December 1, 2000; Minnesota Department of Employee Relations
12/1/2000 10:15:43 AM
This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.
Facts and Procedural History:For purposes of simplification, the information presented by the person who requested this opinion and the response from the government entity with which the person disagrees are presented in summary form. Copies of the complete submissions are on file at the offices of IPA and, except for any data classified as not public, are available for public access. On August 14, 2000, the Commissioner received a letter dated August 11, 2000, from X. In his/her letter, X asked the Commissioner to issue an opinion regarding X's access to certain data that the Minnesota Department of Employee Relations (DOER) maintains. IPA staff began discussions with X about the requested advisory opinion. Included in these discussions was the need for a delay in accepting the request due to a marked increase in the number of advisory opinions being requested by several individuals and entities. It was agreed that the Commissioner would issue an opinion on the matter listed below. X also submitted a letter to that effect dated September 19, 2000. IPA, on behalf of the Commissioner, wrote to Julien Carter, Commissioner of DOER, in response to X's request. The purposes of this letter, dated October 5, 2000, were to inform him of X's request and to ask him to provide information or support for the Department's position. On October 13, 2000, IPA received a response, dated same, from Commissioner Carter. A summary of the facts is as follows. In a letter dated July 13, 2000, X asked to visually inspect all public and private data about him/her that have been collected, created, stored, maintained, or disseminated by all divisions of the Minnesota Department of Employee Relations from January 1, 1990 to the present day. In a letter dated July 18, 2000, Commissioner Carter wrote to X and stated, In response to your letter faxed to my office on July 13, 2000 you will find the public and private data relating to you...All such items are being provided to you. These are all of the records in the possession of our department. In a letter dated July 25, 2000, X wrote to Commissioner Carter. X stated, I have received part of the information that I requested...However, you have not provided access to the emails that I requested nor to other information about me that I know was generated by your department. In a letter dated August 9, 2000, Commissioner Carter wrote to X: There are no further documents that meet the description of emails and other documents' about you generated' by or in the possession of this department. In X's opinion request, s/he wrote, Mr. Carter provided part of the data, but has not provided documents that I was told by other state agencies exist in his department. Issue:In his/her request for an opinion, X asked the Commissioner to address the following issue:
Discussion:Pursuant to Minnesota Statutes, section 13.04, when a data subject requests access to data about him/herself, a government entity is required to respond within ten working days. In his comments to the Commissioner, Commissioner Carter wrote: On September 21, 2000, DOER received by facsimile yet another letter from X...On September 26, 2000, I responded in writing...At the time I sent that response, it was our belief that we had provided X with all private and/or public data to which [X] was entitled. The only items that we withheld at that time were e-mails to and from DOER's attorney's regarding the handling of X's current requests. Since our contacts with our attorneys were then on-going, we did not notify X that these e-mails were being withheld. As you know, such e-mails are protected by attorney/client privilege and not accessible to X. On Tuesday, October 10, 2000, while in the process of preparing this response, one of my staff discovered some additional documents pertaining to X, that we had not been aware of when I sent X my letter, dated September 26, 2000. Those documents contain some e-mails and other notes from 1998, pertaining to X's...and are being sent to [him/her] to supplement DOER's response. Accordingly, to the best of our knowledge, we have now sent X all the documents pertaining to [him/her] to which [s/he] is entitled. In the case of this opinion, X requested data on July 13, 2000. DOER provided some data on July 18, 2000, but later located additional data it sent to X apparently sometime around the date of Commissioner Carter's October 13, 2000, response to X's opinion request. Pursuant to Section 13.04, DOER should have provided all data responsive to X's request within ten working days. This did not happen. In addition, pursuant to section 13.03, subdivision 1, government entities are required to keep records containing government data in such an arrangement and condition as to make them easily accessible for convenient use. Commissioner Carter wrote that DOER located the second batch of data while staff were in the process of responding to this opinion request; this does not suggest that DOER is maintaining its records so they are easily accessible upon request. In his response, Commissioner Carter also stated that some e-mails are protected by attorney/client privilege and are not accessible to X. Commissioner Carter also cited section 13.30, attorney data: Notwithstanding the provisions of this chapter and section 15.17, the use, collection, storage, and dissemination of data by an attorney acting in a professional capacity for the state, a state agency or a political subdivision shall be governed by statutes, rules, and professional standards concerning discovery, production of documents, introduction of evidence, and professional responsibility; provided that this section shall not be construed to affect the applicability of any statute, other than this chapter and section 15.17, which specifically requires or prohibits disclosure of specific information by the attorney, nor shall this section be construed to relieve any responsible authority, other than the attorney, from duties and responsibilities pursuant to this chapter and section 15.17. The Commissioner has discussed the applicability of section 13.30 in previous advisory opinions. In Advisory Opinion 95-045, the Commissioner wrote: As discussed in Commissioner's Advisory Opinion 95-040, the Commissioner believes the intent behind and the purpose of Section 13.30 is to clarify that the use, collection, storage, and dissemination of data by attorneys acting in their professional capacities are controlled by statutes, rules, and professional standards which relate to discovery, production of documents, introduction of evidence, and professional responsibility. In other words, if certain data are protected, as an attorney's work product, pursuant to a particular statute, rule, or professional standard, no provision in Chapter 13 or Section 15.17 supersedes and/or alters the classification or treatment of those data. It should be noted, however, that the last phrase of Section 13.30 indicates the Legislature did not intend for this Section to relieve responsible authorities, other than attorneys, from their duties and responsibilities under Chapter 13 or Section 15.17. Otherwise, a government entity could effectively shield any data it did not wish to disclose, by turning the matter over to its attorney. If Mr. Krafts' logic were accepted, anything an attorney did related to the use, collection, storage, and dissemination of data could be exempted from regulation under Chapter 13. By including the last phrase of Section 13.30, the legislature clearly intended to prevent just such an occurrence. Denying access to data based on attorney/client privilege is somewhat different than denying access based on section 13.30. When an entity claims attorney/client privilege, it is asserting that communications have occurred between itself and its attorney and that those communications are protected. In this case, Commissioner Carter stated, The only e-mails withheld from X are those pertaining to our correspondence with our attorneys regarding X's request for data. It appears, therefore, that DOER is denying access to the e-mails based on attorney/client privilege. This is appropriate; DOER can properly withhold such data from X. Finally, at the time X requested his/her opinion, there was a factual dispute regarding whether DOER had provided X with all data responsive to his/her request. After requesting this opinion, DOER provided additional data to X. However, even at this point, the Commissioner cannot determine, with absolute certainty, whether DOER has responded fully to X's request for all public and private data about him/herself. Opinion:Based on the facts and information provided, my opinion on the issue that X raised is as follows:
Signed: David F. Fisher
Dated: December 1, 2000 |
Response to data requests
Attorney data
Attorney-client privilege (595.02)
