Issues:

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

Discussion:

Because Mr. Rouse has received the majority of the data contained in the Office's file, the Commissioner will restrict his opinion to the remaining data in the Beitz/Jacobson memo that continue to be withheld.

1. When a government entity uses Minnesota Statutes, section 13.393, as the basis for denying access to public documents sought pursuant to a data practices request, must the government entity also give the underlying basis for the claim of protection through the attorney?

Prior to 2000, the language now found in Minnesota Statutes, section 13.393 was codified at section 13.30. Section 13.30's applicability to data held by a government entity has previously been discussed in a number of Advisory Opinions including 95-040, 96-038, and 99-003. To understand the significance of the issue presented here, the following from Advisory Opinion 96-038 is helpful.

Before proceeding with an analysis of the College's argument, it is important to discuss the significance of treating data held by a government entity as Section 13.30 data. When a government entity determines that certain data are subject to Section 13.30, the data in question are no longer government data for the purposes of Chapter 13. The government entity is no longer required to follow any of the requirements set forth in Chapter 13 that relate to government data. In other words, none of the data classifications would apply to those data, none of the rights of access would apply to persons requesting those data, none of the rights of subjects of data would apply to persons requesting those data, and none of the duties of responsible authorities would apply to government entities maintaining those data. Given that a Section 13.30 claim has such an extreme result, it is important that such a claim be critically examined.

Because of this result, the Legislature saw fit to include some limiting language in the final clause of Section 13.30. This provision states clearly that Section 13.30 must not be construed to relieve any responsible authority, other than the attorney, from his/her duties and responsibilities under Chapter 13. Therefore, any claim made by a government entity that certain data are subject to Section 13.30 must also be examined to determine if the claim will relieve responsible authorities of their duties under Chapter 13.

(Advisory Opinion 96-038, page 4.) In other words, there needs to be a basis on which the government entity can justify removing data from the applicability of the MGDPA.

Providing the basis to a requester such as Mr. Rouse is not, however, a requirement of the statute and cannot be mandated by the Commissioner. As suggested in Advisory Opinions 95-040, 96-038, and 99-003, the Office should be able to provide the basis on which section 13.393 has been invoked. In this case, the Office has said that the Beitz/Jacobson memo documents an attorney/client conversation. However, that explanation was not provided until the Office made its submission in response to Mr. Rouse's request for an advisory opinion. The Commissioner encourages the Office and other parties using section 13.393 to deny access to government data to provide this explanation at the time that access is denied.

2. Did the Hennepin County Attorney's office appropriately withhold criminal investigative data from the requestor (Attorney Rouse) pursuant to Minnesota Statutes, section 13.393?

Before discussing the Beitz/Jacobson memo, the Commissioner would like to address Mr. Rouses' argument that the all data that he requested are in an inactive criminal investigative file and are therefore public according to Minnesota Statues, section 13.82, subdivision. 7. The Office argued that the data in question are protected by attorney work product under section 13.393 and so are not accessible.

The analysis begins with section 13.82, subdivision 7 which provides in pertinent part:

Subd. 7. Criminal investigative data. Except for the data defined in subdivisions 2, 3, and 6, investigative data collected or created by a law enforcement agency in order to prepare a case against a person, whether known or unknown, for the commission of a crime or other offense for which the agency has primary investigative responsibility is confidential or protected nonpublic while the investigation is active. Inactive investigative data is public unless the release of the data would jeopardize another ongoing investigation or would reveal the identity of individuals protected under subdivision 17. Photographs which are part of inactive investigative files and which are clearly offensive to common sensibilities are classified as private or nonpublic data, provided that the existence of the photographs shall be disclosed to any person requesting access to the inactive investigative file. An investigation becomes inactive upon the occurrence of any of the following events:
(a) a decision by the agency or appropriate prosecutorial authority not to pursue the case;
(b) expiration of the time to bring a charge or file a complaint under the applicable statute of limitations, or 30 years after the commission of the offense, whichever comes earliest; or
(c) exhaustion of or expiration of all rights of appeal by a person convicted on the basis of the investigative data.

The first question that must be answered is whether the Office is a law enforcement agency for purposes of this section. Section 13.82, subdivision 1 provides, in pertinent part, that

Subdivision 1. Application. This section shall apply to agencies which carry on a law enforcement function, including but not limited to municipal police departments, county sheriff departments, fire departments, the bureau of criminal apprehension, the Minnesota state patrol, the board of peace officer standards and training, the department of commerce, and the department of labor and industry fraud investigation unit, the program integrity section of, and county human service agency client and provider fraud prevention and control units operated or supervised by the department of human services.

(emphasis added)

What the Legislature has provided in subdivision 1 of section 13.82 is a list of entities that are covered by that section. The list is not, however, an exclusive one as indicated by the language that has been highlighted above. By specifying that the list of entities in section 13.82, subdivision 1 is not exhaustive, the Legislature has specifically provided a means for other government entities to be covered by section 13.82. The next question is how to determine which entities might be included in the blank the Legislature has provided.

The answer follows common sense. First, prosecutors have labeled themselves the chief law enforcement officer for their jurisdiction. Second, prosecutors operate within the criminal justice system. The Legislature has defined criminal justice agency in section 13.02, subdivision 3a. Prosecutors are included in that definition and so it is reasonable to conclude that the Legislature did intend that county attorneys be included in law enforcement agency for purposes of section 13.82.

In this case, this conclusion is further supported because the Office was carrying out a law enforcement function, namely the investigation of a criminal complaint against a referee. The Office has argued that no investigation occurred because the Office accepted Mr. Rouse's statement of the facts, applied the law to those facts and made a determination whether to prosecute. It is necessary to define investigation in order to continue the analysis here. The American Heritage College Dictionary defines investigation as 1. The act or process of investigating. 2. A detailed inquiry or systematic examination. Investigate is defined as To observe or inquire into in detail; examine systematically. (The American Heritage College Dictionary, College Edition, Houghton Mifflin Company, Boston, 1997, page 715.)

In other words, an investigation is a systematic examination of a situation. In this case, the Office did do a systematic examination of the situation that was presented by Mr. Rouse when it determined whether the facts presented were sufficient to support a criminal complaint against the referee. As a result, the Office was acting as a law enforcement agency and section 13.82, subdivision 7 applies to at least some of the data held by the Office. As the Office declined to prosecute the referee, at least some of the data in its criminal investigative file became public by operation of section 13.82, subdivision 7(a).

If the Commissioner were to agree with the Office that it did not conduct an investigation in this case, then section 13.82 does not apply. If section 13.82 does not apply, then the general presumption in section 13.03 applies and the data would be classified as public.

The Office has continued, however, to state that the Beitz/Jacobson memo remains unavailable to Mr. Rouse pursuant to section 13.393. In previous advisory opinions, the Commissioner has stated that two conditions must be met for data to be withheld pursuant to section 13.393. The first is that the attorney must generate the data in the course of acting in his or her professional capacity for their office. The second is that the attorney must not be performing duties that are required to be performed by the responsible authority. (See Advisory Opinion 97-009) These conditions are based on the language in section 13.393 which reads:

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.

The Legislature has determined that for section 13.393 to apply to data, the lawyer must be acting in his or her professional capacity on behalf of the government entity. The second important point in section 13.393 is that a government entity may not transfer a function, responsibility or data to an attorney as a means of avoiding its responsibilities under the MGDPA. In other words, a government entity cannot use its attorney to shield data that would otherwise be available under the provisions of the Act.

In this case, the first condition has been met with respect to the Beitz/Jacobson memo. Ms. Beitz's documentation of her attorney/client conversation is within the course of her actions in her professional capacity. The Commissioner does not, however, have sufficient information to determine if the second condition has been met. The Office has chosen not to provide the withheld document to the Commissioner for review. As a result, there is no way to determine if the conversation was one by an attorney advising her client with respect to the matter involving the referee or whether the conversation involved part of the decision making process about the course and result of the investigation.

In conclusion, the Commissioner is not able to determine if either section 13.393 or section 13.82 applies to the Beitz/Jacobson memo as the Office did not provide the Commissioner with a copy to review.

3. If Minnesota Statutes, section 13.393, applies to the current case, did the Hennepin County Attorney's office waive attorney work product protection by mailing the December 22, 2000, Declination to Prosecute memo containing the mental impressions and legal opinions of the Hennepin County Attorney's office to Attorney Rouse prior to his data practices request, and, discussing the mental impressions and legal opinions of the Hennepin County Attorney's office with Attorney Rouse on February 7, 2001?

As the Commissioner has discussed above, he is unable to determine if section 13.393 applies to the Beitz/Jacobson memo. In addition, the Commissioner notes that the issue of waiver is not one related to the MGDPA and its provisions and so is outside the Commissioner's jurisdiction pursuant to section 13.072. Therefore, the Commissioner has no authority to determine whether production of the December 23, 2000, Declination to Prosecute memorandum has waived attorney work product protection for the Beitz/Jacobson memo.

Opinion:

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

Signed:

David F. Fisher
Commissioner

Dated: September 28, 2001