Facts and Procedural History:

For purposes of simplification, the information presented by the person who requested this opinion and the response from the government entity with which the person disagrees 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 April 23, 1999, IPA received a letter from Marjory E. Aldrich. In her letter, Ms. Aldrich asked the Commissioner to issue an opinion regarding her rights to gain access to certain data maintained by the Minnesota Office of the Legislative Auditor. Ms. Aldrich enclosed copies of related correspondence.

In response to Ms. Aldrich's request, IPA, on behalf of the Commissioner, wrote to James R. Nobles, the Legislative Auditor. The purposes of this letter, dated May 11, 1999, were to inform him of Ms. Aldrich's request, and to ask him to provide information or support for the Auditor's position. On May 25, 1999, IPA received a response from Mr. Nobles. A summary of the detailed facts of this matter follows.

The Legislative Auditor's Office sends a one-page survey each year to legislators. The survey form identifies topics under consideration for program evaluation studies by the topic selection subcommittee of the Legislative Audit Commission. Legislators are asked to indicate their level of interest in the topics, and to return the form. The survey results are used by the subcommittee in making its recommendations as to its priorities for the year's evaluations.

In a letter to Mr. Nobles dated April 20, 1999, Ms. Aldrich requested copies of the individual survey responses submitted to the Legislative Auditor's Office by legislators. In response to an earlier request for the data, the Auditor's Office had provided Ms. Aldrich with a summary of the survey responses. In her letter to Mr. Nobles, Ms. Aldrich stated that she was seeking access to the individual results, which Mr. Nobles' Office had denied her.

In response to Ms. Aldrich's request, Mr. Nobles wrote: [o]n advice of Senate Counsel, we have established an office policy to consider these documents to be private data under the provisions of Minn. Stat. section13.33. . . . which classifies correspondence between individuals and elected officials.

In her opinion request, Ms. Aldrich stated:

We take the position that survey results which establish the direction the legislative audits will go does not meet the definition of correspondence' because it is a process or procedure required by law as part of this selection process to be discussed at public meeting and on which the final selections for audit will be based. We take the position, because this data is a record of our elected legislators' position with which the constituency may or may not agree, and, because it is the basis for the survey data which is supposed to represent the opinions of our elected legislators, it must be considered public data'.

In his response to the Commissioner, Mr. Nobles wrote, [o]ften, legislators hand write on the survey forms additional notes or comments about the topics. Given the nature of some of the comments, they often do so with the presumption of privacy.

Mr. Nobles stated:

This provision of law [section 13.33] recognizes the need for a zone of privacy' in which elected officials can communicate freely with staff, citizens, and other public officials, often about extremely sensitive matters. As I am sure you are aware, legislators have long claimed the prerogative to engage in protected communications with their various staff, including staff in the Revisor's Office, Senate Counsel, House Research, as well as in executive branch agencies. Communication between legislators and the Legislative Auditor's Office should not be an exception.

Mr. Nobles further stated:

Finally, as you consider the proper classification of this survey document, please keep in mind that the Legislative Auditor receives other forms of communication (letters, phone calls, emails, etc.) from legislators and other public officials requesting audits and investigations. This communication often contains allegations and other sensitive information, and it is typically sent to the Legislative Auditor with an expectation of privacy. To not extend privacy protection to the individual survey documents brought into question by Ms. Aldrich's request would have serious implications for the protection of these other forms of communication. That would, in my view, seriously undermine the ability of the Legislative Auditor's Office to perform its audit and investigative functions.