This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ' 480A.08, subd. 3 (1994).

STATE OF MINNESOTA
IN COURT OF APPEALS
C3-95-2717

State of Minnesota,
Respondent,

vs.

K.K.S.,
Appellant.

Filed July 23, 1996
Affirmed as modified.
Klaphake, Judge

Hennepin County District Court
File No. 94-072181

Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101(for Respondent)

Michael O. Freeman, Hennepin County Attorney, Paul R. Scoggin, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for Respondent)

William R. Kennedy, Hennepin County Public Defender, Peter W. Gorman, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for Appellant)

Considered and decided by Klaphake, Presiding Judge, Huspeni, Judge, and Schultz, Judge.*

U N P U B L I S H E D O P I N I O N

KLAPHAKE, Judge

K.K.S. appeals from a district court order expunging certain documents following the dismissal of criminal charges against him. Respondent State of Minnesota urges affirmance of the district court's order. Because we conclude that the district court properly exercised its discretion in ordering sealing, rather than destruction, of certain documents and because the state essentially agreed at oral arguments that certain changes to the order would be appropriate, we affirm as modified.

D E C I S I O N

Expungement means to "erase all evidence of the event as if it never occurred." State v. M.B.M., 518 N.W.2d 880, 883 (Minn. App. 1994). It can be accomplished by (1) destroying the evidence, (2) returning the evidence, or (3) sealing the evidence. Id. District courts have both statutory and inherent authority to order expungement. Id.

Appellant sought expungement under Minn. Stat. ' 299C.11 (Supp. 1995). That statute requires sheriffs and chiefs of police who furnish identification data to the Bureau of Criminal Apprehension (BCA) to return that data to the arrested person upon demand. Id.

While the statute expressly applies to the sheriff, police, and the BCA, the supreme court has held that it is also "'applicable to all entities which gather this information for the BCA.'" State v. C.A., 304 N.W.2d 353, 359 (Minn. 1981) (quoting In re R.L.F., 256 N.W.2d 803, 805 (Minn. 1977)). This court has clarified that "[d]epartments and persons subject to the expungement order include * * * director of the Hennepin County Probation Department." State v. L.K., 359 N.W.2d 305, 308 (Minn. App. 1984); see also M.B.M., 518 N.W.2d at 882 (though specifically applicable to BCA, section 299C.11 "authorizes the court to order relief from * * * the probation department").

In addition, while the statute mentions only fingerprints, photographs, and other identification data, the supreme court has held that it implicitly includes "arrest records." C.A., 304 N.W.2d at 359 (citing R.L.F., 256 N.W.2d at 805). The court declined to list what records must be returned under Minn. Stat. ' 299C.11 but stated that arrest records are not necessarily "any portion of a file generated before conviction or after," nor are they "all records relating to arrest." Id. (emphasis deleted). The court further stated it found "some guidance" from definitions contained in the Minnesota Data Practices Act. C.A., 304 N.W.2d at 359-60; see also Minn. Stat. ' 13.82, subd. 2 (1994) (current version of Data Practices Act includes definition of "arrest data" and makes public data created by law enforcement agencies documenting actions taken to cite, arrest, incarcerate, or otherwise substantially deprive individual of liberty).

1. Appellant requested that the district court order destruction, rather than sealing, of the files maintained by the district court, county attorney, and probation department. Appellant agrees that it was within the district court's inherent discretionary power to order expungement by sealing. He attacks the state's position, however, which he characterizes as advocating sealing as the only expungement mechanism available. Appellant insists that M.B.M., 518 N.W.2d at 883, merely indicates that sealing is the preferred expungement mechanism for court records and that M.B.M. does not control the type of expungement available for records possessed by other entities, such as the probation department and the county attorney. At oral argument, appellant's attorney agreed that his position was essentially that the district court did not appear to exercise any discretion on this issue.

It is largely irrelevant whether the state's reading of M.B.M. is correct. The fact remains that it was within the district court's discretionary, inherent authority to order sealing of the files. Indeed, sealing is preferred over destruction because a sealed file may be reopened upon a showing of good cause. C.A., 304 N.W.2d at 361. We cannot conclude that the district court abused its discretion by ordering sealing or by failing to state on the record that it was exercising its discretion.

2. At oral arguments, the state essentially agreed that appellant is entitled to expungement of any arrest records contained in the probation department's file. Thus, the order should be modified to require the probation department to seal its file.

3. The state also agreed that the language of the paragraph ordering the sheriff to "expunge" records should mirror the previous paragraph which orders the police department to "return" documents. The order also should be modified to reflect this change.

4. Finally, the state agreed that the language of the order could have been more specific by including the name and address of appellant's attorney as the person to whom the documents should be returned. The order should also be modified to include this information.

Affirmed as modified.


Footnotes

* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, ' 10.