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.