Paul Anjoorian, et al., Appellants, vs. Minnesota Department of Public Safety, Respondent.

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This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-98-479

Paul Anjoorian, et al.,

Appellants,

vs.

Minnesota Department of Public Safety,

Respondent.

Filed July 21, 1998

Affirmed

Short, Judge

Ramsey County District Court

File No. C5955615

Leland S. Watson, 836 Norwest Midland Building, 401 South Second Avenue, Minneapolis, MN 55401, and

Joseph S. Friedberg, Peter H. Watson, 250 Second Avenue South, Suite 205, Minneapolis, MN 55401 (for appellants)

Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101, and

David T. Schultz, Special Assistant Attorney General, Halleland, Lewis, Nilan, Sipkins & Johnson, P.A., Pillsbury Center South, Suite 600, 220 South Sixth Street, Minneapolis, MN 55402 (for respondent)

Considered and decided by Huspeni, Presiding Judge, Short, Judge, and Davies, Judge.

U N P U B L I S H E D O P I N I O N

SHORT, Judge

This case involves the propriety of the release of data by the Gambling Enforcement Division (GED) of the Minnesota Department of Public Safety (department). Creative Games Technology, Inc. (CGTI), a company in which appellants (shareholders) maintained an ownership interest, applied to the department for a license to continue leasing gaming equipment. After an investigation, GED agents recommended a denial of CGTI's license request. In August 1992, Gamma International, Inc. also applied to the department for a license to lease gaming equipment. Three months later, Gamma purchased CGTI, dissolved it, and reincorporated it as a subsidiary of Gamma. In April 1993, GED agents informed Gamma that its ownership of CGTI might result in a denial of its license request. Following that notification, the shareholders' attorney requested to see any documents the department had concerning them. The department provided an oral summary of the reasons for the anticipated license denial. The shareholders failed to pursue the matter further.

After the department closed its investigation, it released the information it had compiled to the Minneapolis Star & Tribune (newspaper). The newspaper then published several articles based on that information. The shareholders sued the department and the newspaper for damages allegedly arising from that release and publication. The trial court initially: (1) found the release of the data to the newspaper was permitted under Minn. Stat. § 13.82 (1996) as "law enforcement data"; (2) concluded the newspaper stories were substantially truthful, thus the shareholders were unable to support a claim of defamation by implication; and (3) granted summary judgment for the newspaper and the department. On the first appeal, we held the data did not constitute "law enforcement data," affirmed summary judgment for the newspaper, and remanded for the trial court to determine if the data constituted "civil investigative data" under the Minnesota Government Data Practices Act (MGDPA). Anjoorian v. Minnesota Dep't of Pub. Safety, No. CX-97-242, 1997 WL 527233 (Minn. App. Nov. 19, 1996). On remand, the trial court found the data constituted "civil investigative data," and again granted summary judgment for the department. On this second appeal, the shareholders argue the trial court erred in concluding the data constitute "civil investigative data" under the MGDPA. We affirm.

D E C I S I O N

On appeal from a grant of summary judgment, we determine whether there are any genuine issues of material fact and whether the trial court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990); see Minn. R. Civ. P. 56.03 (setting forth trial court's standard for summary judgment). We view the evidence in the light most favorable to the party opposing the motion, and the nonmoving party must produce specific facts that create a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986). The interpretation of a statute presents a question of law, which we review de novo. Hibbing Educ. Ass'n v. Public Employment Relations Bd., 369 N.W.2d 527, 529 (Minn. 1985) (statutory interpretation question of law); Frost-Benco Elec. Ass'n v.Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984) (legal issues).

The MGDPA, Minn. Stat. §§ 13.01-.99 (1996), is "intended to regulate every aspect of how the government manages the information it collects and records." Keezer v. Spickard, 493 N.W.2d 614, 618 (Minn. App. 1992), review denied (Minn. Feb. 12, 1993). It "regulates the collection, creation, storage, maintenance, dissemination, and access to government data in state agencies, statewide systems, and political subdivisions." Minn. Stat. § 13.01, subd. 3.

The shareholders argue the department's reports constituted public data, not civil investigative data, and should have been released to them. See Minn. Stat. § 13.03, subd. 1 (stating all data collected or stored by a government agency is public data unless statute provides otherwise). We disagree. Although the MGDPA creates a presumption in favor of public data, civil investigative data are statutorily exempted from that presumption. See Minn. Stat. § 13.01, subd. 3 (providing MGDPA establishes presumption that government data are public and accessible unless otherwise provided); Minn. Stat. § 13.39, subd.2(a) (classifying civil investigative data as nonpublic data or confidential). Under the MGDPA, civil investigative data are

data collected by state agencies * * * 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.

Minn. Stat. § 13.39, subd. 2(a) (emphasis added). Such data become inactive when the state agency, or the chief attorney acting for that agency, decides not to pursue a civil action. Minn. Stat. § 13.39, subd. 3(1). Once a license investigation is inactive, civil investigative data are considered public. See Minn. Stat. § 13.39, subd. 3 (stating inactive civil investigative data are public unless certain circumstances exist); see also Margaret Westin, The Minnesota Government Data Practices Act: A Practitioner's Guide and Observations on Access to Government Information, 22 Wm. Mitchell L. Rev. 839, 855 (1996) (noting classification of data collected for investigation changes from private to public when investigation closed).

It is undisputed: (1) the director of the GED is required, pursuant to Minn. Stat. § 299L.02, subd. 2(1) (1996), to conduct background investigations for the licensure of gambling equipment manufacturers and distributors; (2) the GED's reports and memoranda are used to prepare for contested cases and for criminal trials; (3) the director of the GED relies "heavily" on information contained in GED reports in determining whether to issue a license; (4) the GED had been advised by legal counsel that such data are either civil investigative data and/or law enforcement data; (5) at the time of the shareholders' request, the department's investigation into the shareholders' license request was ongoing; (6) upon being orally informed by the department of the reasons for the impending license denial, the shareholders chose to take no further action; and (7) an assistant attorney general informed the GED that investigative reports could be disseminated once the investigation was closed, and then determined when the investigation was officially closed and no pending civil action was contemplated.

Given these undisputed facts, the department's reports constituted civil investigative data, and the department properly refused to release those reports to the shareholders during its licensure investigation. See Minn. Stat. § 13.39, subd. 1 (stating "pending civil legal action" includes, but is not limited to, judicial and administrative proceedings and requiring chief attorney acting for state agency to make determination whether civil legal action pending); Donald A. Gemberling & Gary A. Weissman, Data Privacy: Everything You Wanted to Know About the Minnesota Government Data Practices Act - From "A" to "Z", 8 Wm. Mitchell L. Rev. 573, 614 (1982) (stating civil investigative data are inaccessible to everyone except investigatory officials during pendency of investigation); cf.St. Peter Herald v. City of St. Peter, 496 N.W.2d 812, 814 (Minn. 1993) (holding notice of claim retained by political subdivision in anticipation of possible litigation not "data collected" as part of active investigation and cannot be classified as protected nonpublic data or confidential).

To 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. See Montgomery Ward & Co. v. County of Hennepin, 450 N.W.2d 299, 307 (Minn. 1990) (noting purpose of MGDPA is to balance rights of data subjects to protect personal information with right of public to know within context of effective government operation) (quoting Gemberling & Weissman, supra, at 575). Furthermore, to permit this action would unjustly penalize the department for the shareholders' decision not to initiate any further administrative or judicial action on their initial information request. Because we conclude the trial court properly granted summary judgment under the MGDPA, we need not reach the issues raised regarding the shareholders' damages under that act.

Affirmed.