September 24, 2003; School District 276 (Minnetonka)
9/24/2003 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.
Note: In 2014, the Legislature amended Minnesota Statutes, section 13.05, subd. 11(a), related to government contracts. Facts and Procedural History:On July 30, 2003, IPAD received an email from J. Stephen Fitzgerald. In his email, Mr. Fitzgerald asked the Commissioner to issue an advisory opinion regarding his access to certain data Independent School District 276, Minnetonka, maintains. IPAD requested clarification, which Mr. Fitzgerald provided on August 7, 2003. IPAD, on behalf of the Commissioner, wrote to Dennis Peterson, Superintendent of the District, in response to Mr. Fitzgerald's request. The purposes of this letter, dated August 13, 2003, were to inform him of Mr. Fitzgerald's request and to ask him to provide information or support for the District's position. On September 4, 2003, IPAD received a response, dated same, from Joseph Flynn and Jennifer Anderson, attorneys representing the District. A summary of the facts is as follows. On May 28, 2003, Mr. Fitzgerald sent an email to Mr. Peterson. In the email, Mr. Fitzgerald requested ...any and all government data as that term is defined in MN Statutes 13 related to Minnetonka HS Turf and Dome project, including, but not limited to... Mr. Fitzgerald asked that the District provide a specific time and place for inspection of the data. In a July 8, 2003, email to Michael Lovett, Assistant Superintendent for Human Resources, Mr. Fitzgerald requested additional specific items of data related to the dome project. He wrote, Please consider this amplification part of, and in addition to, [the] original request. In an email dated July 10, 2003, Mr. Lovett wrote to Mr. Fitzgerald, confirming a conversation of that day. Regarding Mr. Fitzgerald's May 28, 2003, request, Mr. Lovett wrote: Please make arrangements with Tom Berge for a time early next week to view our compilation of materials responding to your May 28 request for data...Because of the very general nature of that request, we hope that you will view what we provide as a good faith effort to provide the requested data. However, we want to acknowledge the challenges of trying to provide detailed email and phone records. Regarding Mr. Fitzgerald's July 8, 2003, request, Mr. Lovett wrote: ...we view these items as public data, and will endeavor to provide it to you by July 23, as we discussed in our phone conversation today. You said this was acceptable given your timelines. I did explain that these reports are not in our possession, and that if the provision of these data will require expenditures on the part of the district, our legal counsel advises us that we can require the requesting party to pay these costs. Once the costs are known to us we will let you know the costs prior to our commitment of district funds. In a July 24, 2003, email to Mr. Lovett, Mr. Fitzgerald wrote: Thank you for the status information that you provided during our phone call yesterday...we have been viewing data from the other requests and receiving copies when we have requested them. You have indicated that some of the information in the cited requests that we have asked to view is not in the District's possession, and that it is physically located at the offices of the Cuningham Group, School District's architect. You have also indicated that the Cunningham [sic] Group would charge a gathering and processing charge to view the materials, plus additional charges for copies and delivery to the [District] if we desired copies. All of these charges would be passed on to us.... I stated that we believe that under [Chapter 13], we have the right to view this public data without charge... I indicated that we could view the data either at the School District or the Cuningham offices.... In order to expedite things, I proposed that we pay the charges that you are asking for, and that you schedule the viewing of these documents at the earliest opportunity, subject to the stipulation that the [District] would refund the gathering and processing charge to us if is subsequently determined that this charge is not appropriate. You agreed.... Mr. Fitzgerald, as well as Mr. Flynn and Ms. Anderson, provided a copy of an email that staff from the Cuningham Group sent to Mr. Berge. The email breaks down the $196 charge as follows: gathering and processing the materials - $150; copies - $13; large format drawings - $23; and delivery to the District - $10. Issue:In his request for an opinion, Mr. Fitzgerald asked the Commissioner to address the following issue:
Discussion:Pursuant to Minnesota Statutes, section 13.03, subdivision 3(a), an individual has the right to inspect and copy public government data at reasonable times and places. The government entity may not charge a fee if the individual wishes only to inspect data. If the individual wants copies of data of which s/he is not the subject, the government entity may charge only the actual costs of searching for and retrieving the data, in addition to the actual costs of making the copies. (See section 13.03, subdivision 3(c).) In their response, Mr. Flynn and Ms. Anderson asserted that it was reasonable and allowable under Chapter 13 for the District to charge Mr. Fitzgerald for costs incurred in copying the documents he requested. They stated: a. The [District] is required only to provide access at a reasonable place, which was the Cunningham [sic] offices. b. Fitzgerald's request to review the documents at a location other than the Cunningham [sic] offices was beyond the reasonableness standard, which negates the [District's] obligation to provide an inspection free of charge. c. Because the [District] could not transfer the original working files of its architect, it was reasonable for the School District to have copies made in providing Fitzgerald access to this data at the School District offices. d. In any event, Fitzgerald requested that copies of these documents be made, regardless of the location where the documents were to be viewed, which makes the charges for searching for and retrieving the documents, as well as copying and compiling the documents, permissible. The issue before the Commissioner is whether the District may charge Mr. Fitzgerald if he wishes to inspect government data that are in the possession of the District's architect. Chapter 13 provides individuals with the right to inspect government data free of charge. In this case, apparently, some of the requested data are in the possession of the Cuningham Group, an organization with which the District has a contract. Mr. Flynn and Ms. Anderson noted District policy provides that the District shall require a private sector contractor to comply with Chapter 13 as if it were a government entity when such a contractor performs functions that involve collecting, creating, receiving, maintaining, or disseminating data. (See section 13.05, subdivision 11.) Thus, a request for government data in the possession of the Cuningham Group must be handled as if the Cuningham Group were a government entity. The charges the District assessed appear to stem from the District's notion that Mr. Fitzgerald refused to inspect data at the Cuningham Group offices and asked that the data be transferred to the District offices. Mr. Flynn and Ms. Anderson wrote, Fitzgerald could have reviewed the documents at the Cunningham's [sic] offices....However, Fitzgerald, instead, opted to have copies of the documents made for him and to view the documents at the School District. The Commissioner, however, can find nothing to support that position in the email documentation both sides provided. In fact, in his July 24, 2003, email to Mr. Lovett, Mr. Fitzgerald wrote, I indicated that we could view the data at either the School District or the Cuningham offices. As stated above, pursuant to section 13.03, subdivision 3(a), an individual has the right to inspect government data free of charge. In this case, certain government data are currently in the possession of the District's architect and it appears Mr. Fitzgerald is willing to go to the offices of the Cuningham Group to inspect the data. Neither the District nor the Cuningham Group, as an organization under contract to the District, may charge Mr. Fitzgerald to inspect the data. The Commissioner notes, however, that if Mr. Fitzgerald wishes to obtain copies of the data, the District, or the Cuningham Group, may charge a reasonable fee consistent with the statutory language in section 13.03, subdivision 3(c). Opinion:Based on the facts and information provided, my opinion on the issue that Mr. Fitzgerald raised is as follows:
Signed:
Brian J. Lamb
Dated: September 24, 2003 |
Inspection
Location of data
