February 5, 2004; Minnesota Department of Transportation
2/5/2004 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 December 8, 2003, IPAD received a letter from Dan Browning of the Star Tribune. In his letter, Mr. Browning requested that the Commissioner issue an advisory opinion regarding his access to certain data the Minnesota Department of Transportation (Mn/DOT) maintains. Upon request by IPAD staff, Mr. Browning submitted clarifying information in a letter IPAD received on December 18, 2003. In response to Mr. Browning's request, IPAD, on behalf of the Commissioner, wrote to Carol Molnau, Commissioner of Mn/DOT. The purposes of this letter, dated December 23, 2003, were to inform her of Mr. Browning's request and to ask her to provide information or support for Mn/DOT's position. Lucy Kender, Director of Mn/DOT's Office of Communications, provided comments on behalf of Mn/DOT in an email dated January 22, 2004. A summary of the facts as Mr. Browning submitted them is as follows. In an August 27, 2003, email, Mr. Browning asked to inspect all appraisals on Jerry Asmussen's property on Hwy 63 in Rochester, as well as the rest of the file. I understand he's been notified that the commissioners hearing is scheduled for the middle of next month. The 20-day threshold of the new law may already has passed. (The Commissioner notes that Mr. Browning asked for data relating to Jerry Asmussen's property on Hwy 63 in Rochester. In Mn/DOT's response to Mr. Browning, Mn/DOT staff referred to the property as the Asmussen Highway 52 property. In the comments Ms. Kender submitted to the Commissioner, she referred to the property as Jerry Asmussen's property on Hwy 63 in Rochester. The Commissioner assumes Mr. Browning and Mn/DOT staff are all referring to the same parcel of property.) Mr. Browning sent a follow-up email on October 7, 2003. Mn/DOT staff responded in an October 20, 2003, email: The first appraisal on the Asmussen Highway 52 property was not used at the Commissioners Hearing on September 17, 2003. It is not considered public information. The second and third appraisals were shared at the hearing and are considered public. (You reviewed them this morning). In a November 7, 2003, email, Mr. Browning asked to inspect all public documents pertaining to certain right of way acquisitions. In a November 17, 2003, email, Mn/DOT discussed the five right of way acquisition files at issue in this opinion. Staff wrote: ...the files you requested are not closed (i.e. still in condemnation) and are considered non-public. We are citing Minnesota Statutes 13.44 subd.3. The files contain references to the appraisals that have not been shared or exchanged with the owners. They contain information such as the documentation that includes the certified appraisal amount or offer based on the certified amount. We believe that this information cannot be made public. In a November 20, 2003, email, staff wrote, Mn/DOT top staff has made a decision on the five open files...you requested. Any appraisal data or values offered or paid or deposited based on the appraised value will be removed from the files. In addition, any attorney-client privileged data will be removed from the files... Issues:In his request for an opinion, Mr. Browning asked the Commissioner to address the following issues:
Discussion:Issue 1:Pursuant to Minnesota Statutes, Chapter 13, did the Minnesota Department of Transportation respond appropriately and in a timely manner to an August 27, 2003, request for all appraisals on Jerry Asmussen's property on Hwy 63 in Rochester? Pursuant to Minnesota Statutes, Chapter 13, all government data are public unless otherwise classified. Section 13.44, subdivision 3, classifies certain appraisal data. Clause (a) of section 13.44 states: Estimated or appraised values of individual parcels of real property which are made by personnel of the state, its agencies and departments, or a political subdivision or by independent appraisers acting for the state, its agencies and departments, or a political subdivision for the purpose of selling or acquiring land through purchase or condemnation are classified as confidential data on individuals or protected nonpublic data. Clause (b) of section 13.44 states:
The data made confidential or protected nonpublic by the provisions of paragraph (a) shall become public upon the occurrence of any of the following:
On August 27, 2003, Mr. Browning asked to inspect all appraisals on Jerry Asmussen's property. On October 7, 2003, he sent another email seeking to resolve his outstanding Data Practices Act requests. Based on an October 20, 2003, email from Mn/DOT staff, it appears Mn/DOT responded on that date by providing Mr. Browning with the second and third appraisals. However, it appears Mn/DOT withheld the first appraisal. Of the data Mn/DOT did not release, staff stated, The first appraisal on the Asmussen Highway 52 property was not used at the Commissioners hearing on September 17, 2003. It is not considered public information. Regarding the appropriateness of Mn/DOT's response, Ms. Kender wrote: ...the [property] in question [was] in the condemnation process when Mr. Browning made his request and before the law was amended. Mn/DOT believes that because [this case] was in the condemnation process before the law was amended, that the appraisals mentioned in [the case] should remain non-public, confidential. We believe our opinion meets the intent of the law regarding sharing appraisals. The goal in sharing appraisals is to come to a mutual agreement and settlement. As the [case was] already in the condemnation process, we were well beyond the mutual agreement and settlement phase. We felt it was our obligation to protect the rights of property owners by maintaining the non-public status of the data in question. It is important first to point out that section 13.44 classifies only estimated or appraised values of individual parcels of real property. It does not classify other data relating to the appraisal process. That said, the Commissioner has the following comments. One of the situations in which estimated or appraised values must be made public is when the data are submitted to the owner under Minnesota Statutes, section 117.036. The Legislature enacted section 117.036 during the Special Session of 2003; it took effect on June 9, 2003. (See Minnesota Session Laws 2003, 1st Special Session, Chapter 19.) Section 117.036 provides that at least 20 days before presenting an eminent domain petition, the acquiring authority must provide the owner with a copy of the appraisal and inform the owner of the owner's right to obtain an appraisal. It appears Mn/DOT may be arguing that because the Asmussen property went to condemnation prior to June 9, 2003, Mn/DOT did not submit estimated or appraised values to Mr. Asmussen under section 117.036. The issue of Mr. Asmussen's access to appraisal value data is not before the Commissioner. Pursuant to section 13.44, subdivision 3(b), when any of the following five events has occurred, Mn/DOT must release estimated or appraised values on the Asmussen Highway 52 property: (1) the negotiating parties exchange appraisals; (2) the data are submitted to a court appointed condemnation commissioner; (3) the data are presented in court in condemnation proceedings; (4) the negotiating parties enter into an agreement for the purchase and sale of the property; or (5) the data are submitted to the owner under section 117.036. In his opinion request, Mr. Browning wrote, We read [section 13.44, subdivision 3] to mean that any appraisals become public once one has been shared with the owner or introduced into court. Several legislators have told us that they read it the same way. The Commissioner is inclined to agree with Mr. Browning. Ms. Kender states that the Asmussen property was in the condemnation process when Mr. Browning made his request. Thus, if data were submitted to a court appointed condemnation commissioner or presented in court in condemnation proceedings, or if any of the other events listed in section 13.44, subdivision 3(b), has occurred, all estimated or appraised values of the Asmussen property are public. That said, the Commissioner acknowledges that the plain language of section 13.44, subdivision 3, leaves room for a different interpretation. Therefore, he encourages the Legislature to clarify its intent. Regarding the timeliness of Mn/DOT's response, the Commissioner has the following comments. Pursuant to section 13.03, when a government entity receives a data request from a requestor who is not the subject of the data, the entity is required to respond in an appropriate and prompt manner and within a reasonable time. (See section 13.03, subdivision 2(a), and Minnesota Rules, part 1205.0300.) Based on the information Mr. Browning submitted (Ms. Kender did not comment on the timeliness of Mn/DOT's response), it took Mn/DOT nearly two months to provide data responsive to the request. In the Commissioner's opinion, this is not timely. Issue 2:Pursuant to Minnesota Statutes, Chapter 13, was the Minnesota Department of Transportation's November 20, 2003, response to a request to inspect all public data relating to five right of way acquisitions appropriate? In its response to Mr. Browning's November 7, 2003, data request, Mn/DOT staff wrote: Any appraisal data or values offered or paid or deposited based on the appraised value will be removed from the files. In addition, any attorney-client privileged data will be removed from the files. Ms. Kender's comments to the Commissioner are the same as those referenced in the discussion regarding Issue 1. Pursuant to section 13.44, subdivision 3, Mr. Browning, as a member of the public, is entitled to estimated or appraised values if any of the following events has occurred: (1) the negotiating parties exchange appraisals; (2) the data are submitted to a court appointed condemnation commissioner; (3) the data are presented in court in condemnation proceedings; (4) the negotiating parties enter into an agreement for the purchase and sale of the property; or (5) the data are submitted to the owner under section 117.036. Again, as the Commissioner is interpreting section 13.44, subdivision 3, for each right of way acquisition, if any of the 5 events has occurred, Mr. Browning gets access to all the estimated or appraised values for that parcel of land. In addition, in its response to Mr. Browning, Mn/DOT noted that it was withholding certain attorney-client privileged data. Section 13.393 governs certain types of data generated by an attorney acting in a professional capacity for a government entity, and permits those data to be withheld from disclosure because they are not regulated by Chapter 13. In this case, the Commissioner does not have sufficient information to determine whether it is appropriate for Mn/DOT to invoke section 13.393. Opinion:Based on the facts and information provided, my opinion on the issues that Mr. Browning raised is as follows:
Signed:
Brian J. Lamb
Dated: February 5, 2004 |
Property Data
Appraisals (13.44)
