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    Advisory Opinion 97-009

    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:

    Applying these principles, the University did not disclose communications exchanged between the University and its outside counsel, Hogan amp; Hartson, when those communications related to legal services and were kept confidential. Specifically, the University invoked its attorney-client privilege for communications between Hogan amp; Hartson and the Board of Regents, the Board's Executive Director, the Board's Policy Assistant, and the University counsel. . . .

    The University disclosed communications with counsel when they did not fall within the attorney-client privilege. . . . . In addition, the University redacted documents to permit disclosure of nonprivileged material - where handwritten notes reflected nonprivileged matters as well as confidential communications with counsel, the University redacted the privileged portions and disclosed the remainder.


    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:
    May the University of Minnesota deny access to any of the data, exchanged between the University and the law firm of Hogan amp; Hartson, which relate to the development of the University Board of Regents' tenure code proposal?


    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:

    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 subdivisionshall 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 section15.17. [Emphasis added.]

    In Advisory Opinion 96-038, the Commissioner wrote:

    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.


    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:

    Section 13.30 must be applied in a way that harmonizes its provisions with the requirements of Chapter 13, as well as other provisions of statute and rule. It is not sufficient to argue, for example, that because an attorney cannot be compelled to testify against a client in a court proceeding, pursuant to Section 595.02, therefore any and all data an attorney uses, collects, stores, or disseminates in the course of her or his representation of a government entity, are protected from disclosure under Chapter 13. Chapter 595 governs who may or may not be compelled to testify in a court proceeding. This opinion addresses an issue of access to data, not an issue of evidentiary privilege. It is crucial that the two not be confused.


    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:

    The University of Minnesota may deny access to any of the data, exchanged between the University and the law firm of Hogan amp; Hartson, which relate to the development of the University Board of Regents' tenure code proposal, because these data are covered by Section 13.30, and are therefore not subject to disclosure under Chapter 13.

    Signed:

    Elaine S. Hansen
    Commissioner

    Dated: March 4, 1997


    Attorney data

    Litigation

    Attorney-client privilege (595.02)

    Attorney data

    Evidentiary privilege (Chapter 595)

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