Facts and Procedural History:

On July 13, 2010, the Information Policy Analysis Division (IPAD) received a letter, dated July 12, 2010, from John Fax. In his letter, Mr. Fax asked the Commissioner to issue an advisory opinion regarding his right to access certain data from the City of North Saint Paul. IPAD requested additional information, which Mr. Fax provided on September 7, 2010.

IPAD, on behalf of the Commissioner, wrote to Walter Wysopal, City Manager, in response to Mr. Fax's request. The purpose of this letter, dated September 13, 2010, was to inform him of Mr. Fax's request and to ask him to provide information or support for the City's position. On September 29, 2010, IPAD received a response from Mr. Wysopal.

A summary of the facts as Mr. Fax provided them is as follows. In a letter dated April 23, 2010, Mr. Fax requested certain data from the City. Of relevance here is his request for the following:

any and all information [since March 1, 2010] related to written or oral communication between Mayor Mike Kuehn and Mr. John Oldendorf, President of the Gateway Trail Association, Lake Elmo, MN

Communications between the City and Mr. Fax continued. At issue in this opinion, is an email the Mayor sent to Mr. Oldendorf. The City references this email in a May 27, 2010, letter to Mr. Fax:

you were advised that certain correspondence between the Mayor and the other individuals is shielded from becoming public data under Minnesota Statute 13.601, Subd. 2. This statute classifies such correspondence between the Mayor and individuals as private data on individuals. 

The correspondence that you are seeking was an email between a private individual and the Mayor of North St. Paul, an elected official, on the Mayor's private email address. The specific correspondence was never shared with another elected official or city staff member. 

In his opinion request, Mr. Fax wrote:

I feel the City is misinterpreting M.S. 13.601, Subd. 2, which they allege controls why this one e-mail I am seeking is not public information I highly disagree Furthermore, I am interested in finding out from the content of this e-mail, why the Gateway Trail Association changed its original position regarding a Conditional Use Permit ISD 622 it initially advocated against and then, almost immediately after receipt of the e-mail, advocated for it.

Issue:

Based on Mr. Fax's opinion request, the Commissioner agreed to address the following issue:

Discussion:

Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.)

Minnesota Statutes, section 13.601, subdivision 2, classifies correspondence data between individuals and elected officials: Correspondence between individuals and elected officials is private data on individuals, but may be made public by either the sender or the recipient.

Private data are data on individuals that are accessible to the data subject but not to the public. (Minnesota Statutes, section 13.02, subdivision 12.)

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

the nature of the communication as well as the substance and context need to be considered in determining its appropriate classification. In this particular situation, the correspondence was not composed on city letterhead did not purport to be a formal communication between the City and the association and was addressed to and from Mr. Oldendorf rather than to his non-governmental association or office. 

Under these circumstances the City determined that the requested correspondence was between the Mayor, an elected official, and Mr. Oldendorf, an individual.

Before proceeding, it is important to point out that although Mayor Kuehn composed the email on something other than City letterhead and sent it using his private email account, as long as he wrote the email in his capacity as Mayor, the data in the email are government data. The City did not make any statements suggesting the content of the email is not related to Mayor Kuehn's duties as Mayor.

The Legislature enacted the language in section 13.601, subdivision 2, in 1979. In classifying the data as private, the Legislature provided a mechanism by which an individual can correspond with his/her elected official on a matter that is personal to that individual. Some examples include correspondence between a parent and his school board member about an issue involving the parent's child, correspondence between a resident and her city council member about a neighborhood zoning matter, correspondence between a grandparent and his county board representative about the grandparent's desire to adopt his grandchild.

The email in question is correspondence between Mayor Kuehn and Mr. Oldendorf. Although Mr. Oldendorf is an individual, the Commissioner does not believe the Legislature intended for the protection afforded under section 13.601, subdivision 2, to apply to an individual writing as a representative of an organization. First, and foremost, the classification of private applies to data on individuals (as opposed to data about organizations or businesses). See International Brotherhood of Electrical Workers, Local No. 292 v. City of St. Cloud, 765 N.W.2d 64 (Minn. 2009). It is unlikely that someone corresponding on behalf of an organization is writing about an issue as a private citizen and not about an issue related to the organization.

(The Commissioner previously has opined that a government entity can protect correspondence between its elected officials and certain employees if the employees were writing as private citizens. However, if the employees were writing in their roles as employees, the entity cannot use section 13.601 to withhold the data. See Advisory Opinion 07-004.)

Second, if the Legislature intended the protection afforded under section 13.601, subdivision 2, to apply to data about organizations, it would have classified the data as nonpublic.

The Commissioner has not seen the email in question. Based on the analysis above, if the correspondence between Mayor Kuehn and Mr. Oldendorf relates to an issue involving Mr. Oldendorf, as an individual, the data in the email can be protected by section 13.601, subdivision 2. If the correspondence relates to an issue involving an organization Mr. Oldendorf represents, such as the Gateway Trail Association, the data in the email cannot be protected under section 13.601, subdivision 2.

Opinion:

Signed:

Sheila M. Reger
Commissioner

Dated: October 27, 2010