Sheryl v. Mooers v. City of Lake City, Minnesota, Karen England, individually

This opinion will be unpublished and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 UNPUBLISHED OPINION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.

20