March 4, 1997; University of Minnesota
3/4/1997 10:14:43 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:For purposes of simplification, the information presented by the person who requested this opinion and the response from the government entity with which the person disagrees are presented in summary form. Copies of the complete submissions are on file at the offices of PIPA and, with the exception of any data classified as not public, are available for public access.On January 6, 1997, PIPA received a letter requesting this opinion from Mark Anfinson, an attorney, on behalf of his clients, members of the faculty of the University of Minnesota. In that letter, Mr. Anfinson described his attempts to gain access to certain data maintained by the University. Mr. Anfinson enclosed copies of related correspondence. In response to Mr. Anfinson's request, PIPA, on behalf of the Commissioner, wrote to Tracy M. Smith, Associate General Counsel for the University. The purposes of this letter, dated January 10, 1997, were to inform Ms. Smith of Mr. Anfinson's request, to ask her to provide information or support for the University's position, and to inform her of the date by which the Commissioner was required to issue this opinion. On January 21, 1997, PIPA received a response from Ms. Smith, who also enclosed copies of related correspondence. A summary of the detailed facts of this matter follows. According to Mr. Anfinson, beginning in September 1996, he asked the University to provide various data relating to the faculty tenure code revisions proposed by the Board of Regents. Mr. Anfinson was granted access to some of the data he requested. The University denied him access to data, exchanged between the University and the law firm of Hogan amp; Hartson, which relate to the proposed changes in the tenure code. Mr. Anfinson was told by Susan McKinney, responsible authority for the University, that . . . it was the University's position that all of the exchanges with Hogan amp; Hartson in its capacity as consultant to the Regents in the connection with the development of the [tenure code] proposals were subject to the attorney-client privilege, and that the University was not required to provide copies pursuant to [Minnesota Statutes Section] 13.30. In her response to the Commissioner, Ms. Smith stated that the law firm of Hogan and Hartson was retained by the Board of Regents to provide legal counsel in connection with its proposed revision of the tenure code. According to Ms. Smith, those data are protected from public disclosure . . . by the attorney-client privilege. . . . pursuant to Minnesota Statutes Section 13.30. Ms. Smith cited case law regarding the scope of the attorney-client privilege, and said that the privilege provides that any communication made by the client to the attorney or the attorney's advice given thereon in the course of professional duty' is privileged. [Minnesota Statutes Section] 595.02, subd. 1(b) (1996).
Ms. Smith wrote:
Finally, Ms. Smith described the tenure code-related data to which the University faculty has gained access, and stated: [t]he one narrow category of data to which the faculty does not have access is the category of confidential communications between the Board of Regents and its legal counsel leading to the development of the Regent's proposed code. The Board was entitled to communicate confidentially with its legal counsel to obtain its advice . . . . These data are not public under the Minnesota Government Data Practices Act.
Issue:
In his request for an opinion, Mr. Anfinson asked the Commissioner to address the following issue:
Discussion:
Pursuant to Minnesota Statutes Section 13.03, government data are presumptively public unless otherwise classified by state statute, temporary classification (see Section 13.06), or federal law as not public.
According to Ms. Smith, the data sought by Mr. Anfinson can be withheld from disclosure pursuant to Section 13.30 and Section 595.02, subdivision 1(b).
Section 13.30 provides:
In Advisory Opinion 96-038, the Commissioner wrote:
The limiting language related to not relieving responsible authorities of their duties under Chapters 13 and 15 was added to Section 13.30 by the legislature in an attempt to ensure that responsible authorities could not evade certain statutory duties by either having those duties performed by attorneys or transferring data associated with the duties to the custody and control of attorneys. Thus, in order for the University to protect the data pursuant to Section 13.30, two conditions must hold. One, the law firm Hogan amp; Hartson had to generate the data in the course of acting in its professional capacity for the University, and two, Hogan amp; Hartson was not performing duties that are required to be performed by the University's responsible authority and therefore not relieving the responsible authority of her duties and responsibilities under Chapter 13 and Section 15.17. The Commissioner does not have sufficient information to determine whether those two conditions apply in the instance of the data created, collected and maintained by Hogan amp; Hartson. In order to make that determination, it would be necessary for the Commissioner to examine the contractual and other relationships between the University and Hogan amp; Hartson and to actually examine the data generated and held by Hogan amp; Hartson. In order to perform those examinations, the University would have to provide all of the relevant data to the Commissioner which it has not chosen to do. Without that examination, it is not possible to make a final determination that would overcome the University's claim that these data are exempt from disclosure under Section 13.30. In addition to claiming that the data in question are exempt from disclosure under Section 13.30, Ms. Smith has also cited Minnesota Statutes Section 595.02, subdivision 1(b), as additional authority for the University to withhold public access to the Hogan amp; Hartson data.
It is unclear what relationship Chapter 595 has to Chapter 13. Chapter 595 relates to the competency of witnesses; the issue at hand does not involve a court case. The Commissioner addressed a related issue in Advisory Opinion 95-048:
Accordingly, it does not appear that the University may rely upon Section 595.02 to withhold access to the Hogan amp; Hartson data. The Commissioner notes that although the University is not obligated to release these data under Chapter 13, it could choose to do so. Opinion:Based on the correspondence in this matter, my opinion on the issue raised by Mr. Anfinson is as follows:
Signed:
Elaine S. Hansen
Dated: March 4, 1997 |
Attorney data
Litigation
Attorney-client privilege (595.02)
Attorney data
Evidentiary privilege (Chapter 595)