Discussion:

Issue 1:

Did Hennepin County comply with Minnesota Statutes, Chapter 13, in its determination regarding a June 23, 2004, request for copies of data?

When an individual requests access to government data of which s/he is the subject, the government entity must respond within ten working days. (See Minnesota Statutes, section 13.04, subdivision 3.) Pursuant to section 13.02, subdivision 8, a parent may gain access to private data about his/her child.

In his comments to the Commissioner, Mr. Katzman wrote:

[X] sent [X's] initial data request to Daniel Engstrom on June 23, 2004....On July 6, 2004 (the eighth business day after [X's] request), Ms. Wolf called [X] and spoke with [X] regarding [X's] request, as well as advising [X] that there would be a charge for the data. In connection with the charge, she faxed [X] Hennepin County's policy regarding charges. Ms. Wolf's understanding was that [X] would get back to her as to how [X] wanted her to handle the data request, in light of the fact that there would be charges involved....

[X] never responded to Ms. Wolf. Instead, [X] wrote to Mr. Engstrom a second time on July 27, 2004, saying, Since {the July 6 phone call and fax from Ms. Wolf} I have not received any communications regarding the fulfillment of my requests. My clients would respectfully submit that the responsibility shifted to [X] to get back to Ms. Wolf...to tell her how [X] wanted her to proceed....In fact, [X] had already been told by Ms. Wolf that there would be charges for copies, and what is more, she provided [X] with the county's policy regarding those charges and what the per page amount would be....

Ms. Wolf again responded in a timely fashion by calling [X] on August 2nd, and left [X] telephone messages to clarify how [X] wished to proceed to review [X's child's] case record and other requested information. (See Ruth Wolf's letter of August 11, 2004). Again, she received no written or oral response from [X]. In a further attempt to comply with [X's] request, Ms. Wolf wrote to [X] on August 11, 2004....Again, instead of contacting Ms. Wolf, [X] again wrote to Mr. Engstrom on Aug. 13, 2004. Once again, [X] acknowledges that On 8/2/04 Ms. Wolf called again and left a message on my answering machine. But rather than call her back and arrange to inspect the records consistent with [X's] earlier suggestion in [X's] July 27 letter, [X] inexplicably wrote to Mr. Engstrom again on August 13, 2004.

Ms. Wolf made further attempts to comply with [X's] data request. On August 18, she again left a message on [X's] answering machine regarding [X's] request to review [X's] child's file. [X] failed to return her call or otherwise respond. On August 23, 2004, Ms. Wolf contacted [X] and let [X] know that [X's child's] file was available for review. [X] again chose not to review it. [X] acknowledges this call in [X's] letter to you dated Sept. 8....

X requested copies of data in a letter dated June 23, 2004. Pursuant to section 13.04, subdivision 3, the County was obligated to respond within ten business days. Here, because X requested copies and the County's policy states that, generally, it collects fees up front, communication between the parties needed to occur prior to X receiving the data. There is no dispute that Ms. Wolf spoke with X by telephone on the eighth business day and faxed X a copy of the County's policy on Copy and Data Fees.

However, from that point on, the Commissioner cannot determine whether it was the County or X who did not follow through to ensure that X received copies of the data s/he requested. According to Mr. Katzman, Ms. Wolf understood that X would get back to her to as to how [X] wanted her to handle the data request. X's July 27, 2004, letter suggests that, perhaps, X was expecting additional communications regarding the fulfillment of [X's] requests. If X does not yet have copies of the data s/he requested in June 2004, the Commissioner urges both parties to work to resolve the matter promptly.

Issue 2:

Did Hennepin County comply with Minnesota Statutes, Chapter 13, in its determination regarding an August 13, 2004, request for all data used in calculating the fee, including a breakdown of all component costs?

Pursuant to Minnesota Statutes, section 13.03, when a government entity receives a data request from an individual who is not the subject of the data, the entity is required to respond in an appropriate and prompt manner and within a reasonable time. (See section 13.03, subdivision 2(a), and Minnesota Rules, section 1205.0300.)

In his comment to the Commissioner, Mr. Katzman wrote, Ms. Wolf had not received [X's August 13, 2004, letter] and, while I have no doubt that [X] sent it, my clients could find no record of having received it. Thus, my clients have not responded to it. Accordingly, we will respond at this time.

Mr. Katzman attached a copy of a memo from the county's senior program analyst, who originally did the research and study on how that per page cost should be determined. It clearly breaks down the component costs. Mr. Katzman stated that a copy of the memo was being provided to X.

The Commissioner has the following comments. First, she is puzzled by Mr. Katzman's assertion that the County did not receive the August 13, 2004, letter. Mr. Katzman referred to the letter in his comments regarding Issue 1 and made no mention of the County not having received the letter. Then, in regard to Issue 2, Mr. Katzman states that the letter was not received. Either the County did or did not receive the letter, but the Commissioner cannot make a certain determination. If the County did receive the letter, it did not respond in a timely manner. If the County did not receive the letter, it had no obligation to respond.

Second, X asked to be provided with the fee and a copy of all data used in calculating the fee, including a breakdown of all component costs. It is the perspective of the Commissioner that, while the County's memo represents a breakdown of the copy fee, it is not clear if it represents all data used in calculating the fee. The Commissioner reminds her readers that pursuant to Minnesota Statutes, section 15.17, subdivision 1, All officers and agencies of [government entities]... shall make and preserve all records necessary to a full and accurate knowledge of their official activities. Section 15.17, subdivision 4, states, Access to records containing government data is governed by sections 13.03 and 138.17. Accordingly, section 15.17, read in concert with section 13.03, imposes an obligation upon government entities to make and preserve a record of their actions so that the data in those records will be available pursuant to the provisions of Chapter 13. If the County created and compiled detailed data in determining its copy charge, e.g., an analysis of the costs of all materials, labor/fringe benefits, and equipment usage, those data likely are official records and, based on X's request, should be made available to X, if they exist.

Opinion:

Based on the facts and information provided, my opinion on the issues that X raised is as follows:

Signed:

Dana Badgerow
Commissioner

Dated: October 29, 2004