Advisory Opinion 05-041

Facts and Procedural History:

On November 21, 2005, IPAD received a letter, dated same, from Erwin Stobbe. In his letter, Mr. Stobbe asked the Commissioner to issue an advisory opinion regarding his right to gain access to certain data from the City of Hopkins.

IPAD, on behalf of the Commissioner, wrote to Richard Getschow, Hopkins' City Manager, in response to Mr. Stobbe's request. The purposes of this letter, dated November 28, 2005, were to inform him of Mr. Stobbe's request and to ask him to provide information or support for the City's position. On December 9, 2005, IPAD received a response, dated same, from Wynn Curtiss, an attorney representing the City.

A summary of the facts as Mr. Stobbe provided them is as follows. In his opinion request, Mr. Stobbe wrote:

In the Spring of 2004 the City of Hopkins hired an engineer to study the flooding in the area of my property in Hopkins, Minnesota. This study was conducted after a tenant of the property brought a suit to conciliation court, against myself as property owner. The suit was a result of the tenants [sic] flooded car that was parked in [sic] underground garage on the property. The tenants' [sic] car was flooded in July of 2003. The conciliation court ruled in favor of myself, owner of the property, thus releasing any liability of the City of Hopkins or myself.

I am requesting a copy of the engineers' [sic] study.The City of Hopkins attorney has refused to release a copy of the study, citing MN statute. 13.39 Subd 2. I believe that argument is invalid due to the fact that any possible lawsuit is no longer valid. The statute of limitations has expired.

To his opinion request, Mr. Stobbe attached copies of several letters. One letter is his data request, dated October 22, 2005. The second letter is an October 26, 2004 (the Commissioner assumes this to be a typographical error), response from Mr. Curtiss:

It is the City's position that the engineering study was obtain [sic] pursuant to [section 13.39] and is, therefore, not public information. Further, it is the City's position that this information is protected from disclosure as it is attorney work product and constitutes the opinion of the City's expert witness.

Mr. Stobbe's attorney responded in a letter dated November 1, 2005:

You are aware that the study which was done in early 2004, was predicated upon a possible lawsuit that might have occurred due to a July 2003 incident. I believe the time period for a lawsuit on that action has now expired. As the Statute of Limitations has passed, your argument that the material is being maintained for the purposes of commencement or defense of a pending civil legal action no longer applies.

Issue:

Based on Mr. Stobbe's opinion request, the Commissioner agreed to address the following issue:

Did the City of Hopkins comply with Minnesota Statutes, Chapter 13, in responding to a data request for the 2004 study of the Van Buren area drainage system?

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Discussion:

Pursuant to Minnesota Statutes, section 13.03, subdivision 1, government data are public unless otherwise classified.

In his comments to the Commissioner, Mr. Curtiss wrote:

In the summer of 2003, flooding occurred in [the parking garage owned by Mr. Stobbe]. In September 2003, an attorney contacted Mr. Stobbe [Mr. Curtiss provided a copy of this letter] seeking payment for damages allegedly caused to tenant's [sic] vehicles as a result of the flooding. In turn, Mr. Stobbe, through his attorney, Mr. Lawrence Marofsky, contacted Hopkins by letter dated September 30, 2003, and stated that any claim by a tenant against my client will result in a request for indemnification by the city for its failure to maintain its drainage system. [Mr. Curtiss attached a copy of this letter.] In response to Mr. Marofsky's letter, and after consultation with my office, Hopkins retained an outside engineering firm to determine whether Hopkins was liable for the flooding and the resulting damages.

Upon the completion of the study by Hopkins' engineering firm, Hopkins Public Works Director Steve Stadler wrote Mr. Stobbe on March 17, 2004 [Mr. Curtiss provided a copy of this letter] indicating that Hopkins' engineers had determined the city was not liable for [the flooding]. In response, Mr. Marofsky sent a letter on March 31, 2004 [Mr. Curtiss provided a copy of this letter] requesting a copy of the engineering report.The report was not provided.

In August 2004, an attorney representing [Mr. Stobbe's] tenants filed a conciliation court action against Mr. Stobbe, claiming that the flooding damaged his client's [sic] vehicles. On August 9, 2004, Mr. Marofsky sent a letter to Hopkins indicating that [Mr. Stobbe] considered Hopkins legally responsible for the damages and demanding that Hopkins agree to pay any damages or [Mr. Stobbe] would file suit against Hopkins. Mr. Marofsky enclosed a copy of an executed Third Party Complaint naming the City of Hopkins as the Third Party Defendant. [Mr. Curtiss attached a copy of the letter and the complaint.]

Mr. Stobbe did, in fact, file his Third Party claim against Hopkins. In November 2004, the tenant's [sic] claim against Mr. Stobbe was dismissed and the Third Party claim against Hopkins also was dismissed.

Based on the threat of litigation against Mr. Stobbe and the threat of litigation from Mr. Stobbe against Hopkins, it was my position that this matter involved a pending civil legal action against Hopkins and thus, the information collected by Hopkins regarding this matter is non-public, including specifically but not limited to, the engineer's report obtained by Hopkins after receipt of the letter from Mr. Stobbe's attorney.

The Commissioner has the following comments. Pursuant to section 13.39, if a government entity's chief attorney determines that a civil legal action is pending, the following data are classified as protected nonpublic (data not on individuals) and confidential (data on individuals): data collected as part of an active investigation undertaken for the purpose of the commencement or defense of the pending civil legal action, or retained in anticipation of a pending civil legal action.

Subdivision 3 of section 13.39 provides that civil investigative data become public upon the occurrence of any of the following events: (1) a decision by the entity not to pursue the civil action; (2) the expiration of the time to file a complaint under the statute of limitations or agreement applicable to the civil action; or (3) the exhaustion of or expiration of rights of appeal by either party to the civil action.

In his comments to the Commissioner, Mr. Curtiss states that the engineering report was created/collected because of the threat of litigation from Mr. Stobbe. Mr. Curtiss also states that his position was that the matter involved a pending civil legal action. Thus, based on the language in section 13.39, it appears the City's initial withholding of the report was appropriate.

However, Mr. Stobbe asserts that because the statute of limitations now has expired on any civil action, the City should release the report. He wrote, any possible lawsuit is no longer valid. Mr. Stobbe added, The engineer for Minnehaha Creek Watershed District was given the opportunity to review the [City's] engineered report from the spring of 2004. If this study is truly protected and private, then why was an engineer allowed to view the report? Mr. Curtiss wrote:

Because the data was acquired [as part of an active investigation undertaken for the purpose of the commencement or defense of a pending civil legal action] it remains protected nonpublic data permanently. There is nothing in the statutes or case law that indicates that this type of data is converted to public data after a set period of time.

The Commissioner disagrees. Section 13.39, subdivision 3, provides that civil investigative data previously classified as not public become public when the time to file a complaint under the statute of limitations has expired. Assuming the statute of limitations for Mr. Stobbe to bring an action against the City has expired, the engineer's report now is public. (The Commissioner notes Mr. Curtiss did not argue with Mr. Stobbe's assertion that the statute of limitations on Mr. Stobbe's claim has expired.)

Mr. Curtiss also argues that the report is protected from disclosure on the grounds it is attorney work product and is the work product of an expert witness, which is not generally discoverable.

In Advisory Opinion 05-009, the Commissioner discussed section 13.393, which allows government entities to protect certain data from disclosure. She wrote:

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.

Also in 05-009, the Commissioner discussed City Pages v. State of Minnesota, 655 N.W.2d 839 (Minn.App. 2003). In finding that neither the attorney-client privilege nor the work-product doctrine protected the attorney billing records in their entirety, 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. (City Pages, p. 846.)

Here, the Commissioner has not seen the engineer's report. Therefore, she cannot determine, with certainty, whether the data in the report are attorney work product and, therefore, are excluded from the provisions of Chapter 13. However, if Mr. Strobbe is correct that the City provided a copy of the report to another entity, the Minnehaha Creek Watershed District, the City's argument that the report is attorney work product seems less plausible. Finally, the Commissioner notes that section 13.393 states, 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.

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Opinion:

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

The Commissioner cannot determine, with certainty, whether the City of Hopkins complied with Minnesota Statutes, Chapter 13, in refusing to provide a copy of the 2004 study of the Van Buren area drainage system.

Signed:

Dana B. Badgerow
Commissioner

Dated: December 28, 2005

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