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Advisory Opinion 95-048

November 20, 1995; City of Lauderdale

11/20/1995 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 citizen who requested this opinion and the response from the government entity with which the citizen disagrees are presented in summary form. Copies of the complete submissions are on file at the offices of PIPA and are available for public access.

On October 4, 1995, PIPA received a letter requesting this opinion from Keith P. Dyrud, publisher of the Lauderdale Citizennewsletter. Mr. Dyrud described his attempts to gain access to certain data which are maintained by the City of Lauderdale. He enclosed copies of relevant correspondence with the City.

In response to Mr. Dyrud's request, PIPA, on behalf of the Commissioner, wrote to Tim Cruikshank, City Administrator for Lauderdale. The purposes of this letter, dated October 5, 1995, were to inform Mr. Cruikshank of Mr. Dyrud's request, to ask him or the City's attorney to provide information or support for the City's position, and to inform him of the date by which the Commissioner was required to issue this opinion. (In subsequent correspondence, Mr. Dyrud and Mr. Cruikshank were informed that the Commissioner would be taking additional time, as allowed by statute, to issue this opinion.)

On October 16, 1995, PIPA received a response from Ronald H. Batty, attorney for the City. A summary of the detailed facts of this matter follows.

In a letter to the City dated July 17, 1995, Mr. Dyrud requested access to [t]he itemized legal bills from Holmes Graven [sic] for January 1995 to the present. These bills must include a. The person from Lauderdale making the request; b. The 'matter' discussed; the date the request was made; and, the time charged to meeting that request.

The City responded . . . the Lauderdale City Council voted unanimously to not release the information you requested . . . . This decision was based on advice from the City's attorney that this information is protected under attorney-client privilege. Mr. Dyrud wrote back to the City, asking it to cite the specific section of Minnesota Statutes Chapter 13 upon which it relied to deny him access to the data. The City responded that the . . . citation is Minnesota Statute 13.30 and 13.39.

In his response to the Commissioner, Mr. Batty wrote Lauderdale has never contended that disclosure of the amount of an attorney fee is prohibited by the attorney/client privilege. In fact, the city promptly provided Mr. Dyrud with a summary of the city's legal bills which showed the dollar amount of fees by month for each file. The law is clear, however, that disclosure of the confidential information underlying the payment of that fee is entitled to the full protection of the privilege.

Mr. Batty also stated that the content of the billing statements includes more detailed information than that described by Mr. Dyrud, and suggested that Chapter 13 . . . specifically recognizes at least three ways that the type of data requested by Mr. Dyrud is protected.

First, according to Mr. Batty, is . . . the protection offered to investigative data pursuant to [Section] 13.39. He said that the billing statements sought by Mr. Dyrud include bills for work on a personnel matter that is now in litigation. According to Mr. Batty, those details constitute civil investigative data, which are not public, as there is a pending civil legal action.

Second, Mr. Batty cited Section 13.30 as authority for his position that the data are protected by the attorney/client privilege. Mr. Batty also cited Rule 1.6 of the Minnesota Rules of Professional Conduct, Minnesota Statutes Sections 595.02(1)(b), 481.06, and 471.705 (1)(d)(e), and case law as further support for that position.

Third, Mr. Batty stated . . . a city attorney typically becomes involved in a large number of issues involving not public data which are reflected in the attorney's bills to the city. As an example, Mr. Batty suggested that a billing statement might contain private medical data about a public employee, which the government entity is obliged to protect from public disclosure.

Finally, Mr. Batty discussed the policy implications of making detailed billing statements public.

Issue:

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

Are the data contained in the itemized legal bills, from January 1995 to the present, from the law firm of Holmes and Graven [sic] to the City of Lauderdale, public data?

Note: the correct name of the law firm in question is Kennedy and Graven.

Discussion:

Mr. Batty's first rationale for denying public access to the data in the billing statements is that the data are classified under Section 13.39, as civil investigative data. Section 13.39, subdivision 2, provides, in relevant part, that data collected by government entities, 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 states that the chief attorney acting for the government entity shall determine whether, for purposes of Section 13.39, a civil legal action is pending.

Mr. Batty stated that the billing statements sought by Mr. Dyrud include bills for work on a personnel matter that is now in litigation and therefore, those details constitute civil investigative data, pursuant to Section 13.39. It is up to Mr. Batty, as chief attorney for the City, to make that determination.

However, Section 13.39 does not protect data simply by virtue of their inclusion in an attorney's billing statement. For example, data such as the number of hours a public attorney bills a government entity, or the hourly fee charged, cannot be construed to be civil investigative data under Section 13.39. Indeed, as the Minnesota Supreme Court held in St. Peter Herald v. City of St. Peter, 496 N.W.2d 812 (Minn. 1993), not all data about legal matters are civil investigative data.

It may well be the case that some of the data in the billing statements are civil investigative data. Mr. Batty is correct that the chief attorney for the government entity has the discretion to make that determination. In that case, those data must be protected from public disclosure. However, any public data contained in the billing statements, that are not clearly civil investigative data protected by Section 13.39, must be accessible to members of the public.

It should also be noted that inactivecivil investigative data, with certain exceptions as provided in Section 13.39, subdivision 3, are public data. Therefore, if the City chooses to invoke Section 13.39 to protect data while a civil legal action is pending or anticipated, it must properly treat inactive civil investigative data as public.

Second, Mr. Batty argues that if the data in question are not civil investigative data, they are still protected under Section 13.30. That Section 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 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.

As the Commissioner discussed in Advisory Opinion 95-045:

As discussed in Commissioner's Advisory Opinion 95-040, the Commissioner believes the intent behind and the purpose of Section 13.30 is to clarify that the use, collection, storage, and dissemination of data by attorneys acting in their professional capacities are controlled by statutes, rules, and professional standards which relate to discovery, production of documents, introduction of evidence, and professional responsibility. In other words, if certain data are protected [for example] as an attorney's work product, pursuant to a particular statute, rule, or professional standard, no provision in Chapter 13 or Section 15.17 supersedes and/or alters the classification or treatment of those data.

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. Otherwise, a government entity could effectively shield any data it did not wish to disclose, by turning the matter over to its attorney. If Mr. Krafts' logic were accepted, anything an attorney did related to the use, collection, storage, and dissemination of data could be exempted from regulation under Chapter 13. By including the last phrase of Section 13.30, the legislature clearly intended to prevent just such an occurrence.

Mr. Batty cited several statutory provisions, and various case law, in support of his position that the data sought by Mr. Dyrud are not public. The Commissioner recognizes that the attorney/client privilege is significant; however, it is not all-encompassing. Given the finding in St. Peter, and the limiting language in the last phrase of Section 13.30, clearly the Legislature did not intend that any and all data used, collected, stored, or disseminated by a public attorney, or government data held by a government entity that relate to the conduct of its legal affairs, be classified as not public data.

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.

The third point raised by Mr. Batty is that public attorneys routinely deal with issues involving not public data. Those data are often referenced in the billing statements. Mr. Batty said [i]f the attorney provides billing statements to the client that are detailed enough to allow meaningful review, and if the client is then forced to make those billing statements public, what is not public by law will become public in fact. To the extent that data that are not public are contained in the billing statements, Mr. Batty is correct that those data must be protected from public disclosure. (See Section 13.43, subdivision 2(a)(8), for an example of the Legislature's attempts to accommodate a mixture of public and private data which are typically contained in a single document.)

Finally, the Commissioner acknowledges that Mr. Batty makes some persuasive policy arguments as to why some of the data contained in the billing statements ought not to be public data. He writes:

Cities cannot be placed in the position of disclosing information that is otherwise protected as investigative data or that is the subject of a pending legal action. Cities can even less afford to reveal data that are not public under [Chapter 13.] If release of billing statements is required, such statements are likely to become less detailed, and thus more difficult for the municipal client to evaluate. Alternatively, public clients will become reluctant to discuss sensitive issues with their attorneys. In either event, the public ultimately suffers.

The effect of such a ruling would also place a disproportionate burden on small cities who generally contract for legal services and receive a monthly billing statement detailing the attorney's work. Larger cities, who employ in-house attorneys who do not prepare client bills, will not face this problem. There seems to be no justification for making a distinction between what information must be revealed based on how a city obtains its legal services.

While Mr. Batty's arguments are compelling, they collide with current policy which, as articulated in Chapter 13, states a very strong presumption of public accessibility to government data. However, his comments, if brought to the Minnesota Legislature, might result in some clarification as to the proper treatment of such data.

Given the very nature of attorney billing statements, and the apparent lack of standardization among them with regard to content, it is very possible that the statements contain certain data which are protected from public disclosure under Sections 13.30 or 13.39. If so, then those portions of the billing statements are not accessible to the public. However, that does not imply a blanket protection for the billing statements. That protection applies only to the specific data elements in the billing statements that are subject to protection under Sections 13.30 or 13.39, or other relevant statutes. All other data contained in the statements must be presumed to be public, pursuant to Section 13.03, subdivision 1.

Opinion:

Based on the correspondence in this matter, my opinion on the issue raised by Mr. Dyrud is as follows:

Some of the data contained in the attorney's billing statements may properly be classified as not public, pursuant to Sections 13.30, 13.39, or other applicable statutes. All other data contained in the statements must be presumed to be public, pursuant to Section 13.03.

Signed:

Elaine S. Hansen
Commissioner

Dated: November 20, 1995

Civil investigative data

Billing statements

Chief attorney has substantial discretion to determine