Native American Press/Ojibwe News

Press/ON takes quest for casino audits to Court of Appeals

By Clara NiiSka - June 21, 2002
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.