In re the Matter of the Alleged Misuse of Access to DVS Data by Andrew Brackett.

This opinion is nonprecedential except as provided by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
A24-0801

In re the Matter of the Alleged Misuse of Access to DVS Data by Andrew Brackett.

Filed March 31, 2025
Affirmed
Wheelock, Judge

Department of Public Safety

Joseph A. Kelly, Rebecca L. Duren, Kelly & Lemmons, P.A., St. Paul, Minnesota (for
relator Andrew Brackett)

Keith Ellison, Attorney General, Cory J. Marsolek, Assistant Attorney General, St. Paul,
Minnesota (for respondent Minnesota Department of Public Safety)

Considered and decided by Worke, Presiding Judge; Connolly, Judge; and
Wheelock, Judge.
NONPRECEDENTIAL OPINION
WHEELOCK, Judge
Relator Andrew Brackett appeals respondent Minnesota Department of Public
Safety’s permanent revocation of his access to a state driver- and vehicle-services
information database. We affirm.
FACTS
Officers A.C . and A. K. were working at the University of Minnesota Police
Department (UMN PD) in early January 2021 with then-officer Brackett when Brackett
asked A.C. if he could run a license- plate search with her computer. A.C. was logged in
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to the Police Information Management System (the database). The database provides
officers with nonpublic data that includes Minnesota driver’s-license and license-plate
information.
After A.C. agreed, Brackett entered a plate number into the database, looked at the
search results, and deleted the information he obtained from the search. Minutes later, A.C.
overheard Brackett tell A.K. that the plate he ran belonged to a woman at his gym whom
he found attractive. He explained that he left the gym at the same time as she did and noted
her license-plate number. A.C. then asked Brackett what he planned to do with the
information from his search, and Brackett said that he “was just curious.”
A.C. reported the incident to her supervisor, and Brackett was charged with misuse
of nonpublic data in violation of Minn. Stat. § 609.43(2) (2020). Brackett pleaded guilty,
and thereafter, he was discharged from his position with UMN PD.
At the time Brackett committed the offense , Minn. Stat. § 171.12, subd. 1a(b)
(2020) (subdivision 1a(b)), required the Minnesota Department of Public Safety (the
department) to “immediately and permanently revoke the authorization of any individual
who willfully . . . accessed . . . data [including from the database] in violation of state or
federal law.” Minn. Stat. § 171.12, subd. 1a(b). Accordingly, in April 2022, when the
department received notice of Brackett’s nonbusiness search, it began an audit of the
incident to verify that Brackett willfully accessed data from the database in violation of
state or federal law.
Department staff spoke with the chief law-enforcement officer supervising Brackett,
who provided documentation of Brackett’s data misuse. Another UMN PD officer also
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verified that Brackett had misused data . Based on this information, department staff
concluded that Brackett had conducted a search of the database for a nonbusiness purpose
in violation of Minnesota and federal laws. Brackett’s audit was submitted to senior
department staff for review and approval, and it included a recommendation for permanent
revocation of Brackett’s access to the database in accordance with subdivision 1a(b).
The department approved its audit of Brackett’s data misuse on August 1, 2023,
finding that he had violated the law and permanently revoking his access to the database.
In a September 11, 2023 letter, the department set forth its findings of fact and conclusions
of law along with a description of its audit process, findings, and determination. The
department expressly determined that Brackett violated Minn. Stat. § 168.346, subd. 1
(2020), and the federal Driver’s Privacy Protection Act, 18 U.S.C. § 2721 (2018). The
department also concluded that subdivision 1a(b) applied and required permanent
revocation of Brackett ’s access to the database. The department sent the September 11
letter to UMN PD via certified mail and an encrypted email in which it also requested that
UMN PD notify Brackett of the revocation of his access to the database. Brackett received
a copy of the department’s findings and letter via an email from department staff in
March 2024.
Brackett appeals.
DECISION
“An agency’s quasi-judicial determinations will be upheld unless they are
unconstitutional, outside the agency’s jurisdiction, procedurally defective, based on an
erroneous legal theory, unsupported by substantial evidence, or arbitrary and capricious.”
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Carter v. Olmsted Cnty. Hous. & Redev. Auth., 574 N.W.2d 725, 729 (Minn. App. 1998).
“The relator has the burden of proof when challenging an agency decision.” Minn. Ctr. for
Env’t Advoc. v. Minn. Pollution Control Agency, 660 N.W.2d 427, 433 (Minn. App. 2003).
Brackett argues that, when he received notice in March 2024 of the department’s
September 2023 decision to revoke his access to the database, subdivision 1a(b) had been
amended to no longer mandate immediate and permanent revocation of access for those
who unlawfully use the database, and thus, the department’s decision to revoke his access
to the database is based on an error of law and cannot be upheld. His argument succeeds
or fails based on whether the current or the previous subdivision applies to him. To support
his argument that the current version applies , he relies on language in the session law.
Because Brackett’s argument is based on the legislature’s 2023 amendment to the
subdivision, we begin our analysis with a brief background of it.
Prior to October 1, 2023, subdivision 1a(b) was identical to the version in effect at
the time of Brackett’s unlawful use of the database: “The commissioner must immediately
and permanently revoke the authorization of any individual who willfully entered, updated,
accessed, shared, or disseminated data in violation of state or federal law.” Minn. Stat.
§ 171.12, subd. 1a(b) (2022).
In 2023, the legislature amended subdivision 1a(b) to state: “If the commissioner
determines that an individual willfully entered, updated, accessed, shared, or disseminated
data in violation of state or federal law, the commissioner must impose disciplinary action.”
Minn. Stat. § 171.12, subd. 1a(b) (2024 ); 2023 Minn. Laws ch. 68, art. 6, § 11, at 3443 .
“Disciplinary action” for misuse can include revocation. Minn. Stat. § 171.12, subd. 1a(e)
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(2024).1 The session law enacting these amendments expressly stated: “EFFECTIVE
DATE. This section is effective October 1, 2023. Paragraphs (b), (c), and (e) apply to
audits of data use that are open on or after October 1, 2023.” 2023 Minn. Laws ch. 68,
art. 6, § 11, at 3443.
Returning to Brackett’s argument, he relies on his assertion that he did not receive
notice of the department’s decision until after the amendments became effective, pointing
to language in a statute that provides for judicial review of quasi-judicial agency decisions
through a writ of certiorari, Minn. Stat. § 606.01 (2024),
2 to argue that he did not receive
“due notice” of the revocation of his access to the database. He further relies on the
language in the session law enacting the amendments to section 171.12, subdivision 1(a),
that states they “apply to audits of data use that are open on or after October 1, 2023,” to
argue that, because he did not receive notice of the audit’s completion until March 2024,
the department’s “audit” of his data use was “open” after October 1, 2023. Because
Brackett’s argument hinges on the meanings of “audit” and “open” as used in the
“EFFECTIVE DATE” section of the session law, we apply the rules of statutory
interpretation.

1 The amendments also require the commissioner to forward the matter to the appropriate
prosecuting authority for prosecution and to establish a process that allows someone
subject to disciplinary action to appeal the action. 2023 Minn. Laws ch. 68, art. 6, § 11, at
3443 (amending Minn. Stat. § 171.12, subd. 1a).

2 Section 606.01 provides, “No writ of certiorari shall be issued, to correct any proceeding,
unless such writ shall be issued within 60 days after the party applying for such writ shall have
received due notice of the proceeding sought to be reviewed thereby.” Minn. Stat. § 606.01.
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The interpretation and application of law to undisputed facts is a question of law
that we review de novo. Mattice v. Minn. Prop. Ins. Placement, 655 N.W.2d 336, 340
(Minn. App. 2002), rev. denied (Minn. Mar. 18, 2003). The first step in statutory
interpretation is to determine whether the language in the law is ambiguous. State v.
Thonesavanh, 904 N.W.2d 432, 435 (Minn. 2017); Cent. Specialties, Inc. v. Minn. Dep’t
of Transp., 5 N.W.3d 409, 421 (Minn. App. 2024) (applying this aspect of Thonesavanh).
A law is ambiguous only if it is subject to more than one reasonable interpretation.
Thonesavanh, 904 N.W.2d at 435. We construe words and phrases “according to rules of
grammar and according to their common and approved usage.” Minn. Stat. § 645.08(1)
(2024). “If the legislature’s intent is clearly discernable from plain and unambiguous
language, statutory construction is neither necessary nor permitted and we apply the
statute’s plain meaning.” State v. Stay, 935 N.W.2d 428, 430 (Minn. 2019) (quotation
omitted); Broadway Child Care Ctr., Inc. v. Minn. Dep’t of Hum. Servs., 955 N.W.2d 626,
631 (Minn. App. 2021) (quotation omitted). Chapter 171 of the Minnesota Statutes does
not provide definitions of “audit” or “open,” so we turn to dictionary definitions. See State
v. Haywood, 886 N.W.2d 485, 490 (Minn. 2016) (“In the absence of a statutory definition,
we look to dictionary definitions to determine the plain meaning of words.”); Sterry v.
Minn. Dep’t of Corr., 8 N.W.3d 224, 233 (Minn. 2024) (“[Appellate courts] often look to
dictionary definitions when determining the plain meaning of undefined words in the
context of a statute.”).
Because Brackett argues that he succeeds if an “audit” of his conduct was “open”
when he received the March 2024 notice, we begin with a consideration of whether the
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term “audit” as used in the session law is ambiguous. An “audit” is “a thorough
examination or evaluation.” The American Heritage Dictionary of the English Language
117 (5th ed. 2018). The plain meaning of audit—as an examination or evaluation —is
reasonable and consistent with the context of section 171, subdivision 1a, as applied to
conduct involving the database. This subdivision concerns the security of the nonpublic
data in the database, limits access to certain individuals acting within their “official duties,”
requires that all access to the database be recorded in a “data audit trail,” and mandates that
the commissioner of public safety establish procedures to ensure these requirements are
met. 2023 Minn. Laws ch. 68, art. 6, § 11, at 3443 (amending section 171, subdivision 1a).
Here, the legislature stated that the amendments to subdivision 1a(b) “apply to audits of
data use that are open on or after October 1, 2023.” Id. (emphasis added). We understand
audit, here, to mean “a thorough examination or evaluation” of data use. We cannot discern
another reasonable interpretation of the term audit, and Brackett has not provided us with
one. We therefore conclude that the term audit as used in the session law is not ambiguous.
We next consider whether the term “open” as used in the session law is ambiguous.
When something is “open,” it is “not yet decided; subject to further thought. ” American
Heritage, supra, at 1234. The plain meaning of open —as not yet decided—is reasonable
and consistent with the context of section 171, subdivision 1a, which obliges the
commissioner to establish procedures to ensure the security of the database and monitor
access to it. 2023 Minn. Laws ch. 68, art. 6, § 11, at 3443 (amending section 171,
subdivision 1a). Open indicates that the commissioner’s decision relating to an unlawful
use of the database has not yet been reached. Here, t he session law states that the
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subdivision 1a(b) amendments “apply to audits of data use that are open on or after
October 1, 2023.” Id. (emphasis added). As used in the relevant text, we understand
“open” to mean “not yet decided” or “subject to further thought” from the time the audit
begins until senior department staff approves or “closes” the audit because, at the time the
audit is approved, the question of whether a n unlawful use occurred is decided and no
longer subject to further thought. We cannot discern another reasonable interpretation of
the term open, and Brackett has not provided us with one. We therefore conclude that the
term “open” as used in the session law is not ambiguous.
Because the legislature’s intent is discernible from the plain language it used in the
session law, statutory construction is neither necessary nor permitted, and we must apply
the session law’s plain meaning here. The session law states that the amendments to
subdivision 1a(b) “apply to audits of data use that are open on or after October 1, 2023.”
Id. Senior department staff approved the audit recommending permanent revocation of
Brackett’s access to the database on August 1, 2023, and the department permanently
revoked Brackett’s access to the database on September 11, 2023. Brackett’s audit was
not open or “subject to further thought” after August 1 because the department approved
the audit on that date. Therefore, the audit or “thorough examination or evaluation” of
Brackett’s data use was not open on or after October 1, 2023. Because our application of
the plain language of the session law shows that Brackett’s audit was not open on or after
October 1, 2023, the amendments to subd ivision 1a(b) did not apply. Rather, the
subdivision 1a(b) language in effect during Brackett’s unlawful data use and the audit of
that use required immediate and permanent revocation of Brackett’s access to the
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database.3 Therefore, we conclude that the department’s decision to revoke Brackett’s
access to the database is not based on legal error.4
Affirmed.

3 In reaching this conclusion, we also observe that the legislature did not include any
language in its amendments to section 171.12 to indicate that the amendments are to be
applied retroactively. “No law shall be construed to be retroactive unless clearly and
manifestly so intended by the legislature.” Minn. Stat. § 645.21 (2024).

4 In his principal brief , Brackett appears to argue that this court must either resolve
Brackett’s case using the 2023 amendments or reverse the agency’s decision because
Brackett received notice of his revocation in March 2024, which was after October 1, 2023.
We are not persuaded by this argument because, rather than directing the amendments to
apply to audits in which individuals receive notice of the department’s decision on or after
October 1, 2023, the legislature directed the amendments to apply to “audits” that were
“open” on or after October 1, 2023.
In his reply brief, Brackett argues that the amelioration doctrine compels this court
to apply the amendments to section 171.12 here. Because this argument was raised only
in his reply brief, it is not properly before us and we do not consider it. See Wood v.
Diamonds Sports Bar & Grill, Inc., 654 N.W.2d 704, 707 (Minn. App. 2002), rev. denied
(Minn. Feb. 26, 2003).