Facts and Procedural History:

On July 6, 2006, IPAD received a letter from Guy Heide, on behalf of the Rogers Lake East Airport Noise Reduction Committee ( Committee. ) In his letter, Mr. Heide asked the Commissioner to issue an advisory opinion regarding his right to gain access to certain data from the Metropolitan Airports Commission ( MAC. ) IPAD required clarification and additional information, which Mr. Heide provided on July 14, 2006.

In response to Mr. Heide's request, IPAD, on behalf of the Commissioner, wrote to John Lanners, Chairman of the Metropolitan Airports Commission. The purposes of this letter, dated July 19, 2006, were to inform him of Mr. Heide's request and to ask him to provide information or support for the MAC's position. On August 2, 2006, IPAD received a response from Pamela J. Rasmussen, Deputy General Counsel for the MAC.

By way of background, the dispute at issue here involves data related to the MAC's Part 150 Noise Abatement Program, a federal program that approves aircraft noise mitigation measures in communities surrounding an airport. According to Ms. Rasmussen, the MAC retained the services of Mr. Thaddeus R. Lightfoot, an attorney with the Environmental Law Group, Ltd. ( ELG ), to investigate and respond to accusations the Rogers Lake East Committee made to the FAA and numerous other federal, state, and local authorities. The Committee claims that MAC Commissioners, staff and attorneys have engaged in fraudulent, criminal, unethical or otherwise illegal conduct in the Part 150 process.

A summary of the facts as Mr. Heide presented them follows. In a letter dated April 19, 2002, Mr. Heide asked the MAC to provide him with the opportunity to inspect and/or copy all invoices submitted to MAC by ELG for the months of January-April, 2002. Mr. Heide inspected the invoices on May 24, 2002. According to Mr. Heide:

None of the inspected ELG invoices were stamped 'privileged' or 'confidential.' None of the inspected ELG invoices were redacted.

Narrative portions requested payment for professional services on 'files' described as, inter alia, File 051-05 (DNL Contour Map Challenge), File 051-01 (General Environmental), File 051-03 (Lower Minnesota River Watershed District), File 051-04 (Fisher Sand Aggregate).

Mr. Heide subsequently made similar requests for access to ELG invoices. He stated that the invoices the MAC provided had been redacted to conceal or mask government data in narrative portions. No ELG invoices were stamped 'privileged' or 'confidential.' Mr. Heide provided the Commissioner with copies of two representative redacted ELG invoices.

In a letter dated April 9, 2003, the MAC responded to Mr. Heide's first request: [a]ll of the documents provided to you are entirely responsive to your request. As we have indicated to you previously, all communications between MAC staff and Mr. Lightfoot are attorney-client privileged. Therefore, those portions of the invoices were not provided. See Minn. Stat. 13.393. The MAC responded similarly to Mr. Heide's subsequent requests.

In her comments to the Commissioner, Ms. Rasmussen wrote that Mr. Heide was incorrect in stating that the MAC provided him with access to unredacted invoices. She stated that the MAC redacted portions of each of the invoices to remove detailed descriptions of legal work. Ms. Rasmussen provided the Commissioner with unredacted copies of two representative ELG invoices.

Ms. Rasmussen wrote:

MAC provided copies of [the requested] invoices to Mr. Heide, but declined to produce the descriptions of work on these invoices on the grounds that these communications between MAC staff and ELG are protected from disclosure by the attorney-client privilege through Minn. Stat. section13.393. Descriptions of work on these invoices also are protected from disclosure by the attorney work-product doctrine and under Minn. Stat. section13.39, civil investigative data.

Ms. Rasmussen further stated:

Minn. Stat. section 13.393 allows certain data used, collected, stored and/or disseminated by an attorney acting in a professional capacity for a government entity to be protected from disclosure under the Data Practices Act. The Minnesota Supreme Court has described the attorney-client 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 v. University of Minnesota, 574 N.W.2d 436, 440 (Minn. 1998). In Kobluk, the court used a three-part test to determine whether documents were protected under attorney-client privilege: (1) whether they constitute a communication, (2) whether that communication was intended in confidence, and (3) whether the attorney was acting in the course of his professional duty. Id. at 441.

In City Pages v. Minnesota, 655 N.W.2d 839 (Minn. App. 2003), the Minnesota Court of Appeals addressed the disclosure of attorney billing records for work done jointly for the state and another client under the Data Practices Act. The court found that the attorney billing statements were not protected from disclosure in their entirety by the attorney-client privilege, but there may be portions of the billing records protected under attorney-client privilege or the work-product doctrine. The Court of Appeals stated, in dicta, that the attorney-client privilege protects those parts of the billing records in which RKMC communicated legal advice that would not have been disclosed but for the existence of the privilege and that the work-product doctrine protects those parts of the billing records in which RKMC communicated opinions, conclusions, legal theories or mental impressions prepared in anticipation of litigation. 655 N.W.2d at 839. MAC is not obligated to provide Mr. Heide unredacted legal services invoices if there is attorney-client privileged or work-product information on those invoices.

In a footnote in City Pages, the Court of Appeals noted that it examined sample RKMC billing records in camera and that those records contained a number of items, including (1) dates; (2) names of timekeepers; (3) numbers of hours worked; (4) generic descriptions of activities, e.g., review files, update database, prepare for deposition, search and retrieve files, research on summary judgment motion; (5) occasional references to legal theories that were the subject of research; (6) occasional references to the source of documents being reviewed; and (7) total fees and disbursements for the month. The Court further noted that much of the information in these records was not confidential and that the degree to which the billing records rendered legal advice was minimal: only those entries referring to specific legal theories even arguably meet this standard. Id. at 839.

MAC has taken the reasonable position that much of the information on the ELG invoices is public, which is why MAC has already provided Mr. Heide copies of ELG invoices that contain dates, names of timekeepers, number of hours worked, names of files, total fees and disbursements and other information. However, unlike the data described by the court on the RKMC billing records, as a general matter of course ELG invoices contain detailed descriptions of confidential work, strategies and legal theories that are attorney-client privileged communications. ELG would not have used such detail if it thought these narrative statements were not in confidence.

By providing the ELG invoices and showing the hours worked and the fees due, even without including detailed descriptions of work, a person who sees this data arguably may be able to determine legal strategy such as which claim MAC believes needs the most work to prepare a response to, or possibly which claim currently presented has the strongest arguments, or whether MAC is preparing a suit. If the detailed descriptions of work are provided as well, legal strategy will be revealed. . . . .

Finally, it is the conclusion of MAC's General Counsel, Thomas W. Anderson, that data about Mr. Heide and the Committee are retained in anticipation of civil legal action. The background for this conclusion is set forth in the attached 2003 submission from MAC [relating to Advisory Opinion 03-003.] As such, data describing the work done in anticipation of civil legal action is not public data available to Mr. Heide under Minn. Stat. section 13.39.

Issue:

Based on Mr. Heide's opinion request, the Commissioner agreed to address the following issue:

Did the Metropolitan Airports Commission comply with Minnesota Statutes, Chapter 13, regarding several requests, beginning April 19, 2002, for access to certain invoices for legal fees?

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Discussion:

Pursuant to Minnesota Statutes, Chapter 13, all government data are public unless otherwise classified.

Pursuant to section 13.393:

Notwithstanding the provisions of this chapter and section 15.17, the use, collection, storage, and dissemination of data by an attorney acting in a professional capacity for the state, a state agency or a political subdivision shall be governed by statutes, rules, and professional standards concerning discovery, production of documents, introduction of evidence, and professional responsibility; provided that this section shall not be construed to affect the applicability of any statute, other than this chapter and section 15.17, which specifically requires or prohibits disclosure of specific information by the attorney, nor 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.

Section 13.393 does not classify data. Rather, it provides that certain data used, collected, maintained, and/or disseminated by a government entity's attorney are excluded from the provisions of Chapter 13. Generally, data exempted by section 13.393 relate to information protected by the attorney-client privilege and/or are data that reveal an attorney's work-product.

In her comments to the Commissioner, Ms. Rasmussen discussed in detail the MAC's claim that the redacted data are protected by the attorney-client privilege and/or are data that reveal an attorney's work-product. It is possible that certain of the data requested by Mr. Heide fall under the exemption in section 13.393. However, having examined the sample unredacted invoices, the Commissioner cannot determine whether the MAC's claim is appropriate. For additional guidance on the operation of section 13.393, see Advisory Opinion 05-009.

Ms. Rasmussen also stated that the data are protected from public disclosure under section 13.39, which provides, according to subdivision 2, that the following data are not public: data collected by [government entities] . . . which are retained in anticipation of a pending civil legal action. According to subdivision 1, whether a civil legal action is pending shall be determined by the chief attorney acting for the entity.

According to Ms. Rasmussen, Thomas W. Anderson, the MAC's General Counsel, has determined that data about Mr. Heide and the Committee are retained in anticipation of civil legal action. Ms. Rasmussen stated that the background for this conclusion is set forth in the attached 2003 submission from the MAC, relating to allegations of accusations of criminal fraud the Committee made against the MAC staff. In that document, the MAC stated [t]he Committee's threat of litigation is apparent on the face of its correspondence with local, state and federal government representatives.

Ms. Rasmussen did not provide the Commissioner with documentation of Mr. Anderson's determination that the disputed data are subject to protection under section 13.39. Thus, the Commissioner cannot determine whether Mr. Anderson had made such a determination at the time of Mr. Heide's requests, and so informed Mr. Heide. The first mention in the record before the Commissioner that MAC was relying upon section 13.39 as a basis for denying Mr. Heide access to the data was made by Ms. Rasmussen in her comments to the Commissioner.

The Commissioner previously has opined that a government entity's chief attorney has substantial discretion to make the determination that data are protected under section 13.39 (see for example, Advisory Opinion 99-029), and given the history of the dispute between the Committee and the MAC, it is reasonable for the MAC to anticipate civil legal action. However, generally, the chief attorney for a government entity should make the determination that data are not public under section 13.39 early in the process, and communicate such clearly and promptly to a data requestor.

The Commissioner has an additional comment. Pursuant to section 13.39, subdivision 2a, there is a remedy available to Mr. Heide and the Committee:

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.

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Opinion:

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

The Commissioner cannot determine whether the Metropolitan Airports Commission complied with Minnesota Statutes, Chapter 13, regarding several requests, beginning April 19, 2002, for access to certain invoices for legal fees.

Signed:

Dana B. Badgerow
Commissioner

Dated: August 17, 2006

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