This opinion will be unpublished and may not be cited except as provided by Minn.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 A13-2197
Sheryl V. Mooers, Appellant,
vs.
City of Lake City, Minnesota, et al., Respondents,
Karen England, individually, Respondent.
Filed July 7, 2014 Affirmed in part, reversed in part, and remanded Peterson, Judge
Wabasha County District Court File No. 79-CV-12-697
Lisa Ann Lofquist, Villaume & Schiek, P.A., Bloomington, Minnesota (for appellant)
Julie Anne Fleming-Wolfe, St. Paul, Minnesota (for respondents City of Lake City, et al.)
Peter C. Sandberg, Sandberg & Sandberg, Rochester, Minnesota (for respondent Karen England)
Considered and decided by Peterson, Presiding Judge; Schellhas, Judge; and
Connolly, Judge. UNPUBLISHED OPINION
PETERSON, Judge
Appellant challenges the district court’s grant of summary judgment to
respondents on her claims of sexual harassment, defamation, invasion of privacy, and
data-practices violations arising out of her employment with respondent city, and denial
of her discovery motion. We affirm in part, reverse in part, and remand.
FACTS
In 2010, respondent City of Lake City hired appellant Sherry V. Mooers as a
library administrator. When she was hired, respondent Jerry Dunbar was the mayor of
Lake City, respondent Mark Spence was a city-council member, and respondent Karen
England was the city attorney. Mooers’s supervisor was city administrator Ron Johnson.
Mooers made many changes in the city library; she received support from some
city residents and encountered fierce resistance from others. A controversy arose when
Mooers disciplined, demoted, and suspended children’s librarian Diane Spence, who had
also been a candidate for the library-administrator position, and who was married to Mark
Spence. Johnson and England told Mooers that she could not demote or reassign Diane
Spence, who nevertheless resigned.
Shortly after, England relayed to Dunbar that she had received complaints that
Mooers and Johnson were having an affair and that Mooers had committed fraud on her
employment application. England did not identify the complainants. The fraud
allegation was based on an article in a Colorado newspaper that quoted Mooers as saying
that she had been fired from a library-director position “without explanation or
2 evaluation.” The library-board president in Colorado responded in the article that
“Mooers was a probationary employee who was not offered a permanent contract” and
that she had not been fired. On her Lake City application, Mooers stated that her former
job had been temporary and had ended.
The city council held a meeting about the allegations and spoke separately in
closed sessions with Mooers and with Johnson. After the meeting was opened to the
public, city council member Phil Gartner moved “that the allegation of a personal
relationship by the City Administrator and the Library director (Administrator) be
dismissed.” The motion passed unanimously.
One week after the meeting, the local newspaper published an article stating that
the council had “heard complaints that Mooers and City Administrator Ron Johnson were
having a ‘personal relationship’” and that Mooers “may have committed fraud by
misrepresenting her record when she applied for the job last year.” The article mentioned
the Colorado newspaper as the source of the latter allegation. The article further noted
that “[t]he council voted unanimously not to look into either charge.” The article stated
that “England said the ‘personal relationships’ issue was raised by two people,
anonymously, who visited her office” and that the “Colorado issue also was brought to
England anonymously and was alluded to in a signed written complaint turned in through
the city’s normal citizen complaint process.” The article also stated that “England said
she merely passed the information on to the mayor. Dunbar said he called a special
meeting at the city attorney’s insistence.” The reporter, Rich Ousky, stated in his
deposition that England was not the source of the story about the closed meeting. In her
3 deposition, Mooers stated that these allegations and the newspaper story damaged her
reputation and caused her to be passed over for some library positions after her
employment with the city was terminated.
Mooers testified in her deposition and answers to interrogatories that Dunbar made
unwelcome sexual advances toward her beginning shortly after she took the library-
administrator job. She also produced pages of her diary in which she described incidents
involving Dunbar. Mooers testified that she rejected Dunbar’s advances and was repelled
by his conduct, but she also exchanged friendly e-mails with Dunbar. In the e-mails,
Dunbar apologized for hugging Mooers, and she reassured him that she was not offended.
Mooers testified that she told Johnson about the sexual harassment, in accordance with
the employee handbook.
On November 28, 2011, the city council met in a closed session without Mooers to
discuss “[her] request for a pay/step increase, and a credit card purchase made by [her] on
the city credit card on 10/11/11 that included alcohol and gratuities.” Mooers received a
written reprimand for the credit-card purchase. On January 31, 2012, the city council
suspended Mooers with pay for further problems with the credit-card billing and
scheduled a special closed meeting to discuss Mooers’s performance issues, including
insubordination, concerns about an illegal raffle, untimely submission of invoices, unpaid
staff meetings, and other issues. On February 23, 2012, the city council met in a closed
session without Mooers, and discussed Mooers’s job performance. At the following open
session, the council voted to terminate Mooers’s employment.
4 Mooers served a complaint against the city, Dunbar, Mark Spence, and England,
alleging violations of the Minnesota Government Data Practices Act (MGDPA), the
Minnesota Open Meeting Law (OML), common-law defamation and defamation under
42 U.S.C. § 1983 (2012), invasion of privacy, sexual harassment under 42 U.S.C. § 1983,
retaliation under the Minnesota Whistleblowers Act, and a claim for quantum meruit. In
response to a discovery request, the city provided Mooers with redacted transcripts of the
council meetings of November 28 and February 23. The district court denied Mooers’s
motion to compel the city to produce unredacted transcripts. Respondents moved for
summary judgment, which the district court granted.
On appeal, Mooers challenges the district court’s summary judgment on her
claims for sexual harassment, defamation, invasion of privacy, and violations of the data-
practices act and the denial of her discovery motion.
DECISION
We review the district court’s grant of summary judgment de novo, to determine
whether there are any unresolved genuine issues of material fact and whether the district
court properly applied the law. Eng’g & Constr. Innovations, Inc. v. L.H. Bolduc Co,.
825 N.W.2d 695, 704 (Minn. 2013). We view the evidence in the light most favorable to
the party against whom summary judgment was granted. Id. “A genuine issue of
material fact must be established by substantial evidence.” Id. (quotation omitted).
Summary judgment may be granted if the party opposing it has the burden of proof on an
essential element and fails to “present specific admissible facts showing a material fact
issue.” Doe v. Archdiocese of St. Paul, 817 N.W.2d 150, 163 (Minn. 2012) (quotation
5 omitted). Summary judgment can be granted even when an issue normally presents a
question of fact, if no rational trier of fact could find for the nonmoving party. Frieler v.
Carlson Mktg. Group, 751 N.W.2d 558, 564 (Minn. 2008).
I.
Mooers argues that the district court erred in granting summary judgment on her
sexual-harassment claims under 42 U.S.C. § 1983 against the city and against Dunbar
individually. The district court held that her claim against the city failed because there is
no evidence showing that the city had a custom or policy of permitting sexual
harassment. The district court concluded that the claim against Dunbar failed because
there is no evidence showing that Dunbar’s conduct was unwelcome or that his conduct
affected a term, condition, or privilege of her employment.
Section 1983 provides a basis for sexual-harassment claims involving violations of
federal rights by state action or public officials. Rendell-Baker v. Kohn, 457 U.S. 830,
837-38, 102 S. Ct. 2764, 2769-70 (1982). Section 1983 claims may not be brought
against a private party or entity, but only against an actor who infringes on a person’s
federal rights, when the action is “fairly attributable to the State.” Id., 457 U.S. at 838,
102 S. Ct. at 2770 (quotation omitted). Section 1983 prohibits a person acting “under
color of any statute, ordinance, regulation, custom, or usage of any State” from depriving
a citizen of “any rights, privileges, or immunities secured by the Constitution and laws.”
42 U.S.C. § 1983. “Sexual harassment by state actors violates the Fourteenth
Amendment and establishes a section 1983 action.” Tuggle v. Mangan, 348 F.3d 714,
720 (8th Cir. 2003) (stating that elements of cause of action are the same as those for a
6 violation of Title VII, except for requirement of state action). Therefore, in addition to a
“state action,” a plaintiff must show (1) membership in a protected group; (2) subjection
to unwelcome sexual harassment; (3) that the harassment was based on gender; and (4)
“that the harassment affected a term, condition, or privilege of her employment.”
Duncan v. Gen’l Motors Corp., 300 F.3d 928, 933 (8th Cir. 2002) (quotation omitted).
A government entity is liable under section 1983 if it “had an official policy or
widespread custom that violated the law and caused [the plaintiff’s] injury. . . . An
alleged illegal custom must be widespread and may only subject a [government entity] to
liability if it is pervasive enough to have the force of law.” Artis v. Francis Howell North
Band Booster Ass’n, 161 F.3d 1178, 1181-82 (8th Cir. 1998) (quotation and citations
omitted). See Monell v. Dep’t of Social Servs., 436 U.S. 658, 692, 98 S. Ct. 2018, 2036
(1978) (“[T]he language of § 1983 . . . compels the conclusion that Congress did not
intend municipalities to be held liable unless action pursuant to official municipal policy
of some nature caused a constitutional tort”).
Mooers included in her materials the employee handbook, which contains a policy
prohibiting sexual harassment. To show that the city nevertheless had a widespread
custom of permitting sexual harassment, Mooers would have to show that sexual
harassment was “pervasive” and “widespread.” Even viewing the evidence in the light
most favorable to Mooers, the record contains no evidence of a widespread and pervasive
custom of permitting sexual harassment, but rather is limited to Dunbar’s actions. “A
government entity is not liable under § 1983 based on actions of its employees under a
theory of respondeat superior.” Artis, 161 F.3d at 1181. See also Monell, 436 U.S. at
7 691, 98 S. Ct. at 2036 (“[A] municipality cannot be held liable under § 1983 on a
respondeat superior theory”). The district court did not err by granting summary
judgment in favor of the city.
As to Mooers’s claims against Dunbar individually, the evidence is mixed as to
whether the alleged sexually harassing acts were unwelcome, and we must view the
evidence in the light most favorable to the nonmoving party on summary judgment.
To withstand summary judgment, Mooers was required to show that the alleged
sexual harassment affected a “term, condition, or privilege of her employment.” Duncan,
300 F.3d at 933. “To be actionable, the alleged harassment must be sufficiently severe or
pervasive to alter the conditions of the victim’s employment and create an abusive
working environment.” Tuggle, 348 F.3d at 720 (quotation omitted). Generally, a few
isolated incidents are not actionable, unless the conduct is shocking and severe. Id.; see,
e.g., Moring v. Arkansas Dep’t of Corr., 243 F.3d 452, 456-57 (8th Cir. 2001) (refusing
to reverse district court decision denying JMOL despite isolated nature of conduct, when
actor trapped co-worker in her room on an overnight trip, wore only his boxer shorts,
suggested she “owed” him sex, and refused repeated requests to leave). When
considering whether conduct is sufficiently serious to affect the terms and conditions of
employment and create a hostile working environment, courts consider the frequency and
severity of the conduct, whether it was humiliating or physically threatening, as opposed
to merely offensive, and whether it unreasonably interfered with the employee’s ability to
work. Id. at 456.
8 Dunbar was the city mayor and arguably Mooers’s ultimate supervisor. Mooers
alleged conduct by Dunbar that she considered humiliating and that occurred on several
occasions, and she provided deposition testimony and excerpts from her diary to support
these claims. It is not the district court’s role on summary judgment to weigh the
evidence and assess Mooers’s credibility. Hoyt Props., Inc. v. Prod. Res. Grp., L.L.C.,
736 N.W.2d 313, 320 (Minn. 2007). We conclude that Mooers has raised at least a
genuine issue of material fact as to whether Dunbar’s conduct constituted sexual
harassment under section 1983. We, therefore, reverse the district court’s grant of
summary judgment as to Dunbar and remand to the district court for further proceedings.
II.
Mooers’s defamation claims are based on statements made at the city-council
meeting held on March 10, 2011. Mooers alleged defamation under both common law
and section 1983 against the city and against England. To prove a claim of common-law
defamation, a plaintiff must show (1) a false statement (2) communicated to another (3)
that tends to harm the plaintiff’s reputation or lower him in the estimation of the
community. Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 255 (Minn. 1980).
“Slanders affecting the plaintiff in his business, trade, profession, office or calling are
slanders per se and thus actionable without any proof of actual damages. Truth, however,
is a complete defense, and true statements, however disparaging, are not actionable.” Id.
(citations omitted).
A high-level public official is entitled to absolute immunity from tort when
performing an official duty that requires the exercise of judgment or discretion, unless his
9 actions are willful, malicious, or intentional. Minke v. City of Minneapolis, 845 N.W.2d
179, 182 (Minn. 2014); Bauer v. State, 511 N.W.2d 447, 450 (Minn. 1994). A public
official is entitled to qualified immunity if an otherwise defamatory statement is “made
upon a proper occasion, from a proper motive, and based upon reasonable or probable
cause.” Id. at 449. Generally, city-council members have qualified immunity from
defamation claims, so long as they do not abuse the privilege and act in good faith and
without malice. Zutz v. Nelson, 788 N.W.2d 58, 62 (Minn. 2010).
Mooers claims that the city made defamatory statements (1) during the closed
portion of the meeting on March 10, 2011; (2) during the open portion of the same
meeting; and (3) to reporter Ousky, who wrote an article about the meeting. Any
statements made during the closed portion of the meeting were made only to city-council
members and Mooers. Because the council is charged with investigating employee
misconduct, it has qualified immunity: any statements made were for a proper purpose,
and the purpose was not abused. See id.
Mooers’s next claim is that council-member Gartner’s motion during the open
portion of the meeting was defamatory. Gartner moved that “the allegation of a personal
relationship by the City Administrator and the Library director (Administrator) be
dismissed.” Gartner’s statement was made for a proper purpose upon a proper occasion;
at the conclusion of a closed meeting, the council is required to make a report of the
business transacted in the closed meeting. See Minn. Stat. § 13D.05, subd. 3(a) (2012)
(after a closed meeting to evaluate an individual’s performance, the public body must
summarize its conclusions at the next open meeting). Gartner’s statement was a true
10 statement about what occurred during the closed meeting and, therefore, is not
defamatory. See Stuempges, 297 N.W.2d at 255.
Mooers’s third claim against the city is that someone gave information from the
closed meeting to Ousky, who wrote an article that was published in the local paper. In
his deposition, Ousky testified that (1) neither Johnson nor Mooers gave him information
about the closed meeting; (2) he did not remember any city-council member or England
giving him any information about the allegation of fraud in Mooers’s application; and
(3) he asked England how the allegations of a personal relationship were made, and she
said there had been anonymous complaints. In the news article, he wrote that the source
of the fraud allegation was a newspaper publication from Colorado.
Implicit in any cause of action against a party is the requirement that the defendant
was involved in the alleged conduct. Mooers argues that information in the article must
have come from either a council member or England, but such information could have
come from the parties who made the anonymous complaints or from someone in whom
Mooers or Johnson confided. Failure to identify the source of the statement is a fatal
defect in Mooers’s defamation claim.
Mooers also has not demonstrated that the statements in the article are either false
or defamatory. Ousky reported that two allegations were made, explained the context of
the fraud allegation by referring to the Colorado news article, and noted that the council
“voted unanimously not to look into either charge.” He further wrote that “One council
member said the meeting should never have been called since there was no evidence for
either of the charges brought.”
11 In her claim against England individually, Mooers alleges that England defamed
her by reporting to the council that she had received complaints about a personal
relationship between Johnson and Mooers and that Mooers committed fraud on her
application. Mooers asserts that England’s testimony and answers to interrogatories were
conflicting and therefore not credible. She notes that England said that there were no
complaints, just rumors, and that she refused to identify the source of the rumors, either
because she did not remember or she promised the complainants anonymity.
England referred the two allegations to the city council in her capacity as city
attorney. As such, England is entitled to qualified immunity, so long as she acted in good
faith and without malice. See Zutz, 788 N.W.2d at 62. “Actual malice requires a
showing that the defamatory statements are made from ill will and improper motives, or
causelessly and wantonly for the purpose of injuring the plaintiff.” Bahr v. Boise
Cascade Corp., 766 N.W.2d 910, 920 (Minn. 2009) (quotation omitted). Malice requires
something more than a statement that is later shown to be false. Id. As city attorney,
England was required to investigate alleged wrongdoing and to draw it to the city
council’s attention, and thus was acting “upon a proper occasion, from a proper motive,
and based upon reasonable or probable cause.” Bauer, 511 N.W.2d at 449.
Finally, Mooers did not produce evidence of damage to her reputation, except for
conclusory statements from one person that the incident hurt Mooers’s reputation.
Mooers argues that she lost her job and future job opportunities because of the
allegations, but the city terminated her employment almost one year later for other
12 reasons. The district court properly granted summary judgment on the common-law
defamation claims.
Mooers also alleged defamation claims under section 1983. As explained above,
a claim under section 1983 must involve state action that infringes on a person’s
constitutional rights. See Rendell-Baker, 457 U.S. at 837-38, 102 S. Ct. at 2770. Mooers
alleges that the defamatory statements at the March 10 meeting infringed on her right to
secure employment, asserting that is a constitutionally protected property right. Her
termination from the city and her denial of other employment occurred almost a year after
the meeting. She has failed to demonstrate a connection between statements made at the
meeting and her termination a year later on other grounds or her failure to find other
employment. The same reasoning applies to her claims against England. Even viewing
the evidence in the light most favorable to Mooers, this connection is too attenuated to be
actionable.
III.
Mooers argues that the district court erred when it granted summary judgment on
her invasion-of-privacy claim. The district court concluded that Mooers failed to
demonstrate that any one of the respondents was responsible for dissemination of private
information and that the information published was of legitimate concern to the public.
The tort of invasion of privacy applies in three different situations: intrusion on
seclusion, appropriation of a person’s identity, or publication of private facts. Lake v.
Wal-Mart Stores, Inc., 582 N.W.2d 231, 233-35 (Minn. 1998). Mooers’s claim falls
under the third situation: “when one gives publicity to a matter concerning the private life
13 of another if the matter publicized is of a kind that (a) would be highly offensive to a
reasonable person, and (b) is not of legitimate concern to the public.” Id. (quotation
omitted). “Publicity” means that the matter is communicated to “the public at large, or to
so many persons that the matter must be regarded as substantially certain to become one
of public knowledge.” Bodah v. Lakeville Motor Express, Inc., 663 N.W.2d 550, 553-54
(Minn. 2003) (quotation omitted).
The publicity element is not at issue; Mooers’s claims that Gartner’s motion
regarding allegations of a personal relationship and statements made to Ousky and
reported by Ousky in the paper satisfy the publicity element. See Yath v. Fairview
Clinics, N.P., 767 N.W.2d 34, 42-43 (Minn. App. 2009) (stating that publicity includes
publication in a newspaper or other publication no matter how limited the circulation or a
statement made to a large audience).
But the district court concluded that the information was of legitimate concern to
the public. According to the Restatement (Second) of Torts § 652D cmt.d (1977), “When
the matter to which publicity is given is true, it is not enough that the publicity would be
highly offensive to a reasonable person. The common law has long recognized that the
public has a proper interest in learning about many matters. When the subject-matter of
the publicity is of legitimate public concern, there is no invasion of privacy.”
The city had a policy against sexual harassment, which includes a supervisor and
an employee having an affair; the city hired Mooers based on her application and later
received information that the application may have included fraudulent statements; and
rumors or complaints involving these allegations were brought to the city attorney’s
14 attention. The city council’s conclusion that these allegations were unfounded was a
matter of legitimate concern to the public. The comment to the Restatement states,
[T]he Supreme Court indicated that an action for invasion of privacy cannot be maintained when the subject-matter of the publicity is a matter of ‘legitimate concern to the public.’ The Court held specifically that the ‘States may not impose sanctions for the publication of truthful information contained in official court records open to public inspection.’ Other language indicates that this position applies to public records in general.
Id. (quoting Cox Broad. Co. v. Cohn, 420 U.S. 469, 495, 95 S. Ct. 1029, 1046 (1975)).
The statements at the council meeting and the information in the newspaper article were
all part of official public records. The district court did not err by granting summary
judgment on Mooers’s invasion-of-privacy claim.
IV.
Mooers limited her appeal of the district court’s summary-judgment order
governing her claim under the MGDPA to two alleged violations: Gartner’s motion on
March 10, 2011, and disclosure of the allegations against her to reporter Ousky. The
district court concluded that Mooers did not demonstrate any damages as a matter of law
arising out of Gartner’s motion and that she failed to identify any of the respondents as
the source of Ousky’s information.
The MGDPA, Minn. Stat. §§ 13.01-.99 (2012), “regulates the collection, creation,
storage, maintenance, dissemination, and access to government data in government
entities.” Id., § 13.01, subd. 3. Data are presumed public, unless made confidential,
private, nonpublic, or protected nonpublic by law or statute. Id. Data on individuals are
15 public, private, or confidential. KSTP-TV v. Ramsey Cnty., 806 N.W.2d 785, 789 (Minn.
2011). Private or confidential data on individuals are not open to public access. Id.
Personnel data are data on an employee that identify the person who is the subject
of the data. Navarre v. S. Washington Cnty. Schools, 652 N.W.2d 9, 22 (Minn. 2002).
Personnel data are private, except as set forth in Minn. Stat. § 13.43, subd. 2, which lists
personnel data that are public. Included in public personnel data are “the existence and
status of any complaints or charges against the employee, regardless of whether the
complaint or charge resulted in disciplinary action” and “the final disposition of any
disciplinary action together with the specific reasons for the action.” Id. at subd. 2(a) (4),
(5).
A government entity’s disclosure of complaints or charges is limited to
acknowledging the existence of a complaint, and cannot include “any quality or
characteristic of the complaint, whether general or specific.” Navarre, 652 N.W.2d at 22-
23. But this court has also stated that “[w]e cannot believe the legislature intended the
term ‘government data,’ to be literally interpreted to include unrecorded data that exist
only in the human brain. Interpreting ‘government data’ to include mental impressions
formed by public employees during the course of employment would lead to absurd
results.” Keezer v. Spickard, 493 N.W.2d 614, 617 (Minn. App. 1992), review denied
(Minn. Feb. 12, 1993). This court went on to state:
[A]n individual has no cause of action under the [data- practices] Act for the unauthorized release of private data about him unless he shows the information released was recorded somewhere other than in the mind of a government employee. . . . A plaintiff must point to an actual record
16 whose contents have been disseminated to give rise to a claim for improper release of government data under the Act. A plaintiff cannot establish the Act was violated merely by showing a government employee said something about him and that statement contained information that arguably might be stored in a government record.
Id. at 618.
The city council investigated allegations about Mooers in a closed meeting. At the
conclusion of the meeting, a final disposition was made: there was no basis for the
allegations. Gartner’s motion revealed the final disposition of a disciplinary action,
which is public data. Mooers has not pointed to an actual record whose contents have
been disseminated by Gartner’s description of the complaint as a “personal relationship,”
which is necessary to give rise to a claim for improper release of government data under
the act.
Mooers’s second allegation, that someone disclosed private data to reporter
Ousky, includes the same defect as her claim of defamation: she speculates that one of
the respondents must have provided Ousky with the information. A mere allegation,
without a factual foundation, is insufficient to sustain her burden of production. Minn. R.
Civ. P. 56.05 (stating that when opposing summary-judgment motion, “an adverse party
may not rest upon the mere averments or denials . . . but must present specific facts
showing that there is a genuine issue for trial”). The information contained in the article
describes the complaint and a final disposition (“[t]he council voted unanimously not to
look into either charge”) and involves only public personnel data. The district court did
not err by granting summary judgment on Mooers’s data-practices claims.
17 V.
Mooers argues the district court abused its discretion by denying her discovery
motion for unredacted transcripts of the closed November 28, 2011 and February 28,
2012 meetings. Mooers asserts that the city violated the OML, Minn. Stat. §§ 13D.01-08
(2012), when it produced redacted transcripts of the closed meetings held on November
28, 2011, and February 23, 2012, in response to her discovery request. The city asserted
attorney-client privilege for the redacted portions. The district court viewed the
transcripts in camera and agreed that Mooers was entitled to only the redacted versions.
Mooers’s challenge is to the district court’s discovery order; we review the district
court’s discovery orders for an abuse of discretion. In re Comm’r of Pub. Safety, 735
N.W.2d 706, 711 (Minn. 2007).
All meetings of a governing body of a city must be open, subject to limited
exceptions. Minn. Stat. § 13D.01, subd. 1. A meeting may be closed based on attorney-
client privilege, under certain conditions. Minn. Stat. § 13D.05, subd. 3(b). A meeting
may be closed “to evaluate the performance of an individual who is subject to its
authority.” Minn. Stat. § 13D.05, subd. 3 (a). If the subject of such a meeting requests it,
however, the meeting must be open. Id. Both the November 28 and February 23
meetings were closed; Mooers was given the option to, but did not, request open
meetings. “All closed meetings, except those closed as permitted by the attorney-client
privilege, must be electronically recorded . . . .” Minn. Stat. § 13D.05, subd. 1(d).
The attorney-client privilege is a narrow exception to the OML. Prior Lake Am.,
642 N.W.2d 729, 735 (Minn. 2002); Brainerd Daily Dispatch v. Dehen, 693 N.W.2d 435,
18 439 (Minn. App. 2005), review denied (Minn. Jun. 14, 2005). The OML serves the
purpose of promoting full public information and permitting and encouraging public
participation in the governing process; the attorney-client privilege creates “absolute
confidentiality.” Prior Lake American, 642 N.W.2d at 736-37. “[T]he attorney-client
privilege exception to the Open Meeting Law applies when the balancing of purposes
served by the attorney-client privilege against those served by the Open Meeting Law
dictates the need for absolute confidentiality.” Id. at 737. The attorney-client privilege
most often trumps the purpose of open meetings when the discussions involve legal
advice about litigation strategy. Id. at 740. It should not trump the public’s right to full
disclosure “of all actions and deliberations made in connection with activities ultimately
geared to the public interest.” Id. at 741 (quotation omitted). Noting that the separation-
of-powers doctrine limits judicial review of a public body’s actions, the supreme court
concluded that review of a public body’s actions for arbitrariness and capriciousness is
almost impossible when the body closes its deliberations to public view. Id. at 741-42.
But nothing in the law prohibits a mixture of private business and attorney-client
confidences during a closed meeting. Presumably, the council could have held an open
or closed meeting about Mooers and could have held another closed meeting to receive
legal advice about the city’s options with respect to Mooers. In Annandale Advocate v.
City of Annandale, the supreme court approved a procedure for closing parts of meetings
to reconcile the OML with the MGDPA. 435 N.W.2d 24, 32-33 (Minn. 1989).
The district court reviewed the council’s actions and its claim of attorney-client
privilege through transcripts of the closed meetings. The district court’s subsequent
19 decision to permit redaction of the transcripts for purposes of discovery is a decision
subject to abuse-of-discretion review. In re Comm’r of Pub. Safety, 735 N.W.2d at 711.
Mooers has failed to show an abuse of the court’s discretion.
Affirmed in part, reversed in part, and remanded.