Energy Policy Advocates v. Ellison

The Minnesota Supreme Court reversed portions of a Minnesota Court of Appeals decision that had rejected certain reasons cited by the Minnesota Attorney General for withholding documents requested under the Minnesota Government Data Practices Act regarding the Attorney General’s retention of special assistant attorneys general to pursue multistate climate change litigation. First, the Supreme Court formally recognized the common-interest doctrine and said it applies when two or more parties represented by separate lawyers have a common legal interest in a litigated or non-litigated matter, the parties agree to exchange information regarding the matter, and they make an otherwise privileged communication in furtherance of formulating a joint legal strategy. The Supreme Court also held that the doctrine prevented waiver of both attorney-client privilege and the work-product doctrine. Second, the Supreme Court said the attorney-client privilege extended to public law offices but declined to delineate the circumstances in which the privilege would protect communications within the Attorney General’s office. Third, the Supreme Court concluded that the Data Practices Act allowed the Attorney General to withhold certain “private data on individuals” such as “communications and noninvestigative files regarding administrative or policy matters which do not evidence final public actions” and investigative data even if the data do not pertain to natural persons. The court remanded to the district court for consideration of the application of the common-interest doctrine and attorney-client privilege to the documents withheld by the Attorney General.

The appellate court found that the attorney general could only withhold "private data on individuals" under the Minnesota Government Data Practices Act (MGDPA) to the extent that documents contained "data on individuals." The appellate court also ruled that the district court erred by failing to conduct an in camera review to determine whether documents were collected as part of an inactive or active investigation and by concluding that attorney-client privilege applied based solely on the respondents' "general descriptions of categories of documents." In addition, the appellate court held that the common interest doctrine did not provide an exception to the MGDPA's disclosure requirements, and that even if it did, the exception would apply to only documents withheld pursuant to attorney-client privilege, not the work-product doctrine.

The district court denied Energy Policy Advocates' motion to compel the production of documents requested in December 2018. The court found that some records were shielded as "data on individuals" or investigative data, while work-product privilege protected other records from disclosure based on the common interest privilege, including "work-product communications with attorneys general in other states regarding litigation in which each are involved or in which they each have an interest." The court stated: "The extension of privilege to communication between attorneys general who are sharing litigation work-product in matters where their state clients share common interest makes sense. Energy Policy has not advanced a convincing argument to counter the application of the common interest privilege to the data at issue."

A nonprofit corporation filed a lawsuit against Minnesota Attorney General Keith Ellison to compel the production of documents related to “a major political donor’s program to place privately hired attorneys” in the offices of state attorneys general “to initiate investigations of perceived opponents” of policies and actions to address climate change. The information sought included correspondence between the Office of the Attorney General and a plaintiffs’ law firm and an individual in another state attorney general’s office. The plaintiff alleged that through similar requests to other state attorneys general it had obtained information demonstrating “clear relationships” between state attorneys general and the program to place private lawyers in their offices. The plaintiff asserted claims under the Minnesota Government Data Practices Act.