Discussion:

Minnesota Statutes Section 13.02, subdivision 7, defines government data as all datacollected, created, received, maintained, or disseminated by anystate agency, political subdivision, or statewide systemregardless of its physical form, storage media, or conditions of use. Section 13.02, subdivision 18, defines statewide system as any record keeping system in which government data is collected, stored, disseminated, and used by means of a system common to one or more state agencies or more than one of its political subdivisions, or any combination of states agencies and political subdivisions.

For the purposes of Chapter 13, Tri-County is a statewide system. Thus, pursuant to Section 13.02, subdivision 7, any data Tri-County collects, creates, receives, maintains, or disseminates are government data. Tri-County has received data, in the form of a written settlement proposal. Therefore, the settlement proposal is government data.

The second issue raised by Mr. Von Korff is whether the settlement proposal is classified as not public data by any of the following sections in Chapter 13: 13.37, subdivision 1 (b) (trade secret data); 13.39 (civil investigative data); or 13.30 (attorney data)?

In regard to the possibility that the settlement proposal is classified as not public because the data comprising the agreement are trade secret data, the Commissioner must look to the language of Section 13.37, subdivision 1 (b):

In his August 2, 1995, letter, Mr. Von Korff noted that as negotiations proceed, Tri-County will likely require additional financial information about the opposing party which the opposing party may regard as trade secret. He also stated that the initial proposal contains a listing of the the opposing organization's major creditors and the amount of debt. Mr. Von Korff further expressed concern that if negotiations continue, Tri-County will require additional and more confidential data which, if disclosure is necessary, will not be forthcoming.

First, the Commissioner wishes to note that she cannot comment on any data Tri-County may receive in the future. Without knowing the content of the data, it is impossible to formulate any conclusion regarding its classification.

Second, because Mr. Von Korff did not provide the Commissioner with a copy of the actual settlement proposal, it is impossible for the Commissioner to determine whether any of the data elements comprising the proposal are trade secret data. However, the Commissioner would like to note that, if, as Mr. Von Korff states, the proposal does contain a listing of the opposing party's major creditors and the amount of debt, the Commissioner presumes that neither of those two data elements would meet the rigorous definition of Section 13.37, subdivision 1 (b).

In regard to the possibility that the settlement agreement is classified as not public because the data comprising the agreement are civil investigative data, the Commissioner must look to the relevant language in Section 13.39. Subdivision 2 of Section 13.39 states that data collected by state agencies, political subdivisions, or statewide systems, as part of an active investigation undertaken for the purpose of commencement or defense of 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).

Subdivision 1 of Section 13.39 defines pending legal action as including, but not limited to, judicial, administrative, or arbitration proceedings. Subdivision 1 also states that the chief attorney acting for the state agency, political subdivision, or statewide system shall determine whether, for purposes of Section 13.39, a civil legal action is pending.

In 1993, the Minnesota Supreme Court, in St. Peter Herald v. City of St. Peter, 496 N.W.2d 812 (Minn. 1993), addressed an issue similar to the one at hand. In St. Peter Herald, the court held that a notice of claim provided to a political subdivision, had not been collected by the political subdivision in anticipation of possible commencement of litigation and thus, could be disclosed under Chapter 13. The court wrote:

However, the Commissioner does wish to add that she is somewhat puzzled by the holding in St. Peter Herald. It appears that Section 13.39, subdivision 2, when read in full, could certainly be interpreted to mean that data become not public if a government entity either collects the data as part of an active investigation undertaken for the purpose of the commencement or defense of a pending legal action, or if the government entity retains the data in anticipation of a pending legal action. Thus, the classification of the data would not bedependent, as the St. Peter Heraldcase suggests, on the method upon which the government entity comes to possess the data. This issue may need legislative clarification.

Regardless of the Commissioner's reluctance to fully accept the conclusion reached in St. Peter Herald, there appears to be no other case law on the issue.

In regard to the possibility that the settlement agreement is classified as not public because the data comprising the agreement are attorney data, the Commissioner must look to the language in Section 13.30:

It should be noted, however, that the last phrase of Section 13.30 indicates the Legislature did not intend for this section to relieve responsible authorities, other than attorneys, from their duties and responsibilities under Chapter 13 or Section 15.17.

If a government entity wishes to classify certain data as not public because those data are protected under Section 13.30, the entity must be able to point to the statute, rule, and/or professional standard which provides that the data should be not public. Given that Tri-County has not provided the Commissioner with any such documentation, it is difficult for the Commissioner to hypothesize as to which statute, rule, and/or professional standard Tri-County deems to be appropriate in this situation.

However, since Mr. Anfinson has raised the issue of data protected by attorney/client confidentiality, the Commissioner believes it may be helpful to address that particular possibility. Attorney/client confidentiality is a rule of conduct which serves to protect information provided by a client to her/his attorney. The question at hand is whether the settlement proposal received by Tri-County could be considered information which is protected by attorney/client confidentiality.

The main provision regarding attorney/client confidentiality can be found in Rule 1.6 of the Minnesota Rules of Professional Conduct. In part, Rule 1.6 states that except where otherwise permitted, a lawyer shall not knowingly: (1) reveal a confidence or secret of a client; (2) use a confidence or secret of a client to the disadvantage of the client; (3) use a confidence or secret of a client for the advantage of the lawyer or a third person, unless the client consents after consultation. Because there does not appear to be any relevant case law, the Commissioner must look directly to the plain language of the rule.

Clearly, the language of the rule defines privileged information as a confidence or secret which is shared by a client with her/his attorney. Given that definition, it is difficult to argue reasonably that the data in question, the opposing party's settlement proposal, is privileged information. The proposal is obviously not a confidence or secret of Tri-County's; the opposing party has been the source of the data in question.

Therefore, it does not appear that Tri-County could rely on the attorney/client privilege to classify the settlement proposal as not public data under Section 13.30.

Finally, the Commissioner wishes to point out that while it does not appear Mr. Von Korff can use any of the aforementioned provisions of Chapter 13 to classify the settlement proposal as not public data, he does make some persuasive policy arguments as to why such proposals ought, initially, to be not public data. He writes:

Opinion: