|
Dan
Biersdorf E.
Kelly Keady Attorneys
at Law Biersdorf
& Associates, P.A. 4100
Multifoods Tower 33
South Sixth Street Minneapolis,
MN 55402 |
Sandra
H. Johnson Associate
Bloomington City Attorney 2215
West Old Shakopee Road Bloomington,
MN 55431-3096 |
RE: City of Bloomington v. Fat Tuesday – MOA,
Limited Partnership; OAH Docket No. 11-2101-12816-6
Dear Counsel:
Catherine
Anderson, a staff attorney with my office, has informed me of the conference
call placed by counsel yesterday afternoon.
During that conference call, Ms. Johnson indicated that she had learned
that the Office of Administrative Hearings had permitted a television reporter
to review the public hearing record in this matter. The reporter informed Ms. Johnson that her television station
planned to air some portion of the videotape exhibits today. Ms. Johnson expressed concern that members
of the Bloomington City Council would be upset if the videotape is made public
before they review it in connection with their consideration of this case. Counsel for both parties urged that I issue
an order declaring that the videotapes received into evidence in this matter
constitute civil investigative data under the Minnesota Government Data Practices
Act (“MGDPA”) and thus may not be made public.
As explained below, I do not believe it would be proper to issue such an
order.
As you know, prior to the
hearing in this matter, Mr. Biersdorf filed a motion urging in part that the
evidence offered at the hearing be deemed non-public or confidential data and
the hearing be closed to the public. He
asserted that this would be proper under Minn. Stat. § 13.39, relating to civil
investigative data. I denied the motion
in a letter Order issued on April 24, 2000.
The Order recognized that the MGDPA sets forth a presumption in Minn.
Stat. § 13.03, subd. 1, that data are public unless the statute provides
otherwise. In addition,
Letter to D. Biersdorf and S. Johnson
From Judge Neilson
May 9, 2000
Page Two
the MGDPA specifies in Minn. Stat. § 13.39, subd. 3, that“[a]ny civil investigative data presented as evidence in court or made part of a court record shall be public.” Accordingly, the Licensee’s motion to close the proceedings to the public and seal the record as confidential was denied.
During the hearing, neither party addressed the April 24 ruling denying the Licensee’s motion to close the hearing, offered any other basis for closing the hearing, or requested that any exhibits be filed under seal. In their joint motion, made twelve days after the hearing, Counsel again assert that the videotapes involved in this case are “civil investigative data” that must not be released to the public. The videotapes at issue were confiscated by police from Fat Tuesday’s premises when they executed a search warrant the day after the Mardi Gras celebration at Fat Tuesday. The videotape recordings show the Fat Tuesday Mardi Gras celebrations in 1998 and 1999, and were stored at Fat Tuesday. It is well settled that individuals have no expectation of privacy for acts they perform in a public place. See, e.g., State v. Bryant, 287 Minn. 205, 210-11, 177 N.W.2d 800, 803-04 (1970), State v. Kinsella, No. C4-94-2277, 1995 WL 479553 (Minn. App. 1995).
Even assuming that the videotapes were properly characterized as “civil investigative data” during the preliminary investigative stages of this case, the materials lost that classification under the MGDPA and became public once they were presented as evidence in the hearing. The Office of Administrative Hearings does not maintain the civil investigative file; it maintains the public hearing record. The Office of Administrative Hearings is a state agency within the meaning of the MGDPA (see Minn. Stat. § 13.02, subd. 17) and must abide by its provisions. The types of government data encompassed by the MGDPA is broadly stated to include “all data collected, created, received, maintained or disseminated by any state agency . . . regardless of its physical form, storage media or conditions of use.” Minn. Stat. § 13.02, subd. 7. The fact that the City Council will review the Findings of Fact, Conclusions of Law, and Recommendation that are issued by the Administrative Law Judge and render the final decision does not excuse the Office of Administrative Hearings from complying with the provisions of the MGDPA with respect to data it maintains as part of the public hearing record.
Letter to D. Biersdorf and S. Johnson
From Judge Neilson
May 9, 2000
Page Three
It also does not appear that the City’s investigation should be deemed to be “on-going” until the City Council renders its final decision. Counsel for the City presented the City’s position, and supporting evidence, during the hearing before the Administrative Law Judge. The Notice of Hearing issued in this matter alerted the parties that, “[i]f non-public data is received into evidence at the hearing, it may become public unless objection is made and relief requested under Minnesota Statutes Section 14.60.” Both the Notice of Hearing and Minn. Stat. § 340A.415 recognize that the hearing must be conducted in accordance with the Administrative Procedure Act, which is set forth in Chapter 14 of the Minnesota Statutes. See also Hymanson v. City of St. Paul, 329 N.W.2d 324 (Minn. 1983). Accordingly, licensees are guaranteed the opportunity for notice and a hearing before their liquor license can be revoked or suspended. Under these circumstances, the hearing process cannot properly be viewed as part of an on-going investigation of this matter by the City that only concludes when the City Council issues its final decision, but must be seen as an independent step within that process.
The unpublished case upon which
counsel rely (Anjoorian v. Minnesota
Department of Public Safety, No. C5-98-479, 1998 WL 405042 (Minn. App.
1998)), does not compel a different result.
Anjoorian did not involve a
Chapter 14 hearing record, but rather a situation in which the Department of
Public Safety conducted an investigation of a company licensed to lease gaming
equipment, recommended denial of the
company’s license request, and threatened denial of a parent company’s license
request. During the investigation, the
Department did not release any documents in its possession to the company’s
shareholders (despite their request that the Department do so), but merely
provided an oral summary of the reasons for the anticipated license
denial. Later, after the Department
closed its investigation, it released the information it had compiled to the
Minneapolis Star & Tribune, which published several articles based on that
information. The shareholders in the
company involved brought suit. The
trial court initially determined that the release of the data to the newspaper
was permitted as “law enforcement data,” and granted summary judgment for the
Department. On the first appeal, the
Court of Appeals found that the data did not constitute “law enforcement data,”
and remanded for a consideration of whether the data constituted “civil
investigative data.” The trial court on
remand found that the data was “civil investigative data,” and again granted
summary judgment
Letter to D. Biersdorf and S. Johnson
From Judge Neilson
May 9, 2000
Page Four
for the Department. On further appeal, the Court of Appeals affirmed the entry of summary judgment for the Department. The Court of Appeals emphasized that, at the time of the shareholders’ request, the Department’s investigation into the company’s license request was ongoing, and found that the Department properly refused to release those reports to the shareholders during its licensure investigation. The Court of Appeals stated that, “[t]o hold otherwise would prematurely open the department’s investigations up to public scrutiny, thus stifling the department’s ability to efficiently collect data and independently evaluate license requests.” However, once the investigation closed, the Court noted that the classification of the civil investigative data changed from private to public under Minn. Stat. § 13.39, subd. 3. This case thus does not provide any support for the position urged by counsel.
The joint motion of counsel to characterize the videotape evidence as not-public “civil investigative data” thus is denied.
Sincerely,
BARBARA
L. NEILSON
Telephone:
612/341-7604