Discussion:

At the outset, the Commissioner wishes to note the following. In his comments, Mr. Anfinson stated: these are complex issues, derived from statutes that can be difficult to apply. The Commissioner agrees with Mr. Anfinson's assessment. Here, there is a juvenile who is a witness as well as an alleged victim, and who also may be charged with delinquent acts. In order to determine the classification of the juvenile's name, various provisions of Minnesota Statutes, section 13.82, and section 260B.171, must be harmonized.

In addition, The Daily Journal published the name of the juvenile before the matter of the data request was formally resolved between Mr. Anfinson and Ms. Hasbargen, which led to confusion as to the status of the request. This kind of confusion may be avoided if the parties communicate clearly with one another, preferably in writing. According to section 13.03, subdivision 3, at the time a government entity denies access to data a requestor believes are public, the entity is obligated to state its reasons for the denial, and, upon request, to provide a written statement as to those reasons. The Commissioner encourages both parties in cases like these respectively to comply with their responsibilities and to exercise their rights under Chapter 13.

As to the substance of the issue under discussion, data collected and maintained by law enforcement agencies are classified at section 13.82. According to section 13.82, certain law enforcement data are always public, certain law enforcement data are never public, and certain law enforcement data may become public depending on the occurrence of certain events. Subdivisions 2, 3 and 6 (arrest, request for service, and response or incident data) specify law enforcement data that are always public. Those data were specified in order to ensure that they could not be withheld from the public as active criminal investigative data under subdivision 7, which classifies criminal investigative data as not public while an investigation is active.

Under section 13.82, subdivision 6(g) and (h), names and addresses of any witnesses or victims are public unless the identities of those individuals qualify for protection under section 13.82, subdivision 17. Subdivision 17, clauses (d) and (g), provide that otherwise public data may be withheld:

(d) when access to the data would reveal the identity of a victim of or witness to a crime if the victim or witness specifically requests not to be identified publicly, unless the agency reasonably determines that revealing the identity of the victim or witness would not threaten the personal safety or property of the individual;

(g) when access to the data would reveal the identity of a juvenile witness and the agency reasonably determines that the subject matter of the investigation justifies protecting the identity of the witness.

According to Ms. Hasbargen,

It was felt by the Sheriff's office and the County Attorney's Office that releasing the name would increase the pressures in the situation to the detriment of the juvenile's (and his family's) health and welfare. Also, under Minn. Stat. section 13.82 subd. 17 (g) it was reasonable to determine that the subject matter of the investigation justified protecting the juveniles [sic] identity given Minn. Stat. section260B.171 . . . with the possibility of criminal charges against the juvenile.

In this situation, the juvenile's parent requested that the County withhold the child's identity, and Ms. Hasbargen stated that the County determined that it was appropriate to do so under section 13.82, subdivision 17 (d) and (g). It is not clear if the parent's request preceded the request from The Daily Journal, and it is also not clear that the County has established the process necessary to evaluate that kind of request, as it is obligated to do under section 13.82, subdivision 17, which states: [l]aw enforcement agencies shall establish procedures to acquire the data and make the decisions necessary to protect the identity of individuals described in clauses (c), (d), (f), and (g). The Legislature specifically required law enforcement agencies to establish procedures to ensure not only the protection of the identity of certain individuals, including victims or witnesses, but also to assure the public that those agencies were following straightforward procedures in making those determinations.

Furthermore, it was Mr. Anfinson's understanding, based upon his conversation with Ms. Hasbargen, that none of the exceptions under subdivision 17 were applicable here. In his September 10, 2003, letter, Mr. Anfinson stated:

Neither the sheriff's department nor the county attorney's office ever indicated to us that the reason the victim's name could not be disclosed was that his mother (or the victim himself) has requested this. Indeed, the first we heard of that basis for withholding the name was in the county attorney's September 5 letter. In addition, no other specific legal grounds for withholding the name were ever provided.

Mr. Anfinson questioned whether the circumstances of the incident warrant protection of the juvenile's identity. The Commissioner acknowledges the reasonableness of his position. However, the County ultimately is in the best position to make that judgement. Therefore, the Commissioner accepts the County's position that it properly relied upon section 13.82, subdivision 17 (d) and (g), as its basis for withholding the identity of the juvenile, but wishes to emphasize the following: in order properly to protect a witness/victim identity, two things must happen. First, the victim/witness (or, in the case of a juvenile, the parent) must request that his/her identity be protected. Second, the law enforcement agency must make a determination, as set forth in subdivision 17, that the circumstances warrant honoring that request.

The County's position would have been stronger had it provided the Commissioner with a copy of its section 13.82, subdivision 17, procedures. If it has not established those procedures, it should do so promptly.

Ms. Hasbargen also stated that the data were properly withheld under section 260B.171, subdivision 5:

During the investigation, the issue of whether there were criminal acts on the part of all the juveniles involved in the incident was raised, from trespass to criminal damage to property. Under [section 260B.171] juvenile delinquency information is private data and shall not be disseminated. Because this matter was still under investigation, without a determination of who - if anyone - would be charged; and because there was the possibility of a delinquency action against the juvenile, the information was appropriately not disclosed.

At the time of the data request, the County was not sure if the juvenile would be charged with a crime, and therefore the County was obligated to withhold the juvenile's identity, pursuant to section 260B.171, subdivision 5(a), which provides that peace officers' records of children who are or may be delinquent or who may be engaged in criminal acts are private data. (The Commissioner wishes to note that, in general, if no charges are considered against a juvenile who is a witness/victim, the juvenile's identity would be public under both section 13.82 and 260B.171, except as section 13.82, subdivision 17, applies. As noted earlier, this analysis is complicated by the fact that in this situation, the juvenile is apparently a witness/victim as well as a possible perpetrator.)

Ms. Hasbargen also stated that section 13.82, subdivision 7, was applicable because the matter was under investigation at the time the request was initially made. Subdivision 7 classifies as not public data related to an active criminal investigation, except for the data defined in subdivisions 2, 3, and 6, which, as noted above, are always public. (The name of a juvenile witness is included in those exceptions, unless the identity qualifies for protection under section 13.82, subdivision 17.) Accordingly, the County may not rely upon section 13.82, subdivision 7, as a basis for its denial of access to the data.

Ms. Hasbargen also cited section 13.82, subdivision 14, as a basis for withholding otherwise public data. She stated that not all juveniles involved in the incident were identified and talked to by law enforcement at the time the request was made; and if knowledge of potential charges to all involved juveniles was known, the names of the all [sic] may not have been forthcoming.

That subdivision provides: [a] law enforcement agency may temporarily withhold response or incident data from public access if the agency reasonably believes that public access would be likely to endanger the physical safety of an individual or cause a perpetrator to flee, evade detection or destroy evidence. In such instances, the agency shall, upon the request of any person, provide a statement which explains the necessity for its action. The County is in the best position to determine whether this provision applies to the circumstances here. However, upon request, government entities must provide an explanation for their actions.

Finally, Ms. Hasbargen stated that section 13.82, subdivision 16, is applicable, as the issue between public and confidential data could not be separated, with law enforcement appropriately withholding the juvenile's name. The Commissioner respectfully disagrees. Subdivision 16 states that actual physical data does not have to be made available to the public if it is not administratively feasible to segregate the public data from the confidential. However, the agency must make the information described as public data available to the public in a reasonable manner. The name of an individual is not physical data as contemplated by this provision, and in any case, this provision is not a basis to deny access to public data.

Opinion:

Based on the facts and information provided, my opinion on the issue raised by Mr. Anfinson is as follows:

Signed:

Brian J. Lamb
Commissioner

Dated: October 13, 2003