Public comments on DPS application to reclassify State-held casino audits as "private data"

August 10, 2001

“Sunshine laws” at Minnesota’s Indian Casinos?
Public comments on
DPS application to reclassify State-held casino audits as “private data”

by Clara NiiSka

The Minnesota Department of Administration invited public comment on its pending ruling on the Department of Public Safety’s (DPS) June 27 request to classify tribal gambling enterprise audits as nonpublic information. The thirty-day period for public comment closed on August 3, and Press/ON has obtained copies of the public comments received by the Commissioner of Administration concerning the Department of Public Safety’s application for temporary classification of tribal gambling enterprise audits as “private data.” The Commissioner of Administration has fifteen days from the close of public comment on August 3, until he must issue his Opinion.

Bill Lawrence’s letter to Administration Commissioner David Fisher was published in Press/ON on August 3. Additional comments were filed by attorneys Mark Anfinson on behalf of the Minneapolis Star Tribune; Julie Ann Fishel on behalf of the Prairie Island Indian Community; Joseph Plummer, tribal attorney for the Leech Lake Band of Ojibwe; and Greg S. Paulson on behalf of the Grand Portage Band of Chippewa and the Shakopee Mdewakanton Sioux (Dakota) Community.

The Star Tribune’s objections to proposed classification of casino audits, submitted in a two-page letter dated July 2, were concise and to the point. As Anfinson, the Star Tribune’s attorney put it, the DPS’s “request lacks any credible foundation. In effect, it does little more than re-argue the position that [Commissioner Fisher] recently rejected when you issued Advisory Opinion #01-051, dealing with the audit of Red Lake’s gaming enterprise.”

“The letter submitted to [Fisher] by Commissioner Weaver in support of the classification request contains virtually nothing that was not already addressed” in the Department of Administration’s Advisory Opinion, continued Anfinson. He discussed each of those the issues briefly, countering the claims made by Weaver.

Anfinson wrote that although Minnesota Statute §13.06 “gives the Commissioner of Administration up to 45 days to rule on a temporary classification request,” on behalf of the Star Tribune he urged Commissioner Fisher to “decide much sooner than that.” Anfinson explained that an “important component of the Data Practices Act’s guarantee of public access is that access be reasonably prompt. If agencies subject to the Act can delay access for up to several additional weeks after receiving an adverse advisory opinion simply by submitting a temporary data classification request, the guarantee in many instances will ring hollow.” Timely access to public information is important in the newspaper business: if state agencies can delay their compliance with the law by filing specious classification requests, they can cast a dark veil of secrecy over the operation of State government. The public information requested by a newspaper will often no longer be ‘news’ if its release is delayed by weeks of legal wrangling.

The Leech Lake Band of Ojibwe, represented by tribal attorney Joseph Plummer, filed a three-page letter dated June 27. Plummer sought further delay in the release of the tribal gambling audits, requesting “an appeal process with respect to this recent Advisory Opinion. As such, we expect that there will be no release of data until this matter has been fully considered.”

Plummer called “Advisory Opinion #01-051 … startlingly unbelievable,” and wrote that the “most troubling part of how your agency reached its adverse conclusion … is that it was based on an incomplete response from the Commissioner” of DPS. He argued that the tribal-state gambling compacts are “contracts between two sovereigns, the State of Minnesota and the Leech Lake Band of Ojibwe,” and urged that the question of state agency compliance with state law be addressed in terms of “a dispute over contract language” in the state-tribal compacts.

The “only [problematic] issue with respect to the present matter are the words ‘state law’ in the Compacts,” continued Plummer. On behalf of the Leech Lake Band, Plummer wrote that he “would expect the remedy to be contract reformation, using the Blue Pencil Doctrine. This would mean the only part of the Compact to reform would be the ‘blue penciling’ out of the language that causes the problems.”

He also argued that the ‘inconsistency’ between classification of information provided by the Leech Lake Band to the National Indian Gaming Commission under the Indian Gaming Regulatory Act, and the classification of the information provided by the Leech Lake Band to the State Department of Public Safety under the state-tribal compacts, “raises a federal question that can only be resolved in federal court, not by a Minnesota agency.”

The Leech Lake Band, concluded Plummer, “expect[s] at a minimum that temporary classification of the data as private (thus preventing eminent disclosure) will be granted until the legislature can act to create a permanent statutory classification to protect this data properly.” The Leech Lake Band, he wrote, “will take whatever steps necessary to safeguard its information, and we expect the State to honor the intent of this agreement between sovereigns.”

The Prairie Island Indian Community, represented by Julie Ann Fishel of the law firm Winthrop & Weinstine, wrote a two-page letter to Commissioner of Administration David Fisher, dated July 20. Attorney Fishel took the position that the Department of Administration’s “Advisory Opinion No. 01-051 … is fundamentally and fatally flawed.” Fishel wrote that the Department of Administration erred by failing to “address federal preemption by prior classification of the audited data.” She also argued that the state department also misinterpreted “Minn. Stat. §299L.03, Subd. 11 and its application of the trade secret exemption, Minn. Stat. §13.37.”

Fishel stressed the differences between the “circumstances surrounding the Red Lake Band of Chippewa data and history of correspondence with the Department of Public Safety,” which, she claimed, “cannot be extended to include Prairie Island or other similarly situated tribes.” Prairie Island has “consistently” treated audits of its tribal gambling operations as a “trade secret,” she argued, “and has taken steps to protect data contained within.” The state of Minnesota, Fishel urged, should interpret the state Data Practices Act to coincide with the Indian tribal government’s secrecy as reflected in Prairie Island’s “tribal ordinance and resolution, [which] provide for that same confidential status of the information.”

“Prairie Island supports the Department of Public Safety’s application for temporary classification as a remedial measure to protect the release of confidential trade secret information,” Fishel wrote. She concluded her comments by stating that, “Prairie Island continues to assert that any release of the data submitted by Prairie Island, regardless of the application for temporary classification, is in violation of the provisions of the Minnesota Data Practices Act.”

The Grand Portage Band of Chippewa Indians and the Shakopee Mdewakanton Sioux (Dakota) Community provided comments to the Commissioner of Administration in a six-page letter dated August 3, signed by attorney Greg S. Paulson, of the law firm BlueDog, Olson & Small. As Press/ON reported on June 29, the DPS’s application for classification of the tribal gambling enterprise audits as “private” rested heavily on Paulson’s June 26 letter to DPS Data Practices Compliance Official Laurie B Beyer Kropuenske. Paulson’s August 3 letter to the Commissioner of Administration repeats many of the same arguments he previously made to DPS—and thus echoes the June 27 application for temporary classification made by DPS.

Paulson rests his argument that the tribal gambling audits should be reclassified as “private” on four factors: Factor One – that no statute exists which either allows or forbids classification of the gambling audit data as “nonpublic or protected nonpublic”; Factor Two – that similar data has been treated as nonpublic by other state agencies; Factor Three – that public assess to tribal gambling operation audits would “render unworkable a program authorized by law”; and Factor Four – that a “compelling need exists for immediate temporary classification, which if not granted could adversely affect the health, safety or welfare of the public.”

The claims made by Paulson, says Lawrence, are “trying to interpret the laws, but neither Paulson nor any of the other tribal lawyers have attempted to dispute the Siletz decision, nor cited any other legal precedents in support of their position.” In Confederated Tribes of Siletz Indians v. Oregon (1988), the 9^th Circuit Court of Appeals ruled that, “[t]o the extent the Compact specifically permits or prohibits the release” of Indian tribal gambling reports, “the parties are bound by it. Where the Compact is silent, however, neither IGRA, the Indian Commerce Clause, nor any other federal law prevents” the state from releasing Indian gambling records [emphasis added]. The court also found that, “[t]he Records Laws do not seek to usurp tribal control over gaming nor do they threaten to undercut federal authority over Indian gaming. To be sure, the Records Laws could have a detrimental effect on the Siletz Tribe if the Report contained damaging information on the operation of the Chinook Winds casino and the release of that Report would cause a decline in business. That possibility, however, is fully consistent with the IGRA’s goal of fair and honest gaming.”