Facts and Procedural History:

On November 5, 2009, the Information Policy Analysis Division (IPAD) received a letter dated October 30, 2009, from C.T. Marhula. In his letter, Mr. Marhula asked the Commissioner to issue an advisory opinion regarding his right to certain data from the City of Warren.

IPAD, on behalf of the Commissioner, wrote to Nancy Holum, Deputy Clerk of the City, in response to Mr. Marhula's request. The purposes of this letter, dated November 17, 2009, were to inform her of Mr. Marhula's request and to ask her to provide information or support for the City's position. IPAD did not receive a response from the City.

A summary of the facts as Mr. Marhula provided them is as follows. In a letter to the City dated September 17, 2009, Mr. Marhula requested certain data:

1. Copies of checks and supporting documents issued by the Northern Minnesota Power Agency (NMPA) issued to Mr. Todd Hanson, former City of Warren Operations Supt., and Mayor Robert Kliner for the period from January 1, 2008, to June 30, 2009.

2. Copies of the document used by Mayor Kliner at the March 18, 2009, meeting.

3. An electronic copy of the 49 page document and all attachments referred to on page 2 of Mayor Kliner's January 7, 2009, letter to me.

In a letter dated September 25, 2009, an attorney responded on the City's behalf:

- [Regarding number 1] The City does not have data responsive to this request.

- [Regarding number 2] Data responsive to this request will be transmitted to you by email. The City denies your request for datahat is nonpublic and not accessible to you based on Minnesota Statutes, section 13.393 [attorney data]. The portion of the document that is prohibited from being disclosed to you will be transmitted with the appropriate redactions. More specifically, in the applicable document, the data prohibited from being disclosed to you is such data in which the City did not waive the attorney-client privilege, i.e., data that the City did not communicate to a third party

- [Regarding number 3] The City denies your request for dataased on Minnesota Statutes, section 13.39 [civil investigative data].

Mr. Marhula provided to the Commissioner a copy of the redacted document he received from the City in regard to his Number 2 request.

Issues:

Discussion:

Issue 1:

Did the City of Warren comply with Minnesota Statutes, Chapter 13, in responding to a request for certain data relating to checks issued by Northern Minnesota Power Agency to City officials?

Data that government entities create, collect, and maintain are subject to the requirements of Minnesota Statutes, Chapter 13.

In his opinion request, Mr. Marhula wrote:

There are reasons this information is covered under [Chapter 13]. First, Mr. Hanson and Mr. Kliner were acting as appointed agents for the City of Warren on the NMPA Board [Northern Minnesota Power Agency].The payments to them were in their official capacity of acting for and on behalf of the City This was an official and formal appointment by the action of the City Council of Warren.

To his opinion request, Mr. Marhula attached a provision from a City document entitled, "Financial Statements for the Year Ended December 31, 2008 Together with Independent Auditor's Report." The provision reads:

The City of Warren is a member of the Northern Municipal Power Agency. The Power Agency was incorporated on December 14, 1976, and is a municipal corporation and political subdivision of the State of Minnesota composed of 10 Minnesota cities. The Power Agency was organized for the purpose of providing its members with electrical power pursuant to Minnesota Statutes, Section 453.

The City's response to Mr. Marhula is that it does not have data responsive to this request. Without knowing whether the City has some type of contractual relationship with NMPA that would require the City to maintain certain data, the Commissioner cannot determine whether the City's response is compliant with Chapter 13.

Issue 2:

Did the City of Warren comply with Minnesota Statutes, Chapter 13, in responding to a request for a document the Mayor used at a March 18, 2009, meeting?

As discussed in the Facts section above, Mr. Marhula provided the Commissioner with a copy of the redacted document he received from the City. The City redacted the data pursuant to Minnesota Statutes, section 13.393, attorney data. In his opinion request, Mr. Marhula wrote:

While I cannot [prove] it is not "attorney client" information without reviewing it, I can say it appeared to be a script the Mayor was reading from while other Council members were making the scripted statements. This was at an open, public meeting. This should be public information.I believe these notes were also used to prepare the minutes.

Section 13.393 does not classify data. Rather, it provides that certain data created, collected, maintained, and/or disseminated by a government entity's attorney are excluded from the provisions of Chapter 13. Generally, data exempted by section 13.393 relate to information protected by the attorney-client privilege and/or are data that reveal an attorney's work-product. (Advisory Opinion 05-009)

The Commissioner does not have enough information to determine whether the City appropriately withheld data from Mr. Marhula. Generally, though, it is likely not appropriate for an entity to discuss data in an open meeting and then refuse to release those data on the basis that they are attorney data.

Issue 3:

Did the City of Warren comply with Minnesota Statutes, Chapter 13, in responding to a request for a 49 page investigative report?

The City's response is that the data in the report are not public pursuant to Minnesota Statutes, section 13.39. As the Commissioner previously has opined, for data to be classified properly under section 13.39, the chief attorney acting for the entity must determine that a civil legal action is pending. The Commissioner does not know if this has occurred. If so, the City can appropriately deny access to the data. If not, the data are public pursuant to the general presumption in Minnesota Statutes, section 13.03, subdivision 1.

Opinion:

Signed:

Sheila M. Reger
Commissioner

Dated: December 15, 2009