A06-1114

Leslie Davis,

Appellant,

vs.

City of Minneapolis,

Respondent.

Filed July 17, 2007

Affirmed

Hudson, Judge

Hennepin County District Court

File No. 27-CV-06-1421

Nathan A. Busch, 7601 Wayzata Boulevard, Suite 207, P.O. Box 26081, St. Louis Park, Minnesota 55416 (for appellant)

Jay M. Heffern, Minneapolis City Attorney, Lisa A. Needham, Assistant City Attorney, 333 South Seventh Street, Suite 300, Minneapolis, Minnesota 55402-2453 (for respondent)

Considered and decided by Halbrooks, Presiding Judge; Lansing, Judge; and Hudson, Judge.

U N P U B L I S H E D O P I N I O N

HUDSON, Judge

This case involves the proper application of the Minnesota Government Data Practices Act (MGDPA), Minn. Stat. § 13.08, subd. 4 (2004), to the disclosure of public information regarding the hiring of a city employee. Appellant Davis challenges the district court’s grant of summary judgment in favor of respondent city based on appellant’s lack of standing. Appellant argues that (a) a member of the general public has standing to bring an action to compel disclosure of public information; (b) he has standing as an aggrieved person because respondent violated his statutory right to public information under Minn. Stat. § 13.03 (2004); (c) the district court erred in granting summary judgment because the respondent failed to show there were no genuine issues of material fact; (d) the district court should not have considered respondent’s standing argument because it was a dispositive motion that was not timely filed pursuant to Minn. R. Gen. Pract. 115.03(a); and (e) the district court erred in denying appellant’s request for discovery. Because appellant has failed to show that he has standing to bring an action as an “aggrieved person” under the Minnesota Government Data Practices Act, we affirm.

FACTS

In September 2004, respondent City of Minneapolis hired Steven Bosacker as a Program Director. In October 2004, appellant Leslie Davis wrote the Minneapolis City Coordinator to express his concern that “Mr. Steven Bosacker is unfit to serve the people of the City of Minneapolis” and to request information regarding the hiring of Mr. Bosacker. Appellant requested: a job description; information regarding when and where the position was advertised; the number of people who applied for the position; names and qualifications of people who applied for the position; and information regarding Mr. Bosacker’s qualifications and experience. On November 4, and again on November 24, 2004, appellant wrote to respondent and repeated his request for disclosure of information under the Minnesota Government Data Practices Act (MGDPA), Minn. Stat. § 13.08 (2004).

On December 2, 2004, respondent sent appellant the hiring department’s Request to Offer an Initial Appointed Position Salary above step A; Mr. Bosacker’s resume; and the September 27, 2004 employment agreement letter. Respondent also provided appellant with a copy of a description of Mr. Bosacker’s position.

In January 2005, appellant again wrote respondent requesting “all correspondence, applications, notebooks, telephone logs, audio and video tapes, e-mail correspondence, facsimiles, routing slips, memos, and any other form of communication or documentation regarding the hiring of Mr. Steven Bosacker.” In May 2005, respondent wrote appellant informing him that there was no additional information relating to Mr. Bosacker and that “the City of Minneapolis has provided you all documents relating to his hire.”

In January 2006, appellant filed a complaint in Hennepin County District Court under the MGDPA. Appellant sought an order compelling respondent to comply with the MGDPA and provide

[f]acts such as, but not limited to, who proposed the position, who designed the position, who suggested Bosacker to fill the position, who met to discuss the position, who advised Bosacker that there was a position, all minutes, tapes, telephone logs, facsimiles, or other records of any and all meetings or discussions that took place relating to the position, or in which the position was discussed.

Appellant also sought a declaration that respondent willfully violated the MGDPA, and costs and disbursements.

On January 31, 2006, respondent moved for dismissal of appellant’s complaint under Minnesota Rule of Civil Procedure 12.02(e) for failure to state a claim upon which relief can be granted. In its motion, respondent stated that “[appellant] seeks an order compelling information that simply does not exist, and, moreover, is not required to exist pursuant to Minn. Stat. ch. 13 and relevant case law.”

On March 16, 2006, appellant moved to convert respondent’s motion to dismiss to a rule 56 motion, for discovery, and to delay the hearing on respondent’s motion until he had time to complete discovery, depositions, interrogatories, and affidavits. After a hearing on March 31, 2006, the district court granted appellant’s motion to convert the motion to dismiss to a rule 56 motion and denied appellant’s motion for discovery and additional time to complete discovery.

The rule 56 motion was heard before the district court on May 2, 2006. The next day, the district court issued an order granting summary judgment in favor of respondent. In the accompanying memorandum, the district court stated:

Plaintiff Davis’ status as a taxpayer does not confer Plaintiff status as an “aggrieved party,” which is required to qualify for relief under the MGDPA. . . . Plaintiff Davis’ assertion of standing to qualify for relief under the MGDPA is a general assertion unsubstantiated by legislation, caselaw or other support, and thus, no genuine issues of material fact exist as to Plaintiff Davis’ claim for relief under the MGDPA.

This appeal follows.

D E C I S I O N

Appellant argues that the district court erred by granting summary judgment in favor of respondent.

“On an appeal from summary judgment, we ask two questions: (1) whether there are any genuine issues of material fact and (2) whether the [district] court[ ] erred in [its] application of the law.” State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). A summary judgment motion “shall be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that either party is entitled to a judgment as a matter of law.” Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). On appeal, this court views the evidence “in the light most favorable to the party against whom judgment was granted.” Id. “[T]here is no genuine issue of material fact for trial when the nonmoving party presents evidence which merely creates a metaphysical doubt as to a factual issue and which is not sufficiently probative with respect to an essential element of the nonmoving party’s case to permit reasonable persons to draw different conclusions.” DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997).

“Standing is a prerequisite to a court’s exercise of jurisdiction.” Petition for Imp. of County Ditch No. 86, Branch 1 v. Phillips, 625 N.W.3d 813, 817 (Minn. 2001). A party has standing because either (1) he has suffered some injury-in-fact, or (2) it is “the beneficiary of some legislative enactment granting standing.” Id.

Statutory construction is a question of law, which this court reviews de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn. 1998). Application of a statute to undisputed facts involves a question of law, and the district court’s decision is not binding on this court. O’Malley v. Ulland Bros., 549 N.W.2d 889, 892 (Minn. 1996).

The Minnesota Government Data Practices Act (MGDPA) “regulates the collection, creation, storage, maintenance, dissemination, and access to government data in state agencies, statewide systems, and political subdivisions” and creates “a presumption that government data are public and are accessible by the public for both inspection and copying unless there is federal law, a state statute, or a temporary classification of data that provides that certain data are not public.” Minn. Stat. § 13.01, subd. 3 (2004). The MGDPA provides that “any aggrieved person seeking to enforce the person’s rights under this chapter or obtain access to data may bring an action in district court to compel compliance with this chapter and may recover costs and disbursements, including reasonable attorney’s fees, as determined by the court.” Minn. Stat. § 13.08, subd. 4(a) (2004). The threshold matter in this case, therefore, is whether appellant has standing as an “aggrieved person” because he was denied access to data that was available to him as a matter of right under the MGDPA.

Appellant argues that the central issue in this case, whether a member of the public has standing as an “aggrieved person” when a government entity refuses to disclose requested information, is one of first impression, and that the legislature intended a member of the general public to have standing to bring an action to compel disclosure of public information. The Minnesota Supreme Court has already addressed this issue and held that

when the government violates the [MGDPA] by improperly denying a person access to data that the government is required by the [MGDPA] to make available—that is, refuses to grant access to data that is available as a matter of right—the person denied access is an “aggrieved person” under section 13.08, subd. 4.

Wiegel v. City of St. Paul, 639 N.W.2d 378, 384 (Minn. 2002). Therefore, a member of the public is an “aggrieved person” under the MGDPA when he or she had been denied information to which he or she is entitled as a matter of right. Id.

For purposes of this argument alone, respondent acknowledges that if there were documents relating to the hiring of Mr. Bosacker that it had not released to appellant, appellant would be entitled to them as a matter of right and would be “aggrieved person” under the MGDPA. However, appellant has failed to show that there exists an issue of material fact with respect to the existence of such information.

First, appellant has not alleged any facts demonstrating that respondent has relevant documents that it is refusing to disclose. In his brief, appellant states that “[i]t is . . . not controverted that Minneapolis has refused to disclose all of the requested information it has in its possession.” This is clearly not true; respondent stated repeatedly that it has turned over all documents that exist regarding Mr. Bosacker’s hiring. Appellant’s statement that “Minneapolis has implicitly indicated that information on Mr. Bosacker does exist that has not been disclosed under the original MGDPA request” is also incorrect. In its March 23, 2006, reply memorandum, respondent stated that

[p]laintiff makes an extremely broad new request for documents. For example, Plaintiff now asserts that, via discovery, he is entitled to all documents “that pertain to Steven Bosacker” in possession of Mayor R.T. Rybak. . . . Plaintiff makes no showing as to how obtaining such a broad swath of data is necessary to his original claim[.] . . .

It has been made clear to Plaintiff on numerous occasions that he has been provided with all data regarding the hiring of Mr. Bosacker.

Respondent’s statements do not amount to a tacit admission that additional documents exist. And, to the extent that appellant seeks information that is not written, the MGDPA does not compel its production. This court has previously determined that “information is not ‘government data’ until the information is recorded somewhere other than the human brain.” Keezer v. Spickard, 493 N.W.2d 614, 618 (Minn. App. 1992), review denied (Minn. Feb. 12, 1993).

For a genuine issue of material fact to exist, appellant’s argument must do more than “merely create[] a metaphysical doubt as to a factual issue.” DLH, 566 N.W.2d at 71. Appellant has failed to meet this burden. Instead, appellant simply argues that respondent is withholding information because appellant thinks respondent is withholding information. Appellant is not entitled as a matter of right to that which does not exist. Because appellant has failed to show that there exists an issue of material fact with respect to the existence of such information, and has therefore failed to show that he is “aggrieved” under the MGDPA, summary judgment was appropriate.

Appellant also argues that the district court should not have considered respondent’s standing argument because it was a dispositive motion that was not timely filed. No motion may be heard by the district court unless it and any corresponding memoranda of law are served at least 28 days prior to the hearing. Minn. R. Gen. Pract. 115.03(a). Appellant argues that the district court should not have considered respondent’s letter brief, which he received on April 24, 2006, because it was not served 28 days prior to the May 2, 2006 hearing. Appellant argues that the letter brief was, in effect, “a Motion to Dismiss for Want of Standing.” We conclude that the district court did not err by considering respondent’s standing argument.

First, the letter brief respondent submitted to the district court was not a new motion; it was further briefing regarding respondent’s motion to dismiss. Second, respondent notified both appellant and the district court of its intention to raise the issue of appellant’s standing at the March 31, 2006, hearing: “I’m not trying to broadside the Court or Mr. Davis with this, but I am putting Mr. Davis on notice that this will be part of our motion to dismiss argument.” Third, as shown in the transcript of the May 2 motion hearing, appellant was fully prepared to argue the standing issue before the district court and has not shown that he was prejudiced in any way by the district court’s consideration of the letter brief.

Without citing any legal authority, appellant also argues that the district court erred in denying appellant’s request for discovery. The district court “has wide discretion to issue discovery orders and, absent clear abuse of that discretion, normally its order with respect thereto will not be disturbed.” Shetka v. Kueppers, Kueppers, Von Feldt & Salmen, 454 N.W.2d 916, 921 (Minn. 1990). Appellant has not alleged any facts demonstrating that the district court abused its discretion by denying appellant’s motion for discovery.

Affirmed.