We Smoked 'Em

Court of appeals agrees: City Pages can examine tobacco settlement records

In the days immediately following the May 1998 settlement of Minnesota's lawsuit against the tobacco industry, then-state Attorney General Skip Humphrey and Mike Ciresi, the lawyer who was the architect of the suit, became darlings of the national news media. Humphrey was even photographed taking a victory lap in downtown St. Paul near the federal courthouse where the trial had taken place.

The attorneys celebrated the deal as a windfall for the state, which was slated to receive $6.1 billion, and its co-plaintiff, Blue Cross, Blue Shield of Minnesota. They also boasted that the suit had forced the industry to cough up a literal warehouse full of damning documents describing exactly what cigarette makers knew about tobacco's ill effects and how early on they knew it.

As it turns out, the public wasn't treated to all of the information at hand. Under the terms of Ciresi's agreement with the state and Blue Cross, his private firm had prepared monthly statements including time spent on the case and expenses incurred. Before the glad-handing had died down, however, Humphrey's staff packed up the records and sent them back to the law firm.

Last week, four and a half years after the settlement, the Minnesota Court of Appeals ruled that City Pages can see those documents. The decision is the latest twist in a three-year-old lawsuit brought by the newspaper, which maintains that the records belong to the public.

"It's very gratifying and important, given how significant the tobacco litigation was," says City Pages attorney Mark Anfinson. "There is a real irony here that this is the last group of secret documents in the tobacco litigation. The tens of thousands of pages of records the tobacco companies were forced to divulge as a part of the litigation--including quite a bit that was claimed to be attorney-client privileged by the companies--is a sharp contrast to the efforts that have been invested in maintaining the secrecy of the billing records."

Like most product liability attorneys, Ciresi was to be paid with a portion of any damages recovered. When the case settled, he negotiated a separate deal with the defendants in which the cigarette makers would pay his firm hundreds of millions of dollars directly. The size of that fee ultimately raised eyebrows across the state. The grumbling turned into an outcry the following year when Ciresi, a longtime DFL financial supporter, announced a run for U.S. Senate.

"By entering the political fray, Ciresi is virtually daring the Minnesota press and his opponents to do what few have done to date," St. Paul Pioneer Press writer D.J. Tice opined in an October 1999 editorial. "He's daring them to scrutinize the eye-popping $440 million fee his Robins, Kaplan, Miller & Ciresi law firm is collecting for representing Minnesota in its celebrated lawsuit against the tobacco industry."

In May 2000, City Pages asked to see the records. By that time the election was over, Humphrey and Ciresi had lost their respective bids for higher office, and Mike Hatch had replaced Humphrey as attorney general. Hatch did not argue that the records weren't public, but he did deny the paper's request on the grounds that Ciresi's firm had the documents.

In October, the newspaper sued. "Somebody had to do it," says City Pages publisher Mark Bartel. "A lot of money was made on this suit, and we felt that this was public information. None of the other local news media seemed to be stepping up."

The state's open records law, Anfinson asserted in the initial filing, presumes that government data are public unless specifically exempted. "It is the declared public policy of this state that all citizens are entitled to the greatest possible information regarding the operations of their government," he argued.

Blue Cross, insisting that the records were private communications between the company and its attorneys, argued that the action should be dismissed outright. In September 2001, Ramsey County District Court Judge Michael F. Fetsch ruled that the attorney-client privilege covered everything in the records and overrides the state's Data Practices Act. City Pages appealed.

On January 28 the appeals court ruled that the documents should be made public because they went not just to Blue Cross, but to a state agency. Moreover, the justices noted, the attorney-client privilege is not applicable in this case. "Much of the information in [the records] is not confidential and much of it would have been disclosed regardless of the existence of the privilege," wrote Judge Thomas Forsberg.

Blue Cross has 30 days in which to decide whether to appeal the decision to the Minnesota Supreme Court, which would then have to decide whether to hear the case. It's a good guess it will. And even if the records are ultimately made public--something that might not happen for months or more--a trial-court judge still must review the documents in private before their release, to determine how many might indeed be protected by attorney-client privilege.

In any case, the impact of the decision will be far-reaching. "This will apply to billing records by attorneys throughout Minnesota," says Anfinson. "And there are millions and millions and millions of dollars paid by government agencies throughout the state to private law firms, often well earned, often appropriately, but not always. And without the ability to scrutinize the invoices, there's no chance of bringing some accountability to that practice."

 
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