Native American Press/Ojibwe News

Judge Bjorkman rewrites the law

April 19, 2002
Ramsey County District Court Judge Louise Bjorkman’s decision in the lawsuits, Prairie Island Indian Community vs. Minnesota Department of Public Safety, Court File No. C5-01-8766, and Mille Lacs Band of Ojibwe Indians v. State of Minnesota and Charlie Weaver, Court File No. C3-01-8782, is astonishing.

The State of Minnesota Legislature defined “trade secret information” in Minn. Stat. §13.37, subd. 1 as: “Government data, including a formula, pattern, compilation, device, method, technique or process …” If the State Legislature had wanted to include audited financial statements among protected trade secrets, it would have included them in the definition when the law was written, or, if there had been an oversight, the Legislature would have amended the law.

Judge Bjorkman ignored the definition clearly laid out in state law, and ruled that casino audits held by the Department of Public Safety are “trade secrets.” Using the Judge’s logic, the telephone book would probably also be a “trade secret.”

The Judge apparently ‘bought’ the arguments submitted on affidavits by some of the tribal politicians and casino managers, that the audits are “highly sensitive” and have “concrete economic value.”

The concept of states protecting trade secrets is founded on industrial processes, chemical formulas, manufacturing designs, plans and diagrams … the sorts of things which are clearly covered by state law. Audits are not generally trade secrets, and in fact most corporations are compelled by state and federal law to reveal financial information.

Judge Bjorkman supports her conclusion that the audits are “trade secrets” by writing: “The number of requests for the data and nature of the requesting parties support the Plaintiffs’ arguments about that data’s independent economic value. The presence of the Intervenor and Amicus Curiae further demonstrates the high level of interest in the financial data. These facts in and of themselves suggest the data is economically significant.”

For more than a decade, I am the only one who has ever asked for the casino audits. The other parties requesting the audits only became interested after I had requested the audits, published one of them, and the public controversy arose over the remaining audits. Neither I nor the Amicus Curiae (the Minneapolis Star Tribune) stands to gain economically from the audits: both the Native American Press/Ojibwe News and the Star Tribune are interested in freedom of the press, public access to information, and informing our readers about this huge secret monopoly in the State. The other requestors are state legislators, and their concern about the audits is a legitimate matter of state policy.

Indian gambling enterprises are a state-sanctioned monopoly. Under the terms of the Compacts, one of the few safeguards is the oversight and monitoring provided by the State Department of Public Safety. DPS should be playing a principal role in formulating gambling policy in the state of Minnesota, as well as scrupulously regulating an industry that brings with it substantial social costs and increased crime rates. But, as we learned in the course of this lawsuit to obtain the audits, DPS has been negligent in the responsibility for casino monitoring. They have abdicated their responsibility – they haven’t even asked for an audit in over four years.

If, in early 1990s before gambling enterprises got underway and tribal attorneys became concerned about public scrutiny of casino audits detailing the seamy underside of Indian gambling, a provision that the audits would be held in confidentiality by the State under the provisions of the State-Tribal gaming compacts. There was no such provision – and compacts governing Indian gambling in the State of Minnesota are the most onerous in the nation. They are against the interests of both the state and of Indian people, and only work to the advantage of a select few. They were negotiated by legislators who didn’t know what they were doing. (Although, based upon the achievements in the current legislative session, maybe that’s the norm.)

Judge Bjorkman erred in ruling that the audits are “trade secrets.”

However, Judge Bjorkman did get it right when she rejected all of the tribal attorneys’ other arguments, finding that: 1) “IGRA does not preempt the Data Practices Act”; 2) “Prairie Island and the Mille Lacs Band’s characterization of the audit data is not determinative”; 3) “Disclosure of the audit data would not breach the terms of the Compacts”; and 4) “Prairie Island’s estoppel claim fails as a matter of law.”