Discussion:

Pursuant to Minnesota Statutes, section 13.02, subdivision 17, the MAC is a state agency and is therefore subject to the requirements of Chapter 13. Generally speaking, private enterprises, such as Schock, are not subject to Chapter 13. However, if a private entity enters into a contractual relationship with a government entity, the private entity, itself, or the data created/collected by the private entity as part of fulfilling its contractual obligations, may be subject to Chapter 13. One possibility is that the contractual relationship fits one of the specific situations accounted for in Chapter 13 (see sections 13.02, subdivision 11; 13.05, subdivision 6; 13.35; and 13.46, subdivision 5. None of these apply to the relationship between the MAC and Schock.) Another possibility is that one of the contract provisions subjects the private entity to Chapter 13.

At this point, the Commissioner would like to point out that on August 1, 1999, a new provision in Chapter 13 went into effect requiring that certain language be included in any contract between government entities and private persons. The new provision states:

(a) If a government entity enters into a contract with a private person to perform any of its functions, the government entity shall include in the contract terms that make it clear that all of the data created, collected, received, stored, used, maintained, or disseminated by the private person in performing those functions is subject to the requirements of this chapter and that the private person must comply with those requirements as if it were a government entity. The remedies in section 13.08 apply to the private person under this subdivision.

(b) This subdivision does not create a duty on the part of the private person to provide access to public data to the public if the public data are available from the government entity, except as required by the terms of the contract.

(See Minnesota Session Laws, 1999, Chapter 250, article 1, section 42.)

The MAC and Schock began their contractual relationship on August 16, 1993; therefore, their relationship is not subject to the new provision in Chapter 13. However, Schock, itself, or the related data may be subject to Chapter 13 if the contract between the MAC and Schock so provides.

The first issue of this opinion, therefore, regards whether members of the public (in this case, Dr. Ide and Ms. Share) are entitled to gain access to pay stubs of Schock employees pursuant to the terms of the contract between the MAC and Schock. The answer depends upon whether there exists a contractual relationship between Schock and the MAC and, if so, what language the contract contains. The MAC and Schock entered into a contract for services on August 16, 1993; the services to be performed regard the MAC's Land Acquisition and Relocation Program. Both the requestors and the MAC provided a copy of this contract to the Commissioner.

Upon review of the contract, there do not appear to be any provisions that subject Schock, itself, to Chapter 13. There is, however, language that requires Schock to provide the MAC with certain information, such as a concise description of the services to be provided, an estimated time table for completion of the services and an itemized break-down of estimated cost for such services (see Article 2). This provision does not specifically mention or appear to imply that Schock must provide pay stub information to the MAC. There is, however, one provision that could be applicable. It states:

At the time of completion or termination of the work, CONSULTANT [Schock] shall make available to the OWNER [the MAC] all maps, tracings, reports, resource materials and other documents pertaining to the work or to the Project. All such documents are not intended or represented to be suitable for reuse by the OWNER or others on extension of the Project or any other project.

If, pursuant to this provision, Schock were to provide the employee pay stubs to the MAC, the information contained in the pay stubs would become government data. However, based on Mr. Bistram's comments, this does not appear to have occurred. He wrote:

Dr. Ide was advised by the MAC...that the requested Schock pay stubs were not retained by MAC. This response was correct under [Chapter 13]. Technically, the correct response is that this information is not maintained by the MAC.

The Schock pay stubs are documents strictly internal to Schock. The Schock pay stubs are not government data within the meaning of [Chapter 13].

In summation, nothing in Chapter 13 (prior to August 1, 1999, and this dispute) requires that the MAC obtain or maintain the pay stubs of Schock employees, and it does not appear that such records are in the possession of the MAC. Thus, the pay stubs requested are not government data and Chapter 13 does not regulate their accessibility. It should be noted that in reaching this conclusion, the Commissioner is not commenting on other state or federal laws that may impact whether the MAC is required to acquire and maintain the pay stub data.

The second issue of this opinion is whether the MAC's response, i.e., providing Dr. Ide with seven pages of Schock employee information, was adequate. Dr. Ide argued that the MAC is required to keep employee records sufficient to demonstrate that the workers paid with state and federal funds were qualified to receive them.

In his response to the Commissioner, Mr. Bistram wrote:

The MAC has properly responded to this request and quite frankly is puzzled as to why the issue has been presented to the Department of Administration. The request is limited to Schock materials presented to the MAC and, therefore, is properly limited to government data as noted in the MAC response to Issue No. 1 above. The MAC advised Dr. Ide by letter dated January 29, 1999 that seven pages of Schock employee information were found in the MAC records.

As the Commissioner discussed in relation to issue one, there does not appear to be any provision in Chapter 13 (prior to August 1, 1999, and this dispute) or in the 1993 contract between the MAC and Schock that requires the MAC to maintain records of Schock employees. (Again, as previously stated, it should be noted that in reaching this conclusion, the Commissioner is not commenting on other state or federal laws that may impact whether the MAC is required to acquire and maintain the Schock employee data.) However, because the MAC is in possession of such data - apparently seven pages worth - it appears those data are public pursuant to section 13.03, subdivision 1. The MAC provided these documents to Dr. Ide in response to his January 4, 1999, request. Therefore, it appears the MAC responded appropriately.

(The Commissioner also wishes to note that Dr. Ide and Ms. Share did not indicate in their opinion request that they wanted the Commissioner to address the issue of the MAC's charge for the seven copies.)

The third issue regards a fee the MAC assessed Dr. Ide for copies of government data concerning the MAC's Part 150 Land Acquisition and Relocation Project with respect to homes in the vicinity of the Minneapolis/St. Paul International Airport. Section 13.03, subdivision 3, and Minnesota Rules Part 1205.0300, subpart 4, provide that government entities may recover some of the costs associated with providing copies of public government data. However, as the Commissioner has stated in numerous advisory opinions, Chapter 13 does not require government entities either to create new data or format data to fit a particular request.

In this case, Dr. Ide wrote to MAC on December 31, 1998. He stated:

Earlier this year I sent the attached Data Practices Request to you. The request was answered by Robert Swenson, an employee of W.D. Schock. I now find that numerous addresses were omitted in the data supplied...could you please update the information supplied with a complete list of ALL the payments made by correct address for:

(1) address
(2) the MAC appraisal amount
(3) the second (owner) appraisal amount
(4) acquisition value
(5) eligible (rhp) relocation amount

If the relocation or other payments are being contested, please include any amounts which have so far been determined or paid. Could you also please:

(A) add the date on which item No. 5 was paid for each homeowner,
(B) in each case in which the entry indicates not eligible for relocation benefit, give the reasons as to why the owner was not eligible.
(C) in each case in which there were renters, please state whether the renters were related to the owner.

In responding to Dr. Ide's request, the MAC wrote the following to Dr. Ide on January 19, 1999:

I contacted Bob Swenson at W.D. Schock Company and requested an update of the information he provided to you on February 20, 1998. Updating and supplementing this information may involve significant staff time and expense. Please be advised that under MAC's Minnesota Government Data Practices Policy, photocopies cost $.25 per page.

In a follow-up letter dated January 29, 1999, the MAC wrote to Dr. Ide:

Pursuant to your request of December 31, 1998, an update of the information Mr. Robert Swenson from W.D. Schock provided to you on February 20, 1998 has been completed....

As you know, it is MAC's policy to charge $.25 for each photocopy in connection with information requests. The updated chart is comprised of 10 photocopies; therefore, the cost of photocopy expense is $2.50, and is due to MAC prior to receiving the report.

Enclosed please find a memorandum from Mr. Swenson to myself dated January 25, 1999, outlining the estimated amount of staff time that may be incurred in producing the additional information requested in your request of December 31, 1998...As you will note, Mr. Swenson states that it may take approximately 16.5 hours for W.D. Schock staff to attempt to locate the information you requested. The information is located off site and is not readily available, and significant staff time and expense will be expended in order to locate the requested information. As you know, it is MAC's policy to charge for the time spent to locate requested information. Therefore, the estimate for your information request is $899.00, since these costs will ultimately be billed to MAC.

Mr. Swenson discussed the copying fee in a memo to the MAC dated January 25, 1999, [The requested] information is not readily available to me and would require significant staff time to retrieve the necessary files along with the research involved with each file. (Emphasis added.) Mr. Swenson then broke down the request into three parts and estimated the time an Administrative Assistant ($43/hour) and Relocation Consultant ($72/hour) would spend responding to each part of the request. The total cost was $899; $230 for the first part of the request, $259 for the second part, and $410 for the third part.

In his response to the Commissioner, Mr. Bistram wrote:

The requestors were advised by MAC via letter dated January 29, 1999 that the estimate for responding to their December 31, 1998 request was $899.00 for locating the requested materials plus photocopying expenses. It should be noted that the request would involve going into most, if not all, of the Schock files and retrieving information. Schock provided an estimate of its staff time to satisfy the request. A copy of the Schock memo to MAC dated January 25, 1999 containing this estimate is attached hereto as Exhibit C. As noted in Exhibit C, Schock has identified the cost of its employee time on an hourly rate.

Based on the MAC's response to Dr. Ide and also on Mr. Bistram's comments, it appears that the MAC considers the data Dr. Ide requested on December 31, 1998, to be government data. The reason for this is not entirely clear to the Commissioner. It could be that the MAC collected the data. It could also be that Schock collected the data in fulfilling its contractual obligations and has provided the data to the MAC. In either of these cases, it appears that Schock is housing these particular government data although the MAC technically owns the data.

Based on the information provided, the Commissioner cannot determine whether Dr. Ide's request was for data as they currently exist or whether the MAC/Schock, in order to respond to his request, had to reformat existing data (in essence, a creation of new data). In the case of the former, section 13.03, subdivision 3, sets forth the allowable charge, i.e., the actual costs of searching for and retrieving government data, including the cost of employee time, and for making, certifying, compiling, and electronically transmitting the copies of the data or the data. (See also Minnesota Rules, Chapter 1205.0300, for additional guidance.)

If the MAC/Schock was required to reformat, i.e., create new data, to respond to Dr. Ide, the provisions of Chapter 13 do not apply. Chapter 13 does not require government entities to create data, but rather to provide access (inspection or copies) to data currently in existence. In situations where an entity has been asked to create new data, the request is not technically a data practices request and any charge levied by a government entity to respond to the request is not regulated by state law. In previous advisory opinions, the Commissioner has advised that in such instances, the entity and the requesting party work together to determine an appropriate charge. In addition, if an individual's request is such that a government entity will need to create new data to respond, the government entity needs to clarify that with the requestor before moving forward.

In this instance, if the MAC determined that the data Dr. Ide requested did not exist as he requested them, and responding meant a creation of new data, the MAC should have so advised Dr. Ide. The MAC/Schock and Dr. Ide could have worked out a mutually agreeable charge or, Dr. Ide could have revised his request and inspected (free of charge) the existing public data related to his request, taking notes of or asking the MAC/Schock to make copies of the specific information he was seeking.

Opinion:

Based on the facts and information provided, my opinion on the issues raised by Dr. Ide and Ms. Share is as follows:

Signed:

David F. Fisher
Commissioner

Dated: October 22, 1999