Keith Ellison sits in his office at the Capitol. (Photo: Kevin Featherly)


Court of Appeals: Judge must privately review data withheld by AG’s office


The Minnesota Court of Appeals on Monday handed a win—though no final victory—to a nonprofit group that is trying to expose what it calls Michael Bloomberg’s improper influence over Keith Ellison’s office in the climate change debate.

The ruling remands the case to a Ramsey County District Court judge for private, in-camera review of numerous documents withheld from plaintiffs by the Attorney General’s Office, despite several data-practices requests.

“That’s what we offered in the first place,” said appellants’ attorney Doug Seaton. “There can at least be a judicial determination, privately, as to whether there is a real reason to withhold these documents.”

John Stiles, Ellison’s spokesman, gave no immediate indication whether the AG would appeal the case to the state Supreme Court. “We’re reviewing the decision and will act in due time,” Stiles said in an email Monday.

The controversy began after attorney Pete Surdo was hired as a special assistant attorney general. Surdo took the job in June 2019, as part of a paid New York University School of Law fellowship. His salary is paid directly or reimbursed by NYU’s State Energy & Environmental Impact Center—that’s one of the things plaintiffs say they want to discover through their data requests.

NYU’s national fellowship program launched in 2017 with a $6 million grant from the ex-New York mayor and presidential candidate’s Bloomberg Philanthropies. According to the school, fellows focus on “clean energy, climate and environmental matters” at state AG’s offices around the country.

Ellison has said he’s happy to accept the program’s help, calling it a perfectly legal arrangement. “Minnesotans need all of the help we can get fighting the effects of climate change and keeping Minnesota’s air and water clean,” he said in 2019.

The appellant, Energy Policy Advocates (EPA), is a nonprofit corporation with ties to the fossil-fuel industry. It’s represented in the litigation by Golden Valley-based Upper Midwest Law Center (UMLC), where Seaton is president.

On its website, UMLC accuses Ellison of improperly opening his office to Bloomberg’s “climate change warriors.”

“UMLC seeks public documents requested under the Minnesota Government Data Practices Act, and withheld by Ellison, to demonstrate this improper practice and seek to have it invalidated,” the website says.


192 documents

The case is Energy Policy Advocates v. Ellison, et. al. With Monday’s unanimous, precedential ruling, the Court of Appeals reversed significant parts of an Oct. 26, 2020, Ramsey County court order from Judge Thomas A. Gilligan. He ruled that Ellison’s office appropriately classified and withheld the information from plaintiffs.

EPA’s Data Practices requests were voluminous—192 documents in all. The District Court divided them into 18 categories, though the parties stipulated that it need not consider two categories, containing some 20 documents combined.

The data requests were far-reaching, involving matters that appear to span well beyond Surdo and his NYU fellowship. But Seaton said they all relate to Surdo’s appointment and Bloomberg’s reach.

“It’s an attempt to find out what the particulars are about the relationship between the Bloomberg lawyers—NYU’s paid lawyers—and the AG’s office,” he said. Seaton said his clients suspect that Ellison’s office is effectively under “assault” by “lawyers who answer to a different drummer.”

The group appears to believe the Bloomberg influence is indeed deep. Dozens of requested documents were e-mails between Ellison’s office and another state’s AG, who had asked Ellison to oppose a Federal Energy Regulatory Commission appointment. Ellison did not sign the opposition letter.

Another 16 requested documents were communications between Ellison’s office, the state DNR and other states’ AGs about an amicus brief supporting a U.S. Supreme Court writ of certiorari in Coachella Valley Water District, et al. v. Agua Caliente Band of Cahuilla Indians. Ellison did not join that amicus brief.

In all, 89 documents were submitted to Gilligan for in-camera review. Another 83 documents were never submitted to the judge. The AG’s office also did not submit a promised “privilege log” about documents it claimed were non-public, according to Monday’s opinion.

The assistant attorney general who originally responded to the group’s data request told plaintiffs that, under state law, most of what they sought was non-public data.

For his part, Gilligan found the office’s conduct above board. “As a result,” his order states, “the data is protected from disclosure under the MGPA. For those reasons, Energy Policy’s motion to compel is denied.”

The nonprofit group then took its case to the Court of Appeals.


Reversed in part

The three-judge appellate panel on Monday reversed in part, remanding the case for further proceedings. Judge Matthew E. Johnson wrote the opinion, joined by judges Randall J. Slieter and Carol Hooten.

Court of Appeals Judge Matthew E. Johnson

Court of Appeals Judge Matthew E. Johnson

Johnson’s court found that, in some ways, Gilligan’s ruling was correct. He did not err, for example, when he concluded that Ellison’s office didn’t have to turn over documents in several document categories that remain part of the suit. But questions remain about many others.

Appellants, for instance, contended that Gilligan erred in interpreting the Data Practices Act, part of which provides that data kept by the AG is legitimately non-public, if it is “private data on individuals.” The designation includes “communications and non-investigative files regarding administrative or policy matters which do not evidence final public actions.”

That latter phrase provided a basis for the office to deny appellants access to various documents. But they argued that the information can’t properly be classified as “private data on individuals,” if it is not actually “data on individuals.”

Respondents countered that Minn. Stat. § 13.65, subdivision I(b), applies both to data on individuals and data “not on individuals.”

Gilligan agreed with the AG’s counsel. The Court of Appeals did not.

“There is no reasonable interpretation of the phrase ‘private data on individuals’ that could broaden the phrase ‘data on individuals’ so that it encompasses data in which no individual is the subject of the data,” Johnson writes.

If the legislature intended such a result, he added, it could have used language to clearly indicate a broader scope for the statute.


‘Significant development’

Another problem with the District Court ruling, the Court of Appeals found, is that its review of withheld documents was incomplete.

Gilligan’s court conducted in-camera review of only a few categories of submitted documents, in an effort to determine whether they involved individuals. That, Johnson surmised, is presumably because the court interpreted the statute does not require such a determination.

The AG’s office did not even submit some documents for in-camera review. In those cases, according to Johnson’s ruling, the lower court based its decisions on the AG counsel’s descriptions of withheld documents. Such decisions were erroneous, the Court of Appeals ruled, because the District Court lacked a basis for deciding whether the documents contained data on individuals.

The District Court also erred by construing the term “pending civil legal action” too broadly, when it ruled that pending investigations justified withholding requested documents, the appeals court found.

Its reasons were similar to the earlier finding: Those withheld documents were never reviewed by the judge, and respondents’ descriptions were insufficient to determine that the civil investigations cited were in fact active. Again the District Court erred, Johnson writes, by making a finding without appropriate in-camera review.

The Court of Appeals also agreed with EPA’s attorneys that Gilligan erred when he found, based solely on the AG’s “general descriptions,” that the “work-product doctrine” and attorney-client privilege supported the data request denials.

The court also rejected the AG’s argument that the “common-interest doctrine” supports withholding certain documents. That doctrine, Johnson noted, is not recognized by Minnesota’s courts.

“Respondents urge this court to recognize the common-interest doctrine for the first time,” Johnson writes, “but we decline the invitation to do so.”

On remand, the District Court must conduct thorough in-camera review of the withheld material. It must determine whether documents contain data on individuals and whether they relate to active investigations. The lower court must determine, as well, whether any documents are protected, as the AG’s office claimed, by the work-product doctrine or attorney­-client privilege.

Finally, the District Court must order the AG’s office to produce a privilege log, itemizing documents and stating the legal basis for refusing to hand them over, the Court of Appeals ruled.

Monday’s decision, while hardly the last word in the case, is “a significant development,” according to Seaton.

“What the Attorney General’s Office has done is assert a very broad view of privilege and protected documents that we think would essentially neuter the Data Practices Act,” the attorney said. “We are very glad that the Court of Appeals saw it our way.”

The suit ruled on Monday is one of two that EPA has filed against Ellison. The other action, filed in 2020, remains pending in Ramsey County District Court.


Session/Law logo by Kirk Anderson