Issue:

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

Discussion:

Mr. Anfinson and Ms. Thomson agree that the Richfield city council properly closed its December 16, 1998, meeting on the basis of the attorney-client privilege, pursuant to a provision of the Minnesota Open Meeting Law, Minnesota Statutes, section 471.705, subdivision 1d(e). The city council closed the meeting to discuss pending litigation with its attorney. For purposes of this opinion, the Commissioner assumes that the meeting was properly closed. The Commissioner also accepts Ms. Thomson's assertion that the entire contents of the tape consists of discussions between the city attorney and her/his city council clients.

This situation causes the Commissioner to examine the interplay among Minnesota Statutes, sections 13.03, 13.30, 595.02 and the Minnesota Supreme Court's finding in Kobluk. Ms. Thomson mentioned Rule 1.6 the Rules of Professional Responsibility; however, that is not at issue here because the request for access to the data was made to the City, not to the city attorney.

The City based its denial of access to the tape-recording on provisions of sections 13.03, subdivision 6, and 13.30, as well as Kobluk. (See Ms. Thomson's letter to the city administrator, dated December 22, 1998, in response to the original request.) Following is a discussion of some problems with that position.

Pursuant to section 13.03, subdivision 6:

If a state agency, political subdivision, or statewide system opposes discovery of government data or release of data pursuant to court order on the grounds that the data are classified as not public, the party that seeks access to the data may bring before the appropriate presiding judicial officer, arbitrator, or administrative law judge an action to compel discovery or an action in the nature of an action to compel discovery. [Emphasis added.]

The presiding officer shall first decide whether the data are discoverable or releasable pursuant to the rules of evidence and of criminal, civil, or administrative procedure appropriate to the action.

However, the Richfield Sun-Current did not request access to the tape-recording under section 13.03, subdivision 6. It made a request for access to what it believed to be public data, pursuant to section 13.03, subdivision 1. Subdivision 6 of section 13.03 governs access to data made in the context of litigation or under court order. Therefore, the Commissioner disagrees with the City that section 13.03, subdivision 6 is applicable.

The next statutory provision the City relied upon was section 13.30. In relevant part, section 13.30 provides . . . the use, collection, storage, and dissemination of data by an attorney acting in a professional capacity for . . . a political subdivision shall be governed by statutes, rules, and professional standards concerning discovery, production of documents, introduction of evidence, and professional responsibility . . . . Section 13.30 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 13.30 exemption are data relating to information protected by the attorney/client privilege and/or data that reveal an attorney's work product. Accordingly, because the City based its denial of access to the tape-recording by citing to section 13.30, it should have cited the appropriate statute or rule that makes the data subject to section 13.30. (See also Advisory Opinions 96-038 and 95-040.)

Lastly, the City cited the Kobluk decision in denying access to the tape-recording in question. It cites Kobluk because it asserts that the tape-recording was subject to the attorney-client privilege at its creation. In reaching the result in Kobluk, the Minnesota Supreme Court relied upon the statutory formulation of the attorney-client privilege provided in section 595.02, subdivision 1(b). The statute states: [a]n attorney cannot, without the consent of the attorney's client, be examined as to any communication made by the client to the attorney or the attorneys advice given thereon in the course of professional duty; nor can any employee of the attorney be examined as to the communication or advice, without the client's consent.

The Court also relied upon what it termed the classic explication of the privilege, when construing the scope of the privilege:

(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived.

Kobluk, 574 at 440, quoting 8 John Henry Wigmore, Evidence section 2292, at 554 (McNaughton rev.1961), citing Brown v. Saint Paul City Ry. Co., 62 N.W.2d 688, 700 (Minn. 1954).

A tape-recording of a conversation between the City (i.e., a client), and its attorney to discuss potential litigation is protected by the attorney-client privilege. However, Mr. Anfinson asserts that because the matter between the City and MAC is settled with no possibility of litigation, the attorney-client privilege no longer applies, and the tape-recording of the closed meeting is now public data. However, he did not cite any statutory or common law basis for his position. Mr. Anfinson also maintains that the City may not properly deny access to the tape-recording based on sections 13.03, subdivision 6, and 13.30, and that in Kobluk, the Minnesota Supreme Court did not rely upon those provisions to reach its conclusion.

Ms. Thomson states that the tape is exempt from production under [sections 13.03, subdivision 6, and 13.30] and [Kobluk]. Ms. Thomson asserts that there is no basis in case law for Mr. Anfinson's position that because the City and MAC have settled their dispute, the tape-recording is no longer protected by the attorney-client privilege. She refers to a recent United States Supreme Court case: [i]n Swidler Berlin v. United States, 118 S.Ct. 2081 (1998), the Supreme Court held that the attorney-client privilege survives even after the death of the client, and even where the information is sought in connection with criminal grand jury proceedings. The Swidler Court noted that established law supports the continuation of the privilege and ... a contrary rule would be a modification of the common law.'

Mr. Anfinson asserts that the substance of Kobluk is not applicable here. He is technically correct. The problem is that in Kobluk, or in any other decision of which the Commissioner is aware, the Minnesota Supreme Court does not specifically address the relationship between the privileges provided by section 595.02, and the classification of data under Chapter 13.

Section 595.02 does not classify data. It addresses the matter of privileged testimony of witnesses in a legal proceeding. Kobluk addressed this issue in the context of a legal proceeding. However, as noted above, the Richfield Sun-Current did not request access to the tape in the context of litigation. The Court held that access to data may be denied under Chapter 13 if the data are privileged. However, there is no clearly articulated means by which a claim of privilege under section 595.02 applies to a request for access to privileged data that is not in the context of litigation.

Nevertheless, the Commissioner believes that it is reasonable for the city attorney to take the position that the tape is exempt from Chapter 13 regulation, pursuant to section 13.30, as it relates to section 595.02. Otherwise, the Minnesota Legislature's intention to protect certain attorney data, through its enactment of section 13.30, would fail. Without this result, data would become subject to Chapter 13 regulation that otherwise would be exempt based on the attorney-client privilege.

Opinion:

Based on the facts and information provided, my opinion on the issue raised by Mr. Anfinson is as follows:

Signed:

Scott R. Simmons
Acting Commissioner

Dated: March 8, 1999