Energy Policy Advocates, Appellant,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A22-0466

Energy Policy Advocates,
Appellant,

vs.

Keith Ellison, in his official capacity as Attorney General, et al.,
Respondents.

Filed May 8, 2023
Affirmed
Smith, Tracy M., Judge

Ramsey County District Court
File No. 62-CV-20-3985

Douglas P. Seaton, James V. F. Dickey, Upper Midwest Law Center, Golden Valley,
Minnesota (for appellant)

Keith Ellison, Attorney General, Michael D. McSherry, Oliver J. Larson, Assistant
Attorneys General, St. Paul, Minnesota (for respondents)

Considered and decided by Cochran, Presiding Judge; Worke, Judge; and Smith,
Tracy M., Judge.
NONPRECEDENTIAL OPINION
SMITH, TRACY M., Judge
Appellant Energy Policy Advocates challenges the district court’s determination
that respondents Attorney General Keith Ellison and the Office of the Attorney General
(together, the Attorney General) properly withheld three emails following Energy Policy’s
data request under the Minnesota Government Data Practices Act. We affirm.
2
FACTS
This case considers whether the Attorney General has an obligation to disclose three
emails to Energy Policy under the Minnesota Government Data Practices Act (MGDPA),
Minnesota Statutes sections 13.01 through 13.90 (2022).
Energy Policy submitted data requests to the Attorney General related to special
assistant attorneys general in the Office of the Attorney General whose salaries are funded,
pursuant to employee secondment agreements, by the St ate Energy and Environmental
Impact Center at New York University School of Law. The Attorney General provided
some data but declined to disclose other responsive data, citing Minnesota Statutes
section 13.39, which classifies active civil investigative data as not public, and
section 13.393, which exempts certain attorney data from the MGDPA. Energy Policy sued
the Attorney General under Minnesota Statutes section 13.08, seeking an order to disclose
the data.
Following discovery and the Attorney General’s disclosure of some additional
documents, Energy Policy and the Attorney General narrowed the data at issue to four
responsive emails. The emails had been sent to the Attorney General from other state
attorney general offices in connection with their work as a multistate coalition of attorneys
general coordinating legal challenges to address climate change. The attorneys general had
entered into a common-interest agreement to protect the confidentiality of information
shared among them as part of that project.
The parties agreed that the matter would be determined by motion practice and the
district court’s in camera review of the unredacted emails, and the Attorney General
3
provided Energy Policy with partially redacted copies of the four emails and the common-
interest agreement. The Attorney General requested that the district court determine that it
appropriately classified the documents as not public, and Energy Policy moved to compel
disclosure of the unredacted emails as improperly withheld public data. In the alternative,
Energy Policy argued that the data—even if not public— should be disclosed under
Minnesota Statutes section 13.39, subdivision 2a, which provides that the district court
may order the disclosure of active civil investigative data after conducting an in camera
review and considering the benefits and harms of such disclosure.
The district court granted in part and denied in part Energy Policy’s motion to
compel. The district court determined that all four emails were active civil investigative
data under Minnesota Statutes section 13.39, subdivision 2, and thus not public. Then,
considering the benefits and harms of disclosure under Minnesota Statutes section 13.39,
subdivision 2a, the district court ordered the Attorney General to disclose one email and
denied Energy Policy’s motion as to the other three. The district court also determined that
those three emails were properly withheld under Minnesota Statutes section 13.393
because they contained attorney work product and that protection had not been waived.
Energy Policy appealed. We granted Energy Policy and the Attorney General’s joint
motion to stay the appeal pending a decision from the Minnesota Supreme Court in Energy
Policy Advocates v. Ellison, A20- 1344. We dissolved the stay after the supreme court
decided Energy Policy Advocates v. Ellison, 980 N.W.2d 146 (Minn. 2022).
4
DECISION
The MGDPA “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; see also Minn. Stat. § 13.03, subd. 1.
The district court determined that the Attorney General did not have to disclose the
emails under two provisions of the MGDPA. First, it determined that, under Minnesota
Statutes section 13.39, the emails were not public and the harm of disclosure outweighed
the benefits to the public and Energy Policy. Second, it determined that, under
section 13.393, the emails contained attorney work product and thus were exempt from
disclosure under the MGDPA. Energy Policy challenges both determinations. Because we
conclude that the Attorney General’s obligation to disclose the emails is resolved by
section 13.39, our review begins and ends with the district court’s analysis under that
provision.
Under Minnesota Statutes section 13.39, active civil investigative data are not
public.
[D]ata collected by a government entity as part of an active
investigation undertaken for the purpose of the commencement
or defense of a pending civil legal action, or which are retained
in anticipation of a pending civil legal action, are classified as
protected nonpublic data pursuant to section 13.02, subdivision
13, in the case of data not on individuals and confidenti al
pursuant to section 13.02, subdivision 3, in the case of data on
individuals.

5
Minn. Stat. § 13.39, subd. 2(a) (emphasis added). Whether a civil legal action is pending
is determined by “the chief attorney acting for the government entity.” Id., subd. 1.
Even though active civil investigative data are not public, a request er may obtain
such data by bringing an action in district court. Id. , subd. 2a. The district court must
examine the disputed data in camera and may order some or all of the data to be released.
Id. In making its determination, “the court shall consider whether the benefit to the person
bringing the action or to the public outweighs any harm to the public, the government
entity, or any person identified in the data.” Id.
By contrast, “inactive” civil investigative data are generally public. See id., subd. 3.
Except for the parts of a civil investigative file that are otherwise classified as not public
data, inactive civil investigative data are public unless the data’s release would jeopardize
another pending civil legal action. Id. Civil investigative data become inactive upon:
(1) a decision by the government entity or by the chief
attorney acting for the government entity not to pursue the civil
action;
(2) expiration of the time to file a complaint under the
statute of limitations or agreement applicable to the civil
action; or
(3) exhaustion of or expiration of rights of appeal by
either party to the civil action.

Id.
Energy Policy contends that the district court erred by denying its motion to compel
because the emails are not active civil investigative data under section 13.39, subdivision 2.
In the alternative, Energy Policy argues that even if the emails are active civil investigative
6
data, the district court should have ordered disclosure because the balance of interests under
section 13.39, subdivision 2a, favors disclosure. We address each argument in turn.
A. Because the emails are active civil investigative data, the emails are not public.
Energy Policy argues that the district court erred because the emails do not meet the
statutory requirements for active civil investigative data and thus are public. 1
As a threshold matter, we reject Energy Policy’s argument that we should consider
whether the emails are active or inactive civil investigative data as of the time of our
appellate review. To do so would be contrary to the function of appellate review. We are
reviewing the district court’s decision, and our inquiry is limited to the record before the
district court. See Plowman v. Copeland, Buhl & Co., 261 N.W.2d 581, 583 (Minn. 1977)
(“It is well settled that an appellate court may not base its decision on matters outside the
record on appeal, and that matters not produced and received in evidence below may not
be considered.”); Minn. R. Civ. App. P. 110.01 (“The documents filed in the trial court,
the exhibits, and the transcript of the proceedings, if any, shall constitute the re cord on
appeal in all cases.”). Furthermore, “[u]nless otherwise expressly provided by a particular
statute,” the data’s classification is governed by the time of the request. Minn. Stat. § 13.03,
subd. 9; KSTP-TV v. Metro. Council, 884 N.W.2d 342, 348 (Minn. 2016) (holding that data

1 The parties make somewhat different assertions regarding the appropriate standard of
review when a district court determines the classification of documents under the MGDPA
based in part on its in camera review of the documents. But both parties agree that appellate
courts review a district court’s legal determinations de novo and its factual determinations
for clear error. See Harlow v. State, Dep’t of Hum. Servs., 883 N.W.2d 561, 568 (Minn.
2016); In re Polaris, 967 N.W.2d 397, 408-09 (Minn. 2021). We do not further analyze the
question of the standard of review because it is not necessary to resolve the MGDPA
classification question in this case.
7
are classified when the government receives the request for data). Section 13.39 specifies
the circumstances under which civil investigative data become inactive and thus public,
but the statute does not instruct this court to classify the data at the time of appellate review.
See Minn. Stat. § 13.39, subd. 3.
We turn to Energy Policy’s arguments that the emails do not constitute active civil
investigative data. When determining whether data are active civil investigative data,
courts consider whether the data were “(1) data collected by a state agency, (2) as part of
an active investigation, (3) undertaken for or in anticipation of a pending civil action.”
Westrom v. Minn. Dep’t of Lab. & Indus., 686 N.W.2d 27, 33-34 (Minn. 2004); see Minn.
Stat. § 13.39, subd. 2(a). Energy Policy argues that the emails do not qualify as active civil
investigative data because they were not “data collected” and were not part of the Attorney
General’s “active investigation.”
2
First, Energy Policy asserts that the emails were not “data collected” by the Attorney
General, citing St. Peter Herald v. City of St. Peter, 496 N.W.2d 812 (Minn. 1993). In that
case, the Minnesota Supreme Court held that the government must take “affirmative
action” to acquire the information for it to be “data collected.” St. Peter Herald, 496

2 The Attorney General contends that Energy Policy forfeited its arguments that the emails
were not “collected” and that the emails were not “investigative” because, in district court,
Energy Policy argued only that any investigation was “inactive.” But, because Energy
Policy’s arguments on appeal are sufficiently related to and consistent with its arguments
in district court, the arguments relate to undisputed facts in the record, and the Attorney
General substantively responded, we address Energy Policy’s arguments on the merits. See
Jacobson v. $55,900 in U.S. Currency, 728 N.W.2d 510 , 523 (Minn. 2007) (concluding
that an issue was properly before the court for review when appellant “refined the argument
made to the district court” and it was possible “to evaluate [that] argument on facts already
present in the record”).
8
N.W.2d at 814. Thus, the data at issue in St. Peter Herald—a notice of claim sent by a
private attorney to the city—was not “data collected” because the city was “simply a
passive recipient of that information.” Id.
Here, the Attorney General affirmatively joined a multistate coalition with other
state attorneys general to engage in litigation related to climate change and entered into a
common-interest agreement regarding that work. The emails relate to that litigation effort,
and the Attorney General in fact brought lawsuits with those other states. Under these
circumstances, the Attorney General was more than a “passive recipient” of the emails and
the emails constitute “data collected.”
Second, Energy Policy argues that the emails were not collected as “part of an active
investigation.” We disagree. The Attorney General provided an affidavit stating that the
emails related to the “still active consideration of multi-state legal challenges” and included
discussions about “potential legal theories on which the actions might proceed.” That
description is consistent with our in camera review of the unredacted documents and falls
squarely within the scope of section 13.39, subdivision 2(a). Cf. Star Trib. v. Minn. Twins
P’ship, 659 N.W.2d 287, 298 (Minn. App. 2003) (“[T]he principal statutory purpose of
Minn. Stat. § 13.39 . . . is to prevent government agencies from being disadvantaged in
litigation by having to prematurely disclose their investigative work product to opposing
parties and the public.”), rev. denied (Minn. Feb. 4, 2002). In fact, Energy Policy concedes
that the litigation that is the subject of one of the emails remains active.
We are not persuaded by Energy Policy’s arguments that the Attorney General must
provide additional information to prove that the data were part of an active investigation.
9
Energy Policy relies on our decision in Energy Policy Advocates v. Ellison, 963 N.W.2d
485 (Minn. App. 2021), rev’d, 980 N.W.2d 146 (Minn. 2022), to argue that the Attorney
General must provide more specific information about the investigations to qualify as
active civil investigative data. In that case, we determined that the district court had an
inadequate basis for determining that an investigation was active because the Attorney
General’s descriptions “d[id] not provide sufficient information about the status of the
investigations” and the district court did not conduct an in camera review of the data.
Energy Pol’y, 963 N.W.2d at 497.3 But here, the Attorney General provided an affidavit
indicating the active status of the investigations and both the district court and this court
reviewed the documents in camera. Energy Policy has provided no authority suggesting
that more is required.
In sum, the district court did not err by determining that the emails were active civil
investigative data.
B. The district court did not abuse its discretion by not ordering disclosure of the
active civil investigative data.

Energy Policy argues that, even if the emails were active civil investigative data, the
district court should have ordered the Attorney General to disclose the emails because
disclosure is in the public interest.

3 In its petition for further review in that case, the Attorney General did not challenge our
remand to the district court to review a privilege log and conduct an in camera review to
determine whether the documents contained data on an active investigation. See Energy
Pol’y, 980 N.W.2d at 155 n.2. Thus, the supreme court’s opinion reversing this court’s
decision did not address this portion of our ruling.
10
Subdivision 2a of section 13.39 provides that a court “may order” that active civil
investigative data be disclosed following its in camera review. “In making the
determination whether data shall be disclosed, the court shall consider whether the benefit
to the person bringing the action or to the public outweighs any harm to the public, the
government entity, or any person identified in the data.” Minn. Stat. § 13.39, subd. 2a
(emphasis added). Because the word “may” is permissive, we review the district court’s
determination for abuse of discretion. See Minn. Stat. § 654.44 (2022).
The district court found that the Attorney General would be harmed by disclosing
the emails because they contained “legal theories about potential litigation.” The district
court also found that the emails were not revelatory with respect to Energy Policy’s
asserted topic of interest—namely, the public’s interest in the outside funding of the special
assistant attorneys general performing climate-change litigation work in the Office of the
Attorney General. Thus, the district court determined that “the benefit to [Energy Policy]
and the public would not outweigh the harm to the [Attorney General] in the event of
disclosure.”
Energy Policy argues that the harm of disclosure did not outweigh the public’s
interest. We are not persuaded.
4

4 Energy Policy supports its arguments that the Attorney General would not be harmed with
extra-record information about events that took place after the district court’s review.
Energy Policy asserts that the litigation that is the subject of one email is now “essentially
defunct” because that litigation is currently held in abeyance by the D.C. Circuit. Energy
Policy also argues that one state that was part of the multistate coalition and received the
emails is now “in direct opposition” to Minnesota with regard to that litigation. Such
matters are not properly before this court, and we decline to address them. See Plowman,
261 N.W.2d at 583 (“It is well settled that an appellate court may not base its decision on
11
First, Energy Policy disputes that the Attorney General would be harmed by
disclosing the emails because, it argues, policy discussions are not privileged under
Minnesota law. But whether policy discussions are privileged is not relevant to the district
court’s identified harm to the Attorney General. The district court found that the emails
contained “legal theories about potential litigation,” not policy discussions, and we discern
no error in that determination.
Second, Energy Policy asserts that the Attorney General would not be harmed by
disclosure because the emails were shared with potentially adverse parties. Specifically,
Energy Policy asserts that another state involved in the multistate coalition could become
adverse to the coalition if a new state attorney general is elected and adopts a different
position. But Energy Policy does not acknowledge that the common-interest agreement
requires confidentiality, including if a party left the agreement. And Energy Policy does
not contend that the email recipients were adverse at the time the emails were sent, at the
time of the data request, or at the time of the district court’s review. As a result, the district
court did not abuse its discretion by determining that the Attorney General would be
harmed by disclosing the emails because they contained legal theories about pending
litigation.
Finally, Energy Policy asserts that the district court erred in evaluating the benefit
of disclosing the emails. Energy Policy asserts that the benefit of disclosing the emails is
the public’s interest in the outside funding of the special assistant attorney general

matters outside the record on appeal, and that matters not produced and received in
evidence below may not be considered.”).
12
positions. Based on our in camera review of the unredacted emails, the district court did
not err by determining that the emails do not provide insight into that arrangement.
In sum, the district court did not err by determining the data are not public as active
civil investigative data and did not abuse its discretion in refusing to order disclosure after
considering the harms and benefits of disclosure.5
Affirmed.

5 Because we conclude the Attorney General properly withheld the emails as not public
data, we need not address Energy Policy’s request for attorney fees. We also note that
Energy Policy’s request is not properly before this court because it did not file a motion for
attorney fees. See Minn. R. Civ. App. P. 139.05, subd. 1 (“A party seeking attorneys’ fees
on appeal shall submit such a request by motion under Rule 127.”).