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Advisory Opinion 98-046

October 19, 1998; Metropolitan Mosquito Control District

10/19/1998 10:15:43 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:

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 PIPA and, except for any data classified as not public, are available for public access.

On August 26, 1998, IPA received a letter from David A. Clark, an attorney representing the Metropolitan Mosquito Control District (MMCD). In his letter, Mr. Clark asked the Commissioner to issue an opinion regarding the classification of certain data maintained by the MMCD.

The Commissioner received an opinion request regarding the same issue from Mr. James Nobles, the Legislative Auditor, whose Program Evaluation Division is studying MMCD. After receiving the MMCD's opinion request, IPA contacted the Legislative Auditor, and agreed that the Commissioner would issue one opinion, based upon MMCD's request. Mr. Nobles asked the Commissioner to consider and possibly incorporate his comments in the opinion. A summary of the detailed facts of this matter follows.

According to Mr. Clark, the data at issue relate to individuals who have requested the District either to provide or not provide mosquito and other control services on their property. Mr. Clark stated that the District treats the names, addresses, telephone numbers, and specific requests of those individuals as private or nonpublic security information pursuant to Minnesota Statutes Section 13.37.

Mr. Clark wrote:

The District's programs and activities are, with some people, the subject of much controversy and high emotions. The District engages in surveillance and control of vector and other indigenous mosquitoes and biting gnats, and surveillance of Lyme Disease ticks in the metropolitan area. To accomplish its mission, the District utilizes control materials designed to reduce the numbers of both mosquitoes and gnats. Many citizens believe the District's activities and the materials that it uses are truly beneficial to their own and others' health and enjoyment. There are other citizens, however, that believe that the District's activities and/or materials that it uses are harmful to themselves and others. The beliefs of some of the people on both sides of that issue are extreme and very firmly held and aggressively championed.

Given the extreme positions, and sometimes actions, taken and recommended, the District believed that dissemination of the data at question here might place either or both the person who made a particular request or their property at a heightened risk of harm. They knew, for example, that District employees had been threatened with guns, clubs and other forms of physical harm while conducting their duties. Further, representatives of the District had attended community meetings where loud name-calling and seemingly veiled threats were traded between neighbors about the matter of support or lack thereof of the District's activities. . . . .

In his comments, Mr. Nobles wrote: [o]ur preliminary research reveals that MMCD staff taking telephone calls do not give citizens the Tennessen warning as required by Minn. Stat. 13.04. Mr. Nobles questioned whether it was appropriate for MMCD to treat the data in question as security information under Section 13.37.

Issue:

In his request for an opinion, Mr. Clark asked the Commissioner to address the following issue:

Pursuant to Minnesota Statutes Chapter 13, how are the following data classified: individuals' names, addresses, telephone numbers and specific requests regarding services provided by the Metropolitan Mosquito Control District?

Discussion:

Pursuant to Minnesota Statutes Section 13.03, government data are public unless otherwise classified by statute, temporary classification (see Section 13.06), or federal law.

Pursuant to Section 13.37, subdivision 1 (a), security information means government data the disclosure of which would be likely to substantially jeopardizethe security of information, possessions, individuals or property against theft, tampering, improper use, attempted escape, illegal disclosure, trespass, or physical injury. (Emphasis added.) Pursuant to subdivision 2 of that Section, security information is classified as nonpublic data with regard to data not on individuals, and as private data with regard to data on individuals.

Accordingly, a government entity's discretion to withhold data as not public is limited to those situations in which there is a likelihood of substantial jeopardyto security. In his comments, Mr. Clark stated that in certain situations, the MMCD has reason to believe that dissemination of some of the data in question might place some individuals or their property at risk of harm. In those limited situations, the MMCD may properly treat the data as security information under Section 13.37. However, the protection provided by that Section does not apply to all data collected by the MMCD that relate to its services. Mr. Clark stated that the MMCD takes the position that all data associated with any requests regarding its services are security information, pursuant to Section 13.37. However, the MMCD may treat as security information only those data the disclosure of which is likely to substantially jeopardize the security of information, possessions, individuals or property.

In addition, the Commissioner takes note of Mr. Nobles' comments that the MMCD does not provide individuals, upon collection of what it considers to be private data, with the notice required under Section 13.04, subdivision 2, commonly referred to as a Tennessen Warning.

Opinion:

Based on the facts and information provided, my opinion on the issue raised by Mr. Clark is as follows:

Pursuant to Minnesota Statutes Chapter 13, the following data are classified as public: individuals' names, addresses, telephone numbers and specific requests regarding services provided by the Metropolitan Mosquito Control District. If, under limited circumstances, the MMCD has specific reason to conclude that dissemination of some of those data would be likely to substantially jeopardize information, possessions, individuals or property, then those specific data are private or nonpublic, pursuant to Section 13.37.

Signed:

Elaine S. Hansen
Commissioner

Dated: October 19, 1998

Security information

Entity's discretion to withhold