July 7, 1999; City of Little Canada
7/7/1999 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 IPA and, except for any data classified as not public, are available for public access. On May 24, 1999, IPA received a letter dated May 23, 1999, from Simcha Plisner. Mr. Plisner requested that the Commissioner issue an advisory opinion regarding his rights to gain access to data the City of Little Canada maintains. IPA, on behalf of the Commissioner, wrote to Joel Hanson, Administrator of Little Canada, in response to Mr. Plisner's request. The purposes of this letter, dated June 2, 1999, were to inform him of Mr. Plisner's request and to ask him to provide information or support for the City's position. On June 11, 1999, IPA received a response, dated June 8, 1999, from Michael Budka, an attorney representing Little Canada. A summary of the facts is as follows. Mr. Plisner sought to inspect all data regarding the sump pump inspection program. According to a letter from Mr. Plisner to Mr. Hanson, part of the City's response was that staff would be present during Mr. Plisner's inspection of the data. Mr. Plisner objected and in another letter to Mr. Hanson he wrote: May I suggest that I sit at the far end of the council table where I will review the requested data. Your agent, I suggest, can sit or stand at the door entry to the council chamber protecting the data security without being able to monitor exactly what I am doing, reading, or writing. He/she will have full view so as to be able to secure the data. Mr. Hanson responded, The records are (and have been) available for your inspection at ciy hall. I will accompany you during your review. Please call to arrange a time to conduct your review. Mr. Plisner then requested an opinion. Issue:In his request for an opinion, Mr. Plisner asked the Commissioner to address the following issue:
Discussion:Pursuant to Minnesota Statutes, section 13.03, individuals have the right to inspect and obtain copies of public government data. Further, pursuant to section 13.04, individuals have the right to inspect and obtain copies of public government data of which they are the subject. However, when a government entity grants access to data, it must take measures to protect and preserve those data. Subdivision 1 of section 15.17, the official records act, states, All officers and agencies of the state, counties, cities...shall make and preserve all records necessary to a full and accurate knowledge of their official activities. When read together, section 15.17 and section 13.03 impose an obligation upon government entities to preserve records used to conduct public business so those records will be available for public inspection. In the case of this opinion, Mr. Plisner requested access to sump pump inspection data. Mr. Budka, on behalf of Little Canada, stated: It is the City of Little Canada's position that a City employee be present as Mr. Plisner reviews the records he has requested. As the responsible authority, the City of Little Canada must ensure the security and integrity of government data, as well as provide access to government data at reasonable times and places. The City of Little Canada is responsible for the preservation of all government records held for and maintained for operation. It is the City's duty to carefully protect and preserve government records from deterioration, mutilation, loss, or destruction. Minn. Stat. section15.17, Subd. 2. Based upon this duty, the City sets guidelines for review and/or duplication of government documents. The Commissioner addressed a somewhat similar situation in Advisory Opinion 96-028. She wrote: In this case, K's rights to have access to the private data about him/her must be balanced with DHS' obligation to protect the security of those data. It would seem K is correct in asserting that if K wishes to discuss the data with her/his designee, the security guard would then have access to the private data about K. However, if DHS staff believe the security of the data are threatened, or if DHS staff are not comfortable explaining the data to K in the absence of a security guard, then DHS is justified in finding some way to meet its obligation to Chapter 13 and to its staff.... However, DHS bears the ultimate responsibility for finding some way to accommodate, if at all possible, these two clear obligations, which in this instance appear to be heavily in conflict. Possible ways for K and DHS to resolve this dilemma include the following: requiring K to inspect documents in the presence of a designee with a security guard posted outside the door; positioning a security guard in such a way that the guard could observe K's inspection of the data without being able to overhear any questions discussed by K and the designee; providing K with copies of the documents so that the physical integrity of the original data would not be an issue; and/or allowing K to inspect copies of the documents outside the presence of a security guard with telephone communication to a designee for any explanations that might be required. Undoubtedly, there are other possible ways for DHS and K to accommodate each other's interests. Given the obligations of Chapter 13 and other public information policy requirements, the responsibility rests on DHS, to, if at all possible, find a mutually acceptable solution. However, this will be possible only if K is willing to cooperate with DHS. In summation, Mr. Plisner has the right to gain access to the data and Little Canada is obligated to protect and secure those same data. Somehow, Mr. Plisner and Little Canada will have to find a way to resolve this dispute. If Mr. Plisner is concerned that the City's staff person will observe every document he reads or every word in each note he takes, perhaps the staff person could position him/herself far enough away from Mr. Plisner to avoid seeing what Mr. Plisner is looking at or copying. As the Commissioner stated in Advisory Opinion 96-028, it is the government entity that bears the responsibility of finding a mutually acceptable solution. However, to arrive at that solution, both parties must be willing to cooperate. Opinion:Based on the facts and information provided, my opinion on the issue raised by is as follows:
Signed: David F. Fisher
Dated: July 7, 1999 |
Inspection
Security safeguards (13.05, subd. 5)
