Facts and Procedural History:

On August 19, 2004, IPAD received a letter dated August 18, 2004, from Paul Bakken. In his letter, Mr. Bakken asked the Commissioner to issue an advisory opinion regarding his access to certain data that the Eagan Charter Commission maintains.

In response to Mr. Bakken's request, IPAD, on behalf of the Commissioner, wrote to Betty Fedde, the Chair of the Commission. The purposes of this letter, dated August 23, 2004, were to inform her of Mr. Bakken's request and to ask her to provide information or support for the Commission's position. On August 31, 2004, IPAD received a response, dated same, from Jon Felde, Secretary of the Commission.

Also in a letter dated August 23, 2004, IPAD invited the City of Eagan to provide comments. Michael Dougherty, an attorney representing the City, responded in a letter dated August 31, 2004.

A summary of the facts as Mr. Bakken provided them is as follows. In a letter dated July 16, 2004, Mr. Bakken wrote to Mr. Felde:

Pursuant to [Chapter 13], I write to request access to all organizational documents, meeting minutes, videotape records of meetings, financial records, and end of year reports of the Eagan Charter Commission. I also request access to any studies or research materials that the Charter Commission has used to support its decision to submit a charter to a vote in Eagan.

Upon inspection, I may wish to obtain copies of selected documents. I will make arrangements with you to copy all such items at my expense, and under your supervision, if required....

Mr. Felde responded in a letter dated July 30, 2004. He wrote:

[At an earlier point in time] the Eagan City Attorney stated that the Eagan Charter Commission is a part of the District Court, not a part of the City....Under that interpretation, the Charter Commission is not subject to [Chapter 13].

Mr. Felde also informed Mr. Bakken that some of the documents Mr. Bakken requested were located at various locations, including the League of Minnesota Cities, a local library, the City of Eagan, and the District Court in Hastings. Mr. Felde further wrote:

I will assemble other Charter Commission records for your review at our next scheduled Charter Commission meeting....If you would like copies of any of the documents, identify them from among those we make available, and we will copy them for you according to the standard copying charges established by the District Court....

In his opinion request, Mr. Bakken noted that he attended the Commission meeting to inspect the data the Commission maintains:

[At the Commission meeting] I also asked if the Commission had a copy of its data practices procedures available. The Commission does not have a written data practices procedure document.

I then asked if I could bring in the portable copy machine that I had out in my car and use it to make copies of documents. This request was refused on the grounds that this activity would be disruptive to the meeting. I next asked if I could make digital photographs of records with a camera that I had on my person. Again, I was told that this would not be permitted because it would be too disruptive....

Issues:

In his request for an opinion, Mr. Bakken asked the Commissioner to address the following issues:

Is the Eagan Charter Commission subject to Minnesota Statutes, Chapter 13? If the answer to question 1 is yes, did the Eagan Charter Commission comply with Minnesota Statutes, Chapter 13, in its response to a July 16, 2004, request for access to data? If the answer to question 1 is yes, is the Eagan Charter Commission in compliance with Minnesota Statutes, Chapter 13, if it has not prepared the public access procedures required pursuant to section 13.03, subdivision 2(b)? If the answer to question 1 is yes, did the Eagan Charter Commission comply with Minnesota Statutes, Chapter 13, when it refused to allow the data requestor to make copies with his portable copy machine or take digital photographs of the data he was inspecting?

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Discussion:

Issue 1:

Is the Eagan Charter Commission subject to Minnesota Statutes, Chapter 13?

Minnesota Statutes, section 13.02, subdivision 7, defines government data as all data collected, created, received, maintained or disseminated by any state agency, political subdivision, or statewide system regardless of its physical form, storage media or conditions of use.

Section 13.02, subdivision 11, defines political subdivision as ...any board, commission, district or authority created pursuant to law, local ordinance or charter provision.

In his comments to the Commissioner, Mr. Felde wrote:

The position of the Commission is that it is a part of the City. The City has taken a contrary position and has insinuated that the Commission is part of the judiciary. A dubious alternative position is that the Charter Commission is an independent political entity. This is a threshold issue. Under the Charter Commissions [sic] interpretation, [Chapter 13] does apply to the Commission as part of the City in the same way that [Chapter 13] applies to the City's other boards and commissions. Requests for the inspection of data made under [Chapter 13] should be directed to the City's responsible authority. It is only through an effort to provide access to data by the Commission that I responded to Mr. Bakken. In hindsight, [Mr.] Bakken should have been directed to the City of Eagan.

Mr. Dougherty, in his comments to the Commissioner, wrote:

...Having reviewed the four issues that the Commissioner will address in its advisory opinion it does not seem like the City can offer much assistance in the determination. While the question of whether the Charter Commission is required to comply with Chapter 13 of the Minnesota Statutes may affect the residents of the City and others, the decision should not impact the City of Eagan's administration....

The material you provided includes my written opinion of October 12, 2001 regarding the Charter Commission together with a letter from John [sic] Felde...to Paul Bakken... Contrary to the statements made in Mr. Felde's letter, my opinion neither expressly nor by implication asserted that the Eagan Charter Commission is part of the district court. The opinion is limited to addressing the structure of the organizations as being distinct from each other, essentially recognizing the existence of two entities.

As stated above, for purposes of Chapter 13, a political subdivision includes a commission created pursuant to law. Minnesota Statutes, Chapter 410, contains the enabling legislation that grants charter commissions their powers and responsibilities. Thus, it is the Commissioner's conclusion that a charter commission, such as the Eagan Charter Commission, is a political subdivision and therefore is subject to the requirements of Chapter 13.

Issue 2:

If the answer to question 1 is yes, did the Eagan Charter Commission comply with Minnesota Statutes, Chapter 13, in its response to a July 16, 2004, request for access to data?

Pursuant to Minnesota Statutes, section 13.03, when a government entity, including a political subdivision, receives a data request from an individual 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, section 1205.0300.)

In addition, section 13.03, subdivision 3(a), states, Upon request to a responsible authority or designee, a person shall be permitted to inspect and copy public government data at reasonable times and places...

In a letter dated July 16, 2004, Mr. Bakken made a request to inspect certain data. Mr. Felde advised Mr. Bakken that Mr. Bakken could review some of the data at the next scheduled Charter Commission meeting, August 11, 2004, at 6:30 p.m. In his opinion request, Mr. Bakken stated that regular meetings of the Commission are held only once a month. Based on the reasonable times and places language in section 13.03, subdivision 3(a), if this is the only time the Commission allows individuals to inspect data it maintains, the Commission is not in compliance with Chapter 13.

Mr. Felde also advised Mr. Bakken that certain of the data he requested were available at the League of Minnesota Cities, a local library, the District Court in Hastings, and the City of Eagan. Thus, it appears the Commission does not maintain some of the types of data Mr. Bakken requested. If so, the Commission may be in violation of Minnesota Statutes, section 15.17, the Official Records Act. Section 15.17, subdivision 1, states, All officers and agencies of [government entities]... shall make and preserve all records necessary to a full and accurate knowledge of their official activities. Section 15.17, subdivision 4, states, Access to records containing government data is governed by sections 13.03 and 138.17. Accordingly, section 15.17, read in concert with section 13.03, imposes an obligation upon government entities to make and preserve a record of their actions so that the data in those records will be available pursuant to the provisions of Chapter 13.

At least some of the data Mr. Bakken requested, e.g., meeting minutes, bylaws, annual reports, and financial reports, appear to document decisions made by the Commission. Such documentation constitutes an official record, must be maintained pursuant to the provisions of Minnesota Statutes, section 138.17, and is subject to the access provisions of Chapter 13.

The Commissioner cannot state definitively that the Commission did not comply with Chapter 13 in responding to Mr. Bakken's request. However, it appears the Commission may be in violation of section 15.17 and, if the only time the Commission permits inspection of data is at its monthly meetings, the Commission needs to allow more frequent inspection opportunities.

Issue 3:

If the answer to question 1 is yes, is the Eagan Charter Commission in compliance with Minnesota Statutes, Chapter 13, if it has not prepared the public access procedures required pursuant to section 13.03, subdivision 2(b)?

Minnesota Statutes, section 13.03, subdivision 2(b), states:

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 his opinion request, Mr. Bakken wrote, I also asked if the Commission had a copy of its data practices procedure document. The Commission does not have a written data practices procedure document.

Mr. Felde, in his comments to the Commissioner, wrote:

As stated before, the Charter Commission is a part of the City of Eagan. As such, it does not need to prepare its own public access procedures. If the Commissioner is of the opinion that the Commission is an independent political entity, then the Commission has not complied with Minn. Stat. section13.03, subd. 2(b), because it has not prepared public access procedures. The only mitigating factors that I can raise are that the Commission did not believe that it is independent of the City, was not trained in [Chapter 13], and therefore, did not know that public access procedures are required.

The language in section 13.03, subdivision 2(b), was adopted during the 1999 Legislative Session and went into effect on January 1, 2001. It states clearly that all government entities must create, and update annually, procedures relating to public access to data. According to Mr. Felde, the Commission has not prepared its public access procedures and, therefore, is not in compliance with Chapter 13. The Commissioner urges the Commission to prepare the public access procedures as soon as possible.

Issue 4:

If the answer to question 1 is yes, did the Eagan Charter Commission comply with Minnesota Statutes, Chapter 13, when it refused to allow the data requestor to make copies with his portable copy machine or take digital photographs of the data he was inspecting?

In his opinion request, Mr. Bakken wrote:

I then asked if I could bring in the portable copy machine that I had out in my car and use it to make copies of the documents. This request was refused on the grounds that this activity would be disruptive to the meeting. I next asked if I could make digital photographs of records with a camera that I had on my person. Again, I was told that this would not be permitted because it would be too disruptive....

Finally, I waited until adjournment of the meeting and asked again to make digital photos. I pointed out that I wouldn't be disrupting the meeting at this time, given that the meeting had adjourned. After some discussion, I was allowed to make photographs of 6 pages. Because the meeting ran until well after 8:00 PM, and the building in which the meeting was held closes at 8:30 PM, I did not have sufficient time in which to organize the material and take photos of a larger selection of documents.

Mr. Felde, in his comments to the Commissioner, wrote:

With the Commission's consent, [Mr.] Bakken made digital photographs of all of the documents that he selected. The Minnesota Attorney General has issued an opinion under the Open Meeting Law that open meetings may be taped by a member of the public so long as the conduct does not disturb the meeting. That is the same reasonable restriction placed on [Mr.] Bakken. [Mr.] Bakken chose not to retrieve his portable copying machine from his car. As he did with his digital camera, [Mr.] Bakken could have made copies on his portable machine in a way that would not disturb the meeting. Since [Mr.] Bakken was not refused the use of his portable copying machine or digital camera in making copies of data, this issue is moot.

The Commissioner is unable to resolve the factual dispute regarding whether the Commission did or did not permit Mr. Bakken to make copies with his portable copy machine or his digital camera.

However, the Commissioner makes the following comments. As stated above, section 13.03, subdivision 3(a), requires government entities to allow individuals to inspect and copy government data at reasonable times and places. The Commissioner previously has opined that it is permissible for an individual to use a personal electronic device, i.e., a tape recorder or a scanner, either to aid in inspection or to make copies of data. (See Advisory Opinions 01-086 and 04-051.) Similarly, it would be appropriate for Mr. Felde to use a portable copy machine or a digital camera to make his own copies of data as long as such use is reasonable.

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Opinion:

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

The Eagan Charter Commission is subject to Minnesota Statutes, Chapter 13. The Commissioner cannot determine, with certainty, if the Eagan Charter Commission complied with Minnesota Statutes, Chapter 13, in its response to a July 16, 2004, request for access to data. The Eagan Charter Commission is not in compliance with Minnesota Statutes, Chapter 13, if it has not prepared the public access procedures required pursuant to section 13.03, subdivision 2(b). The Commissioner cannot determine, with certainty, if the Eagan Charter Commission refused to allow the data requestor to make copies with his portable copy machine or take digital photographs of the data he was inspecting.

Signed:

Brian J. Lamb
Commissioner

Dated: September 16, 2004

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