July 1, 2004; Winona County Attorney
7/1/2004 10:14:43 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:On April 21, 2004, IPAD received a letter from X, in which s/he asked the Commissioner to issue an advisory opinion regarding his/her right to gain access to data the Winona County Attorney's Office maintains. X's request required additional information and clarification with IPAD staff. In response to X's request, IPAD, on behalf of the Commissioner, wrote to Charles MacLean, Winona County Attorney. The purposes of this letter, dated May 18, 2004, were to inform him of X's request and to ask him to provide information or support for the County's position. On June 8, 2004, IPAD received a response from Mr. MacLean. A summary of the facts of this matter follows. According to Mr. MacLean, Randall Walter Wait was prosecuted in Winona County for Possession of Pictorial Representations of Minors. X was one of his victims. During the police investigation, X was asked to view some of the evidence (photographs made from videotapes), to confirm that s/he was depicted therein. According to X: Beginning shortly after Wait's sentencing, I have repeatedly asked Mr. MacLean for copies of the evidence and investigative data collected that involve me. He has refused to comply, indicating initially that he would only give the copies to a lawyer acting on my behalf. I gave him a letter November 24, 2003, formalizing my request for the copies, which I believe Minnesota statute entitles me to as a victim. Mr. MacLean did give me some video footage to look at in December to see if I was on them, but the victims on the tape were not me, so I returned the videos to him. He has since refused to comply with my request in any way. The court record shows that Mr. MacLean made a deal as part of the plea bargain with Wait and his attorneys that all evidence collected would be destroyed 90 days after Wait's sentencing, which is when Wait's right to appeal expired. Mr. MacLean further agreed that he would not disseminate copies of the information to anyone during that 90 days. Mr. MacLean agreed that if he did not abide by that agreement he would notify Wait's attorneys and Wait could withdraw his guilty plea. When I called him at least two months ago, Mr. MacLean indicated he would give me copies of the evidence but told me he does not have the authority to give me the investigative file and that I would have to get it myself from the police department. Mr. MacLean said he had reached an agreement with Wait's attorneys to release the evidence from the plea deal but was waiting for a judge's signature, which he said would take approximately two weeks. In X's November 24, 2003, letter to Mr. MacLean, s/he wrote: I know that you have the right to destroy the files about Randy Wait next week, and I want a copy of each of them for myself before you do. As a victim, I know I am entitled to have them. In his comments to the Commissioner, Mr. MacLean stated that he received X's data request on November 26, 2003. He wrote: [a]fter discussions with [X], I wrote to Wait's defense attorney on December 2, 2003, the 90th day after sentencing, explaining that a law enforcement agency . . . and a victim [X], had each requested the seized materials before the 91-day period expired, and I had decided to release the requested material to both the agency and to [X.] Mr. MacLean wrote that on December 4, 2003, he gave X three videotapes to review: The intent was to give [X] an opportunity to view the seized materials to determine whether [X] was depicted in any of the seized videotapes so that copies of those selected portions depicting [X] could be copied and disclosed to [X.] [X] had earlier been shown selected stills from the many seized videotapes and [s/he] had identified stills from those three videotapes (and no other stills from any other videotapes) as possibly depicting [X.] . . . . [X] did not identify him/herself on the tapes, and returned them to Mr. MacLean. . . . . I still have those tapes. On December 30, 2003, I sent an e-mail (Attachment 2) to Chief Frank Pomeroy of the Winona Police Department authorizing release of all reports in the case upon request of any person, but instructed Chief Pomeroy to not release any of the seized videotapes and photographic evidence until further instruction from me. Of course, before release of the documents, juveniles' names and identifying material would have to be expurgated. Mr. MacLean wrote that Mr. Wait's attorneys subsequently filed a Motion for Destruction and Return of Seized Property, and that he entered into substantial negotiation with the attorneys that led to a stipulation regarding the disposition of the evidence in the case. According to Mr. MacLean: Wait's attorneys never returned a signed version of [the stipulation agreement] to me and they later withdrew their Motion for Destruction of the Seized Property. Thus, the matter remains unresolved between the Winona County Attorney's Office and Wait's attorneys at this time. Mr. MacLean wrote: As I have explained to [X] throughout, I do not intend to disclose copies of all of the seized pornography to [X], but [s/he] can have copies of the portions of the videotapes on which [X] verifies [s/he] is depicted along with all documentary contents of the casefile (including all statements, investigative reports, and the like). [X] is still welcome to this part of the evidence, as I have indicated all along. It is not true, as alleged by [X] in [his/her] Request for Advisory Opinion, that I have 'since refused to comply with my request in any way.' Rather, I have authorized release of documentary evidence to [X], and provided videotapes and stills to [X] from which [s/he] has been unable to identify [her/himself] as anywhere depicted on those seized materials. Without (apparently) obtaining copies of the reports from the Winona Police Department (which is the only entity with a complete file since they do not send over all pornography evidence to our office in these types of cases), [X] submitted . . . [the] present request for advisory opinion. I never have authorized the destruction of the seized evidence, and all of the seized evidence remains in the possession of the Winona Police Department at this time pending stipulation of the parties and pending further order of the Court. Mr. MacLean stated that X has had access to the full casefile . . . from the beginning, and certainly by December 30, 2003 when I authorized the Winona Police to release all documentary evidence in the case. He also wrote that he had given X an opportunity to view the screen shots and videotapes, and that X did not identify her/himself therein.
Issue:
In his/her request for an opinion, X asked the Commissioner to address the following issue:
Discussion:The Commissioner notes at the outset that the facts as presented by X and Mr. MacLean are contradictory and confusing. The Commissioner emphasizes that his opinion is based solely upon the written record before him. Minnesota Statutes, section 13.82, subdivision 13, provides:
On receipt of a written request, the prosecuting authority shall release investigative data collected by a law enforcement agency to the victim of a criminal act or alleged criminal act or to the victim's legal representative unless the release to the individual subject of the data would be prohibited under section 13.821 or the prosecuting authority reasonably believes:
In his comments to the Commissioner, Mr. MacLean wrote that at least up until December 2, 2003, . . . [this matter] remained under active law enforcement investigation. However, he did not assert that he had determined that X was not entitled to access to the data based upon the exceptions listed at section 13.82, subdivision 13. Accordingly, it appears that X was entitled to gain access to the data upon his/her November 24, 2003, request. The Commissioner notes that although both X and Mr. MacLean refer to the plea agreement Mr. Wait entered into, neither provided a copy. It appears from their written statements to the Commissioner that, under the plea agreement, all data would be destroyed 90-91 days after Mr. Wait's sentencing, and that, if a victim and/or a law enforcement agency were to ask for access within that time frame, they would be entitled to have access to the data. The Commissioner cannot determine if the actual terms of the plea agreement in any way excuse Mr. MacLean from his obligation under Chapter 13 to provide X with access to data to which s/he is entitled. There is nothing in the written record before the Commissioner that indicates that Mr. MacLean was obligated, under the terms of the plea, to notify Mr. Wait's attorneys that a victim or law enforcement agency had asked for the data, and gain their approval before he could release it. If, due to the terms of the plea agreement, Mr. MacLean was not able to release the data to X, he should have communicated that clearly to X at the time he received X's November 24, 2003, data request. Otherwise, Mr. MacLean should have provided X with access to the data s/he requested. Furthermore, X asked Mr. MacLean for access to all of the files related to Mr. Wait's case. Apparently, the only data to which Mr. MacLean provided X with access are the still photographs and some videotapes. It is not clear from Mr. MacLean's written comments to the Commissioner if those are the only data he maintains that are responsive to X's request. If so, Mr. MacLean should have so informed X at the time he provided X an opportunity to review the videotapes. If not, he should have provided X with access to all the data he maintains upon receipt of X's request. The Commissioner also notes that on December 30, 2003, Mr. MacLean sent an e-mail to Winona Police Chief Pomeroy, in which he stated that he was authorizing release of all reports in the case upon request of any person . . . Mr. MacLean informed X that s/he could get access to the complete file directly from the police department; apparently, X has not attempted to do so. Directing X to ask for the data from the Winona Police Department does not end Mr. MacLean's obligation to either produce the data X requested, or inform X that his Office does not maintain the data. As noted above, the facts here are confusing and contradictory. The Commissioner cannot resolve the factual dispute between X and Mr. MacLean. Nonetheless, on November 24, 2003, X asked, as a victim, for copies of all of the files related to this matter. Mr. MacLean was obligated to respond to X's request, either by providing X with access to all the data he maintains, and making it clear that was the case, or by stating clearly the basis for denying X's request. Opinion:Based on the facts and information provided, my opinion on the issue raised by X is as follows:
Signed:
Brian J. Lamb
Dated: July 1, 2004 |
Law enforcement data
Victim access to active investigative data (13.82, subd. 13 / subd. 6)
