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Advisory Opinion 98-052

December 4, 1998; Clay County

12/4/1998 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 classified as not public, are available for public access.

On October 15, 1998, IPA received a letter dated October 12, 1998, from Steven Johnson, an attorney representing the publisher of The Forum newspaper. In his letter, Mr. Johnson requested that the Commissioner issue an opinion regarding the newspaper's access to data maintained by Clay County.

IPA, on behalf of the Commissioner, wrote to Vijay Sethi, Clay County Coordinator, in response to Mr. Johnson's request. The purposes of this letter, dated October 22, 1998, were to inform him of Mr. Johnson's request and to ask him to provide information or support for the County's position. On November 2, 1998, IPA received comments, dated November 2 from Ann Goering, an attorney representing the County.

A summary of the facts is as follows. In a letter dated September 24, 1998, Mr. Johnson requested access to a copy of a letter [Clay County] Sheriff Larry Costello sent to [Chair of the Clay County Board of Commissioners] John Evert, presumably sometime during the past month.

In her response to Mr. Johnson's request, Ms. Goering argued that the data in the letter are not public pursuant to Minnesota Statutes Section 13.33, elected officials/correspondence.

In the Commissioner's October 22, 1998, letter to Mr. Sethi, she advised him that in analyzing the issue at hand, it would be helpful for her to review the letter. The County did not provide a copy of the letter to the Commissioner.

Issue:

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

Were The Forum's rights under Minnesota Statutes Chapter 13 violated because Clay County denied access to data contained in a September 24, 1998, letter written by the Clay County Sheriff to the Chair of the Clay County Board of Commissioners?

Discussion:

Pursuant to Minnesota Statutes Section 13.03, subdivision 1, government data are presumed public unless otherwise classified by statute, federal law, or temporary classification (see Section 13.06). Chapter 13 provides a classification other than public for correspondence between individuals and elected officials; however, as the Commissioner has previously opined, this not public classification applies only if the correspondence in question is between members of the public and elected officials. (See Advisory Opinions 97-002 and 97-014.) Section 13.33 states:

Correspondence between individuals and elected officials is private data on individuals, but may be made public by either the sender or the recipient.

In his opinion request, Mr. Johnson described the letter. He wrote:

Although we obviously do not have a copy of the letter, we believe the letter clearly pertains to Clay County business, possibly the Clay County Law Enforcement Committee. We are virtually certain that the letter was written by Sheriff Larry Costello on Clay County Sheriff letterhead. We do not believe the letter was written by Sheriff Costello as a private citizen.

He asserted that because the apparent purpose of Section 13.33 is to protect only correspondence between private citizens and elected officials, the letter in question is public.

In her comments to the Commissioner, Ms. Goering disputed Mr. Johnson's position. She wrote:

The letter from Sheriff Costello to Board Chair Evert does not constitute correspondence by a government employee doing required work. Without revealing the substance of the letter, it does not report on crime in Clay County or any similar data or information regarding the operation or management of the Sheriff's Department....

Sheriff Costello and Board Chair Evert have the same statutory rights as other individuals to correspond with elected officials and express their opinions and concerns, including their political and personal views. This is not a situation of classifying normally public data as private just because the government employee's supervisor is an elected official.

As discussed in the Facts section, the Commissioner asked to inspect the letter in question to determine whether or not the Sheriff wrote it in his work capacity. In fact, if, as Mr. Johnson intimated, the letter was written on Clay County Sheriff letterhead, it seems the burden would be on the Sheriff to explain why the content of the letter was not work related. However, the County did not provide the letter. The Commissioner's comments are therefore limited to the following: if Sheriff Costello wrote the letter as an individual, rather than in his capacity as the Clay County Sheriff, the data can be classified as not public under Section 13.33; but, if Sheriff Costello wrote the letter in his capacity as the Sheriff as part of his work, the data are presumed public unless classified otherwise by statute or federal law.

An additional comment is in order. In Ms. Goering's response to Mr. Johnson's request to the County for access to the letter, she asserted:

Advisory opinions are not precedential in nature....While the language of Minn. Stat. 13.072 subd. 2 insulates a political subdivision that relies on an opinion issued to it related to its own data, it does not clearly protect another government entity if it were to rely on an opinion which does not involve its own data and specific circumstances.

Section 13.072 , subdivision 2, states in relevant part, A [government entity] or person that acts in conformity with a written opinion of the commissioner is not liable for compensatory or exemplary damages or awards of attorneys fees under section 13.08 or for a penalty under section 13.09.

The Commissioner disagrees with Ms. Goering; had the Legislature intended for the liability protection to extend only to those entities relying on opinions in which they were involved, Section 13.072 would have so stated.

Opinion:

Based on the facts and information provided, my opinion on the issue raised by Mr. Johnson is as follows:

The Forum's rights pursuant to Minnesota Statutes Chapter 13 were not violated when access to the September 24, 1998, letter was denied if the Clay County Sheriff wrote the letter to the Chair of the Clay County Board of Commissioners as an individual, rather than in his capacity as the Sheriff. However, if the Sheriff wrote the letter in his capacity as the Sheriff as part his work, the data are presumed public and The Forum's rights were violated.

Signed:

Elaine S. Hansen
Commissioner

Dated: December 4, 1998

Elected and appointed officials

Correspondence with elected officials

13.601

Entity reliance on opinion