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 July 12, 2000, IPA received a letter from Loren H. Dorshow, on behalf of his client, X. In this letter, Mr. Dorshow asked the Commissioner to issue an advisory opinion regarding X's right to gain access to certain data maintained by the City of Minnetonka.

In response to Mr. Dorshow's request, IPA, on behalf of the Commissioner, wrote to David Childs, (former) Manager of the City of Minnetonka. The purposes of this letter, dated July 13, 2000, were to inform him of Mr. Dorshow's request and to ask him to provide information or support for the City's position. On July 27, 2000, IPA received a response from Desyl L. Peterson, Minnetonka City Attorney. A summary of the facts of this matter follows.

X is a resident of the City. According to Mr. Dorshow, the City has received several complaints of noise at X's home. The City has investigated the complaints, but has not issued any citations. X asked the City to identify the complainant(s), which the City refused to do, pursuant to Minnesota Statutes, section 13.44.

Mr. Dorshow stated that he believes that the data should be classified as public according to section 13.82. He wrote:

It seems relatively clear . . . that [section 13.44] is specific to complaints concerning the use of real property. I would take this to mean concerns over building fences, housing additions, storing vehicles - junk - firewood, etc. The complaint in question has to do with a noise complaint on the premises which took place in the evening outside of the home. On it's [sic] face, this complaint has nothing to do with use of real property. Therefore, it should fit precisely under Minn. Stat. section 13.82 Subd. 3, as this enclosed data [a copy of the incident report] was created and collected by the Minnetonka Police Department and therefore [X] should be entitled to the information outlined specifically in Subd. 3(b).

In her comments to the Commissioner, Ms. Peterson referred to Minnetonka's 1978 application for temporary classification (see section 13.06) from which section 13.44 originated. She stated that contrary to Mr. Dorshow's interpretation of the meaning of use of real property as quoted above, . . . there are many uses of property that can generate prohibited noise. Ms. Peterson referred to numerous City ordinances that prohibit uses of real property that result in unacceptable noise. She wrote:

Mr. Dorshow agrees that building fences or housing additions and storing vehicles or firewood on a property would be considered a use of real property.' These are no different in kind than the uses listed and regulated in a city's noise regulations. All are activities that occur on real property. Inherent in the term use' is the concept of action or activity. An activity that occurs on the property is appropriately categorized as a use' of the property. The property supports and allows the activity to occur. The statute makes no distinction between one kind of activity and another.

The people who are most impacted by the noise from the use of real property are the adjacent neighbors. As noted in the Commissioner's temporary classification, these are the people most likely to complain, the most likely to fear retribution, and the most in need of protection. Accordingly, the statutory language should be interpreted in favor of that protection.

Ms. Peterson, in reference to Advisory Opinion 99-045, which found that the identities of persons who complained about odors from a municipal wastewater treatment plant were confidential under section 13.44, stated: [o]dor from an activity on real property is no different in kind from noise that results from an activity on real property.

Regarding Mr. Dorshow's assertion that section 13.82 ought to govern the data in question, Ms. Peterson stated: [u]nder the rules of statutory construction, a provision that is specific in nature takes precedence over a general provision. Minn. Stat. section 645.26, Subd. 1. The statute cited by Mr. Dorshow generally covers law enforcement matters, while Minn. Stat. section 13.44 governs a specific type of law enforcement matter. Accordingly, Minn. Stat. section 13.44 governs.