December 30, 1994; City of Champlin
12/30/1994 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 citizen who requested this opinion and the response from the government entity with which the citizen disagrees are presented in summary form. Copies of the complete submissions are on file at the offices of PIPA and are available for public access.On December 8, 1994, PIPA received, via FAX, a letter from Mr. Gary Hill of KSTP-TV dated December 7, 1994. In that letter, Mr. Hill discusses the dispute he is having with the Champlin Police Department over whether certain law enforcement data he requested were correctly determined by Champlin to be private and were therefore not accessible to Mr. Hill. Also in that letter, Mr. Hill requests an opinion from the Commissioner on the issues stated in the Issues section below. In response to Mr. Hill's request, PIPA, on behalf of the Commissioner, wrote to Mr. Kurt Ulrich, Champlin City Administrator. The purposes of this letter, dated December 8, 1994, were to inform Mr. Ulrich of Mr. Hill's request, to ask him or the City's attorney to provide information or support for the City's position, and to inform him of the date by which the Commissioner was required to issue this opinion. (In subsequent correspondence, Mr. Hill and Mr. Ulrich were notified that the Commissioner would be taking a portion of the additional 30 days allowed by the opinion statute to issue this opinion.) On December 14, PIPA received a response dated December 12, 1994, from Mr. Allen Garber, Champlin Chief of Police. A summary of the detailed facts surrounding this issue is as follows. In his letter to PIPA, Mr. Hill reports that he requested information from Champlin Police regarding a burglary/arson incident. He goes on to state that Chief Garber refused to give KSTP-TV reporters information regarding where and when the incident took place and who the victims were. Also according to Mr. Hill, the police department had briefed fifty-five members of the community on what had occurred. Included in Mr. Hill's opinion request was a letter dated November 18, 1994, from Mr. Gregory Hellings, Champlin City Attorney, addressed to Mr. Hill. In that letter, Mr. Hellings cites the two specific statutory sections on which Champlin Police relied in refusing access to the data sought by Mr. Hill. First, Mr. Hellings states, ...pursuant to Minn. Stat. section13.82 Subd. 7, 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 or destroy evidence. Second, Mr. Hellings states, ...Minn. Stat. section13.82 Subd. 10, further allows a law enforcement agency to withhold public access to data on individuals to protect the identity of individuals when access to the data would reveal the identity of a victim to a crime if the victim specifically requests not to be identified publicly and the agency reasonably determines that revealing the identity of the victim would threaten the personal safety or property of the individual. Mr. Hellings notes that in this situation, the victims specifically informed Chief Garber that they did not wish to be identified publicly and furthermore, Champlin Police's position is that identifying the victims could endanger their physical safety as well as provide an incentive for the perpetrators to destroy evidence. In the response received by PIPA from Chief Garber, he states, ...I [denied Mr. Hill's request for the names and addresses of the victims of an arson burglary] did so in response to a specific request of the victims who expressed fear to me that if their names were made public before any arrests were made that the criminals would attempt to harm them. They had also expressed fear that if their names and addresses were made public that the criminals would hastily dispose of the stolen property. Chief Garber adds that contrary to Mr. Hill's allegation, the names and address of the victims were not released at the community meeting held by Champlin Police. Issues:
Discussion:
Issue one can be addressed by examining Minnesota Statutes Section 13.82, comprehensive law enforcement data. In answering questions about which data classified under Section 13.82 are public, the general rule is that arrest, request for service, and response or incident data are public. However, there are exceptions, two of which have been invoked by Champlin Police.
One exception is contained in Minnesota Statues Section 13.82, subdivision 7, which states, 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.... Another exception is found in Minnesota Statutes Section 13.82, subdivision 10 (d), which states that public access to data on individuals may be withheld to protect the identity of individuals when, ...access to the data would reveal the identity of a victim of..a crime...if the victim specifically requests not to be identified publicly, and the agency reasonably determines that revealing the identity of the victim...would threaten the personal safety or property of the individual.... In this case, Champlin Police cites the language in both Subdivision 7 and Subdivision 10 (d) as the basis for its refusal to release the names and address of the arson/burglary victims. With regards to Subdivision 10 (d), Champlin Police reports that the individuals involved made a specific request that their names and address be kept private. After receiving this request from the victims, the Department then made what appears to be a reasonable determination, based on the seriousness of the crime, that the perpetrators might make an attempt to re-victimize the involved individuals if their identities were made public. Thus, it appears that Champlin Police acted within the language of Section 13.82, subdivision 10 (d), in withholding the identities and address of the victims. Consistent with that determination, Champlin Police neither released the data at the public meeting nor released it to other members of the public. With regards to Subdivision 7, it appears Champlin Police reasonably determined that a public identification of the victims would likely put their physical safety in danger and would likely cause the perpetrator to destroy items taken from the victims' home to avoid detection. It thus appears the Department acted in accordance with the language in subdivision 7. Although the language in Subdivision 7 provides for a temporary withholding of response or incident data, the practical effect of Champlin Police having invoked both Subdivision 7 and Subdivision 10, is that the identifying data may remain private data permanently. The question raised in issue two concerns the paragraph located at the end of Section 13.82, subdivision 10, which reads, Data concerning individuals whose identities are protected by this subdivision are private data about those individuals. Law enforcement shall [emphasis added] establish procedures to acquire the data and make the decisions necessary to protect the identity of individuals described in clauses (d).... Included in PIPA's December 8, 1994, letter to Mr. Ulrich, was a request for a copy of the procedures Champlin Police uses in making its determinations about whether certain identifying data should be private. Because Chief Garber did not provide a copy of the procedures in his response or make any comment about whether such procedures exist, it is reasonable to infer that Champlin Police has not established these procedures. The apparent failure to do so does not, in itself, affect the Department's ability to invoke Subdivision 10. However, it does raise some doubt that Champlin Police has in place a system to make the appropriate determinations required by Section 13.82, subdivision 10 (d). The language contained in the last paragraph of Subdivision 10 was proposed to the Legislature during the 1993 Session by PIPA because of information received by PIPA indicating that the determinations required by Subdivision 10 (d) were not being made or were being made in an arbitrary fashion. The purpose of requiring law enforcement agencies to establish these procedures is to assure that the determinations are actually being made, that they are not being made arbitrarily, and that they are being made according to the criteria established by statute. Furthermore, the ability of the public to review a police department's procedures may make law enforcement more accountable for its decisions to withhold data about victims and witnesses from the public. Opinion:Based on the correspondence provided in the matter, my opinion on the issue raised by Mr. Hill as follows:
Signed:
Robert A. Schroeder
Dated: December 30, 1994
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Law enforcement data
Protected identities (13.82, subd. 17 / subd. 10)
