Chris Gregerson v. Hennepin County and Tracey Martin

This opinion will be unpublished and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
A14-0487
Chris Gregerson,
Appellant,
vs.
Hennepin County and Tracey Martin,
Respondents.
Filed October 6, 2014
Affirmed
Rodenberg, Judge
Hennepin County District Court
File No. 27-CV-13-10910
Chris Gregerson, New Richmond, Wisconsin (pro se appellant)
Michael O. Freeman, Hennepin County Attorney, Toni A. Beitz, Assistant County
Attorney, Minneapolis, Minnesota (for respondents)
Considered and decided by Schellhas, Presiding Judge; Worke, Judge; and
Rodenberg, Judge.
UNPUBLISHED OPINION
RODENBERG, Judge
Appellant Chris Gregerson challenges the district court’s grant of summary
judgment in favor of respondents Hennepin County and Tracey Martin and its denial of
appellant’s request to access data under the Minnesota Government Data Practices Act
(MGDPA). We affirm.
FACTS1
Appellant maintains a website of stock images that can be licensed or purchased as
prints. In 2005, appellant discovered that Vilana Financial, Inc. had used one of his
photographs without permission. Appellant sued Vilana Financial, Vilana Realty, Inc.,
and the companies’ principal shareholder, Andrew Vilenchik, for copyright infringement.
In 2008, the federal district court awarded appellant $19,462 in actual and statutory
damages for the unauthorized use of his photographs. Gregerson v. Vilana Financial,
Inc., No. 06-1164, 2008 WL 451060, at *10 (D. Minn. Feb. 15, 2008).
In 2009, appellant sued Vilana Financial, Vilenchik, Vladimir Kazaryan (a Vilana
employee), and their attorneys and law firms, alleging malicious prosecution, abuse of
process, and conspiracy. Hoping to uncover evidence to support his claims of malicious
prosecution against attorney Boris Parker, appellant settled his claims with Vilana and
Vilenchik, in exchange for Vilenchik’s promises to waive his attorney-client privilege
and to turn over correspondence with Parker. The district court later dismissed
appellant’s remaining claims. We affirmed the dismissal of appellant’s claims.
Gregerson v. Vilana Financial, Inc., No. A10-0863, 2010 WL 4451820, at *1 (Minn.
App. Nov. 9, 2010), review denied (Minn. Jan. 26, 2011).
In 2010, the Crystal police department obtained two search warrants to investigate
alleged criminal activities of Vilenchik and the Vilana corporations unrelated to
appellant’s claims. The first search warrant was issued on probable cause to believe that
1
We provide a detailed factual history leading up to the operative facts giving rise to
appellant’s claims to enable the reader to understand the context of appellant’s claims in
this case.
2
Vilana’s premises were being used as an unlicensed massage parlor and authorized a
search for massage therapy equipment, advertising materials related to massage therapy,
and “computers and peripherals used to place online advertising, produce advertising
materials or schedule client appointments.” The second search warrant was issued on
probable cause to believe that Vilenchik had engaged in theft by swindle in the sale of a
fake diamond and authorized a search for financial and other records relating to diamonds
and “computers and peripherals used to maintain financial transaction records of the
diamond sale or used in the production of fictitious . . . papers.”
When executing the two search warrants, Crystal police officers seized several
computers. A Hennepin County forensic computer examiner “imaged the hard drives of
sixteen of the seized computers so that [he] could conduct forensic analysis of their
contents, within the parameters specified in the search warrants.”2 The examiner then
used 35 key words provided to him by Crystal police officers to determine whether the
hard drives contained evidence relevant to the theft-by-swindle and unlicensed-massage-
parlor investigations. The key words did not include “Christopher Gregerson, Boris
Parker, Vladimir Kazaryan, Michael Walker, Michael Zubitskiy, McShane, or the topics
‘malicious prosecution,’ or copyright.” The examiner downloaded the results of his
analysis onto a disc and gave it to the Crystal police department.
In April 2011, appellant sent a subpoena to the Hennepin County Sheriff’s Office
(HCSO) requesting copies of the hard drives. In response, Assistant Hennepin County
2
Complete copies of the hard drives were made for examination and remain in evidence
storage at the Hennepin County Sheriff’s Office. The seized hard drives were then
returned to their owners.
3
Attorney Toni Beitz informed appellant that the subpoena was improper and that the
HCSO would not release a copy of the hard drives without a court order. Appellant then
informed Beitz that he “wished the HCSO to deem [his] subpoena to be a request
pursuant to the MGDPA.” Beitz denied appellant’s request to access the hard-drive
images because the Crystal police department’s criminal investigation was “still formally
not closed” and “all data is technically still confidential.” But Beitz also explained that
the HCSO would not provide appellant with the hard-drive images even after the
investigation was final.
In June 2012, appellant contacted Beitz to ask whether the criminal investigation
was complete and when the statute of limitations would expire. He narrowed his request
to any documents regarding Boris Parker, Morgan Smith, or himself, including e-mails
and recorded conversations between Vilenchik and Parker. Beitz responded that “the
criminal investigation still has not been officially closed” and that the statute of
limitations was “three years or longer.” Beitz also advised appellant to address any
future requests to the Crystal police department or to the HCSO’s responsible authority,
respondent Major Tracey Martin.
In September, appellant contacted Martin to request access to “any documents
(email, letters, etc.) contained on the seized hard drives which are to, from, or mention
Boris Parker” and “any audio recordings tha[t] include the voice of, or mention, Boris
Parker.” Appellant also requested any documents or recordings that mentioned himself,
Kazaryan, Walker, Zubitskiy, McShane, malicious prosecution, or copyright. Martin
denied appellant’s request for data and told appellant to address all future inquiries to the
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City of Crystal because the HCSO “will not release any data without authorization from
the City of Crystal.”
In December, appellant made another request for data and requested “to be
informed if [he was] the subject of any of the data on the hard drive images identified in
[his] previous letter.” Martin again denied appellant’s request.
Appellant then sued respondents, alleging that “[he] is entitled to access or
receive, on an expedited basis, documents [he] requested from [respondents] under the
MGDPA.” Appellant requested the district court to (1) compel compliance with the
MGDPA, (2) grant declaratory relief, (3) authorize the disclosure of investigative data,
and (4) order that he “is entitled to have access to the data he requested in his MGDPA
requests” and compel respondents “to provide [him] with access to the requested data.”
Respondents moved for summary judgment, arguing that the district court could
not compel compliance with the MGDPA because appellant was seeking neither
government data nor investigative data under the MGDPA. Respondents also argued that
the requested information was protected under the United States and Minnesota
Constitutions. Appellant also moved for summary judgment, arguing that he was entitled
under the MGDPA to the data on the imaged hard drives that concerned him and his
dispute with Vilana and its affiliates. The parties agreed that there were no genuine and
material factual disputes.
The district court granted respondents’ motion for summary judgment and denied
appellant’s motion. The district court concluded that “the data requested by [appellant
do] not constitute ‘government data’ under the MGDPA,” nor were they “criminal
5
investigative data under the MGDPA.” Moreover, “a warrantless search of the data by
the HCSO, as requested by [appellant], would violate the Fourth Amendment and the
Minnesota Constitution.” As additional bases for denying appellant’s requested relief,
the district court noted that appellant failed to join Vilenchik as a party and failed to
demonstrate a bona fide legal interest because appellant was not entitled to the data. This
appeal followed.
DECISION
The MGDPA
regulates the collection, creation, storage, maintenance,
dissemination, and access to government data in government
entities. It 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 (2012). “The purpose of the MGDPA is to reconcile the
rights of data subjects to protect personal information from indiscriminate disclosure with
the right of the public to know what the government is doing. The Act also attempts to
balance these competing rights within a context of effective government operation.”
KSTP-TV v. Ramsey Cnty., 806 N.W.2d 785, 788 (Minn. 2011) (quotation omitted).
The district court concluded that the MGDPA’s definition of “government data”
was ambiguous as applied here before concluding that “government data” means “only
the specific data collected by the Crystal [police department] for its criminal
investigation” and “used for a governmental purpose.” Appellant challenges the district
6
court’s determination that the data he requested were not “government data” under the
MGDPA.
We review the district court’s statutory interpretation of the MGDPA de novo.
KSTP-TV, 806 N.W.2d at 788; see also Schwanke v. Minn. Dep’t of Admin., 851 N.W.2d
591, 594 n.1 (Minn. 2014) (applying de novo review to the “legal question[s] of statutory
interpretation” when the MGDPA is unambiguous in context (quotation omitted)).
Our supreme court recently explained that “‘[d]ata’ are ‘facts that can be analyzed
or used in an effort to gain knowledge or make decisions’ or, more broadly, are
‘information.’” Schwanke, 2014 WL 3844200, at *2 (quoting The American Heritage
Dictionary of the English Language 462 (5th ed. 2011)). “Government data” are “all data
collected, created, received, maintained or disseminated by any government entity
regardless of [their] physical form, storage media or conditions of use.” Minn. Stat.
§ 13.02, subd. 7 (2012). Here, a government entity, the HCSO, collected and maintains
data that could be analyzed in the future with a proper warrant. Therefore, the data on the
imaged hard drives are “government data” under the MGDPA.3
Although the data are “government data,” we hold that appellant is not entitled to
receive copies of or search the hard drives for the information he seeks. Under the
MGDPA, government data can be “classified by statute, federal law, or temporary
classification as confidential, private, nonpublic, or protected nonpublic [data].” Id.,3
Respondents do not dispute that appellant seeks “data” or that the HCSO is a
“government entity” under the MGDPA. They argue that the data are neither
“government data” nor “investigative data.”
7
subd. 8a; see also Minn. Stat. § 13.03, subd. 1 (2012) (explaining that government data
are public unless federal or state law classify the data as private or confidential).
“The United States and Minnesota Constitutions protect ‘the right of the people to
be secure in their persons, houses, papers, and effects, against unreasonable searches and
seizures.’” State v. Diede, 795 N.W.2d 836, 842 (Minn. 2011) (quoting U.S. Const.
amend. IV) (citing Minn. Const. art. I, § 10). “A search conducted without a warrant
issued upon probable cause is generally unreasonable.” State v. Flowers, 734 N.W.2d
239, 248 (Minn. 2007). A search “occurs upon an official’s invasion of a person’s
reasonable expectation of privacy. A reasonable expectation of privacy exists as to areas
and objects in which the person invoking the Fourth Amendment has a subjective
expectation of privacy that society is prepared to recognize as reasonable.” State v.
Johnson, 831 N.W.2d 917, 922 (Minn. App. 2013), review denied (Minn. Sept. 17, 2013).
But “the reasonableness of a person’s expectation of privacy is appraised on the basis of
the facts as they existed at the time the invasion occurred.” Id. at 923 (quotation
omitted).
In Johnson, police officers obtained a search warrant authorizing seizure of the
appellant’s computer hard drive to search for evidence of child pornography. Id. at 920.
An officer seized the appellant’s computer hard drive when executing the search warrant,
but the hard drive was not analyzed until seven months later. Id. The appellant argued
that the eventual forensic analysis amounted to a warrantless search. Id. at 920-21. We
explained that “a person has the same reasonable expectation of privacy in the concealed
digital contents of a cellular telephone [or computer hard drive] as a person has in the
8
concealed physical contents of a container.” Id. at 922 (quotation omitted). But “once
the government lawfully seizes a container during the execution of a warrant authorizing
the search of the container for particularly identified evidence, the owner’s expectation of
privacy in that evidence is frustrated.” Id. at 924 (quotation marks omitted). Because
there was no substantial likelihood that the appellant in that case had changed the
contents of the hard drive after it was seized and because the hard drive was searched
only for the evidence sought in the search warrant, the appellant did not have an
expectation of privacy in the material on the hard drive that was identified in the warrant.
Id.
Here, the two search warrants were issued based on probable cause to believe that
Vilana’s premises were being used as an unlicensed massage parlor and that Vilenchik
had engaged in theft by swindle. The warrants authorized only a search of the computer
drives for information related to those two specific crimes. As in Johnson, the Crystal
police officers lawfully seized the hard drives, which were the equivalent of “containers”
of the data sought by police. See id. “Therefore, the execution of the warrant[s]
‘frustrated’ and terminated [Vilenchik’s and Vilana’s] expectation of privacy in the hard
drive[s] and the digital contents identified in the warrant.” See id. (emphasis added). But
the execution of the warrants did not frustrate any expectation of privacy in other data
contained on the hard drives and not identified in the warrant. See United States v.
Carey, 172 F.3d 1268, 1270, 1276 (10th Cir. 1999) (explaining that police officers should
generally perform a keyword search of computer files for specific terms sought by the
search warrant, and suppressing evidence of child pornography on a computer hard drive
9
when the warrant authorized a search for evidence of drug trafficking). Any search of the
hard drives for the data appellant now seeks would be a warrantless search and would
invade Vilenchik’s reasonable expectation of privacy.4 See Johnson, 831 N.W.2d at 922.
Therefore, a search of the hard drives for the data appellant requested would violate the
Fourth Amendment rights of the owner(s) of the hard drives.
The United States Supreme Court recently held that police officers “must
generally secure a warrant” before searching the cell phones of recently arrested
individuals. Riley v. California, 134 S. Ct. 2473, 2485 (2014). Like the cell phones in
Riley, the hard drives here contain a large quantity of private information, which police
officers cannot lawfully search without a warrant. See id. at 2489, 2494-95 (explaining
that cell phones differ from other types of searchable containers because they contain
every piece of information about the individual for the past several months or more).
And, like the searches of the cell phones in Riley, there is no evidence that any exception
to the warrant requirement would justify a warrantless search of the hard drives for
appellant’s information. See id. at 2494 (explaining that “other case-specific exceptions
may still justify a warrantless search of a particular phone,” but that no such exceptions
applied). Contrary to appellant’s suggestion, a search of the hard drives is not equivalent
to an inventory search, see Colorado v. Bertine, 479 U.S. 367, 372, 107 S. Ct. 738, 741
(1987) (defining an inventory search), or a “one-time screening” of a President’s papers
as authorized by law, see Nixon v. Adm’r of Gen. Servs., 408 F. Supp. 321, 361 n.56
4
The district court observed that appellant should have joined Vilenchik as a party to this
lawsuit because the data on the hard drives that was not subject to the search warrants
belongs to him and his expectations of privacy in that data have not been disturbed.
10
(D.D.C. 1976) (allowing a warrantless search of President Nixon’s papers according to
federal law), aff’d, 433 U.S. 425, 97 S. Ct. 2777 (1977). The owner(s) of the data on the
hard drives continue(s) to have a reasonable privacy expectation in the data, except to the
extent of the warrants authorizing seizure of the drives for specific and limited purposes.
Making the data on the hard drives available for public inspection under the MGDPA
under these circumstances would be inconsistent with the constitutional principles
underlying Riley. Simply stated, the government collected data on the seized hard drives
but may not constitutionally access or inspect the data except as authorized by the
warrants.
Appellant has commendably briefed the issues, but his argument assumes that,
because the data are “government data” under the MGDPA, he is entitled to the data. But
appellant ignores the next step in the analysis. Because the owner(s) of the hard drives
continue(s) to have a reasonable expectation of privacy concerning all data on those hard
drives not authorized to be accessed by the search warrants, the data are either
“confidential data on individuals” or “protected nonpublic data.” See Minn. Stat. § 13.02,
subds. 3, 13 (2012). Federal constitutional law prohibits the seizure or inspection of the
contents of the data beyond the scope of the search warrants. Even if data concerning
appellant is contained on the hard drives collected by police officers pursuant to the
search warrants, those warrants did not authorize the government to search for or collect
that data. The reasonable expectation of privacy of the owner(s) of the hard drives in the
contents thereof has not been extinguished or overcome. We therefore hold that the data
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not authorized by the search warrants to be accessed by the government are inaccessible
to appellant or any other person under the MGDPA.
Appellant also argues that the Fourth Amendment does not apply to a search
conducted by a private individual like himself. In United States v. Jacobsen, airport
employees examined a damaged package and discovered a white powdery substance,
which police officers later determined to be cocaine. 466 U.S. 109, 111, 104 S. Ct. 1652,
1655 (1984). The United States Supreme Court explained that “[t]he initial invasions of
respondents’ package were occasioned by private action” and that such private action
does not violate the Fourth Amendment. Id. at 115, 104 S. Ct. at 1657. Citing Jacobsen,
appellant argues that his private search of the hard drives cannot violate the Fourth
Amendment. But appellant asks the HCSO to conduct an additional search of the hard
drives for data beyond the scope of the search warrants. Such a search involves
government action, not private action, and triggers Fourth Amendment protection. See
id. at 113, 104 S. Ct. at 1656.
The district court did not err in granting summary judgment to respondents.
Affirmed.
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