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 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 August 8, 2000, IPA received a letter from X. In his/her letter, X requested that the Commissioner issue an opinion regarding X's access to certain data that the City of Lakeville maintains. After consultation with IPA staff, it was agreed that the Commissioner would issue an opinion regarding the matters stated below.

IPA, on behalf of the Commissioner, wrote to Bob Erickson, City Administrator for Lakeville, in response to X's request. The purposes of this letter, dated September 15, 2000, were to inform him of X's request and to ask him to provide information or support for the City's position. On September 26, 2000, IPA received a response, dated September 25, 2000, from Roger Knutson, Lakeville City Attorney.

A summary of the facts as X presented them is as follows. X has been seeking data relating to the building of a particular structure in Lakeville. X began seeking information in November of 1999. X believes that the City has not responded appropriately per the obligations that Minnesota Statutes, Chapter 13, imposes on government entities. X requested that the Commissioner issue an advisory opinion.

Issues:

Discussion:

Issue 1:

X's verbal request on 11/8/99 to Associate City Planner, Ron Mullenbach, was for "FAX anything to me that he had, and he agreed" regarding "recent staking activity" at a particular vacant lot.

X wrote that on 11/8/99, the City faxed to him/her certain Exhibits, specifically those lettered B -J.

X's verbal request on 11/9/99 to Mr. Mullenbach was for "research and data he had regarding such a vastly dissimilar structure and the relative effect it would have on adjacent neighboring property and resale values, including the effect it would have on the ease of resale." X wrote that the City Planner "assured me that he and the Legal Department had done this already and discovered similar situations which clearly established no negative effect on property values or resale issues. He told me that he would send this data right out to me."

X wrote that on 11/12/99, the City Planner contacted him/her and advised that they would be sending a packet of information for the "Planning Commission Meeting this Thursday, 11/18/99.... I asked him if this packet would include everything he had been assuring me would soon be forthcoming. All he would say in response is: "You'll get everything you need."

X wrote that on 11/13/99, X received the packet of information from the City. The packet contained the meeting agenda, Document 6c (a discussion about the structure/property in question), and Exhibits A - S (X wrote that of these, only E, F, I, J enclosed, - the Commissioner notes, however, that the City had previously faxed to X Exhibits B - J.

X's verbal request on 11/24/99 to Mr. Mullenbach was for the revised plans for the structure/property in question (X wrote that upon calling the City to inquire about the project status, Mr. Mullenbach informed him/her that the owner had submitted revised plans and that those plans would soon be approved).

X wrote that Mr. Mullenbach stated the revision was "none of my business, and he wasn't going to allow me to see any data."

X's written request on 11/26/99 to Bob Erickson, City Administrator, regards the "Matasosky Variance Request/Shoreland Conditional Use Permit, file # 336.17 - 83.19." X wrote, "This is a request for any information you or the city may have on this subject, including the Administrative Waiver documents..."

X wrote that s/he did not receive any response.

X's 4/21/00 written request was to Lakeville's Mayor. X wrote that he had not received responses to the data s/he requested in his/her 11/24/99 and 11/26/99 letters.

X wrote that s/he did not receive any response.

X's 5/9/00 written request was again to Lakeville's Mayor. X wrote:

This is a follow-up to the letter I sent you, dated 4/21/00, regarding some significant matters.

I still have not received a response to my formal requests for public records...My requests for documents...[go] back several months....

X wrote that s/he did not receive any response.

X's 5/17/99 written request to Mr. Erickson was for a copy of the City's public access procedures as well as the following data regarding a specific property:

1. All requests, opinions, surveys, plats, statistical data, drainage and storm sewer data, all permits, variances, rulings, Administrative Waivers and actions (particularly those not available at the Dakota County Records Department) by property owners, the City of Lakeville, and any city official, person, or entity relative to this property from January 1, 1980 to May 17, 2000.

• Planning Commission and City Council meetings and minutes, and any other meetings, and minutes that may exist, relative to the this property (1/1/80-5/17/00).

• Records of any new residential structures not approved by the City of Lakeville, and all related documents, by virtue of city ordinances: Section 11-8-4.A.2 and Section 11-8-13.d (1/1/80-5/17/00).

• Specific ordinance or legal document which completely defines: Administrative Waiver, and the responsible Authorities (1/1/80-5/17/00).

X's 5/18/00 written request to Mr. Erickson was a clarification of X's item #3 from his/her 5/17/99 letter. X asked for specific documents relating to item #3.

In a letter dated May 22, 2000, Mr. Knutson responded to X's 5/17/00 and 5/18/00 requests. Regarding the 5/17/00, the Mr. Knutson stated:

1. The City has these files: Jack Matasosky Variance and CUP file, Administrative Subdivision file, House file for [a particular address].
2. You may review the City Council and Planning Commission files for the data indicated.
3. None....
4. Copies of the City Code and all ordinances will be made available.

Regarding the 5/18/00 request, Mr. Knutson wrote:

1. None....
2. The City's plat files will be made available. Copies of all City Council meeting and Planning Commissioner meeting minutes will be made available. Concerns expressed about a structure's aesthetics are not indexed. Legal precedents not cited in my letter of November 11, 1999 are not government data in the possession of the City.

Mr. Knutson added, "You may review the requested data by contacting Donna Quintus at...Once you have reviewed the data, the City will copy what you want copied for [$.15] per page."

On 5/25/00, X "went to Lakeville City Planning Department...to review data. I requested a full set of copies from each file."

X's 5/25/00 written request to Mr. Erickson concerned his/her 5/17/00 and 5/18/00 requests. X wrote:

I do not know what the total volume is of the material I requested. I found it necessary to request the data I did because you did not provide anything that I had previously requested, nor did some of the other officials I had contacted.

In an effort to make my requests easier to comply with, I am willing to assist you and your staff in any appropriate fashion, to make this process easier. Also, I would like immediate access to whichever documents are readily available....This could lead me to realize that some of my requested data is not necessary to my research....

On 5/31/00, X picked up the copies s/he had requested on 5/25/00. Later that afternoon, X contacted Ms. Quintus "regarding poor and duplicate copies, and it appeared that some may be missing."

X's 6/1/00 verbal request was to the Chief Building Official - Gene Abbott - as instructed by Ms. Quintus, for a "complete copy of file for [a particular address]."

X wrote that Mr. Abbott agreed to copy the file.

X's 6/2/00 verbal request was to Mr. Abbott to "inquire about copies."

X wrote that Mr. Abbott agreed to provide the copies next week. X stated, He never did.

In X's 6/6/00 written request to Ms. Quintus s/he wrote:

When I spoke with you last week you said that you would have the balance of documents I have been requesting since the second week in November 1999, ready today....

In addition to the bad copies and other information I noted in my FAX to you last Wednesday, 5/31/00, there remain various documents that exist which I did not receive, but were outlined in my letters to [the City Administrator], and noted in Roger Knutson's 5/22/00 response.

I still have not received the specific ordinances and documents which completely define: Administrative Waiver and the responsible authority (1/1/80 - 5/17/00); The City Code and all Ordinances I referenced (1/1/80 - 5/17/00); The Responsible Authority's Public Access Procedure; The aerial map of the property; Information, documents and any minutes or notes from the 12/28/99 meeting between some property owners and city staff; Zoning documents, presumably R-2; All materials relating to the structure being constructed at [a particular address], including, but not limited to, building inspections and permits; Planning Commission minutes, and one additional request, video tapes from the Planning Commission meetings of 7/7/83 and 11/11/99.

...Plese call me this morning with the time I can pick-up these materials.

In a letter dated June 9, 2000, Mr. Knutson responded to X's letter. He advised X that all requests for government data "from the City must be put in writing, dated and addressed to Donna Quintus at City Hall." Mr. Knutson further wrote:

The following additional information you requested is enclosed: aerial map, zoning ordinance R-2 District text, Planning Commission minutes for 07/07/83. You also requested Planning Commission minutes for 11/11/99. Since there was no Planning Commission meeting on 11/11/99, we are enclosing a copy of the 11/18/99 meeting minutes.

The following data you requested does not exist: video tapes of Planning Commission meetings of 07/07/83 and 11/11/99; information, documents, or any minutes or notes from a 12/28/99 meeting. Since you were in attendance at the meeting you presumably are already aware that no such data exists. You have already been furnished all materials relating to the structure being constructed at [a particular address]. The Public Authority's Public Access Procedure is Minnesota Statutes Chapter 13.

Mr. Knutson also addressed the issue of problematic photocopies. He informed X that the City will refund him/her $5 and enclosed new copies of the bad copies.

Finally, Mr. Knutson wrote, "Copies of the current City Code and the City's book or [sic] ordinances may be reviewed at any during normal business hours. Administrative subdivisions are addressed in the subdivision ordinance."

In his opinion request, regarding Mr. Knutson's response, X wrote that s/he believes that the City had still not provided him/her with certain data responsive to X's request.

In X's 6/10/00 written request to Mr. Knutson, s/he asks again for the City's "established and prepared public access procedures in written form." X also acknowledged a typographical error in his/her 6/10/00 letter and asked for a video tape of the 11/18/99 Planning Commission meeting, rather than the 11/11/99 meeting. X stated, "I still have not received any documents that completely define: Administrative Waivers." X also stated, "I am now officially requesting that all relative data available only by electronic transmittal be provided to me unless it is identical to printed matter I now have or will soon be provided."

Mr. Knutson responded on June 20, 2000:

• The City does not have video or audio tapes of the 11/18/99 or the 7/07/83 Planning Commission meetings.
• A copy of the large plat will be forwarded to you by City staff by U.S. Mail.
• None of the data you have requested exists only in electronic format.
• "Administrative waivers are addressed in Section 10-1-6 of the City Code."
• Donna Quintus or the City Clerk will produce the City Code and ordinances for your review at any time during normal business hours, 8:00 a.m. to 4:30 p.m., Monday through Friday.

You also asked who at the City could advise you of the meaning of the City Code and ordinances. The code and ordinances are clearly stated; City does not provide interpretive attorney services to private citizens.

In X's 7/8/00 written request to Mr. Knutson, s/he wrote, "...I have received better copies of the two large plats I had requested, but nothing else. I am still waiting for the balance of data requested and referenced to in letters to city officials dating back to last November." X also wrote:

I did not ask for interpretive attorney services. I asked for what the Data Practices Act requires which is to inform me of the data's meaning, if that should be necessary. With this in mind, I am asking for you, or the Responsible Authority, to inform me of the following data's specific meaning: Section 11-8-4.A.2, and Section 11-8-13.D.

X also asked Mr. Knutson to "define" his (Mr Knutson's) 11/11/99 letter, which X wrote is related to the above-mentioned sections.

Mr. Knutson responded in a letter dated July 26, 2000. He wrote, "To the best of my knowledge the City has supplied you with all the data you requested." Mr. Knutson then advised X as to how s/he could obtain a copy of the City's code from the codifier. He also wrote, The language in Sections 10-8-4.A2 and 11-8-13D of the City Code is self explanatory. A key issue in the application of both provisions is proof of depreciation of surrounding property value. The City did not have proof that the proposed [structure] would depreciate surrounding property value."

In X's 7/19/00 written request to Mr. Knutson, s/he asked the City to provide the balance of the data "I have repeatedly requested in writing."

X wrote that the City did not provide a response.

In X's 7/21/00 written request to Charlene Friedges, s/he asked for "any new data that exists on or relative to the construction project at [a particular address] since 5/31/00, when Donna Quintus provided a packet of information to me."

Mr. Knutson responded in a letter dated July 26, 2000. He wrote, "The data concerning the construction project at [a particular address] since 05/31/00 may be inspected or copied by calling Charlene Friedges at..."

In X's 7/23/00 written request to Ms. Friedges, s/he asked, "I would also like to know if the City of Lakeville has or keeps any kind of data about me personally, and whether those data are classified as public, private, or confidential." X also wrote, "...if any kind of personal data does exist, I would sincerely appreciate your prompt response to inform me of this, and provide complete copies of those data I am entitled to..."

Mr. Knutson responded in a letter dated August 7, 2000. He wrote, "The only data the City has concerning you is public or private. Copies of [data in which X is referred to] are enclosed. Your identity is 'private' in the reports in which you complained about the use of real property. You may inspect or arrange for the copying of the remaining data by calling Charlene Friedges at..."

In X's 7/27/00 written request to Mr. Knutson, s/he referred to Mr. Knutson's 7/26/00 letters. X wrote, "...please have Ms. Friedges respond to my letter in writing." X also wrote, "I did not ask for copies of the entire city code. Additionally, I have not asked for any of the new or revised sections of city code. The data I have requested is contained in the many letters I have written. Please read those letters again and you will see what I have been requesting since last November, and am still waiting for." X asked again for an explanation of Mr. Knutson's 11/11/99 letter.

Mr. Knutson responded in a letter dated August 3, 2000. He wrote, "To the best of my knowledge and the City's collective knowledge, we have provided you with all the government data that you have requested. It is not productive to say this again and again, so we will not respond further if you send another letter making similar demands." Regarding Mr. Knutson's 11/11/99 letter, Mr. Knutson wrote, "We have responded to the last paragraph in your letter dated July 8, 2000. We have no further response."

In X's 8/9/00 written request to Mr. Knutson, s/he wrote:

I do not believe that my letter dated 7/23/00...which you responded to in your letter dated 8/7/00 is appropriately responsive. Please respond to that letter as required.

Regarding the data you provided with your letter, am I to assume that the only data the [City] maintains on me classified as "private" are reports in which I complained about the use of real property?

The Commissioner does not know whether the City responded to this request.

Pursuant to Minnesota Statutes, section 13.03, subdivision 1, government data are public unless otherwise classified by statute or federal law. Pursuant to Minnesota Statutes, section 13.03, subdivision 2, government entities are required to respond to requests for access to public data in a prompt and reasonable manner. Minnesota Rules, part 1205.0300, provides further guidance stating that entities must respond within a reasonable time. If a government entity does not possess data that an individual requests, the entity is not required to create new data but should so inform the requestor. If a government entity withholds data because those data are classified as not public, it is required to provide the requestor with the statutory citation upon which the entity denied access.

In his response to the Commissioner, Mr. Knutson did not separately address each request. Rather, he wrote:

The City has fully and promptly responded to each request for data. The City provided all of the date [sic] that was requested. No data was withheld on the basis of its classification. In certain instances data that was requested did not exist. The requestor was promptly informed that the data did not exist.

In this case, there is a factual dispute. Mr. Knutson asserts that the City provided X with all the data s/he requested and that in cases where the requested data do not exist, the City so informed X. X asserts that the City has not provided him/her with all data responsive to the various requests. The Commissioner does not know precisely what data the City maintains and precisely what data X received from the City. Given that reality, the Commissioner is unable to make a determination regarding whether the City provided X with all the data s/he requested. As stated above, pursuant to section 13.03, the City is required to respond to requests within a reasonable time. Therefore, if the City has not provided X with existing data that are responsive to X's request, the City should either provide X with the data immediately or inform him/her that the data do not exist. If the City is denying access to the data, it must provide X with the statutory citation that classifies the data as not public. If there are no additional data, beyond what X has already received, the City is not required to create new data.

Finally, if the City does not maintain data X requested, there may be official records and records management implications. Pursuant to Minnesota Statutes, section 15.17, all officers and agencies of cities shall make and preserve all records necessary to a full and accurate knowledge of their official activities. If some of the requested data constitute official records, pursuant to Minnesota Statutes, section 138.17, the City is required to maintain those data for a certain period of time. Disposal of records should be done only according to the General Records Retention Schedule for Cities, which is public data.

Issue 2:

X wrote two letters to Mr. Mullenbach in the fall of 1999 expressing his/her concerns about a particular piece of property in Lakeville. In those letters, X discussed his/her concerns about aesthetics, and also about legal and environmental issues. X wrote:

...I really do feel that the legal issues in all areas of this matter must be explored further....I implore you to further explore the legal and environmental issues...And, the explanations your legal department provides should logically apply to the proposed structure...we are most anxious to study all of the current and historical facts regarding the water drainage situation....They should be fascinating, considering the building prohibition that has existed for so many years, with respect to the environmental and ecological problems that had to be solved.

On November 10, 1999, X learned that Mr. Mullenbach had provided copies of the two letters to the owner of the property in question. X objected to the City's disclosure of the data.

In his response to the Commissioner regarding this issue, Mr. Knutson wrote: "The two letters concerned a pending application. The requestor's concerns and issues were reviewed with the application in an attempt to resolve the concerns. The letters are public data under Minn. Stat. section 13.03, subd. 1." The Commissioner notes that Mr. Knutson, in his August 7, 2000, letter to X, wrote, "Your identity is 'private' in the reports in which you complained about the use of real property." It is not clear if Mr. Knutson was referring to other data the City maintains about X, or whether the City has given X two different analyses regarding the classification of the data in the letters.

It is the Commissioner's opinion, however, that the City should have protected X's identity pursuant to section 13.44, property complaint data. Section 13.44 states:

The identities of individuals who register complaints with state agencies or political subdivisions concerning violations of state laws or local ordinances concerning the use of real property are classified as confidential, pursuant to section 13.02, subdivision 3.

n this case, X was making a complaint to the City regarding possible environmental and structural issues that relate to a specific piece of real property. The City should have protected X's identity.

Opinion:

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

1. The Commissioner is unable to determine whether, pursuant to Minnesota Statutes, Chapter 13, the City of Lakeville provided X with all data responsive to his/her requests.
2. Pursuant to Minnesota Statutes, section 13.44, the City of Lakeville inappropriately disseminated data about X (via letters X wrote to the City in the fall of 1999) to a member of the public.

Signed: 

David F. Fisher
Commissioner

Dated: November 15, 2000