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    Advisory Opinion 01-087

    October 25, 2001; City of Mounds View

    10/25/2001 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:

    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 that are not public, are available for public access.

    On September 24, 2001, IPA received two letters, dated September 21 and 24, 2001, from X regarding X's access to certain data that the City of Mounds View maintains. After conversations between X and IPA staff it was determined that the Commissioner would issue an opinion on the matters listed below.

    IPA, on behalf of the Commissioner, wrote to Kathleen Miller, Administrator of the City, in response to X's request. The purposes of this letter, dated October 3, 2001, were to inform her of X's request and to ask her to provide information or support for the City's position. On October 16, 2001, IPA received a response, dated October 15, 2001, from Julie Fleming-Wolfe, an attorney representing the City.

    A summary of the facts as presented by X is as follows. In letters dated August 7 and August 29, 2001, X requested access to various types of data. In the August 7 letter, X, asked to inspect:

    1. All reports, bills, notes, emails, correspondence, and other any documents between Springsted, Inc. and its representatives from 1999 to present.
    2. All notes, reports, motions, resolutions, ordinances, and other documentation approving and/or appointing a fiscal or financial consultant for the City of Mounds View and for the Mounds View Economic Development Authority, from 1996 to present.
    3. All correspondence with or from Dan Coughlin from 1998 through the present (Note: individual was elected Mayor in November 1998 and served as mayor until December 2000, and serves as the Chairperson of the Park and Recreation Commission in 2001).
    4. All notes, reports, emails, correspondence, and any other correspondence between Kern, DeWinter, and Vierre, Ltd and its representatives from 1999 to the present.
    5. All correspondence, reports, emails, etc. with any other Audit/Accounting firm and/or Independent Audit/Accounting firm regarding any and all matters from 2000 to the present.
    6. All performance appraisals and/or documents referring to my performance from 1996 to present.
    7. All just and correct claims reports (name of report may be slightly different) that are submitted to the City Council at their regularly scheduled meeting, and approved and signed by the Mayor and Clerk-Administrator, from 1999 through the present. Note: information should include the report, signed cover sheet, and any other resolution/documentation.
    8. Any notes, reports, contracts, motions, resolutions, etc. between caterers, managers, etc. at the City's Community Center/Banquet Center, including but not limited to Elegant Thymes Catering.
    9. Any notes, reports, contracts, emails, agendas, minutes, and other documentation relating to any form of managing or overseeing the banquet center at the Community Center from 1996 to the present.
    10. All correspondence, including but not limited to notes and reports, that document the quality and/or level of work expected of the City's Finance Director, from 1990 to present.
    11. All notes, emails, reports, agendas, minutes, resolutions, and any other correspondence relating to budget reports, variance reports, or requests thereof, from 1996 to the present.
    12. All notes, emails, reports, agendas, minutes, resolutions, and any other correspondence relating to financial reports and/or summaries, or requests thereof, from 1996 to the present.
    13. All campaign reports, financial disclosure reports, reports/statements of financial interest, and any other similar statement/report for all elected officials, members of all boards and commissions, and the Clerk-Administrator, from 1998 to present.

    In the August 29 letter, X requested the following information:

    1. Any and all disciplinary action taken by any individual or Council Member/Mayor in the City of Mounds View against any and all employees including notes, reports, etc. from 1998 to the present.
    2. Advance notice and copy of agenda for all City Council meetings, special meetings, work sessions, retreats, and any and all committees thereof, including dates, times and locations.
    3. Any and all information relating to candidates for the Finance Director position (or similarly titled position), including but not limited to:
    a. Name, address and phone number of candidates;
    b. Summary of phone calls, copies of letters, notes, interviews, etc. that are conducted, including but not limited to interviews, notes, possible employment offers, etc., as well as preliminary summary of such activity and follow up summary of any proposed action or actual action taken.
    c. Any meetings of staff, human resources committee, City Council, or committees of the City Council where the position or individuals for such position are discussed (including dates and times).
    d. Any offers that are made to any individual for such position including the terms thereof.

    In a letter dated September 14, 2001, Ms. Miller advised X that the data X requested on August 7, 2001, were available for X's review. She asked X to call for an appointment.

    X wrote that s/he left a message for Ms. Miller on September 17. Receiving no response, X left another message on September 19 and advised Ms. Miller that s/he would be at City Hall on September 21 to inspect the data unless X heard otherwise. Hearing nothing, X went to City Hall on the 21st, and was advised by other staff that no data were available.

    In a letter dated September 19, 2001, Ms. Fleming-Wolfe wrote to X's attorney, Ann Walther. In her letter, Ms. Fleming-Wolfe wrote:

    Please advise your [client] that any contact with City employees or officials on matters related to [his/her] current dispute with the City should be made through [his/her] own and/or the City's attorney. All correspondence, including any requests for information, should be directed to me, and not the city administrator or the individual council members.

    Issues:

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

    1. Pursuant to Minnesota Statutes, Chapter 13, did the City of Mounds View respond appropriately to data requests made on August 7 and August 29, 2001?
    2. Is the City of Mounds View required by Minnesota Statutes, section 13.03, subdivision 2(b), to make copies of its written public access procedures easily accessible, either by distributing free copies to the public or by posting a copy?

    Discussion:

    Issue 1

    Pursuant to Minnesota Statutes, Chapter 13, did the City of Mounds View respond appropriately to data requests made on August 7 and August 29, 2001?

    Pursuant to Minnesota Statutes, section 13.03, and Minnesota Rules, Part 1205.0300, when an individual makes a request for public data of which the requestor is not the subject, the government entity must respond in a prompt and appropriate manner, and within a reasonable time, respectively.

    Pursuant to Minnesota Statutes, section 13.04, when an individual makes a request for data of which the requestor is the subject, the government entity must respond within 10 working days.

    In her comments to the Commissioner, Ms. Fleming-Wolfe wrote:

    [X's] August 29 request, as with [his/her] August 7 request, was sent to the City after [X] filed a Petition for review with BMS. In that proceeding, [X is] represented by an attorney, Ann Walther....Because [X was] represented by counsel who had filed actions on [X's] behalf with BMS, I wrote to their attorney and asked that all direct contact with my clients (the City) cease, and that any requests for information or contact with my clients be made through their attorney....I informed Ms. Walther that the City would not be responding to requests for data that had been made after the petitions had been filed with BMS, with the exception of the August 7, 2001 request.

    Ms. Fleming-Wolfe also wrote that when X arrived at City Hall on September 21 to inspect the data Ms. Miller originally said would be available, City staff advised X that X should contact his/her attorney. Ms. Fleming-Wolfe stated:

    [X] did not contact me to arrange a time to review the documents until Friday, October 12, 2001. I informed [X] of my availability for [X's] review of the documents, and [X] informed me that [s/he] would call me this week to schedule a time to review them. As of the date of this letter, I have not yet heard back from [X].

    As the Commissioner stated in Advisory Opinion 96-038:

    Nowhere in Section 13.03 does it state that a government entity can require a person to make requests through his/her attorney. Nowhere in Section 13.03 does it state that a government entity can require a person to hire an attorney, and incur the resulting expense, so that the attorney can make requests on behalf of the person. Thus, given that the language in Section 13.03 describes a process by which an person can make requests directly to a government entity, it seems reasonable to conclude that the Legislature did not contemplate a government entity creating procedures which would effectively result in the following: that a request for access to public data by a person would trigger a letter to the person's attorney advising the attorney to advise his/her client that the client could make requests for public data only through her/his attorney. Such a result contradicts the Legislative policy behind Chapter 13 of making public government data easily and promptly accessible to members of the public. (See Section 13.03.)

    The Commissioner has the following comments. First, it was not appropriate for the City to require X to make data requests through his/her attorney. X has the right to make data requests and to have those requests responded to by the City. Second, if the City has not yet provided data responsive to X's August 7 and 29 requests, it should do so immediately given that X made those requests between eight and eleven weeks ago. If the City does not understand parts of X's requests, it should seek specific clarification. If some of the requested data are classified such that they cannot be released to X, the City must so inform X. If some of the requested data do not exist, the City should so inform X. Finally, given that Ms. Fleming-Wolfe stated that she can facilitate X's review of the data X requested on August 7, X should contact her to arrange a convenient time for inspection.

    Issue 2

    Is the City of Mounds View required by Minnesota Statutes, section 13.03, subdivision 2(b), to make copies of its written public access procedures easily accessible, either by distributing free copies to the public or by posting a copy?

    The 1999 Minnesota Legislature enacted the language in section 13.03, subdivision 2(b). It became effective on January 1, 2001, and provides:

    The responsible authority shall prepare public access procedures in written form and update them no later than August 1 of each year as necessary to reflect any changes in personnel or circumstances that might affect public access to government data. The responsible authority shall make copies of the written public access procedures easily available to the public by distributing free copies of the procedures to the public or by posting a copy of the procedures in a conspicuous place within the government entity that is easily accessible to the public.

    In her comments, Ms. Fleming-Wolfe wrote, There is no question but that the City is required by Minn. Stat. section 13.03, subdivision 2(b), to make copies of its written public access procedures easily accessible by distributing free copies to the public or by posting a copy. This is precisely what the City has done, as [X] is fully aware.

    She further wrote, A copy of the City's policy...was provided to [X] in connection with numerous other requests for data under the Data Practices Act in June 2001.

    Here, there is a factual dispute which the Commissioner is unable to resolve. X alleges to the best of my knowledge that the City has neither posted the policy nor provided free copies. The City asserts that it previously provided X with a copy of the policy. If the City has not yet provided X with a copy of the policy, X should ask for a copy.

    A final note is appropriate. By providing X with a copy of the policy, the City has not necessarily fulfilled the requirement set forth in section 13.03, subdivision 2(b). The statute requires that the City either post a copy of the policy or distribute free copies to the public. The Commissioner's interpretation of this provision is that the City must take a proactive measure to make its policy available to all members of the public. One option is to post a copy. Other options include having copies available at the main reception desk or publishing the policy in a newsletter or web site. If the City has not yet done one of these things, it should do so immediately.

    Opinion:

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

    1. Pursuant to Minnesota Statutes, Chapter 13, the City of Mounds View did not respond appropriately to data requests made on August 7 and August 29, 2001.
    2. The City of Mounds View is required by Minnesota Statutes, section 13.03, subdivision 2(b), to make copies of its written public access procedures easily accessible, either by distributing free copies to the public or by posting a copy.
     

    Signed:

    David F. Fisher
    Commissioner

    Dated: October 25, 2001

    Response to data requests

    Requests for data

    Policies and Procedures

    Public access procedures

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