Issues:

In her request for an opinion, Ms. Bowers-Stead asked the Commissioner to address the following issues:

Discussion:

Issue 1

Pursuant to Minnesota Statutes, Chapter 13, an individual has the right to gain access to government data. Section 13.03, subdivision 2, provides that the responsible authority of a government entity must respond to requests for access to public data in an appropriate and prompt manner. Minnesota Rules, part 1205.0300, states that the entity must respond within a reasonable time. Further, all government entities are required to appoint someone to handle matters regarding data practices. Minnesota Rules, part 1205.1000, states:

Pursuant to Minnesota Statutes, section 13.02, subdivision 16, the governing body of each political subdivision and the governing body of each state agency whose activities are subject to the direction of a governing body shall, by September 30, 1981, if it has not done so, appoint a responsible authority....The governing body shall confer on the responsible authority full administrative authority to carry out the duties assigned by the act and by this chapter. [Emphasis added.]

On January 18, 2000, the Greenwood City Council adopted Ordinance No. 127. Subdivision 10 states:

In the event the City Council as a whole (majority vote) or Mayor acting individually, requires information from a municipality or independent contractor of professional services to the City, such requests shall be governed by the contract between the City and the service provider and shall not be subject to processing through the Public Information Officer.

Provision 9 of the contract between Greenwood and Deephaven states that direction to Deephaven staff will be through the Greenwood Mayor only.

In his response to the Commissioner, Mr. Kelly defended Greenwood's Ordinance. He cited provisions from Minnesota Statutes, Chapter 412, and stated, Using these various statutory authorities granted municipalities, the City of Greenwood has enacted the ordinance in question. That ordinance adopts the language of Minnesota Statutes Chapter 13.

Mr. Kelly argued that under subdivision 10 of the Greenwood Ordinance, a request to access public data that comes from an individual who also happens to be a City Council Member is subject to the requirements of provision 9 of the services Letter of Understanding between the City of Greenwood and Deephaven. This contract provision states that such requests can be handled only at the specific direction of the Mayor of Greenwood.

According to Mr. Kelly, requests by members of the public to gain access to data about Greenwood caused the City of Deephaven to complain about such requests. This led Greenwood to adopt the Ordinance which is the subject of this opinion. However, other than citations to Greenwood's Ordinance, Mr. Kelly has not established that Greenwood has appointed a responsible authority to carry out the duties assigned by Chapter 13, to assure proper handling of requests by individuals to gain access to public data.

Mr. Kelly argued that it is appropriate for the Mayor of Greenwood to exercise control over requests by the public for access to data. Clearly the Mayor is responsible for some executive role in the management of the affairs of Greenwood. However, Mr. Kelly has not established that the Mayor of Greenwood has been appointed to be Greenwood's responsible authority. Under both Chapter 13 and the applicable rules of the Minnesota Department of Administration (Chapter 1205), it is the responsible authority who must ensure Greenwood's compliance. If the Mayor had been appointed responsible authority, the exercise of supervision over the City's handling of requests for public access to data would be consistent with Chapter 13. However, Greenwood has provided no information as to the identity of its responsible authority. Rather than appointing the Mayor as responsible authority to ensure compliance with Chapter 13, it appears the Mayor has been designated to screen requests for data.

As Mr. Kelly has stated, a city may, under section 412.221, adopt ordinances for a variety of purposes. However, under that same provision of statute, such ordinances [must not be] inconsistent with the constitution and laws of the United States or of this state... An ordinance or contract provision that limits the right of any member of the public, including a member of a city council, to gain access to public data is clearly inconsistent with the provisions of section 13.03.

Issue 2

Ms. Bowers-Stead made a written request for government data on April 17, 2000. On the request form, she wrote, inspect/if needed copies. This is clearly a request to inspect data; Mr. Kelly, in his response to the Commissioner, did not dispute this fact. Along with her request, Ms. Bowers-Stead was required to attached a check for $50. City of Greenwood Ordinance No. 127, subdivision 3, states, [a]ll applications [for government data] shall be accompanied by a cash deposit of $50.00.

Pursuant to Minnesota Statutes, section 13.03, subdivision 3 (a), if a person requests access to government data for the purpose of inspection, the responsible authority may not assess a charge or require the requesting person to pay a fee to inspect data.

In his response to the Commissioner, Mr. Kelly asserted:

The City of Greenwood is of the opinion that it has legal authority under [section 13.03, subdivision 3] to assess a lawfully recoverable cost back to the requesting party and to require the requesting party to make a deposit towards those anticipated costs.

Mr. Kelly also stated that because Ms. Bowers-Stead is a member of the Greenwood City Council, another provision in Ordinance No. 127 (subdivision 10) applies to her request. He wrote: [a]dministration oriented data requests by the Mayor or the City Council as a whole are processed under contract by Deephaven as administrative business of the City. All other requests are processed through the Public Information Officer provisions of the ordinance. Subdivision 10 does not make reference to requiring a deposit.

Mr. Kelly's point is not clear. On one hand, he argues that pursuant to subdivision 3 of the Ordinance, Greenwood is justified in requiring Ms. Bowers-Stead to pay a deposit. On the other hand, he asserts that another provision in the Ordinance, subdivision 10, applies to her request because she is a member of the City Council. Subdivision 10 does not include a deposit requirement.

Given the information provided to the Commissioner, it is clear that when Ms. Bowers-Stead made her request to inspect government data, Greenwood required her to put down a $50 deposit. Chapter 13 states clearly that inspection of government data is free. Therefore, Greenwood may not require that she pay a cash deposit to inspect data. (For additional information see Advisory Opinion 00-015, also involving the City of Greenwood.)

Opinion:

Based on the facts and information provided, my opinion on the issues that Ms. Bowers-Stead raised is as follows:

Signed:

David F. Fisher
Commissioner

Dated: August 1, 2000