ST. PAUL, Minn. (Legal Newsline) - A nonprofit government watchdog organization has filed an amicus brief against Minnesota Attorney General Keith Ellison for his refusal to release records pertaining to communications between his office and other states.
The group, Public Records Media (PRM), submitted the brief in Energy Policy Advocates v. Keith Ellison, which was originally filed in Ramsey County State Court and now awaits hearing on appeal at the State of Minnesota Supreme Court. PRM, which is nonpartisan, states that its mission is to pursue “the use, application, and enforcement of freedom of information laws.”
In the brief, PRM argues that Ellison has a disturbing track record of attempting to conceal his office's policy-related conversations. The organization further alleges the AG has gone to unusually great lengths to avoid complying with freedom of information requests made in accordance with the state’s Data Practices Act (DPA).
"In this case, the AG seeks to hide more data about his office’s public policy activities than ever before. The AG justifies this startling position by arguing the DPA does not really mean what it says," PRM contends in the document.
The brief then calls on the Court to uphold the rule of law and take a stand against the AG's "anti-transparency reading of the DPA [Data Practices Act]."
Matt Ehling, director and founder of Public Record Media, says his organization is alarmed by the fact that AG Ellison appears to be misinterpreting Sec. 1365 of the DPA, which is the statute that regulates what is and is not public in terms of the attorney general’s data under the Minnesota open records law.
"We are concerned about any interpretation by a government entity that would try to close off access to data - public data - under the Data Practices Act," Ehling told Legal Newsline.
As previously reported by Legal Newsline, Energy Policy Advocates initially filed the complaint against Ellison in July 2019. The suit seeks to compel the AG to disclose documents regarding the relationship between his office and a climate activist organization, New York University's State Energy & Environmental Impact Center (SEEIC). Backed by Michael Bloomberg, the SEEIC provided funding for two "special assistant attorneys general" in a "highly unusual arrangement" with Ellison's office to advance progressive clean energy policies and environmental legal positions, the suit claims.
Ellison has been using a classification in Minnesota law that refers to "private data" to avoid turning over documents requested by EPA. However, according to Ehling, that statute cannot be used as justification by the AG to hide the records.
While Minnesota statute protects attorney-client privilege and deems that data to be private, such protections do not apply to communications involving corporations, nonprofit organizations or other entities, Ehling says.
"The rule of law demands enforcement of the DPA’s plain text, which guarantees the essential right of every Minnesotan to know what the AG is doing with his broad power to make public policy," the amicus brief states.
The wording in Minnesota's Data Practices Act contains specific classifications and terms about what is and what is not considered "public". Ehling says the highly defined phrasing used in that bill – which was drafted over 40 years ago – was part of a very deliberate effort on the part of the Minnesota legislature to "prevent the government from playing games with the release of public data."
Government oversight groups in Minnesota fear that if the Court begins to interpret the Data Practices Act more broadly, the implications could be both significant and long-lasting.
“The Attorney General wields remarkable power through his office, especially on matters of public policy,” PRM states in the brief. “The people of Minnesota are then entitled as voters to decide whether the AG has exercised this power in a responsible manner. The Data Practices Act (DPA) protects this right, enabling the people to request ‘Attorney General Data’ and thereby see for themselves 'what the[ir] government is doing.'”
In June, the Minnesota Court of Appeals ruled that the AG could not continue to conceal documents related to his office's communications with attorneys general in other states. In that decision, the Court held that the "common interest doctrine" - which Ellison claimed protected his right to withhold the documents - is not valid in Minnesota.
Ellison is now appealing that ruling. In his reply brief filed Nov. 23, the AG argued, "In reviewing a straightforward case about the sufficiency of the Attorney General’s response to a data request, the Court of Appeals misinterpreted the plain language of the Data Practices Act, unnecessarily restricted the attorney-client privilege for public attorneys, and refused to recognize the common-interest doctrine relied upon by Minnesota attorneys and their clients, both private and public. This Court should reverse."
However, Ehling believes that if the Supreme Court were to adopt an ill-defined or expansive view of what the common interest doctrine is, without putting guardrails in place, it could make it difficult to get data out of any government entity for the foreseeable future.
"It could be a much, much bigger problem," Ehling said about the consequences of redefining the current law. "Our hope is that they won't go down that path."
According to Matt Hardin, board member for Energy Policy Advocates, the case will now proceed to oral arguments. The date for that has not yet been determined but is expected to be set for some time in February.