This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2022). It is based on the facts and information available to the Commissioner as described below.

Facts and Procedural History:

Eric Rice (Rice) asked for an advisory opinion regarding his right to access data maintained by the Hennepin County Attorney’s Office (HCAO), under Minnesota Statutes, Chapter 13 (Data Practices Act). HCAO submitted comments in response to Rice’s request.

A summary of the facts is as follows:

On January 10, 2022, Rice submitted a data request to HCAO for:

Correspondence and non-work product materials regarding the incident involving Jaleel Stallings and Minneapolis Police officers that occurred on May 30, 2020. The incident is MPD No. 2020-146953 and Court File No. 27-CR-20-12859. I am particularly interested in the creation and dissemination of the press release announcing Stallings’ arrest and charges issued by the Hennepin County Attorney’s Office. I also seek general correspondence or other documents that reference or discuss the Stallings matter.

Rice indicated that he anticipated receipt of correspondence, training materials, materials related to the entity’s press release, as well as correspondence regarding media and news inquiries to the entity. Rice argued, “these materials, and others, would not be subject to any court privilege, and, thus, would not be protected from disclosure pursuant to Minn. Stat. 13.393.”

In its comments, HCAO indicated it responded to Rice on May 25, 2022, stating, “[n]o public data exists responsive to your request. Existing data is protected under MN Statute Section 13.393.”

Issue:

Discussion:

The Data Practices Act presumes all government data are public, unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.) Minnesota Statutes, section 13.393, 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 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.

In Advisory Opinion 12-017, the Commissioner highlighted that “[s]ection 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.”

In prior opinions, the Commissioner distinguished between data maintained by attorneys acting in a professional capacity for a government entity that are governed by other “statutes, rules, and professional standards concerning discovery, production of documents, introduction of evidence, and professional responsibility” and data that are not governed by provisions specific to attorneys acting in their professional capacity. (See Advisory Opinions 12-017 and 05-009.)

When evaluating the application of section 13.393, courts generally analyze whether there is a doctrine or privilege applicable to the data at issue that would warrant the government entity relying upon section 13.393 to exclude the data from the requirements of the Data Practices Act. For example, in City Pages v. State of Minnesota the court addressed limitations to attorney-client privilege and the work product doctrine, indicating that billing records would not be protected in their entirety. City Pages v. State of Minnesota, 655 N.W.2d 839 (Minn. Ct. App., 2003). Recently, the Minnesota Supreme Court also recognized the common-interest doctrine and discussed the doctrine in relation to section 13.393. Energy Policy Advocates v. Ellison, A20-1344 (Minn., Sep. 28, 2022).

As stated in Advisory Opinion 12-017, “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, are exempt from disclosure under Chapter 13.” When a government entity relies upon section 13.393 to exempt data from the requirements of Chapter 13, the entity should ensure the attorney maintaining the data is acting in a professional capacity for the entity and there is an applicable statute, rule, and/or professional standard concerning discovery, production of documents, introduction of evidence, or professional responsibility that otherwise governs the data in the hands of the government attorney. The fact that data are maintained by a government attorney does not in itself warrant the application of section 13.393.

Here, Rice requested correspondence and non-work product materials, including data related to a specific press release. General correspondence with members of the public, such as media inquiries, or a copy of a publicly-issued press release, are unlikely to fall within section 13.393 as these data do not appear to be subject to statutes, rules, or professional standards that otherwise govern the work of a government attorney. Therefore, some of the data HCAO created related to those activities were likely government data subject to Chapter 13.

Based on the facts provided by the parties, it is not clear whether such government data existed at the time of the January 10, 2022, data request. If the requested government data existed, the data were subject to the public presumption and should have been provided to the requester unless a not public classification applied.

Opinion:

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

If HCAO maintained government data responsive to Rice’s data request that were not maintained by attorneys acting in their professional capacity for the entity and governed by provisions specific to attorney work pursuant to section 13.393, then it did not respond appropriately to the January 10, 2022, data request.

Signed:

Alice Roberts-Davis
Commissioner

November 23, 2022