Note: In December 1999, staff of the Information Policy Analysis Division, on behalf of the Commissioner, redacted not public data from this opinion. The redaction was necessary to bring the data in the opinion into compliance with amendments the Legislature made to Minnesota Statutes, section 13.072, the advisory opinion enabling legislation

Facts and Procedural History:

In April, 1994, X's child was involved in an incident at the high school in Buffalo and the child was taken into custody by an officer of the City. On May 4, 1994, X went to the offices of the City and asked to inspect and to receive a copy of the police report concerning the incident involving his son. The City's office coordinator made a copy and informed X that there was a $5.00 charge for making the copy. X told the coordinator the Act limited the City's charges to only the actual costs of making the copy. The coordinator replied that it was the City's policy to charge $5.00 to copy a report. During this conversation, X asked the coordinator how the data in the policy report was classified. According to X, the coordinator replied that she was not sure about the classification of the data but it might be classified as juvenile.

After reviewing the report with his child, X, on May 6, 1994, filed a notice of data in dispute with Mr. Bob Fix, the chief of the City of Buffalo Police Department. On May 18, 1994, X received a number of documents from the district court in Wright County, including a copy of the police report. However, these documents did not include a copy of the notice of data in dispute that X had filed with the City.

According to X, at some time between May 6, 1994, and May 26, 1994, Chief Fix gave a copy of the data dispute notice to Mr. Steven Huberty, the officer who conducted the investigation of X's child. Mr. Huberty copied the document and provided a copy of it to Mr. Thomas Hoffman, an official at Buffalo High School who shared it with another school official. This second official discussed the data challenge with X's child. On May 26, 1994, Mr. Hoffman wrote a memo to Chief Fix and made comments about the data challenge.

On May 31, 1994, X, wrote a letter to Mr. Merton Auger, an employee of the City of Buffalo. X had learned that Mr. Auger was the responsible authority for purposes of the Act for all of the City of Buffalo. In his letter, X expressed concern about the City of Buffalo and its data practices.

On June 2, 1994, X received by mail a copy of a supplementary police report prepared by Mr. Huberty that appeared to be a response to the notice of data in dispute filed by X. Further discussions with the City of Buffalo continued and, on June 5, 1994, X asked the City of Buffalo to respond to the notice of data in dispute filed on May 6, 1994.

On June 10, 1994, X discussed with Chief Fix the circumstances of the dissemination of the data in dispute notice. In that conversation, according to X, Chief Fix stated that the notice had been shared with Mr. Hoffman so that Mr. Hoffman could give his view of the events described in the data challenged by X. Officer Huberty used Mr. Hoffman's letter to write the supplementary report and the letter from Mr. Hoffman was then shredded. X then asked for more copies of files and the City charged him $5.00 for the copies.

X continued his discussion with the City of Buffalo and its police department about the data in dispute which now included data in the supplementary report. On July 21, 1994, the City of Buffalo wrote to X and informed him that the City believes the report that was challenged to be accurate.

After this discussion of his disagreement with the City, X requested that the Commissioner issue an opinion on the four issues described in the Issues section below.

In response to X's request, PIPA, on behalf of the Commissioner, wrote to Mr. Merton Auger, the Clerk/Treasurer of the City of Buffalo. The purposes of this letter, dated August 19, 1994, were to inform Mr. Auger of X's request, to provide a copy of the request to him, to ask Mr. Auger to provide information or support for the City's position and to inform him of the date by which the Commissioner was required to issue this opinion.

On September 12, 1994, via facsimile transmission, PIPA received a letter of response from Mr. Paul A. Weingarden who indicated that his law firm represented the City of Buffalo and that his letter was in response to the request for information from PIPA. The following is a summary of Mr. Weingarden's response.

Mr. Weingarden expressed concerns that the Commissioner's opinion might attempt to resolve disputed factual issues and that the Commissioner would be acting as a fact finder on these issues. He questioned the Commissioner's authority to do so. Mr. Weingarden also expressed concern at X's statement of the issues in his request for an opinion. Accordingly, Mr. Weingarden indicated that the City of Buffalo was exercising the right to restate the issues raised by X and that the City of Buffalo also reserved the right to dispute any factual allegations unless, in response to a question as restated, the City admitted certain facts.

As to the issue of whether the alleged failure of the City's office coordinator to know the classification of data in a juvenile police report, Mr. Weingarden questioned X's statement of the facts and then restated the issue to be an issue of possible improper dissemination of data if any employee characterized data in a generic way as opposed to the Act's data classification. Mr. Weingarden pointed out that the employee, in responding to X's question about the classification of data in report, was being tested about a technical legal definition. He also pointed out that the coordinator, consistent with what s/he had been taught at seminars taught by PIPA and consistent with Department of Administration rules and Minnesota Statutes Section 260.161, provided X with access to the private data on his child.

As to the issue of whether the $5.00 fee charged to X for copies of data on May 4, and June 10, 1994 impeded rights, Mr. Weingarden rephrased the question to be a question of whether a fee of $5.00 constitutes a reasonable minimal charge for copy costs when a request for data is made. Mr. Weingarden discussed the language in Minnesota Statutes Section 13.04, subdivision 3 that allows a responsible authority to require an individual to pay the actual costs of making, certifying and compiling the copies.

Mr. Weingarden reviewed the provisions of rules promulgated by the Department of Administration at Minnesota Code of Agency Rules, Sections 1205.0300 and 1205.0400 that direct a responsible authority to consider certain factors in determining the fee for providing copies. In his view, the actual costs of providing copies may encompass the cost of providing, maintaining and repairing the copy machine and the cost of paper. He also added that the cost includes the cost of labor, including salary and benefits, that reflect the employee's time spent in assembling the documents, copying the same, filling out a receipt and making a notation in the report of the date and recipient of the data. He indicated that this minimum fee of $5.00 is charged for providing copies of arrest and accident reports and appears to be consistent with charges for that data in other agencies.

As to the issue of whether the dissemination by the City of a copy of X's data in dispute notice constituted a violation of the rights of either X or his child, Mr. Weingarden restated the question. In his view, the question should be as follows:

Mr. Weingarden then pointed out that many of the facts alleged by X in his request are either facts unknown to the City or refer to documents that are not in the possession of the City. He indicated that made it impossible, in the forum of a Commissioner's opinion, to resolve the factual basis for X's concern.

He advised, on behalf of the City, that a school district employee was only shown that data in X's dispute notice that concerned certain statements made by the employee in the presence of Officer Huberty. This data was provided to the employee for the sole purpose of responding to the dispute notice. Because statements by or conduct of the school employee were referenced, the data are private data about the school employee and are accessible to him under Chapter 13. Without giving this employee access to the dispute notice, a full investigation of the dispute would not be possible. Because the employee was a participant in the events described in the report, the employee discovered no information otherwise unavailable as a result of the data review.

As to the issue of whether the City's alleged failure to respond to X's May 6, 1994, notice of data of data in dispute violated either X's or his child's rights under Chapter 13, Mr. Weingarden restated the issue as one concerning what is the appropriate time frame and manner of response to a data dispute notice properly served upon the responsible authority for the City of Buffalo. Mr. Weingarden reviewed the statutory basis for an individual's right to challenge data, under Minnesota Statutes Section 13.04, which includes the requirement that the individual file the data challenge with the responsible authority for the data.

Mr. Weingarden reviewed the alleged facts of X's filing. He pointed out that X filed his notice of dispute with Chief Fix when, in fact, the Buffalo City Council had appointed Mr. Merton Auger to be the responsible authority for the City of Buffalo. Mr. Weingarden pointed out that X had conceded that he had not notified Mr. Auger of the dispute until May 31, 1994 and that on June 2, 1994, X was provided with a written response to his data challenge. Mr. Weingarden added that X's second challenge was also responded to within 30 days and therefore, in both these instances, the City of Buffalo complied with the Act.

Issues:

Discussion:

Issue 1:

It is clear that the dispute between X and the City is one that presents greatly divergent views on what happened in the facts underlying each of the issues about which X asked the Commissioner to issue an opinion. In this particular instance, the primary issue raised by X is answered by facts that do not appear to be in dispute. Upon his request, X was provided with access to private data about his minor child. This is the appropriate result under Chapter 13. Minnesota Statutes Section 13.04 subdivision 3 gives X the right of access to private data about his child. Minnesota Statues Section 260.161 not only classifies police data about minors as private but also specifically gives parents of a minor access to data about their child unless access would interfere with an ongoing investigation. Although there may be situations in which the failure of an employee to know the classification of data might situationally impede a data subject's access to that data, for example when an employee did not know if the data are private or confidential, that is not the case in this instance. X got access to the data and it appears that he did so almost immediately upon making his request for access.

X also raised as part of this issue the question of whether an employee's failure to know the classification of a certain data could lead the employee to fail to apply appropriate safeguards. Beyond raising that issue, neither X or Mr. Weingarden commented as to whether there was anything in this instance that would indicate that the City's office coordinator had failed to apply appropriate safeguards. A failure to know the classification of data could lead to a failure to appropriately safeguard the data. However, there is nothing in this situation that indicates that was the case.

Issue 2:

In this instance, it appears that X and the City's office coordinator did have a discussion for some period of time as to whether a $5.00 charge for a copy of a report was what the City was authorized to charge under Chapter 13. According to X, he questioned whether that represented the actual costs of providing the copies and the office coordinator replied that the $5.00 charge was the policy of the City. The response from Mr. Weingarden confirms that the $5.00 charge is a set fee for copies of police reports involving accidents and arrests. Although this discussion about the appropriate fee temporarily impeded X's receipt of the copies, in the final analysis, he got access because he could pay the $5.00 demanded.

However, in the second half of his request on this issue, X asked if the $5.00 fee violated the rights of himself and his child under Chapter 13. In his response, Mr. Weingarden has stated this issue as an issue of whether a fee of $5.00 constitutes a reasonable minimal charge for copy costs. In dealing with this issue, the legislature provided what appears to be clear policy on this issue. When a data subject, or in this case the parent of a data subject, asks for copies of data about him or herself, [T] the responsible authority may require the requesting person to pay the actual costs of making, certifying and compiling the copies. (Minnesota Statutes Section 13.04, subdivision 3.) In addition to this guidance, the rules of the Department of Administration provide more detail about the kinds of costs that an agency can examine as it makes its decision about what constitutes the actual costs of providing copies.

In addition to the items described in the rules, Mr. Weingarden asserts that an agency ought to be able to include, as part of the actual costs of providing copies, the cost to the City of providing, maintaining and repairing a copy machine and some portion of the salary and benefits costs of the employee who makes the copies. Claiming these as reimbursable costs, when the costs of having a copy machine and an employee who prepares copies on that machine are already budgeted as part of the City's operating expenses seems to go beyond what the legislature had it mind when it authorized the City to recover the actual costs of making, certifying and compiling the copies.

There was no indication in the materials provided by either X or Mr. Weingarden as to the actual number of pages X received for the $5.00 he was charged. In light of Chapter 13's focus on the City only being able to recover actual costs, the City's policy of a set fee of $5.00 for receipt of a copy of either an arrest or accident report, no matter how many pages make up a report, may, in the instance where the person requesting the report is a subject of that report, be in violation of Section 13.04, subdivision 3.

Issue 3:

In light of the position taken by the City on the fourth issue raised by X, see below, its position on this alleged dissemination of data is puzzling. It is the City's position that X did not file a data challenge with the City of Buffalo until May 31, 1994. It is X's position that all or some part of his notice of data in dispute was disseminated from the City to an employee of the school district sometime between May 6, 1994, and May 26, 1994. However, the City takes the position that it was appropriate for an officer in the City to share all or some part of X's data challenge with a school district employee because that data sharing was necessary for the City to fully investigate the claimed dispute. The City does also state that the actual facts associated with this issue raised by X are difficult to ascertain or establish in this forum.

A discussion of the underlying requirements of the Act that possibly affect this situation may be helpful. Minnesota Statutes Section 260.161, subdivision 3 (1992) as amended by Minnesota Session Laws 1993, Chapter 351 states that peace officers' records of children who are or may be delinquent or who may be engaged in criminal acts are private data. This language does not provide any differentiation as to the source of peace officers' records of children, it just says if peace officers have records on children, those records are private. In a situation where the parent of a child attempts to challenge data held about that child in police records by filing a notice of data in dispute with the police department, that notice becomes part of a peace officer's records of the child and is therefore private data.

Chapter 13 allows dissemination of private data between entities subject to the Act only when access to the data is authorized or required by statute or federal law. The City's position is that it had the authority to disseminate this data to the school district in order for it to properly investigate the claim that the data were inaccurate or incomplete. However, there is nothing in Section 13.04, subdivision 4, the statutory provision dealing with challenges to the data that authorizes dissemination of disputed data to another government entity for purposes of investigating the claims of inaccuracy and incompleteness. In addition, Minnesota Statutes Section 260.161, in addition to classifying police juvenile records as private, says those records shall only be disseminated: by order of the juvenile court; as required in certain chemical abuse situations; to release non identifying data to the public; to the child or the child's parent or guardian; or as part of accident information in certain circumstances. Nothing in Section 260.161 authorizes the City to disseminate private police data to a school district to investigate a data dispute that alleges certain data maintained by the City are not accurate or complete.

In his restatement of this issue and comments in support of that restatement, Mr. Weingarden concludes that Mr. Hoffman had the right to gain access to the data in the dispute notice because it was private data about Mr. Hoffman accessible to him under Chapter 13. However, there is nothing in the information provided by either the City or X that indicates that Mr. Hoffman, in this instance, exercised his rights under Chapter 13 and requested access to the data in the dispute notice. Although Mr. Weingarden reserved the City's right to challenge alleged facts as stated by X, it appears, based on X's statement, that Officer Huberty sent a copy of the data in dispute notice to Mr. Hoffman, without a request from Mr. Hoffman to do so. If that is the case, this transaction does not involve an issue of exercise of rights by a data subject but it does involve an issue of whether the City had the statutory authority to send a copy of the data in dispute notice to the school district.

There does not appear to be any authority found in Minnesota Statutes, other than consent of the data subject or the data subject's parent, for the City to disseminate X's notice of dispute to the school district. The City's position on this issue is also complicated by the fact that the City appears to take the position that at the time this data dissemination allegedly occurred, X had not filed his notice of data in dispute with the appropriate responsible authority. As the City had not, in its view, received a notice of data in dispute there should have been no need for agents of the City to begin an investigation of the dispute and include as part of that investigation a dissemination of private data to another government agency for which there appears to be no statutory authorization.

Issue 4:

There appears to be no dispute that X filed a document that he considered to be a data in dispute notice with Chief Fix of the City on May 6, 1994. There also does not appear to be any disagreement that, upon learning that Mr. Auger was the City's appointed responsible authority, X filed notices of dispute with Mr. Auger and that Mr. Auger responded to those notices within 30 days.

Minnesota Statutes Section 13.04, subdivision 4, gives individuals the right to challenge the accuracy and/or completeness of data maintained about them by the government entities subject to the Act. To exercise that right, the Act requires the individual to file a written notice of that challenge with the responsible authority for the data. In cities, the responsible authority is the individual appointed to the position by the city's council. (See Minnesota Agency Rules, Section 1205.0200, subpart 14.) There is nothing in the Act or its rules that requires a government entity to inform an individual that he has filed a data challenge with an incorrect person in the governmental entity. The Act assumes that the individual will either know the correct person with whom to file the challenge or will seek out that information before filing.

In this particular instance, the 30 day clock did not begin running until X filed his data challenge with the responsible authority. There was no violation of the rights of himself or his child when the City did not respond within 30 days to the documents he filed with Chief Fix because Chief Fix was not the City's responsible authority.

Opinion: