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Supreme Court rejects newspaper argument in FOI fight

Justice David Lillehaug

Justice David Lillehaug

The Minnesota Supreme Court on Wednesday rebuffed a newspaper’s appeal seeking access the records of the Minnesota Joint Underwriting Association, an association of private insurers created by the Legislature to provide liability insurance for individuals and entities that can’t obtain coverage on the open market.

In a ten-page decision from Associate Justice David Lillehaug, the court rejected the Star Tribune’s assertion that the MJUA is a state agency and, therefore, subject to the open records rules under the Minnesota Government Data Practices Act.

“Although the MJUA was created by state statute, it is not a state agency. It is an involuntary association of insurance company members providing coverage in the highly-regulated insurance market,” the court wrote. Its ruling affirmed a decision issued last year by the Court of Appeals.

Because Data Practices Act does not include the term “association” in its definitions of government entities, the court wrestled with semantic minutiae before wading into the substance.

Citing a definition from Black’s Law Dictionary, it said, an association “is not a legal entity separate from the persons who compose it” and, by extension, cannot be deemed a government agency. (In a footnote, the court acknowledged that the Data Practices Act does apply to one legislatively-mandated insurance association — the Comprehensive Health Association – thanks to an explicit provision in statute that is the absent in the case of MJUA).

The court’s decision also examined financial and organizational aspects of the MJUA. It acknowledged the Star Tribune’s assertion that the state “exercises considerable control over the MJUA,” which is governed by a 15 member board with a majority of members appointed by the Commissioner of the Department of Commerce.

But the court said the commerce commissioner also has considerable authority over other entities which are “indisputably” not state agencies, including non-profit health plan corporations.

While MJUA employees are entitled to participate in the state benefit plan, the court noted that the state has no statutory obligation to pay debts incurred by the MJUA and, furthermore, the association is financed entirely by its members and policyholders

Mark Anfinson, the lobbyist for the Minnesota Newspaper Association, said the ruling was “a disappointment in the sense that the MJUA is an important entity in terms of state policy.”

“I disagreed with the court’s decision and I think the data practices act ought to be interpreted liberally in terms of public access,” said Anfinson who filed amicus curiae brief on behalf of the MNA.

However, he said he doubts the ruling will have much in the way of ramifications because “there aren’t that many other entities of this type created by the legislature.”

“Fortunately the court didn’t engage in any freewheeling pronouncements about the data practices act. It’s a pretty narrow, focused opinion and I’m pretty sure that was intentional,” he said.

The legal wrangling between the Star Tribune and the MJUA commenced in 2013 after a Star Tribune reporter filed a data practices request seeking county-by-county data on businesses that are covered by the MJUA.

The MJUA responded by seeking an advisory opinion from the Department of Administration, which declined to take up the matter because it had previously opined that the MJUA is subject to the data practices act.

The Star Tribune filed an additional request with the MJUA, which then sued in Ramsey Count District Court seeking injunctive relief. The district court ruled in the newspaper’s favor but rejected the paper’s request for award attorney fees and civil penalties. Judgment was stayed pending the MJUA’s successful appeals before the Court of Appeals and the Supreme Court.

The ruling marked the high court’s first data practices case since 2013, when it took up a lawsuit brought by the Timberjay, an Ely newspaper that had sued for access to a contract between Johnson Controls, Inc., which was overseeing a major renovation in the St. Louis County School District, and a subcontractor brought on by Johnson.

While the Minnesota Court of Appeals sided with the Timberjay, the Supreme Court reversed, saying the school district failed to include contractual language informing Johnson Controls it was subject to the data practices law. That decision prompted the Legislature to enact legislation that classifies such contracts as public even absent such explicit language.

Do two consecutive rulings against newspapers by the high court constitute a trend of any sort?

“I don’t think so,” ventured Anfinson. If there is a commonality, he added, it’s just that both fights “involved statutes that were quite murky in terms of legislative intent.”

The Star Tribune was represented by John Borger, of Faegre Baker Daniels, and Randy Lebedoff. Attorneys Paula Duggan Vraa and Jennifer Young of Larson King, LLP, represented the MJUA.

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