Energy Policy Advocates v. Ellison, A20-1344
| Docket Number | A20-1344 |
| Decision Date | 28 September 2022 |
| Citation | 980 N.W.2d 146 |
| Parties | ENERGY POLICY ADVOCATES, Respondent, v. Keith ELLISON, in his official capacity as Attorney General, Office of the Attorney General, Appellants. |
| Court | Minnesota Supreme Court |
Douglas P. Seaton, James V.F. Dickey, Upper Midwest Law Center, Golden Valley, Minnesota; and Matthew D. Hardin, Hardin Law Office, Washington, D.C., for respondent.
Keith Ellison, Attorney General, Liz Kramer, Solicitor General, Oliver Larson, Adam Welle, Jennifer Kitchak, Assistant Attorneys General, Saint Paul, Minnesota, for appellants.
Eric J. Magnuson, Rebecca Zadaka, Robins Kaplan LLP, Minneapolis, Minnesota, for amicus curiae The Chamber of Commerce of the United States.
Katherine M. Swenson, Amran A. Farah, Greene Espel PLLP, Minneapolis, Minnesota; and Karl A. Racine, Attorney General for the District of Columbia, Loren L. Alikhan, Solicitor General, Caroline S. Van Zile, Principal Deputy Solicitor General, Ashwin P. Phatak, Deputy Solicitor General, Harrison M. Stark, Samson J. Schatz, Assistant Attorneys General, Washington, D.C., for amicus curiae the District of Columbia and on behalf of 38 states.
Patricia Y. Beety, Susan L. Naughton, Saint Paul, Minnesota, for amici curiae League of Minnesota Cities, Association of Minnesota Counties, and Minnesota County Attorneys Association.
Jennifer E. Olson, Schwebel, Goetz & Sieben, P.A., Minneapolis, Minnesota; and Wilbur W. Fluegel, Fluegel Law Office, Minneapolis, Minnesota, for amicus curiae Minnesota Association for Justice.
Jeffrey M. Markowitz, Arthur, Chapman, Kettering, Smetak & Pikala, P.A., Minneapolis, Minnesota, for amicus curiae Minnesota Defense Lawyers Association.
Alethea M. Huyser, Fredrikson & Byron, P.A., Minneapolis, Minnesota; David F. Herr, Erica A. Holzer, Maslon LLP, Minneapolis, Minnesota; and Jennifer A. Thompson, Thompson Tarasek Lee-O'Halloran PLLC, Edina, Minnesota, for amicus curiae Minnesota State Bar Association.
Charles E. Lundberg, Lundberg Legal Ethics P.A., Roseville, Minnesota; Kenneth L. Jorgensen, Dorsey & Whitney LLP, Minneapolis, Minnesota; Charles E. Jones, Moss & Barnett, Minneapolis, Minnesota; and M. Gregory Simpson, Meagher + Geer, PLLP, Minneapolis, Minnesota, for amicus curiae Minnesota Firm Counsel Group.
Jeffrey P. Justman, Thomas K. Pryor, Faegre Drinker Biddle & Reath LLP, Minneapolis, Minnesota; and Patrick Hedren, Manufacturers’ Center for Legal Action, Washington, D.C., for amicus curiae National Association of Manufacturers.
Mahesha P. Subbaraman, Subbaraman PLLC, Minneapolis, Minnesota, for amici curiae Public Record Media and Minnesota Coalition on Government Information.
Jacob Campion, Cicely R. Miltich, Assistant Attorneys General, Saint Paul, Minnesota, for amicus curiae Governor Tim Walz and 23 Cabinet Agencies.
This case concerns the obligation of appellant, the Office of the Attorney General, to produce documents under the Minnesota Government Data Practices Act (Data Practices Act), Minnesota Statutes sections 13.01 through 13.90 (2020). Respondent Energy Policy Advocates submitted document requests related to climate-change litigation to the Office of the Attorney General. After the Office determined that the request yielded no responsive, nonprivileged public data, Energy Policy brought a civil action against Keith Ellison in his official capacity as Attorney General, and the Office of the Attorney General (collectively, Attorney General), seeking production of the documents under the Data Practices Act. The district court denied Energy Policy's motion to compel and dismissed the complaint. The court of appeals affirmed in part, reversed in part, and remanded. Energy Pol'y Advocs. v. Ellison , 963 N.W.2d 485, 502 (Minn. App. 2021).
The primary issues on appeal concern the existence and scope of the common-interest doctrine, the applicability of the attorney-client privilege to internal communication among attorneys in public law agencies, and the contours of the section of the Data Practices Act governing Attorney General data. We now formally recognize the common-interest doctrine in Minnesota. We also conclude that the attorney-client privilege may apply to protect the confidentiality of internal communications among attorneys in public law agencies. Finally, we uphold the Legislature's classification of Attorney General data under Minnesota Statutes section 13.65, subdivision 1, as "private data on individuals," even when the data do not pertain to "individuals." Consequently, we reverse the decision of the court of appeals on these issues and remand to the district court for further proceedings consistent with this opinion.
Respondent Energy Policy, a nonprofit advocacy organization based in Spokane, Washington, submitted document requests to the Office of the Attorney General under the Minnesota Government Data Practices Act. Energy Policy sought documents related to the Attorney General's retention of special assistant attorneys general to advance multistate climate-change litigation. Specifically, Energy Policy asked for correspondence to and from a particular person in the Attorney General's Office that contained any of 11 search terms, including terms referring to (1) the Democratic Attorneys General Association, (2) an external law firm coordinating climate-change litigation, (3) other state attorneys general, (4) private advocacy organizations, (5) websites, and (6) software applications.
The Attorney General responded that its search produced "no public data that is responsive" to the request. In contending that it did not need to release any data, the Attorney General relied on Minnesota Statutes section 13.393 —a provision of the Data Practices Act that addresses the use of data by attorneys "acting in a professional capacity for a government entity." The Attorney General later claimed that Minnesota Statutes section 13.65, subdivision 1, which provides that certain categories of data maintained by the Office of the Attorney General are "private data on individuals," provided further exemption from disclosure.
After the Attorney General's initial refusal to produce documents, Energy Policy brought an action in Ramsey County District Court against the Attorney General. Energy Policy alleged that the Attorney General had "erroneously relied on conclusory claims" of privilege. Energy Policy also argued that the Attorney General had improperly classified certain Attorney General data as private data on individuals under section 13.65, subdivision 1, when the data were not actually on individuals.
The parties agreed to resolve the dispute through motion practice. They agreed that the Attorney General would (1) submit an affidavit describing documents that the Attorney General claimed were nonprivileged responsive documents, (2) submit a privilege log detailing documents the Attorney General claimed were privileged, and (3) submit certain documents to the district court for in camera review. The Attorney General sorted the contested documents into 18 categories, identifying the general contents of each category as well as the justification for declining to release them. It also tendered documents from 7 of the categories to the district court for in camera review. The Attorney General then moved for dismissal of the action. Energy Policy responded by moving to compel production of the documents. The district court granted the Attorney General's motion and dismissed the case.
The court of appeals affirmed in part, reversed in part, and remanded. Energy Pol'y , 963 N.W.2d at 502. Of relevance here, the court of appeals concluded that the district court erred by applying the common-interest doctrine because the doctrine has not been recognized in Minnesota. Id. at 501–02. The court of appeals also concluded that the district court erred by ruling that documents are protected by the attorney-client privilege without further proof that the documents included communications between an attorney and a client. Id. at 500 (citing Kobluk v. Univ. of Minn. , 574 N.W.2d 436, 440 (Minn. 1998) ). Finally, the court of appeals concluded that the district court erred by ruling that documents may be classified as "private data on individuals" under section 13.65, subdivision 1, without regard for whether the documents contain "data on individuals" as defined by section 13.02, subdivision 5. 574 N.W.2d at 494–95.
The Attorney General petitioned for further review. The Attorney General sought review of three issues: (1) whether Minnesota recognizes the common-interest doctrine; (2) whether the attorney-client privilege may protect internal communications among attorneys in public law agencies; and (3) whether section 13.65, subdivision 1, of the Data Practices Act exempts from disclosure only Attorney General data about natural persons. We granted the petition for review.
We first address whether Minnesota recognizes the common-interest doctrine, which prevents privilege waiver in certain situations. See, e.g. , In re Grand Jury Subpoena Duces Tecum , 112 F.3d 910, 922 (8th Cir. 1997) ().
This appeal concerns the application of the common-interest doctrine to the attorney-client privilege and the work-product doctrine, which we review de novo. See In re Polaris, Inc. , 967 N.W.2d 397, 406 (Minn. 2021).
We have previously endorsed the following articulation of the attorney-client privilege:
(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived.
Kobluk v. Univ. of Minn. , 574 N.W.2d 436, 440 (Minn. 1998) (quoting 8 John Henry Wigmore, Evidence § 2292, at 554 (1961)). The work-product doctrine, for its part, protects from...
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