7-0305-21960-DP

 

 

 

 

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

 

 

Four Crown, Inc.,

 

                              Complainant,

 

v.

 

County of Ramsey,

                              Respondent.

 

ORDER

This matter came on for hearing before Administrative Law Judge (ALJ) Richard C. Luis on June 27, 2011 at 10:00 a.m.  Jack Y. Perry and Paul J. Hemming of Briggs and Morgan, P.A., appeared on behalf of Complainant Four Crown, Inc. (Four Crown).  C. David Dietz of the Ramsey County Attorney's Office appeared on behalf of Respondent County of Ramsey (County).

Based upon the entire proceedings, the submissions and arguments of counsel, including the Affidavits of Paul J. Hemming, with exhibits, and Exhibits 1-6 submitted at the June 27, 2011 Hearing, this Administrative Law Judge (ALJ) determines and rules as follows:

 

A.              background

1.               On March 29, 2011, Four Crown filed a Complaint in the Office of Administrative Hearings pursuant to Minn. Stat. § 13.085 alleging that County violated Minn. Stat. §§ 13.03, 13.05 and 13.44 of the Minnesota Government Data Practices Act (DPA) (i.e., Minn. Stat. Ch. 13).  The Complaint alleges the County denied Four Crown access to data concerning plans for the Complainant’s Maplewood Wendy’s Restaurant.

2.               On April 22, 2011, County filed a Response to the Complaint.  On May 4, 2011, Four Crown filed a Reply to County's Response.  On May 5, 2011, Four Crown filed a Revised Reply to County's Response.

3.               Based on those submissions, this ALJ issued a Notice of Determination of Probable Cause and Order for Prehearing Conference and Evidentiary Hearing dated May 18, 2011 (May 18, 2011, Order).

4.               On June 6, 2011, a Prehearing Conference was scheduled and conducted by telephone.

5.               At the June 6, 2011 Prehearing Conference, County represented that:  (a) Four Crown had been provided with all responsive data that predated County's retention of Miles Lindberg (Lindberg) of Westwood Professional Services (Westwood) as a testifying expert in the underlying condemnation action in September 2010; and (b) County was only objecting to and withholding the production of responsive data that post-dated County's retention of Lindberg as a testifying expert.  In other words, County's objection to Four Crown's DPA request as it relates to Westwood data is narrowly limited to its production of the records of its testifying expert — i.e., Lindberg[1] — since he was retained as an expert in September 2010.

6.               At the June 6, 2011 Prehearing Conference, County raised for the first time the question of whether this ALJ has jurisdiction to hear this dispute given that County maintains that the objected to Westwood data is protected "nonpublic" "civil investigation data" under Minn. Stat. § 13.39.  County alternatively maintains that the objected to Westwood data is protected "attorney work product."

7.               Because County had not previously raised this jurisdictional issue, this ALJ imposed a briefing schedule on this issue.  This ALJ also scheduled an oral argument on both the jurisdictional issue and the underlying merits of County's objections.

8.               On June 16, 2011, this ALJ memorialized the June 6, 2011 Prehearing Conference as follows:

Please allow this email to confirm agreements reached at the Prehearing Conference conducted in this matter on Monday, June 6, 2011.

You agreed to resolve among yourselves the issue of making available any minimum compensation appraisals. I note that Mr. Dietz addressed that issue in an email circulated later in the afternoon of June 6.

A briefing schedule was set on the question of whether the Administrative Law Judge has authority to decide if certain documents prepared by the County's retained expert are protected from disclosure by Minn. Stat Sec. 13.39, subd. 2 as "trial preparation materials" and need not be disclosed.

Ramsey County argues that such power lies with the district court and not with an ALJ. Four Crown argues the ALJ has the power to decide that privilege/disclosure issue.

Assistant County Attorney Dietz will brief the County's Argument by 12:00 pm on Monday, June 20, 2011.

Counsel for Four Crown will then decide whether to reply or stand on its earlier-filed documents. If Four Crown decides to reply, its filing is due by the close of business (4:30 pm) on Wednesday, June 22, 2011.

Oral argument on the "extent of the ALJ's power" issue, and (assuming the ALJ decides he has the power to determine the issue of whether the data should be disclosed) on the underlying issue of whether the expert's material prepared for and held by Ramsey County but not yet disclosed should be released to counsel for Four Crown, will take place at the Office of Administrative Hearings in St. Paul, commencing at 10:00 am on Monday, June 27, 2011.  (Emphasis added).

9.               Per this schedule, County and Four Crown submitted additional briefs on June 20, 2011, and June 22, 2011, respectively, and the oral argument was held on June 27, 2011.

B.              the alj's statutory authorization over dpa disputes

10.           This ALJ, like the district court, is empowered to "compel compliance" with the DPA.  Minn. Stat. § 13.085, subd. 2(a).

11.           It is noted also that Minn. Stat. § 13.03, subd. 6, specifies that that the "administrative law judge" is permitted to order disclosure of nonpublic data if the data is "discoverable" under the Rules of Civil Procedure.  (Emphasis added.)

C.              general presumptions and burdens

12.           "[The DPA] establishes 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."[2]  As such, the DPA is construed "in favor of public access." [3]

13.           Minn. Stat. § 13.03, subd. 1, specifies that the presumptively public data is comprised of all data unless specifically excepted elsewhere:

Public data. All government data collected, created, received, maintained or disseminated by a government entity shall be public unless classified by statute, or temporary classification pursuant to section 13.06, or federal law, as nonpublic or protected nonpublic, or with respect to data on individuals, as private or confidential. The responsible authority in every government entity shall keep records containing government data in such an arrangement and condition as to make them easily accessible for convenient use. Photographic, photostatic, microphotographic, or microfilmed records shall be considered as accessible for convenient use regardless of the size of such records.  (Bold in original; underlining added).

14.           It is the governmental entity's burden to "classif[y]" the data as nonpublic or protected nonpublic, or with respect to data on individuals, as private or confidential."

D.              county has failed to meet its burden

15.           Four Crown, through its Complaint, is seeking to compel County's production of the objected to Westwood data.

16.           County attempts to "classif[y]" the data at issue in this dispute as nonpublic under § 13.39.

17.           Minn. Stat. § 13.39, subd. 2, specifies that data is "nonpublic" if the requested data is "data collected by a government entity as part of an active investigation undertaken for the purpose of the commencement or defense of a pending civil legal action, or which are retained in anticipation of a pending civil legal action."  (Emphasis added).

18.           Minn. Stat. § 13.39, subd. 2(a) specifies a process to follow if, during "pending civil legal action," disclosure is sought of data which is first "classified" by the governmental body "as confidential or protected nonpublic under [§ 13.39,] subdivision 2."  It states as follows:

During the time when a civil legal action is determined to be pending under subdivision 1, any person may bring an action in the district court in the county where the data are maintained to obtain disclosure of data classified as confidential or protected nonpublic under subdivision 2. The court may order that all or part of the data be released to the public or to the person bringing the action. In making the determination whether data shall be disclosed, the court shall consider whether the benefit to the person bringing the action or to the public outweighs any harm to the public, the government entity, or any person identified in the data. The data in dispute shall be examined by the court in camera.

19.           There is a distinction between data from a retained testifying expert, which cannot be "nonpublic" "investigative data" and data from a retained non-testifying expert, which may be "nonpublic" "investigative data" under § 13.39. 

20.           "The opinions and basis for expert testimony that a party intends to use at trial are discoverable."  Gale v. County of Hennepin, 609 N.W.2d 887, 891 (Minn. 2000) (citing Minn. R. Civ. P. 26.02(d));[4] see also Koehler v. Abbott-Northwestern Hosp., Inc., 1997 WL 370376, at *6 (Minn. App. July 8, 1997) ("The Minnesota Rules of Civil Procedure provide that facts known by experts retained by another party are discoverable").  The Court in Gale, 609 N.W.2d at 890, determined:

The objective of our rules of discovery is to encourage the exchange of relevant information by the parties prior to trial and to discourage and prevent unjust surprise and prejudice at trial, especially where the testimony of expert witnesses is concerned. See Shymanski v. Nash, 312 Minn. 304, 307, 251 N.W.2d 854, 856 (Minn. 1977). As we have stated, "trial by ambush" fell out of favor in the courts of this state over 50 years ago. See American Standard Ins. Co. v. Le, 551 N.W.2d 923, 925 n. 3 (Minn. 1996).  (Emphasis added.)

21.           County admits through its counsel that the Westwood data is data from an expert County retained to testify in the underlying condemnation action.  Indeed, as he points out, even the contract which County executed with Westwood states, among other things, that Lindberg is being retained to testify as an expert. 

22.           County has not explained why or how the objected to Westwood data, which indisputably involves data from a testifying expert, is in this case "nonpublic" "investigative data."  County's argument that the objected to Westwood data is "investigative data" is neither evidence nor enough for County to invoke a "nonpublic" "classifi[cation]" under § 13.39. 

23.           County argues that its assertion that the objected to Westwood data is "investigative data" triggers § 13.39's protections, which County construes as requiring (a) Four Crown to refile its DPA complaint in District Court — not with the Office of Administrative Hearings, and (b) Four Crown to then file a Minn. Gen. R. Civ. P. 115 non-dispositive discovery motion to compel compliance with Minn. R. Civ. 26.02(e).

24.           Because County has claimed the objected to Westwood data is nonpublic data pursuant to § 13.39, this ALJ will conduct an in camera review of the objected to Westwood data.  County is ordered as stated below to submit by personal delivery the documents comprising the objected to Westwood data to this ALJ no later than noon on Thursday, June 30, 2011.  Moreover, in camera review easily satisfies County's concern that Minn. R. Civ. P. 26.02 requires some further reviewing effort be made by a district court judge or ALJ before the objected to Westwood data is turned over to Four Crown. The ALJ is expressly permitted to make that review under Minn. Stat. § 13.03, subd. 6.

25.           Therefore, the ALJ makes the following:

ORDER

a.               County shall produce all objected to Westwood data – as that term is defined in paragraph 23 to Affidavit of Paul J. Hemming, dated March 29, 2011, which references the actual DPA requests – created on or after September 1, 2010, to this ALJ no later than noon on Thursday, June 30, 2011, via personal delivery.  After that time, this ALJ may review and turn over the objected to Westwood data to counsel for Four Crown as this ALJ deems appropriate.

b.               If the parties are unable to agree as to the issue of making available any minimum compensation appraisals, then the parties are directed to bring that issue to the ALJ promptly.

c.               Because this ALJ has determined that County violated the DPA, specifically § 13.03, in that the above-referenced objected to Westwood data was not made available for inspection and copying pursuant to Four Crown's DPA requests, Four Crown has substantially prevailed in this action.  As a result, pursuant to Minn. Stat. § 13.085, subd. 6(c), the OAH is directed to refund to Four Crown $950 of Four Crown's $1,000 filing fee.  OAH costs for conducting this matter shall be billed to County in an amount not to exceed $1,000.

d.               Furthermore, pursuant to Minn. Stat. § 13.085, subd. 6(a), this ALJ will consider an award of Four Crown's attorneys' fees.  Counsel for Four Crown is directed to inform County of the total amount claimed.  If Four Crown and County can reach resolution with respect to the payment of attorneys' fees by July 8, 2011, then the parties are directed to submit a stipulation and proposed order to this ALJ reflecting that agreement.  If the parties are unable to reach resolution on the attorneys' fee claim, then Four Crown is directed to submit no later than July 22, 2011 an affidavit supporting the requested amount of attorneys' fees for this ALJ's consideration.

 

Dated: June _29th_, 2011

                                                                      /s/ Richard C. Luis

 

RICHARD C. LUIS

Administrative Law Judge

 

 

NOTICE

          This Order is the final decision in this case.  Under Minn. Stat. § 13.085 subd. 5(d), any person aggrieved by this decision may seek judicial review pursuant to Minn. Stat. §§ 14.63 through 14.69.

 


[1] Specified in Four Crown’s Data Request, 12/8/10.

[2] Minn. Stat. § 13.01, subd. 3, (emphasis added); see also In re GlaxoSmithKline PLC, 732 N.W.2d 257, 263 (Minn. 2007) ("The act creates a presumption that government data are public and may be accessed by the public unless access is prohibited by law or a temporary classification of the data") (emphasis added).

[3] Prairie Island Indian Community v. Minnesota Dept. of Public Safety, 658 N.W.2d 876, 884 (Minn. App. 2003).

[4] Redesignated in 2007 as 26.02(e).