This is an opinion of the Commissioner of Administration issued under Minnesota Statutes, section 13.072 (2025). It is based on the facts and information available to the Commissioner as described below.

Facts and Procedural History:

Nate Dybvig (Dybvig) asked for an advisory opinion regarding his right to gain access to data maintained by the City of Emily (City), under Minnesota Statutes, Chapter 13 (Data Practices Act). The Emily City Attorney submitted comments in response to the advisory opinion request.

A summary of the facts is as follows:

At an Emily City Council meeting on September 9, 2025, a member of the public, Steve Carlson (Carlson), appeared during the public comment period to discuss his concerns about alleged financial irregularities related to a proposed local mining project. Carlson also gave packets of documents related to his concerns to each council member and the mayor. Dybvig’s opinion request noted that Carlson also confirmed he previously delivered a copy of the document packet to city staff.

On October 22, 2025, Dybvig submitted a data request to the City for a copy of the documents that Carlson gave to city council members. The City responded on October 29, 2025, stating it would not provide Dybvig with access to the requested data. In a letter to Dybvig, the City wrote:

The data that you request is classified as data not on individuals – Non-public Data, as defined in Minn. Stat. § 13.02, Subd. 9. This is because the information you seek in your Data Request is protected by the confines of Minn. Stat. § 595.02, Subd. 1(b).

Dybvig contacted the City on October 30, 2025, to ask for further clarification. He noted that the requested data were delivered to the city council during an open meeting and the cited statutory sections did not appear to be applicable. The City did not offer additional information in response to Dybvig’s communication.

Issue:

Discussion:

The Data Practices Act presumes government data are public, unless otherwise classified as not public. (Minnesota Statutes, section 13.03, subdivision 1.)

If a government entity denies access to data due to a not public classification, then the entity is obligated to inform the requester of the specific statutory section, temporary classification, or provision of federal law that allows it to withhold the requested data. (Section 13.03, subd. 3(f).)

Minnesota Statutes, section 13.02, subdivision 9 states, “‘Nonpublic data’ are data not on individuals made by statute or federal law applicable to the data: (a) not accessible to the public; and (b) accessible to the subject, if any, of the data.”

Minnesota Statutes, section 595.02, subdivision 1(b) establishes the attorney-client privilege as it relates to witness testimony, stating, “An attorney cannot, without the consent of the attorney’s client, be examined as to any communication made by the client to the attorney or the attorney’s advice given thereon in the course of professional duty; nor can any employee of the attorney be examined as to the communication or advice, without the client’s consent.”

Meanwhile, Minnesota Statutes, section 13.393 states:

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 a government entity 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.

Past advisory opinions have clarified that section 13.393 does not classify data. Rather, the section exempts data created, collected, maintained, or disseminated by government attorneys from the Data Practices Act’s requirements when those data are subject to other statutes, rules, or professional standards governing attorneys’ work and conduct, such as the attorney-client privilege. (See Advisory Opinions 22-007, 12-017, and 05-009.)

In City Pages v. State of Minnesota, 655 N.W.2d 839 (Minn. Ct. App. 2003), the Minnesota Court of Appeals addressed the interaction of the Data Practices Act and the attorney-client privilege in the context of data contained in a law firm’s billing records maintained by a government entity. The Court cited section 595.02, subd. 1(b) as the statutory basis of the attorney-client privilege. However, the Court also relied upon the classic explication of the privilege when considering its scope:

(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived.

Kobluk v. University of Minnesota, 574 N.W.2d 436 (Minn. 1998) (citations omitted).

The Court then wrote:

Because billing records are not “communication made by the client,” they come under the privilege only if they are “attorney’s advice given [on a client’s communication] in the course of professional duty.” …

Here, we hold that the billing records are not protected in their entirety by the attorney-client privilege: much of the information in them is not confidential, and much of it would have been disclosed regardless of the existence of the privilege. …

Certainly, the public has a right to at least some of the government data contained in the billing records, and the attorney-privilege protects only data that renders legal advice and that might not have been disclosed absent the privilege.

In its response to the Commissioner, the City disagreed that it violated the Data Practices Act, noting it had denied Dybvig access to data on the basis of attorney-client privilege. The City also enclosed a letter the City Attorney previously sent to the Commissioner, which disputed an argument Dybvig made suggesting any attorney-client privilege was waived when Carlson provided the documents to the city council.

The Commissioner’s understanding of the City’s position is that the requested data are not privileged communications between the City Attorney and City officials. Rather, this is a unique situation where the City received documents it believed were privileged communications between a third-party individual not related to the City and that individual’s attorney. Under the City’s argument, the attorney-client privilege between that third party and their attorney was not waived when Carlson obtained those documents and disclosed them to the mayor and city council members at the meeting on September 9. Therefore, the City was obligated to withhold access to preserve the attorney-client privilege on behalf of the other parties.

The City’s reliance on the fact that the requested data appear to be privileged between an individual unrelated to the City and that individual’s attorney is not a sufficient reason to withhold access to data in this situation.

As the Court of Appeals noted in City Pages, the attorney-client privilege typically protects “communications made by the client,” but it may apply to other communications “only if they are ‘attorney’s advice given [on a client’s communication] in the course of professional duty.’”

Here, Carlson provided data directly to the mayor and city council members. Therefore, the requested data were not communications made by City officials to its attorney nor were they communications from the City attorney rendering legal advice to the City officials. As a result, the requested data are not attorney-client privileged communications between the City and its attorney, and section 13.393 does not exempt the data from the Data Practices Act’s requirements.

Further, the plain language of section 13.393 does not allow a government attorney to extend the section’s exemptions when a government entity receives data it believes may be privileged between other parties. Thus, the City cannot rely on section 13.393 to withhold access even though it believes Carlson was not authorized to disclose data in documents that would be privileged between other parties.

It is the Commissioner’s opinion that the attorney-client privilege, with its statutory basis in section 595.02, subd. 1(b) and applied through section 13.393, is not applicable to the documents that Carlson gave to the mayor and city council members. The City cannot rely on section 13.393 or section 595.02, subd. 1(b) to withhold access to the requested data.

Finally, section 13.02 provides definitions of terms used throughout the Data Practices Act, and the section does not classify data. The City citing section 13.02, subd. 9 as the basis to withhold data in response to Dybvig’s request was not appropriate.

As a result, the requested data in the documents are subject to the public presumption. The City was obligated to provide Dybvig with access to the requested data unless a different statutory section or federal law classified the data as not public.

The Commissioner has a final note: The fact the City accepted and continued to maintain the documents Mr. Carlson provided — even though those documents appeared to be privileged between a third-party individual and that individual’s attorney — complicated the situation at hand. A government entity that receives documents it believes are privileged between other individuals should consider whether it must maintain those data for any longer than necessary, especially if they are transitory data. Government data that are transitory in nature and not part of an official record do not need to be retained for any specific length of time.

A practical solution for an entity finding itself in this situation may be to promptly return the privileged documents to the applicable individual or attorney upon determining it should not have received the documents. Alternatively, an entity could destroy any copies of the documents it believes it was not authorized to receive so long as those documents are not official records under Minnesota Statutes, Section 15.17 or subject to a pending data request.

Opinion:

Based on the facts and information provided, the Commissioner’s opinion on the issue is as follows:

The City of Emily did not respond appropriately to a request submitted on October 22, 2025, for data in documents that a member of the public provided to the mayor and city council members during a September 9 meeting. The data are presumptively public unless another specific statutory section or provision of federal law classify the data otherwise.

Signed:

Tamar Gronvall
Commissioner

February 4, 2026