Advisory Opinion 05-009

Facts and Procedural History:

On December 21, 2004, IPAD received a letter dated December 20, 2004, from Rosemary Feehan. In her letter, Ms. Feehan asked the Commissioner to issue an advisory opinion regarding her right to gain access to certain data that the City of St. Mary's Point maintains.

IPAD, on behalf of the Commissioner, wrote to Holly Whalen, City Clerk, in response to Ms. Feehan's request. The purposes of this letter, dated December 23, 2004, were to inform her of Ms. Feehan's request and to ask her to provide information or support for the City's position. On January 18, 2005, IPAD received a response, dated January 17, 2005, from Mark Vierling, an attorney representing the City.

A summary of the facts as Ms. Feehan provided them is as follows. In a letter dated November 22, 2004, Ms. Whalen wrote to Ms. Feehan:

At the November 9, 2004 City Council meeting you requested a copy of the memo issued by the City Attorney regarding ineligible candidates for the Election. That item was an internal memo issued and retained within his office and is considered privileged and confidential information. The $320 on the City Attorney's bill was for research on the issue and the memo produced.

In a letter dated November 29, 2004, Ms. Feehan wrote to Ms. Whalen and asked her to cite the specific statutory provision upon which the City was denying access to the data.

In a letter dated December 2, 2004, Ms. Whalen wrote to Ms. Feehan, The specific statute is 595.02 subd. 1(b) and is based on the attorney client privilege and attorney work product doctrine.

In a letter dated December 7, 2004, Ms. Feehan wrote to Ms. Whalen and argued that the City's denial was inappropriate.

In a letter dated December 14, 2004, Ms. Whalen wrote to Ms. Feehan, Your request for reconsideration is denied. The City's position remains as previously provided to you.

Issue:

In her request for an opinion, Ms. Feehan asked the Commissioner to address the following issue:

Did the City of St. Mary's Point comply with Minnesota Statutes, Chapter 13, in denying access to a copy of a memo issued by the City Attorney regarding ineligible candidates for the November 2004 election?

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Discussion:

Pursuant to Minnesota Statutes, Chapter 13, all government data are public unless otherwise classified.

Section 13.393 allows government entities to protect certain data from disclosure:

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.

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.

In his comments, Mr. Vierling wrote:

The document sought to be obtained by Ms. Feehan is an internal document to the law office which serves as legal counsel for the City... The document was prepared relative to the prospect of litigation by Ms. Feehan as it affects the application of her daughter, an under-aged minor, to run for public office in the City of St. Mary's Point, a matter which is prohibited both by statute and state constitution.

Mr. Vierling stated that Ms. Feehan and her husband have commenced three lawsuits against the City in recent years. He wrote:

Given the history of Rosemary Feehan and David Nelson, her husband, in commencing multiple matters of litigation against the [City] and further, in consideration of the fact that judicial determination has already been made on at least one case that their action was frivolous and unfounded, it was certainly anticipated by this office that the effort to mount a candidacy of an age inappropriate and ineligible candidate for office for the [City], which was illegal both under state statute as well as state constitution, was being initiated preparatory to lawsuit number 4, to be initiated against the [City] by the Feehan-Nelsons...

Mr. Vierling further wrote, The internal memo prepared was directly addressed to that situation and not otherwise or routinely or generally prepared for any other purpose. It is, thus, entitled to work product - attorney-client protection under the law and is not a public document subject to a data practices request.

Mr. Vierling provided to the Commissioner a copy of an article that appeared in the October 3, 2004, edition of the Saint Paul Pioneer Press. In it the reporter wrote, Feehan-Nelson said that if she receives the highest number of votes but is not certified, she is prepared to hire an attorney and take the matter to court.

Mr. Vierling cited City Pages v. State of Minnesota, 655 N.W.2d 839 (Minn. Ct. App. 2003) and stated, The City Pages decision of the Minnesota appellate courts reaffirms the work product doctrine as contained within the privilege of the attorney-client relationship.

The Commissioner agrees that government entities should review the City Pages case when making decisions about the classification of data created, collected, or maintained by attorneys. In essence, the issue before the Court was whether a law firm's billing records were public pursuant to Chapter 13. On the matter of refusal to disclose based on the attorney-client privilege, the Court wrote:

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... We conclude that the district court erred in deciding that the attorney-client privilege protected all the data in the billing records.

Regarding refusal to disclose based on attorney work-product, the Court wrote, Therefore, to be protected by the doctrine, material must contain opinions, conclusions, legal theories, or mental impressions of counsel, and it must have been prepared in anticipation of litigation. The Court cited Bieter Co. v. Blomquist, 156 F.R.D. 173, 180 (D. Minn. 1994):

Whether documents were prepared in anticipation of litigation is a factual determination. The test should be whether, in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation. But the converse of this is that even though litigation is already in prospect, there is no work product immunity for documents prepared in the regular course of business rather than for purposes of litigation.

The Court found that the work-product doctrine did not protect the billing records in their entirety.

In the situation currently before the Commissioner, because she has not seen the data in question, she cannot determine, with certainty, whether the City's refusal to disclose is appropriate.

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Opinion:

Based on the facts and information provided, my opinion on the issue that Ms. Feehan raised is as follows:

The Commissioner cannot determine whether the City of St. Mary's Point complied with Minnesota Statutes, Chapter 13, in denying access to a copy of a memo issued by the City Attorney regarding ineligible candidates for the November 2004 election.

Signed:

Dana B. Badgerow
Commissioner

Dated: February 9, 2005

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