Note: In December 1999, staff of the Information Policy Analysis Division, on behalf of the Commissioner, redacted not public data from this opinion. The redaction was necessary to bring the data in the opinion into compliance with amendments the Legislature made to Minnesota Statutes, section 13.072, the advisory opinion enabling legislation

Facts and Procedural History:

In April, 1994, X's child was involved in an incident at the high school in Buffalo. The child was taken into custody by an officer of the City of Buffalo Police Department. Subsequently, X and the child reviewed the police report on this incident. On May 6, 1994, X filed a notice with Bob Fix, the chief of the City of Buffalo Police Department. In that notice, X challenged data that was contained in the police report. (Minnesota Statutes Section 13.04, subdivision 4 gives data subjects, or in the case of a minor, the parent of a data subject, the right to challenge the accuracy and completeness of data maintained about the subject by a government entity.) X also sent a copy of the data challenge notice to Ms. Anne Mohaupt at the County.

On May 18, 1994, X and his child received a number of documents from the Wright County District Court, including a notice of hearing, a summons and a copy of the Buffalo Police Department report. Not included in these data was any indication, including a copy of the notice filed by X, that the Buffalo Police Department report contained data that had been challenged by X.

On June 1, 1994, X discussed with Mr. Brian Asleson, an assistant attorney for the County, the fact that the attorney appointed to represent X's child had also, when provided data from the court administrator, not received any notice of the data challenge filed by X. In response to that conversation, Mr. Asleson wrote to the court administrator's office to inform them of the challenge he had made to the Police Department's data.

On August 9, 1994, X filed a request for access to data with the County and with the Wright County Court Services Departments. Both departments stated that the cost of providing copies would be $5.00 for the first 10 pages and twenty cents for each additional copy page. X believed that charge to be excessive.

After describing these disagreements with the County, X then requested that the Commissioner issue an opinion on the issues summarized in the Issues section below.

In response to X's request, PIPA, on behalf of the Commissioner, wrote to Mr. Wyman A. Nelson, the Wright County Attorney. The purposes of this letter, dated August 19, 1994, were to inform Mr. Nelson of X's request, to provide a copy of the request to him, to ask Mr. Nelson to provide information or support for the County's position, and to inform him of the date by which the Commissioner was required to issue this opinion.

On August 31, 1994, PIPA received a letter of response from Mr. Asleson. The following is a summary of the information and argument provided by Mr. Asleson. Mr. Asleson agreed with X's description of their June 1, 1994, conversation and the description of the actions Mr. Asleson took to communicate information about the proper handling of a data challenge. Mr. Asleson included a copy of the letter he had sent to the court administrator's office as part of his response.

Mr. Asleson then stated the County had received the Buffalo Police report on May 4, 1994. He agreed that it was likely that the County had received a copy of X's data challenge on May 6, 1994. He stated that he was not able to determine when the County had filed with the court the petition that omitted either a copy of X's challenge to data in the police report or other information about the challenge. He also pointed out that it was possible that the petition had been filed before the County received the dispute notice.

It was his opinion that Minnesota Statutes Section 13.04 does not address whether a dispute notice or statement of disagreement must be sent out even if the disclosure of disputed data is made prior to the receipt of the notice or statement that puts the data in dispute. The County's position is that it made a good faith attempt to remedy any technical violation that occurred and therefore it did not violate the rights of X or his child.

On the issue of whether the County's charges for providing copies of data were excessive, Mr. Asleson pointed out that X's inquiry assumes that providing the first ten copies of the pages in a set of data will always be less than $5.00. It was Mr. Asleson's argument that this was an incorrect assumption. In this particular instance, X requested data that involved the identities of other minors and therefore it was necessary to redact the private data on other individuals.

Mr. Asleson stated that X had received approximately 80 pages of data for which he paid approximately $19.00. Mr. Asleson estimated the actual cost of providing the copies to X would be $45.00, including employee time. Mr. Asleson argued that a charge of $19.00 did not impede access to the data. Mr. Asleson stated that the County's position on copying charges was adopted after careful consideration and done . . . for ease of administration and for consistency purposes. Mr. Asleson acknowledged that while . . . the actual cost of providing copies may vary slightly in individual cases, we believe this policy to be an accurate representation of our copying costs.

Issues:

Discussion:

It is X's contention that once he filed a copy of the notice, challenging certain contents of the report of the Buffalo Police Department, with the County, that the County could only disclose the police report to others if a copy of his statement of disagreement was included with the report. It is clear that Minnesota Statutes Section 13.04 requires that once a government entity has received a challenge to data, that any subsequent disclosures of the contested data should be accompanied by the individual's statement of disagreement so long as the data are in dispute.

The exact date on which X filed his challenge with the County and the date the County filed its petition and the police report with the court are not clear from the information provided. Mr. Asleson acknowledged that there is the possibility that the County had received the challenge notice before it provided a copy of the disputed report to the district court. If that is the case, in order for the County to comply with Minnesota Statutes Section 13.04, the challenge notice should have been sent along with the police report at the time the report was filed with the court. The comments and correspondence provided by Mr. Asleson make it clear that once the County realized it may have disseminated the police report without a copy of the data challenge, it took affirmative action to rectify its mistake.

As Mr. Asleson correctly observes, there is no requirement in Section 13.04, that imposes an obligation on a government entity, when it initially receives a challenge to data, to go back to previous recipients of the data to provide them with a copy of the data challenge. However, Section 13.04 is very clear in requiring a government entity, once it has received a data challenge, to include a copy of the individual's statement of disagreement with each dissemination of the data with which the individual disagrees. In this instance, it appears more likely than not that the County did not comply with this requirement. If it had done so originally, it would not have determined that it should notify the court of its error.

The second issue, charges for copies, also involves individual rights. Minnesota Statutes Section 13.04, subdivision 3, gives a data subject the right to receive copies of public or private government data. Under subdivision 3, a government entity that receives the request for copies may require the data subject to pay the actual costs of making, certifying and compiling the copies. In his comments, Mr. Asleson appears to assume that a data subject may, as part of the cost of providing copies, be assessed for all of the costs associated with providing the copies, including the reasonable costs of employee time for searching out and redacting the data. It appears from these comments, that the County is applying the standard, as found in Minnesota Statutes 13.03 subdivision 3 of what can be included in copy charges for providing public data. If that is the case, the County is not applying the correct and different standard that limits a government agency to only charging data subjects the actual costs of making, certifying and compiling the copies.

Under Section 13.04, subdivision 3, agencies are not authorized to charge data subjects for the cost of searching out data to be copied. This is consistent with a related policy, stated in Section 13.04, subdivision 3, that requires government entities to inform data subjects, upon request and at no charge to them, that they are data subjects. If agencies could impose a charge for searching out the data that will tell them that a given individual is a data subject, they would be able to charge to individuals the costs of doing something they are required to do by statute at no charge. If the County charges all individuals requesting copies of data the same fee, and does not differentiate between requests from members of the public for copies of public data and requests from data subjects for copies of private or public data, then County's position would appear to be in conflict with the statutory provisions discussed above.

Mr. Asleson's comments also indicated that the County's decision to charge $5.00 for the first 10 copies and 20 cents a copy thereafter was a decision done for ease of administration and consistency. Although that is an understandable objective from the County's perspective, it does not take into account the limiting language in the statute that says that the County, in assessing charges for providing copies to an individual data subject, can only require the data subject to . . . pay the actual costs of making, certifying and compiling the copies.

In this particular instance, the County's charges to X did not actually impede his access to the data in question. Actual impedance did not occur because X was able to pay for the copies he requested. In addition, if X had asked to inspect the data in question, the County would have been required by Section 13.04 to allow him to inspect the data at no cost. However, based on the requirements of Section 13.04, X may have been charged too much for the copies. From the information provided, it does not appear that certified copies were requested. As limited by Minnesota Statutes Section 13.04, the County could only charge X for the actual costs of running pages through its copying machine. The actual cost of performing that function for 80 copies would not appear to total $19.00.

Opinion: