Chris Gregerson v. Hennepin County and Tracey Martin

• Court: Court of Appeals of Minnesota
• Decided: October 6, 2014
• Docket: A14-487
• Status: Unpublished

Opinion

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2012).

STATE OF MINNESOTA IN COURT OF APPEALS A14-0487

Chris Gregerson, Appellant,

vs.

Hennepin County and Tracey Martin, Respondents.

Filed October 6, 2014 Affirmed Rodenberg, Judge

Hennepin County District Court File No. 27-CV-13-10910

Chris Gregerson, New Richmond, Wisconsin (pro se appellant)

Michael O. Freeman, Hennepin County Attorney, Toni A. Beitz, Assistant County Attorney, Minneapolis, Minnesota (for respondents)

Considered and decided by Schellhas, Presiding Judge; Worke, Judge; and

Rodenberg, Judge.

UNPUBLISHED OPINION

RODENBERG, Judge

Appellant Chris Gregerson challenges the district court’s grant of summary

judgment in favor of respondents Hennepin County and Tracey Martin and its denial of

appellant’s request to access data under the Minnesota Government Data Practices Act

(MGDPA). We affirm. FACTS1

Appellant maintains a website of stock images that can be licensed or purchased as

prints. In 2005, appellant discovered that Vilana Financial, Inc. had used one of his

photographs without permission. Appellant sued Vilana Financial, Vilana Realty, Inc.,

and the companies’ principal shareholder, Andrew Vilenchik, for copyright infringement.

In 2008, the federal district court awarded appellant $19,462 in actual and statutory

damages for the unauthorized use of his photographs. Gregerson v. Vilana Financial,

Inc., No. 06-1164, 2008 WL 451060, at *10 (D. Minn. Feb. 15, 2008).

In 2009, appellant sued Vilana Financial, Vilenchik, Vladimir Kazaryan (a Vilana

employee), and their attorneys and law firms, alleging malicious prosecution, abuse of

process, and conspiracy. Hoping to uncover evidence to support his claims of malicious

prosecution against attorney Boris Parker, appellant settled his claims with Vilana and

Vilenchik, in exchange for Vilenchik’s promises to waive his attorney-client privilege

and to turn over correspondence with Parker. The district court later dismissed

appellant’s remaining claims. We affirmed the dismissal of appellant’s claims.

Gregerson v. Vilana Financial, Inc., No. A10-0863, 2010 WL 4451820, at *1 (Minn.

App. Nov. 9, 2010), review denied (Minn. Jan. 26, 2011).

In 2010, the Crystal police department obtained two search warrants to investigate

alleged criminal activities of Vilenchik and the Vilana corporations unrelated to

appellant’s claims. The first search warrant was issued on probable cause to believe that

1 We provide a detailed factual history leading up to the operative facts giving rise to appellant’s claims to enable the reader to understand the context of appellant’s claims in this case.

2 Vilana’s premises were being used as an unlicensed massage parlor and authorized a

search for massage therapy equipment, advertising materials related to massage therapy,

and “computers and peripherals used to place online advertising, produce advertising

materials or schedule client appointments.” The second search warrant was issued on

probable cause to believe that Vilenchik had engaged in theft by swindle in the sale of a

fake diamond and authorized a search for financial and other records relating to diamonds

and “computers and peripherals used to maintain financial transaction records of the

diamond sale or used in the production of fictitious . . . papers.”

When executing the two search warrants, Crystal police officers seized several

computers. A Hennepin County forensic computer examiner “imaged the hard drives of

sixteen of the seized computers so that [he] could conduct forensic analysis of their

contents, within the parameters specified in the search warrants.”2 The examiner then

used 35 key words provided to him by Crystal police officers to determine whether the

hard drives contained evidence relevant to the theft-by-swindle and unlicensed-massage-

parlor investigations. The key words did not include “Christopher Gregerson, Boris

Parker, Vladimir Kazaryan, Michael Walker, Michael Zubitskiy, McShane, or the topics

‘malicious prosecution,’ or copyright.” The examiner downloaded the results of his

analysis onto a disc and gave it to the Crystal police department.

In April 2011, appellant sent a subpoena to the Hennepin County Sheriff’s Office

(HCSO) requesting copies of the hard drives. In response, Assistant Hennepin County

2 Complete copies of the hard drives were made for examination and remain in evidence storage at the Hennepin County Sheriff’s Office. The seized hard drives were then returned to their owners.

3 Attorney Toni Beitz informed appellant that the subpoena was improper and that the

HCSO would not release a copy of the hard drives without a court order. Appellant then

informed Beitz that he “wished the HCSO to deem [his] subpoena to be a request

pursuant to the MGDPA.” Beitz denied appellant’s request to access the hard-drive

images because the Crystal police department’s criminal investigation was “still formally

not closed” and “all data is technically still confidential.” But Beitz also explained that

the HCSO would not provide appellant with the hard-drive images even after the

investigation was final.

In June 2012, appellant contacted Beitz to ask whether the criminal investigation

was complete and when the statute of limitations would expire. He narrowed his request

to any documents regarding Boris Parker, Morgan Smith, or himself, including e-mails

and recorded conversations between Vilenchik and Parker. Beitz responded that “the

criminal investigation still has not been officially closed” and that the statute of

limitations was “three years or longer.” Beitz also advised appellant to address any

future requests to the Crystal police department or to the HCSO’s responsible authority,

respondent Major Tracey Martin.

In September, appellant contacted Martin to request access to “any documents

(email, letters, etc.) contained on the seized hard drives which are to, from, or mention

Boris Parker” and “any audio recordings tha[t] include the voice of, or mention, Boris

Parker.” Appellant also requested any documents or recordings that mentioned himself,

Kazaryan, Walker, Zubitskiy, McShane, malicious prosecution, or copyright. Martin

denied appellant’s request for data and told appellant to address all future inquiries to the

4 City of Crystal because the HCSO “will not release any data without authorization from

the City of Crystal.”

In December, appellant made another request for data and requested “to be

informed if [he was] the subject of any of the data on the hard drive images identified in

[his] previous letter.” Martin again denied appellant’s request.

Appellant then sued respondents, alleging that “[he] is entitled to access or

receive, on an expedited basis, documents [he] requested from [respondents] under the

MGDPA.” Appellant requested the district court to (1) compel compliance with the

MGDPA, (2) grant declaratory relief, (3) authorize the disclosure of investigative data,

and (4) order that he “is entitled to have access to the data he requested in his MGDPA

requests” and compel respondents “to provide [him] with access to the requested data.”

Respondents moved for summary judgment, arguing that the district court could

not compel compliance with the MGDPA because appellant was seeking neither

government data nor investigative data under the MGDPA. Respondents also argued that

the requested information was protected under the United States and Minnesota

Constitutions. Appellant also moved for summary judgment, arguing that he was entitled

under the MGDPA to the data on the imaged hard drives that concerned him and his

dispute with Vilana and its affiliates. The parties agreed that there were no genuine and

material factual disputes.

The district court granted respondents’ motion for summary judgment and denied

appellant’s motion. The district court concluded that “the data requested by [appellant

do] not constitute ‘government data’ under the MGDPA,” nor were they “criminal

5 investigative data under the MGDPA.” Moreover, “a warrantless search of the data by

the HCSO, as requested by [appellant], would violate the Fourth Amendment and the

Minnesota Constitution.” As additional bases for denying appellant’s requested relief,

the district court noted that appellant failed to join Vilenchik as a party and failed to

demonstrate a bona fide legal interest because appellant was not entitled to the data. This

appeal followed.

DECISION

The MGDPA

regulates the collection, creation, storage, maintenance, dissemination, and access to government data in government entities. It establishes a presumption that government data are public and are accessible by the public for both inspection and copying unless there is federal law, a state statute, or a temporary classification of data that provides that certain data are not public.

Minn. Stat. § 13.01, subd. 3 (2012). “The purpose of the MGDPA is to reconcile the

rights of data subjects to protect personal information from indiscriminate disclosure with

the right of the public to know what the government is doing. The Act also attempts to

balance these competing rights within a context of effective government operation.”

KSTP-TV v. Ramsey Cnty., 806 N.W.2d 785, 788 (Minn. 2011) (quotation omitted).

The district court concluded that the MGDPA’s definition of “government data”

was ambiguous as applied here before concluding that “government data” means “only

the specific data collected by the Crystal [police department] for its criminal

investigation” and “used for a governmental purpose.” Appellant challenges the district

6 court’s determination that the data he requested were not “government data” under the

MGDPA.

We review the district court’s statutory interpretation of the MGDPA de novo.

KSTP-TV, 806 N.W.2d at 788; see also Schwanke v. Minn. Dep’t of Admin., 851 N.W.2d

591, 594 n.1 (Minn. 2014) (applying de novo review to the “legal question[s] of statutory

interpretation” when the MGDPA is unambiguous in context (quotation omitted)).

Our supreme court recently explained that “‘[d]ata’ are ‘facts that can be analyzed

or used in an effort to gain knowledge or make decisions’ or, more broadly, are

‘information.’” Schwanke, 2014 WL 3844200, at *2 (quoting The American Heritage

Dictionary of the English Language 462 (5th ed. 2011)). “Government data” are “all data

collected, created, received, maintained or disseminated by any government entity

regardless of [their] physical form, storage media or conditions of use.” Minn. Stat.

§ 13.02, subd. 7 (2012). Here, a government entity, the HCSO, collected and maintains

data that could be analyzed in the future with a proper warrant. Therefore, the data on the

imaged hard drives are “government data” under the MGDPA.3

Although the data are “government data,” we hold that appellant is not entitled to

receive copies of or search the hard drives for the information he seeks. Under the

MGDPA, government data can be “classified by statute, federal law, or temporary

classification as confidential, private, nonpublic, or protected nonpublic [data].” Id.,

3 Respondents do not dispute that appellant seeks “data” or that the HCSO is a “government entity” under the MGDPA. They argue that the data are neither “government data” nor “investigative data.”

7 subd. 8a; see also Minn. Stat. § 13.03, subd. 1 (2012) (explaining that government data

are public unless federal or state law classify the data as private or confidential).

“The United States and Minnesota Constitutions protect ‘the right of the people to

be secure in their persons, houses, papers, and effects, against unreasonable searches and

seizures.’” State v. Diede, 795 N.W.2d 836, 842 (Minn. 2011) (quoting U.S. Const.

amend. IV) (citing Minn. Const. art. I, § 10). “A search conducted without a warrant

issued upon probable cause is generally unreasonable.” State v. Flowers, 734 N.W.2d

239, 248 (Minn. 2007). A search “occurs upon an official’s invasion of a person’s

reasonable expectation of privacy. A reasonable expectation of privacy exists as to areas

and objects in which the person invoking the Fourth Amendment has a subjective

expectation of privacy that society is prepared to recognize as reasonable.” State v.

Johnson, 831 N.W.2d 917, 922 (Minn. App. 2013), review denied (Minn. Sept. 17, 2013).

But “the reasonableness of a person’s expectation of privacy is appraised on the basis of

the facts as they existed at the time the invasion occurred.” Id. at 923 (quotation

omitted).

In Johnson, police officers obtained a search warrant authorizing seizure of the

appellant’s computer hard drive to search for evidence of child pornography. Id. at 920.

An officer seized the appellant’s computer hard drive when executing the search warrant,

but the hard drive was not analyzed until seven months later. Id. The appellant argued

that the eventual forensic analysis amounted to a warrantless search. Id. at 920-21. We

explained that “a person has the same reasonable expectation of privacy in the concealed

digital contents of a cellular telephone [or computer hard drive] as a person has in the

8 concealed physical contents of a container.” Id. at 922 (quotation omitted). But “once

the government lawfully seizes a container during the execution of a warrant authorizing

the search of the container for particularly identified evidence, the owner’s expectation of

privacy in that evidence is frustrated.” Id. at 924 (quotation marks omitted). Because

there was no substantial likelihood that the appellant in that case had changed the

contents of the hard drive after it was seized and because the hard drive was searched

only for the evidence sought in the search warrant, the appellant did not have an

expectation of privacy in the material on the hard drive that was identified in the warrant.

Id.

Here, the two search warrants were issued based on probable cause to believe that

Vilana’s premises were being used as an unlicensed massage parlor and that Vilenchik

had engaged in theft by swindle. The warrants authorized only a search of the computer

drives for information related to those two specific crimes. As in Johnson, the Crystal

police officers lawfully seized the hard drives, which were the equivalent of “containers”

of the data sought by police. See id. “Therefore, the execution of the warrant[s]

‘frustrated’ and terminated [Vilenchik’s and Vilana’s] expectation of privacy in the hard

drive[s] and the digital contents identified in the warrant.” See id. (emphasis added). But

the execution of the warrants did not frustrate any expectation of privacy in other data

contained on the hard drives and not identified in the warrant. See United States v.

Carey, 172 F.3d 1268, 1270, 1276 (10th Cir. 1999) (explaining that police officers should

generally perform a keyword search of computer files for specific terms sought by the

search warrant, and suppressing evidence of child pornography on a computer hard drive

9 when the warrant authorized a search for evidence of drug trafficking). Any search of the

hard drives for the data appellant now seeks would be a warrantless search and would

invade Vilenchik’s reasonable expectation of privacy.4 See Johnson, 831 N.W.2d at 922.

Therefore, a search of the hard drives for the data appellant requested would violate the

Fourth Amendment rights of the owner(s) of the hard drives.

The United States Supreme Court recently held that police officers “must

generally secure a warrant” before searching the cell phones of recently arrested

individuals. Riley v. California, 134 S. Ct. 2473, 2485 (2014). Like the cell phones in

Riley, the hard drives here contain a large quantity of private information, which police

officers cannot lawfully search without a warrant. See id. at 2489, 2494-95 (explaining

that cell phones differ from other types of searchable containers because they contain

every piece of information about the individual for the past several months or more).

And, like the searches of the cell phones in Riley, there is no evidence that any exception

to the warrant requirement would justify a warrantless search of the hard drives for

appellant’s information. See id. at 2494 (explaining that “other case-specific exceptions

may still justify a warrantless search of a particular phone,” but that no such exceptions

applied). Contrary to appellant’s suggestion, a search of the hard drives is not equivalent

to an inventory search, see Colorado v. Bertine, 479 U.S. 367, 372, 107 S. Ct. 738, 741

(1987) (defining an inventory search), or a “one-time screening” of a President’s papers

as authorized by law, see Nixon v. Adm’r of Gen. Servs., 408 F. Supp. 321, 361 n.56

4 The district court observed that appellant should have joined Vilenchik as a party to this lawsuit because the data on the hard drives that was not subject to the search warrants belongs to him and his expectations of privacy in that data have not been disturbed.

10 (D.D.C. 1976) (allowing a warrantless search of President Nixon’s papers according to

federal law), aff’d, 433 U.S. 425, 97 S. Ct. 2777 (1977). The owner(s) of the data on the

hard drives continue(s) to have a reasonable privacy expectation in the data, except to the

extent of the warrants authorizing seizure of the drives for specific and limited purposes.

Making the data on the hard drives available for public inspection under the MGDPA

under these circumstances would be inconsistent with the constitutional principles

underlying Riley. Simply stated, the government collected data on the seized hard drives

but may not constitutionally access or inspect the data except as authorized by the

warrants.

Appellant has commendably briefed the issues, but his argument assumes that,

because the data are “government data” under the MGDPA, he is entitled to the data. But

appellant ignores the next step in the analysis. Because the owner(s) of the hard drives

continue(s) to have a reasonable expectation of privacy concerning all data on those hard

drives not authorized to be accessed by the search warrants, the data are either

“confidential data on individuals” or “protected nonpublic data.” See Minn. Stat. § 13.02,

subds. 3, 13 (2012). Federal constitutional law prohibits the seizure or inspection of the

contents of the data beyond the scope of the search warrants. Even if data concerning

appellant is contained on the hard drives collected by police officers pursuant to the

search warrants, those warrants did not authorize the government to search for or collect

that data. The reasonable expectation of privacy of the owner(s) of the hard drives in the

contents thereof has not been extinguished or overcome. We therefore hold that the data

11 not authorized by the search warrants to be accessed by the government are inaccessible

to appellant or any other person under the MGDPA.

Appellant also argues that the Fourth Amendment does not apply to a search

conducted by a private individual like himself. In United States v. Jacobsen, airport

employees examined a damaged package and discovered a white powdery substance,

which police officers later determined to be cocaine. 466 U.S. 109, 111, 104 S. Ct. 1652,

1655 (1984). The United States Supreme Court explained that “[t]he initial invasions of

respondents’ package were occasioned by private action” and that such private action

does not violate the Fourth Amendment. Id. at 115, 104 S. Ct. at 1657. Citing Jacobsen,

appellant argues that his private search of the hard drives cannot violate the Fourth

Amendment. But appellant asks the HCSO to conduct an additional search of the hard

drives for data beyond the scope of the search warrants. Such a search involves

government action, not private action, and triggers Fourth Amendment protection. See

id. at 113, 104 S. Ct. at 1656.

The district court did not err in granting summary judgment to respondents.

Affirmed.