December 17, 2002; Minnesota Department of Public Safety
12/17/2002 10:15:43 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:On October 14, 2002, IPAD received a letter from Laurie Beyer-Kropuenske, Data Practices Compliance Official, and General Counsel and Special Projects, for the Minnesota Department of Public Safety. In her letter, Ms. Beyer-Kropuenske asked the Commissioner to issue an advisory opinion regarding certain data that the Department maintains. IPAD staff requested clarification and Ms. Beyer-Kropuenske resubmitted her opinion request in a letter dated October 29, 2002. IPAD invited the subject (X) of the data in question to submit comments. X's attorney did so in a letter dated November 29, 2002. A summary of the facts is as follows. In her initial opinion request, Ms. Beyer-Kropuenske wrote: The [Department] received a request...to release an attorney-client privileged memorandum from the Attorney General's Office to the [Department] on [X]. The Department denied the request. On behalf of the Department, the Commissioner of Public Safety could expressly waive attorney-client privilege and has considered doing so in this case. In addition to legal advice, the memorandum contains non-public data...and summarizes active criminal investigative data received by the Department from... In her October 29, 2002, letter, Ms. Beyer-Kropuenske wrote: I am writing in response to your office's request for a copy of the attorney-client privileged memorandum from the Attorney General's Office to the [Department] on [X]. Attached is a copy of the privileged memorandum. To waive attorney/client privilege, Commissioner Charlie Weaver must waive it expressly. Please note that Commissioner Weaver had not waived attorney-client privilege of this memorandum. The Department is providing the memorandum to your office for the purposes of receiving an advisory opinion under MN Stat. 13.072. Should your office receive a request for this memorandum, we would expect you to deny the request based on MN Stat. 13.072 Subd. 4 and current caselaw. Issue:In her request for an opinion, Ms. Beyer-Kropuenske asked the Commissioner to address the following issue:
Discussion:Before proceeding, the Commissioner notes the following. To issue a useful opinion, the Commissioner determined it would be best to review the memorandum in question. The Department then decided to release to the Commissioner a copy of the memorandum. As Ms. Beyer-Kropuenske stated, it is the Department's assertion that doing so does not waive the attorney-client privilege. The Commissioner has not taken a position on that issue. The Commissioner's task here is to determine the classification of the data in the memorandum if the Department were to waive the attorney-client privilege. In his comments to the Commissioner, X's attorney wrote: At this time, we have determined not to take a position regarding the Data Practice implications of the proposed waiving of the Commissioner's attorney-client privelige [sic], and release of this memorandum to members of the media. We will abide by the determination made by this department regarding the Data Practice classification of this memorandum. Accordingly, we will not release this memorandum for any purpose pending the determination of your office. Ms. Beyer-Kropuenske asked the Commissioner to issue an opinion regarding the classification of the data in the memorandum. If the Department waives the attorney-client privilege, because of the operation of Minnesota Statutes, Chapter 13, the data in the memorandum are public unless otherwise classified. (See section 13.03, subdivision 1.) The answer to Ms. Beyer-Kropuenske's question, therefore, depends upon the type of data in the memorandum. If the Department chooses to waive attorney-client privilege, it may withhold only those data in the memorandum that are classified as not public. Upon review of the memorandum, the Commissioner's comments are as follows. Ms. Beyer-Kropuenske, in her October 14, 2002, letter, stated that the memorandum summarizes active criminal investigative data that the Department received from a law enforcement agency. This type of data in the possession of the law enforcement agency are classified as confidential pursuant to section 13.82, subdivision 7. Pursuant to section 13.03, subdivision 4, data that travel from one government entity to another generally do not change their classification. Thus, any active criminal investigative data contained in the memorandum are confidential and not public. However, when the investigation becomes inactive, such data, with a few exceptions, are public. It is possible the memorandum also contains arrest (section 13.82, subdivision 2), request for service (section 13.82, subdivision 3), or response or incident data (section 13.82, subdivision 6), that traveled from a law enforcement agency to the Department. If so, such data are public, including the name of any person(s) arrested. Finally, the memorandum may contain data the Department maintains about the functions it performs relating to drivers and vehicles. Pursuant to 18 U.S.C. section 2721, the Department treats some driver and vehicle data as restricted information, i.e., not public. Therefore, any such restricted information contained in the memorandum would not be public. Opinion:Based on the facts and information provided, my opinion on the issue that Ms. Beyer-Kropuenske raised is as follows:
Signed:
David F. Fisher
Dated: December 17, 2002 |
Law enforcement data
Attorney-client privilege (595.02)
Criminal investigative data (13.82, subd. 7)
No change in classification (13.03, subd. 4(c))
