Native American Press/Ojibwe News Articles

Temporary Classification of Data under Minnesota Statutes § 13.06, August 28, 2001 - A 'blank check' for Indian secrecy?

By Clara Niiska- August 31, 2001
Department of Administration Commissioner David F. Fisher released his August 20, 2001 decision to classify Indian tribal gambling audits as nonpublic information eight days after it became official, on August 28, 2001. Commissioner Fisher’s decision was faxed to Press/ON on August 29, along with a cover letter explaining that “the temporary classification is effective as of the date of the approval, and will expire June 1, 2004, or upon statutory classification by the Legislature, whichever is earlier.”

The next step in the legal battle over whether or not Indian casino audits are public information is a review by the Attorney General, to whom Commissioner Fisher’s decision “will be submitted … for review as to form and legality.”

Commissioner Fisher, in his August 28th “Office Memorandum” approving Commissioner Weaver’s “Request for Temporary Classification of Data under Minnesota Statutes, Section 13.06,” finds that “no statute currently exists which either allows or forbids classification as nonpublic or protected nonpublic.” Some of the tribal attorneys had argued that the gambling audit data was “trade secret data.” Fisher found that “analysis … did not uncover sufficient evidence” to support classification of the audits as “nonpublic trade secret data.”

Indian “sovereign immunity” overturns Minnesota state law
The reason that the State of Minnesota reclassified the tribal gambling audits as “nonpublic” was because, Fisher wrote, “several tribes have stated that they would refuse to provide the data if the data were to be made public, or that they would require the Department [of Public Safety] staff to review the data on site.

“Should tribal governments assert claims of sovereign immunity in response to enforce the [State-Tribal] compacts,” Fisher continued, DPS “would have no legal recourse in obtaining the audits and would be unable to monitor tribal government compliance with the Tribal-State compacts or to ensure the integrity of tribal gaming enterprises pursuant to Minnesota Statutes Chapter 299L.”

Commissioner Fisher explained his decision that Indian gambling enterprises’ sovereign immunity should supersede the Minnesota Data Practices Act:

“Tribal governments represent sovereign entities, not necessarily bound as such by the same laws as the State of Minnesota, and this sovereignty, as well a the need for comity between sovereign entities such as the tribal governments and the State of Minnesota, warrant the considerations set forth in the decision.”

Comity: “… practice, convenience and expediency”

Minnesota Commissioner Fisher wrote that his decision was based on DPS’s having “established that, given the nature of the issues relating to the legal relationships among tribal, state and local governments, and given Alcohol and Gambling Enforcement Division staffing levels, it would be practically impossible for the Department to obtain audit data in a manner conducive to carrying out effective oversight of tribal gaming operations if the tribal governments refused to provide audit data, or if on-site inspection were required.”

“The Commissioner also notes that requiring on-site inspections of the audits would prevent the applicant from fulfilling the requirements of Minnesota Statutes section 15.17, which requires all government entities ‘…make and preserve all records necessary to a full and accurate knowledge of their official activities’.”

Commissioner Fisher stressed his reliance on ‘comity,’ summing up his findings by reiterating it. “Finally,” he wrote, “the Commissioner points out that tribal governments represent sovereign entities, not necessarily bound as such by the same laws as the State of Minnesota, and this sovereignty, as well as the need for comity between sovereign entities such as the tribal governments and the State of Minnesota, warrant the considerations set forth in the decision.”

The practical consideration that the Minnesota Department of Public Safety could not enforce the State law if tribal gambling enterprises refused to cooperate, in other words, was the Commissioner of Administration’s reason for ruling that: “All data contained in audits of tribal gaming enterprises … with the exception of the name and address of the tribal government, the date of the audit, and excluding data already classified as security information” is “NONPUBLIC.”

The State-Tribal compacts, signed by the tribal government as well as by the state Governor, require that the Indian tribal gambling enterprises provide the annual audits whenever the State requests them in writing. The State of Minnesota had a number of alternatives to yielding to the Indian gambling enterprises’ threats—including declaring the present compacts void if violated, and forcing renegotiation on terms more favorable to the State. (The present State-Tribal compacts in Minnesota are among the few nationwide which do not require the Indian casinos to share their revenues with the state.)

Commissioner Fisher’s concern about the difficulties which the State might have in obtaining audits, and that the tribal gambling enterprises might refuse to provide them, is somewhat inconsistent with DPS’s efforts to obtain regular audits during the past ten years. In an article published July 29, St. Paul Pioneer staff writer Doug Tice quoted DPS’s Alcohol and Gambling Enforcement Director, Frank Ball, as stating that, “the division has on file only 23 audits from 18 casinos over a decade. All were voluntarily submitted, not requested by [DPS].”

The ‘joker’ at the bottom of the deck
The very last item listed in the Attachments to Commissioner Fisher’s August 28, 2001 Memorandum—listing items for which “nonpublic classification” was sought and approved—reads:

“Tribal government service expenses and revenue, including state and federal grant funds, in cases where a combined audit of gaming operations and tribal government functions is conducted” (emphasis added).

In other words, if an Indian tribal government includes casino audit information in any other audit, the entire audit will be “nonpublic.” Commissioner Fisher’s August 28th Memorandum gives Indian tribal governments carte blanche for secrecy. If audits of state and federally-funded tribal government operations, state grants, or federal grants happen to be “combined” with casino audits, the entire audit can hidden away from public scrutiny.

Seeking accountability
Commissioner Fisher’s decision comes six months after Press/ON requested Red Lake casino audits from the Department of Public Safety (DPS) under the Minnesota Data Practices Act, last February. DPS refused to provide the records, claiming that they were not public information, so Press/ON requested an Advisory Opinion from the Department of Administration. On April 19, Commissioner Fisher ruled in Advisory Opinion 01-051 that the audits are public information under Minnesota state law.

Press/ON obtained copies of all of the Red Lake audits which the Alcohol and Gambling Enforcement Division (AGED) of the DPS had sought from Red Lake during the ten years since the State-Tribal compact was signed on May 6, 1991: just one audit, for the fiscal year 1996-1997. Press/ON published excerpts from that Red Lake Audit on June 15, 2001. Press/ON requested the remaining Indian gambling audits held by DPS.

DPS Data Practices Act Compliance Official Laurie Beyer-Kropuenske responded to Press/ON’s request promptly—by faxing all of the Indian tribal council chairmen and asking them to “support the Department in seeking a temporary private classification of the audits.”

Almost all of the tribal council chairmen or their attorneys responded to Beyer-Kropuenske’s call for “support,” as detailed by Press/ON on July 13. DPS Commissioner Charlie Weaver’s June 27 “Temporary Reclassification Request,” seeking to classify the gambling audits as nonpublic, drew heavily on the tribal attorneys’ letters to DPS urging that the audits be reclassified as nonpublic.

Department of Administration Commissioner Fisher invited public comment on Commissioner Weaver’s request to classify the gambling audits as private data. Press/ON published Bill Lawrence’s letter of comment to Fisher on August 3, and on August 10, Press/ON summarized the other public comments. Minneapolis Star Tribune attorney Mark Anfinson urged that the casino audits remain public information. The tribal council chairmen and their attorneys argued that that audits be reclassified as nonpublic.

Fisher met with his staff on the afternoon of Thursday, August 16, to get their recommendations and discuss DPS Commissioner Weaver’s request for reclassification of the Indian casino audits, and indications were that his decision would be made that afternoon; Press/ON even considered delaying going to press in order to include his decision in the August 17 issue. However, Data Practices staff informed Press/ON late Thursday afternoon that the only decision was that there was “no decision,” and that Fisher had decided to take the matter “under advisement” and issue his decision later, as the deadline was Monday, August 20th. Press/ON learned that the Governor was out of state for the weekend, and that Governor Ventura had a Cabinet meeting on Monday. It appeared that Fisher would bring the matter of Indian casino audits up at the August 20th cabinet meeting. However, on Sunday afternoon, Fisher emailed his Data Practices staff to inform them of his decision to reclassify the tribal gambling enterprise audits as “nonpublic” information.

After reading the text of Fisher’s August 28th Memorandum, Press/ON publisher Bill Lawrence said that, “It appears that a senior member or members of Governor Ventura’s staff, who have close ties to the Minnesota tribal establishment, had influence Commissioner Fisher’s decision—particularly since he reversed his previous decision that casino audits were public information. … Fisher’s decision smells of rank political influence.”

The next step is review by Minnesota Attorney General Mike Hatch.