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Civil Investigative Data Under the Minnesota Government Data Practices Act

Civil Investigative Data Under the Minnesota Government Data Practices Act. Why confidentiality is not forever. Thomas F. Pursell Attorney 4200 IDS Center 80 South Eighth Street Minneapolis, MN 55402 Phone: 612-371-3211/FAX: 612-371-3207 tpursell@lindquist.com. www.lindquist.com.

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Civil Investigative Data Under the Minnesota Government Data Practices Act

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  1. Civil Investigative Data Under the Minnesota Government Data Practices Act Why confidentiality is not forever Thomas F. PursellAttorney4200 IDS Center80 South Eighth StreetMinneapolis, MN 55402Phone: 612-371-3211/FAX: 612-371-3207tpursell@lindquist.com www.lindquist.com

  2. Considerations in Responding to an Investigation • Enforceability of the government’s request. • Penalties for non-compliance. • Potential exposure if violation is proved. • Effect on relationships with regulators, business partners, et al. • Public relations. • Tactical advantages of resisting.

  3. Effect on related legal proceedings. • Expense and disruption of compliance. • What happens to information provided to the State. • Determined by four intertwined state statutes

  4. Minnesota Statutes Governing Information • Minnesota Government Data Practices Act, Minn. Stat. Chap. 13 • Open Meeting Law, Minn. Stat. Chap. 13D • Official Records Act, Minn. Stat. Sec. 15.17 • Records Management Act, Minn. Stat. Secs. 138.161-.226

  5. The MGDPA • The first state law of its type – and the most massive and complex. • Two principal guides to interpretation: • Information is presumed public. • “When you get to the fork in the road, take it.” • Casey Stengel.*

  6. What is “civil investigative data?” • Under Section 13.39: • Information collected or retained by a state or local government agency, • As part of an active investigation, • For the commencement or defense of a pending civil, administrative or arbitration proceeding (as determined by the agency’s “chief attorney”). • Does not include post-filing discovery. Strib v. Twins

  7. Classification of Civil Investigative Data • Classification determines access. • “Confidential” – data on individual (natural person) subjects. • “Protected nonpublic” – data on other legal entities as subjects. • Not accessible to the public or to the subjects (closed investigative file).

  8. Two Ways for a Public Employee to Violate the MGDPA • Don’t release information (when you should). • Release information (when you shouldn’t).

  9. Two Ways for a Public Employee to Violate the MGDPA (cont.) • Consequences: • Non-willful: actual damages, costs, attorneys’ fees, injunction, civil penalties up to $300. • Willful: punitive damages up to $10,000 per violation, misdemeanor prosecution, suspension/dismissal.

  10. 6 Ways Civil Investigative Data Can Become Public • Agency decides not to pursue action. • Use in evidence or court record. • “Third party petition.” • “Overriding public interest.” • Discussion at an open meeting. • Passage of time.

  11. # 1 – No action decisions - time to celebrate. . . • Agency decides not to pursue action. • Statute of limitations passes. • Time for appeal passes. • (No notification.)

  12. . . . but what happens to the information in the file? • When the file is closed, information in it becomes “inactive investigative data.” • “Inactive investigative data” are public unless • disclosure would jeopardize an active investigation, or • the information is otherwise classified. Section 13.39, subd. 3

  13. And they won’t give it back! • Section 15.17 – the Official Records Act: Must keep “all records necessary to a full and accurate knowledge of their official activities.” • Section138.163: Preservation and disposal of public records. “It is the policy of the legislature that the disposal and preservation of public records be controlled exclusively by this chapter. . . .” • 138.225: Unauthorized disposal is a crime.

  14. Does this mean everything in the investigative file can be made public by filing? Remainder of the investigative file treated as un-filed discovery. In litigation, the court rules control. Burden on proponent of confidentiality to seek appropriate protection. # 2 – “Presented In Evidence In Court or Made Part of a Court Record”

  15. # 3 - “Third party petition” • During an active investigation, “any person may bring an action in district court . . . to obtain disclosure” of all or part of the investigative file. • Balance: Benefit to petitioner or public vs. harm to the public, the agency, or persons identified in the data. • In camera examination. • Star-Tribune v. Minnesota Twins, 659 N.W.2d 287 (Minn. Ct. App. 2003).

  16. # 4 - “Overriding Public Interest” • Agency may make any data public if it determines that disclosure will: • Aid the law enforcement process, • Promote public health or safety, • Dispel widespread rumors or unrest.

  17. # 5 – Discussion at an Open Meeting • OML applies to multi-member agencies (boards, commissions, councils, etc.). • Presumption of open meetings raises the issue: What happens when the agency must discuss confidential information at a meeting which is presumed to be open? • Narrow interpretation of attorney-client privilege.

  18. OML v. MGDPA Principles (Section 13D.05) • Meeting presumed to be open. • May disclose confidential information “if the disclosure relates to a matter within the [agency’s] authority and is reasonably necessary” to the conduct of its business. • No change in underlying classification.

  19. Passage of time • Classified non-individual data becomes public 10 years after collected -- unless agency “reasonably determines” that disclosure’s harm would outweigh public benefit. • Information transferred to archives is presumptively public; exceptions in Section 138.17, subd. 1c.

  20. In Re GlaxoSmithKline • Civil investigative demands to pharmaceutical manufacturer. • Dispute over whether certain investigative data could be made public. • GSK I – CID orders appealable as of right. 699 N.W.2d 749 • GSK II – agreed with all the State’s arguments for public disclosure arguments under 13.39. 713 N.W.2d 48

  21. GSK II Premise: • Investigative confidentiality intended to protect the government. • A broader statement than any previous source. Conclusions (and problems) • #1: Info provided by GSK not confidential investigative data by definition because GSK provided it to begin with (“accessible to the subject”). • Misunderstands the concept of “access.”

  22. GSK II (cont.) • #2 – not “confidential,” therefore public. • Fails to consider consequences and alternatives. • # 3 – “MGDPA plainly gives discretion to the governmental entity conducting the investigation to decide whether one of [the ‘overriding public interest’ factors] justifies disclosure.” • Unlimited discretion; no supporting findings; balance?

  23. GSK II (cont.) • #4 – State could make confidential documents public by attaching them to a publicly filed civil complaint. • Extent of discretion.

  24. Strategies for Protecting Information • One component of overall strategy of responding to the investigation. • Understand the risks. • If unsatisfied with protections available under the MGDPA, ORA, OML, and RMA, go to court. • Protective orders should address, or anticipate, all the loopholes.

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