August 28, 2001; Le Sueur County Sheriff
8/28/2001 10:14:43 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 HistoryFor purposes of simplification, the information presented by the entity that requested this opinion 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 July 10, 2001, IPA received a letter, dated July 3, 2001, from Carla Mador, Data Practices Compliance Officer for the Le Sueur County Sheriff's Department. In her letter, Ms. Mador asked the Commissioner to issue an opinion regarding the classification of certain data that the Sheriff's Department maintains. A summary of the facts is as follows. Ms. Mador wrote that at a specific point in time, an individual requested and signed a Victim and/or Witness Identity Protection form... Ms. Mador provided to the Commissioner a copy of the form. She wrote: ...The question now arises with what previous and current reports can be released under the Data Practices Act, Section 13.82, Subd. 10(d), allowing a law enforcement agency to withhold public access to data that the victim believes could/would be harmful to his/her personal safety....Even though [the individual] did not sign the Identity Protection Form until approximately four (4) years after the initial incidents, does that allow for release of all prior contacts or does that seal all files and is the victim's concern over [his/her] health and well being reason enough to withhold this information... Issue:In her request for an opinion, Ms. Mador asked the Commissioner to address the following issue:
Discussion:Data that law enforcement agencies, such as the Le Sueur County Sheriff's office, maintain are classified pursuant to Minnesota Statutes, 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 particular events. One of the circumstances in which data are never public is when those data qualify for protection under subdivision 17. Subdivision 17 classifies certain identification data as private; of relevance to this opinion are identifying data about victims or witnesses. In relevant part, section 13.82, subdivision 17, states: A law enforcement agency...shall withhold public access to data on individuals to protect the identity of individuals in the following circumstances... (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... Data concerning individuals whose identities are protected by this subdivision are private data about those individuals. Law enforcement agencies shall establish procedures to acquire the data and make the decisions necessary to protect the identity of individuals described in...(d)... Given the language of subdivision 17, law enforcement agencies, in essence, must complete a two-part evaluation prior to treating victim/witness identification data as private. First, the individual must request that his/her name be protected from public disclosure. Second, the agency must determine that if it did reveal the individual's identity, the individual's personal safety or property would not be threatened. If the agency determines that the release of identifying data would threaten the personal safety or property of the individual, the agency must treat the identifying data as private and must not release those data to the public. However, the agency must continue to treat as public other public data that do not identify the individual; in other words, the agency should release any such data upon request. The Commissioner has the following comments regarding this opinion. Ms. Mador stated that X requested that the Sheriff's office protect his/her identity. However, Ms. Mador did not provide any information indicating that the Sheriff's office had determined that releasing X's identity would or would not threaten his/her personal safety or property. (The Sheriff's office has been using a form entitled Victim and/or Witness Identity Protection. However, this form contains only the relevant statutory language [section 13.82, subdivision 17] and a blank space for the signature of the individual who has requested that the Sheriff's office protect his/her identity.) In addition, Ms. Mador provided no information to suggest that the Sheriff's office has established any of the data protection procedures discussed in section 13.82, subdivision 17. The development and existence of such procedures presumably would assist the Sheriff's office in determining how to evaluate each situation, and to ensure consistency in making these determinations. Ms. Mador also raised the question of how one determines what is meant by the personal safety of an individual. The Legislature did not define this term for the purposes of Chapter 13. Therefore, the Commissioner recommends that each agency make such a determination using reasonableness and common sense. For instance, if an individual is a witness to a serious crime and the perpetrator has threatened the safety of this individual, i.e., threatened to harm the witness and his/her family, and would be able to locate the witness if the witness' identifying data were released, it would seem the Legislature intended that the agency withhold the witness' identity. Again, each agency must rely on reasonableness, common sense, its own in-depth knowledge of the facts, and the procedures the agency has developed pursuant to section 13.82, subdivision 17. Finally, the Commissioner has the following comments about Ms. Mador's question regarding which data are protected when a victim/witness requests and an agency determines that identifying data must be withheld. In section 13.82, subdivision 17, the Legislature has made a clear statement that law enforcement agencies must withhold identifying victim/witness data when both criteria in the two-step evaluation process have been met. Although the Legislature did not clearly specify the scope of the protection, it seems reasonable for the agency to withhold all identifying data it maintains about a victim/witness if those data have any direct or remote connection to the situation that caused the victim/witness to request identity protection. In the case of this opinion, if, for example, X requested identity protection in 1996 and the Sheriff's office determined that releasing X's identity would threaten X's personal safety or property, the Sheriff's office must protect data which identify X, and which exist in any files relating to the event(s) that caused X to feel threatened, regardless of when the Sheriff's office collected or created those data. If the identifying data existed in the Sheriff's office prior to 1996, the Sheriff's office must protect those data. If the Sheriff's office has collected or created identifying data since 1996 that relate to the original event(s) that caused X to feel threatened, the Sheriff's office must also protect those data. The Commissioner points out, however, that it would be administratively prudent for the Sheriff's office to keep its evaluation process up to date. In other words, each time there is new data collection and X, or any other citizen, is either a victim or a witness, the Sheriff's office should follow its procedure(s) and conduct the two-part evaluation. Opinion:Based on the facts and information provided, my opinion on the issue that Ms. Mador raised is as follows:
Signed:
David F. Fisher
Dated: August 28, 2001 |
Law enforcement data
Legislative authority and intent
Protected identities (13.82, subd. 17 / subd. 10)
Law enforcement data
