|
|
Press/ON
takes quest for casino audits to Court of
Appeals
by Clara NiiSka
On Thursday, June 20th, Native American
Press/Ojibwe News publisher Bill Lawrence appealed Ramsey County
District
Court Judge Louise Bjorkman’s April 23, 2002 ruling that the Indian
casino
audit data were “trade secrets.” Lawrence
is “pro se,” acting as his own
attorney in representing himself
and the newspaper.
“Obviously, I don’t agree with Judge Bjorkman’s
interpretation of trade secrets,” Lawrence said. “I
think she’s way off base. It’s
preposterous that an audited financial
statement could be
considered a trade secret, and I think this needs to be addressed by a
higher
court. If the Legislature would have
wanted audited financial statements to be considered trade secrets and
exempt
from the Data Practices Act, they would have spelled it out and listed
‘audits’
among the other exemptions specified in §13.37, 1 (b).”
Minnesota Statutes §13.37,
General nonpublic data, defines
“trade secret information” in subdivision 1 (b) as: “government data,
including
a formula, pattern, compilation, program, device, method, technique or
process
(1) that was supplied by the affected individual or organization, (2)
that is
the subject of efforts by the individual or organization that are
reasonable
under the circumstances to maintain its secrecy, and (3) that
derives
independent economic value, actual or potential, from not being
generally known
to, and not being readily ascertainable by proper means by, other
persons who
can obtain economic value from its disclosure or use” [emphasis added]. § 13.37 subd. 1 (b) also requires that “a
party seeking to limit public disclosure must demonstrate all
aspects of
the trade secret information definition are met” [emphasis added].
Lawrence is an intervenor in the cases Mille Lacs Band of
Ojibwe Indians v. State of Minnesota and Prairie Island
Indian
Community v. Minnesota Department of Public Safety. Attorneys for Mille Lacs and Prairie Island
sued the state last September, seeking to prevent the Minnesota
Department of
Public Safety from releasing casino audits held by the state pursuant
to the
State-Tribal gambling compacts. On
September 14th, the Attorney General’s Office
issued an
opinion that
audit information is public information. The
tribes filed suit less than a week later.
It has been slightly more than a year since Press/ON
published excerpts from the 1997 Red Lake casino audits, on June 15,
2001. In
February 2001, this newspaper had requested all of the Red Lake
casino
audits under the Minnesota Data Practices Act. The
fiscal year 1997 Red Lake audit was
finally released after
Commissioner of Administration David Fisher’s April 19, 2001 ruling in
Advisory
Opinion 01-051 that the audits are public information.
When Press/ON finally obtained the1997 Red Lake
audit, it was accompanied by a letter stating that it was the only Red
Lake
audit held by the State. During
subsequent court proceedings, it was disclosed that the state holds a
second
Red Lake audit, for fiscal year 1992. This
newspaper has not yet been able to obtain
a copy of the second
audit.
Under the Compacts negotiated between Minnesota Indian
tribes and the state, Indian tribal governments are required to provide
audits
and all current internal accounting and audit procedures to the State
upon
written request (§6.11). The
Minnesota
Department of Public Safety (DPS) is charged with regulating and
monitoring
operation of Indian gambling operations in the State of Minnesota, and
careful
examination of casino audits is, as Bill Lawrence wrote in his July 13th
editorial, “a potent tool” in ensuring that casino operations remain
honest. Press/ON learned during
the lawsuit that DPS has not requested any casino audits for
the past
five years.
Based on the state’s ruling that the Indian casino audits
are public information, this newspaper requested all of the Indian
gambling
enterprise audits held by the state.
DPS Commissioner Charlie Weaver promptly filed a “temporary
classification request” with the Department of Administration,
requesting that
the casino audits be classified as “private data.”
The DPS bolstered its request with arguments
provided by tribal
attorneys. On June 19th,
the
same day as the Advisory Opinion ruling that the audits are public
information,
DPS Data Practices Compliance official Beyer-Kropuenske wrote to all
eleven of
Minnesota’s tribal chairmen, carbon-copying their tribal attorneys,
asking for
“assistance” from the gambling enterprises DPS is charged with
regulating. Most of the tribal attorneys
provided DPS
with legal arguments, and Beyer-Kropuenske gushingly responded to a
tribal
attorney from the law firm BlueDog, Olson and Small, “I can’t thank you
enough
for your assistance!”
DPS’s temporary classification request was granted by
Commissioner of Administration David Fisher on August 20th. In an opinion which he did not publicly
release until August 28th, Fisher
reclassified the audits as
“nonpublic” because, he wrote, “several tribes have stated that they
would
refuse to provide the data.” Fisher
reasoned that “should tribal governments assert claims of sovereign
immunity in
response to enforce the [State-Tribal gambling] compacts,” the DPS
“would have
no legal recourse in obtaining the audits and would be unable to …
ensure the
integrity of tribal gaming enterprises pursuant to Minnesota Statutes
Chapter
299L.”
On September 14th, Alan Gilbert, Solicitor
General and Chief Deputy of Minnesota Attorney General Mike Hatch
overturned
the Department of Administration’s August 20th
temporary
reclassification of the casino audit data, ruling that under Minnesota
law the
casino audits held by the state are public information.
“The temporary classification of the data …
as nonpublic data … is disapproved as to form and legality pursuant to
Minn.
Stat. §13.06,
subd. 5,” wrote Gilbert.
Several tribes then sued the state to prevent the release of
the audits. In two lawsuits filed in
Ramsey County District Court, Judge Bjorkman overruled the Attorney
General’s
Office. Judge Bjorkman rejected all of
the tribes’ other arguments, but ruled that the casino audits are
protected as
“trade secrets.”
To date, the
State has not appealed Judge Bjorkman’s
ruling. However, the appellant, Press/ON
publisher Bill Lawrence, anticipates that the State will also appeal. The deadline for the State’s appeal is
Monday, June 24th.
|
|
|
|
|
