Facts and Procedural History:

On September 7, 2004, IPAD received a letter from X. In his/her letter, X asked the Commissioner to issue an advisory opinion regarding a determination about a data practices issue made by the City of Richfield.

In response to X's request, IPAD, on behalf of the Commissioner, wrote to Samantha Orduno, City Manager. The purposes of this letter, dated September 14, 2004, were to inform her of X's request and to ask her to provide information or support for the City's position. On September 21, 2004, IPAD received a response from Mary Tietjen, an attorney for the City. A summary of the facts of this matter follows.

X was the subject of a traffic stop in February 2002. On July 23, 2004, X requested the following data, of which s/he is the subject, from the City: radio log for a specific case #, dated 2.2.02; criminal record check log, dated 3.19.02; and audio video recording inventory log, dated 2.2.02. X signed an Information Disclosure Request form on July 29, 2004. That form contains notations stating do not have on the lines listing the radio log, and the audio video recording inventory log. The copy of the criminal record check log that X submitted contained the dates of February 2, 2002, and March 1, 2002.

X provided the Commissioner with a memorandum dated July 27, 2004, in which City Department of Public Safety staff wrote, in reference to X's data request, that the log of criminal history checks was run along with detention information entered by our department. This information was provided by the Bureau of Criminal Apprehension at the State of Minnesota. The memorandum also states the following: [w]e do not have a radio Log or an Audio Video Recording Inventory Log for the information that [X] requested. We only keep radio traffic recorded and on the logger for 90 days. The information is then erased after that. The video log for booking tapes is kept for a period of 30 days and then is erased after the tape is used.

X and Ms. Tietjen also provided the Commissioner with a copy of the General Records Retention Schedule for Minnesota Cities (GRRS) which, apparently, the City has adopted. (See Minnesota Statutes, section 138.17.) X stated to the Commissioner his/her belief that, according to the GRRS, the City is obligated to maintain the radio log for seven years, and the audio video recording inventory log must be retained permanently. X also stated [t]he Criminal Record Log information was inconsistent with date asked for . . . .

In her comments to the Commissioner, Ms. Tietjen stated that in response to X's request, the City provided the data promptly to X if the data still existed. If the data no longer existed, [X] was informed of that fact. Also in retaining the records, the City complied with the [GRRS] for all of the relevant categories.

With respect to X's request for a copy of the radio log, Ms. Tietjen wrote the following:

The City interpreted this as a request for the car-to-dispatch radio recording made as a result of [X's] police stop. Under the Retention Schedule, Code # POL 02700 - 911 Recordings, this data must be retained for 30 days. . . . . The City's policy is to retain the 911 Recordings for 90 days. [X] had also requested a copy of the 'car-to-dispatch record' on January 27, 2004 and February 18, 2004 . . . . All of [X's] requests were made after the 90-day period that the City maintains these records and, thus, the data could not be provided. On each occasion, [X] was informed that the data no longer existed. Shortly after [X's] request on July 23, 2004, the City Clerk . . . contacted [X] by telephone and informed [him/her] that the radio log no longer existed and was not available. X signed the Information Disclosure Request form [that contained the notation Do Not Have ] on July 29, 2004; thus, the telephone call would have been made after July 23, 2004, but before July 29, 2004.

In a separate matter that is not before the Commissioner here, X and the City appeared at a contested case hearing on September 8, 2004, at which X gave testimony about his/her right to have access to the data at issue in this opinion. Ms. Tietjen wrote to the Commissioner:

At the hearing on September 8, 2004, [X] referred to a record prepared by the dispatcher when officers perform a traffic stop. This information is known as a 'CAD event' (Computer Aided Dispatch) and is essentially a time stamp of an event when a dispatcher receives a call for service. This was the first time [X] referenced the CAD record, which is different and separate from the 'radio log.' The CAD records are categorized under the Retention Schedule as Code #POL 02800 - Radio Logs Dispatcher and must be retained for seven years. . . . . As [X's] first request for the CAD record was via an implied request through testimony at the September 8, 2004, hearing, the City had not previously provided this record to him. Under separate cover to [X] dated [September 21, 2004], the City is providing [him/her] with a copy of the CAD record.

In reference to X's request for the criminal record check log, Ms. Tietjen wrote:

This document is produced by the State of Minnesota Bureau of Criminal Apprehension who logs all of the criminal histories run by dispatchers at the various dispatch terminals. This information is categorized under Code # POL 03600 of the Retention schedule (Criminal Record Check Log) and must be retained for three years. . . . . The City obtained a print out of the criminal record check log from the State of Minnesota and it was provided to [X.] . . . .

Finally, regarding X's request for a copy of the audio video recording inventory log, dated 2.2.02, Ms. Tietjen made the following comments:

When an individual is brought into the police department, a video tape of the booking processing is made. Under Code # POL 05600 - Video Tape of Booking, these video tapes must be retained for 30 days. . . . Consistent with this, the City's policy is to retain the tapes for 30 days. The City made a video tape of [X's] booking on February 2, 2002. . . . .

The City also creates a written log of the audio and video booking recordings, which is the data [X] requested on July 23, 2004. This log, however, only contains an inventory of the tapes that are needed for evidentiary purposes. Under Code # POL 05810 - Audio Video Recording Inventory Log, (an inventory of evidentiary audio video recordings) of the Retention Schedule, this log must be retained permanently. . . . . [X's] booking tape was not needed or used for evidentiary purposes; thus it was not entered into the log. Therefore, because the log did not contain any information related to the February 2, 2002, events as requested by [X], it was not provided to [him/her]. . . . the City Clerk telephoned [X] shortly after July 23, 2004 to inform [him/her] that the log was not available. . . . X signed the Information Disclosure Request form [that contained the notation Do Not Have ] on July 29, 2004; thus, the telephone call would have been made after July 23, 2004, but before July 29, 2004.

Issue:

In his/her request for an opinion, X asked the Commissioner to address the following issue:

Did the City of Richfield comply with Minnesota Statutes, Chapter 13, in its determination regarding a July 23, 2004, request for access to data?

---

Discussion:

Pursuant to Minnesota Statutes, section 13.04, when an individual requests access to data of which s/he is the subject, the government entity is required to respond within ten working days. In addition, pursuant to section 13.03, subdivision 2, requests must be complied with in an appropriate manner.

With respect to X's request for a copy of the radio log, it is the Commissioner's opinion that the City needed to clarify the data X was requesting at the time X made the request. The GRRS contains entries for 911 Recordings and Radio Logs - Dispatcher. The City interpreted X's request for a copy of the radio log to be for the former, until the hearing on September 8, 2004, when it interpreted X's testimony to mean that s/he was actually seeking the latter. It is not clear to the Commissioner just what X meant by his/her July 23, 2004, request; given the two descriptions on the retention schedule, the City should have clarified which, if either, X was seeking.

With respect to X's request for a copy of the criminal record check log, dated March 19, 2002, X stated to the Commissioner that the log the City provided him/her was inconsistent with date asked for. The City gave X a copy of the criminal record check log dated February 2, 2002, and March 1, 2002. Ms. Tietjen did not discuss the discrepancy in the dates. If there is an entry related to X in the criminal history check log dated March 19, 2002, the City should have provided X with a copy. If there is not, the City should have so informed X.

Regarding X's request for a copy of the audio video recording inventory log, for February 2, 2002, Ms. Tietjen stated that because his/her booking tape was not used for evidentiary purposes, it was not entered into the log, so therefore the log did not contain any information related to the February 2, 2002, events as requested by [X]. Under the City's retention schedule, it must retain permanently its inventory log of audio video recordings that are used for evidentiary purposes. The City properly informed X that it did not maintain data about him/her in its audio video recording inventory log for February 2, 2002.

---

Opinion:

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

The City of Richfield did not comply with Minnesota Statutes, Chapter 13, in its determination regarding a July 23, 2004, request by a data subject for access to the radio log dated February 2, 2002, because it needed to clarify with the data subject the specific data sought. The City also needed either to provide a copy of the criminal record check log, dated March 19, 2002, to the data subject, or inform him/her that it did not have an entry in the log for that date that contained data about him/her. The City did respond properly to the request for the audio video recording inventory log, dated February 2, 2002.

Signed:

Kent Allin
Acting Commissioner

Dated: October 15, 2004

---