could the data covered by the request properly be described as data retained in anticipation of a civil legal action, since the request concedes that the data were collected strictly in connection with litigation that has now been settled.

Permitting investigative data to continue to be classified as active for the entire time during which the terms of an agreement settling litigation are being carried out-which could extend over many years-would jeopardize the relatively clear distinction incorporated into section13.39. Indeed, construing data as remaining active under these circumstances would encourage the drafting of settlement agreements to take advantage of such an interpretation, providing a pretext for interfering with public access.

Lindsay R. M. Jones, an attorney representing the Minnesota Tenants Union, also submitted comments for the Commissioner's consideration. Mr. Jones included copies of correspondence documenting the Tenants Union's efforts to gain access to the survey, and minutes of meetings of the Low Income Housing Committee (LIHC). (Mr. Jones did not identify LIHC's affiliation.)

Mr. Jones made three main points in support of his assertion that the MPHA ought not to be able to rely upon Section 13.39 to classify the survey data as not public. First, Mr. Jones stated that while the chief attorney acting for the MPHA has the discretion to protect data while litigation is active, Hollman v. Cisnerosis settled, so it is no longer pending. Therefore, the data cannot be protected pursuant to Section 13.39.

Second, Mr. Jones argued that . . . the MPHA attempts to extend the cloak of secrecy over the tenant survey data by referring to its possible usefulness during the implementation stage of the Consent Decree. . . . According to the Consent Decree, the Action plan process is supposed to be an open one . . . . [It is not] consistent with the aims of [Chapter 13] to keep [government data] hidden from the public when that data would be relevant to a public planning process.

Third, Mr. Jones suggested that the MPHA released the survey data to opposing counsel in Hollman v. Cisneros, namely attorneys for the Legal Aid Society of Minneapolis. According to Mr. Jones, by having done so, the MPHA waived its claim that the tenant survey results were classified as protected nonpublic pursuant to Section 13.39.

Issue:

In his request for an opinion, Mr. Smith asked the Commissioner to address the following issue:

May the Minneapolis Public Housing Authority treat the survey of family housing project residents as civil investigative data, pursuant to Minnesota Statutes Section 13.39?

Discussion:

Section 13.39, subdivision 2, provides that data collected by government entities as part of an active investigation undertaken to commence or defend a pending civil legal action, or which are retained in anticipation of a pending civil legal action, are classified as protected nonpublic (data not on individuals) or as confidential (data on individuals.)

There are three conditions which must be met for a government entity to protect government data from public disclosure pursuant to Section 13.39. The first condition is that there must be a pending civil legal action. Section 13.39, subdivision 1, states that a civil legal action includes, but is not limited to, judicial, administrative, or arbitration proceedings. Second, the chief attorney acting for the government entity must make the determination that a civil legal action is pending.

Third, as established by the Minnesota Supreme Court in St. Peter Herald v. City of St. Peter, 496 N.W.2d 812 (Minn. 1993), the government entity must have taken some affirmative action to collectthe data it wishes to protect, it must not be simply a passive recipient of that information. (See Commissioner of Administration Advisory Opinion 95-040.)

In interpreting Section 13.39 and applying it to the data in question, the MPHA appears to have met all three conditions. Mr. Smith, as chief attorney for the MPHA, has made the determination that a civil legal action is pending, and the survey data were collected by an agent for the MPHA. Therefore, the MPHA may treat the survey as protected nonpublic data.

The Commissioner wishes to discuss briefly Mr. Anfinson's and Mr. Jones' comments. Both Mr. Anfinson and Mr. Jones argued that the first condition, i.e., that a civil legal action is pending, does not apply in this case. They assert that Hollman v. Cisnerosis settled, and therefore the survey data must be considered inactive civil investigative data, pursuant to Section 13.39, subdivision 3. That is a reasonable conclusion for Mr. Anfinson and Mr. Jones to reach.

However, subdivision 3 of Section 13.39 provides that except for those portions of a file which are classified as not public data by Chapter 13 or other law, inactive civil investigative data are public, unless the release of the data would jeopardize another pending civil legal action. In their comments, neither Mr. Anfinson nor Mr. Jones acknowledged the possibility that the MPHA may be retaining the survey data, and treating it as protected nonpublic data pursuant to Section 13.39, in anticipation of litigation brought by someone other than the plaintiffs in Hollman v. Cisneros. Further, the statute provides that the chief attorney for the MPHA has the sole discretion to make that determination. If Mr. Smith determines that a civil legal action is pending, and that the MPHA is retaining the survey data in anticipation of that action, then the data may be treated as civil investigative data, pursuant to Section 13.39.

Mr Jones also argued that [a]ccording to the Consent Decree, the Action plan process is supposed to be an open one . . . . [It is not] consistent with the aims of [Chapter 13] to keep [government data] hidden from the public when that data would be relevant to a public planning process. Mr. Jones is correct, that Chapter 13 contains a fundamental presumption that government data are to be accessible to the public. However, in enacting Section 13.39, the Legislature has given attorneys acting for government entities considerable latitude to determine whether certain data are collected or retained for a pending civil legal action. When they make those determinations, as Mr. Smith has done, the presumption that government data are public no longer applies.

Mr. Jones further claimed that the MPHA released the survey data to opposing counsel, namely attorneys for the Legal Aid Society of Minneapolis. According to Mr. Jones, by having done so, the MPHA waived its claim that the tenant survey results were classified as protected nonpublic data pursuant to Section 13.39.

It is not clear to the Commissioner, from the information provided, whether the MPHA has indeed released the survey to anyone. However, the MPHA has the discretion, pursuant to Section 13.39, subdivision 2, to . . . make any data classified as confidential or protected nonpublic pursuant to this subdivision accessible to any person, agency or the public if [it] determines that the access will aid the law enforcement process, promote public health or safety or dispel widespread rumor or unrest.

The Commissioner acknowledges that Mr. Anfinson and Mr. Jones make some persuasive policy arguments as to why the survey data ought to be public data. While their arguments are compelling, they collide with current policy which, as articulated in Section 13.39, states that the chief attorney for a government entity has very broad discretion to make a determination as to whether or not a civil legal action is pending.

It is worth noting, however, that the Legislature has provided a remedy for any person who disagrees with a government entity's decision to protect data under Section 13.39. Subdivision 2a provides:

During the time when a civil legal action is determined to be pending under subdivision 1, any person may bring an action in the district court in the county where the data is maintained to obtain disclosure of data classified as confidential or protected nonpublic under subdivision 2. The court may order that all or part of the data be released to the public or to the person bringing the action. In making the determination whether data shall be disclosed, the court shall consider whether the benefit to the person bringing the action or to the public outweighs any harm to the public, the agency, or any person identified in the data. The data in dispute shall be examined by the court in camera.

This provision constitutes a counter-balance to the wide discretion afforded government entities under Section 13.39 to withhold data from public disclosure.

Opinion:

Based on the correspondence in this matter, my opinion on the issue raised by Mr. Smith is as follows:

The chief attorney acting for the MPHA has determined that a civil legal action is pending, and the survey data were collected in anticipation of possible commencement of litigation. Therefore, the Minneapolis Public Housing Authority may treat the survey of family housing project residents as not public civil investigative data, pursuant to Minnesota Statutes Section 13.39.

Signed:

Elaine S. Hansen
Commissioner

Dated: December 20, 1995

Civil investigative data

Civil investigative data (13.39)