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June 28, 1996; City of Lake City
6/28/1996 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 citizen who requested this opinion and the response from the government entity with which the citizen disagrees are presented in summary form. Copies of the complete submissions are on file at the offices of PIPA and, with the exception of any data that are not public, are available for public access.On May 10, 1996, and May 14, 1996, PIPA received letters from Thomas Lindrud. In his May 10, letter, Mr. Lindrud requested that the Commissioner issue an advisory opinion regarding his access to certain data maintained by the City of Lake City, hereinafter Lake City. In his May 14 letter, Mr. Lindrud appeared to be requesting an advisory opinion. Pursuant to a subsequent telephone conversation with PIPA staff, Mr. Lindrud requested that the concerns raised in both letters be combined and addressed in a single advisory opinion. Mr. Lindrud sent a letter dated May 16, 1996, stating same. (Attached to Mr. Lindrud's May 10 and May 14 letters were copies of past correspondence with Lake City.) In response to Mr. Lindrud's request, PIPA, on behalf of the Commissioner, wrote to Richard Abraham, Lake City Administrator. The purposes of this letter, dated May 17, 1996, were to inform Mr. Abraham of Mr. Lindrud's request, to ask him or Lake City's attorney to provide information or support for Lake City's position, and to inform him of the date by which the Commissioner was required to issue this opinion. On May 28, 1996, PIPA received a letter dated May 24, 1996, from Philip Gartner, Attorney for Lake City.
A summary of the facts surrounding this matter is as follows. In a letter dated May 13, 1994, Mr. Lindrud requested an advisory opinion from the Commissioner. He stated that he had made three requests for access to data concerning copies of 'Certificates of Insurance.' Attached to his opinion request, was a copy of a letter addressed to the Lake City Marina Harbormaster, dated May 13, 1994, requesting the following data:
Then, in a letter dated June 6, 1994, Donald Gemberling, Director of PIPA, wrote to Mr. Abraham and stated:
In Mr. Lindrud's May 14, 1996, letter, he wrote that on July 19, 1994, he met with Mr. Abraham, the Harbormaster, and the Waterfront Board Vice Chair and was assured that this information would be forth coming. Mr. Lindrud further wrote, To date, not one of these requested items has been furnished, nor have I received any explanation from either the Harbormaster, the Waterfront Board, or the City Administrator's office as to why they have failed to comply with my legal request for this information. Attached to Mr. Lindrud's May 10, 1966, (the Commissioner will assume Mr. Lindrud meant 1996) letter, was a copy of two requests to the Lake City Marina Harbor Administrator, one dated April 16, 1996, and one dated May 2, 1996, for the following data: copies of all slip rental contracts for boats slipped on the 1,000 dock during the years 1992, 1993, and 1994; payment documentation; and Certificates of Insurance that accompany each of the slip rental contracts. Also attached to the May 10, 1996, letter was a letter dated May 9, 1996, from Bill Chamberlain, Harbor Administrator. In his letter, Mr. Chamberlain stated, At this time, I am waiting on a reply form [sic] City Attorney Phil Gartner, as to what information may be released under the Minnesota Data Practices Act. Once this determination has been made, your request will be acted upon. Also attached to Mr. Lindrud's May 10, 1996, letter was a copy of a sample slip rental agreement. In his response to Mr. Lindrud's opinion request, Mr. Gartner made several assertions. One is that the Certificates of Insurance requested by Mr. Lindrud in May of 1994 are different from the Certificates of Insurance requested by Mr. Lindrud in 1996, and that the Certificates requested by Mr. Lindrud in 1994 have been so disclosed. Mr. Gartner wrote, While in fact Mr. Lindrud did make a request for 'Certificates of Insurance' in a letter of May 13, 1994, that matter was resolved with the release of the information then requested which were, in fact, substantively different 'Certificates of Insurance' than made reference to in his request dated April 16, 1996. He further stated, ...the 'Certificates of Insurance' referred to in [1994] were, in fact, insurance certificates of Marine Service Contractors permitted to do business with and on the premises of the Lake City Municipal Marina. In his response, Mr. Gartner also stated, The policies in question referred to on May 13, 1994 were subsequently released as public information.
Regarding Mr. Lindrud's 1996 request for access to data, Mr. Gartner wrote:
Mr. Gartner argued that, based on a statutory citation that appears in the City General Records Retention Schedule (a document developed to assist cities in complying with Minnesota Statutes Section 138.17, the Records Management Act ), data contained in the rental agreements and the Certificates of Insurance are private data and not accessible to Mr. Lindrud. With regard to the payment documentation requested by Mr. Lindrud, Mr. Gartner noted that, in a letter dated May 15, 1996, Mr. Lindrud had made an additional request to the Marina for access to all checkbook ledgers and canceled checks for the Lake City Marina for the years 1992, 1993, and 1994. Mr. Lindrud stated the specific date and time he wished to inspect those data. Mr. Gartner attached a copy of his May 20, 1996, response to Mr. Abraham in which he (Mr. Gartner) allowed as to how the checkbook ledgers and canceled checks were public data but that Lake City would have to determine the reasonable date and time for Mr. Lindrud's inspection of the data. Also, in his response letter, Mr. Gartner made two final points. One is that Lake City joins in a request for an opinion relative to a determination of Data Practices classification for the slip rental agreement, and the 'Certificate of Insurance' required thereby. Two is that if the classification of those data are determined to be not public, Lake City requests a temporary classification of said documents as nonpublic/private data.
Issue:
In his request for an opinion, Mr. Lindrud asked the Commissioner to address the following issue:
Discussion:
For purposes of organization, the remainder of this advisory opinion will be divided into two sections; the first relating to Mr. Lindrud's 1994 requests for access to data, and the second relating to Mr. Lindrud's 1996 requests for access to data.
Minnesota Statutes Section 13.03, subdivision 2, and Minnesota Rules Part 1205.0300, subpart 3, provide the time requirements regarding access to public government data. In part, Section 13.03, subdivision 2, states, The responsible authority...shall establish procedures, consistent with this chapter, to insure that requests for government data are received and complied with in an appropriate and prompt manner. (Emphasis added.) Minnesota Rules Part 1205.0300, subpart 3, states, in part, ...the responsible authority shall establish procedures to describe how [access to public data] may be gained....In such procedures, the responsible authority shall provide for a response to a request for access within a reasonable time. (Emphasis added.) In addition, Section 13.03, subdivision 3, provides that if a government entity determines that the requested data are classified so as to deny the requesting person access, the data requestor shall be so informed and shall be informed of the statutory section, etc., on which the determination is based. In regard to Mr. Lindrud's 1994 requests for access to data, there appears to be some disagreement as to whether the data were actually disclosed to him. According to Mr. Lindrud, as of May 13, 1994, he had made three requests for access to data relating to Lake City Marine Service Contractors. Also on May 13, 1994, he requested an advisory opinion from the Commissioner regarding his inability to get access to those data. Then, on July 19, 1994, Mr. Lindrud met with the Harbormaster and the Vice Chair of the Waterfront Board and was assured that this information would be forth coming. Apparently based on both that information, and on a letter from Mr. Gartner, Mr. Lindrud withdrew his opinion request on June 2, 1994. Mr. Lindrud now alleges, To date, not one of these requested items has been furnished, nor have I received any explanation from either the Harbormaster, the Waterfront Board, or the City Administrator's office as to why they have failed to comply with my legal request for this information. In his response to Mr. Lindrud's opinion request, Mr. Gartner wrote that the Certificates of Insurance requested by Mr. Lindrud in 1994 are different than the Certificates of Insurance requested in 1996. Mr. Gartner asserted that Mr. Lindrud's 1994 request relates to Marine Service Contractors permitted to do business with and on the premises of the Lake City Municipal Marina while the 1996 request relates to lease contracts with boat owners for dock space for a boating year. Mr. Gartner referenced the remainder of Mr. Lindrud's 1994 request by stating, The policies in question referred to on May 13, 1994 were subsequently released as public information. Mr. Lindrud made his initial request for access to data in the spring of 1994. It is now the summer of 1996. Mr. Lindrud states that he has not yet received any of the data which he requested in 1994. Mr. Gartner states that all the data were released to Mr. Lindrud. Based on the information provided, the Commissioner is not able to determine if Mr. Lindrud has or has not received the data he requested in 1994. If Mr. Lindrud has not yet received access to those data, the time frame requirements of Chapter 13 have not been adhered to. If he has actually received the data, then Lake City has met its obligation under Chapter 13. It also appears there may be a dispute or misunderstanding regarding the Certificates of Insurance requested in 1994 by Mr. Lindrud. Mr. Gartner asserts the Certificates data requested in 1994 were related to Marine Service Contractors, other than boat docking contractors, permitted to do business with and on the premises of the Marina, and that those Certificates were released to Mr. Lindrud. Mr. Gartner's assertion appears to be that Certificates data relating to the Marine Service Contractors are public but that data relating to the Certificates for rental slip agreements are not public. However, it appears that Mr. Lindrud believed his 1994 request related to data about the rental slip agreements. Given the Commissioner does not agree with Lake City's treatment of the rental slip agreement data as not public (see below), if Mr. Lindrud did, indeed, request access to that type of data in 1994, he should been granted access. In regard to Mr. Lindrud's requests in 1996, he has requested access to three types of data for the years 1992, 1993, and 1994: the Marina's slip rental agreements; the Certificates of Insurance which accompany those agreements; and payment documentation (receipts) for each of the agreements. Mr. Lindrud made his first request in a letter dated April 16, 1996. On May 9, 1996, after his second request, Mr. Lindrud received a response from the Harbor Administrator stating that he was waiting upon a reply from Mr. Gartner as to whether the data could be released. In his response to Mr. Lindrud's request for an advisory opinion, Mr. Gartner asserted Lake City has determined that the first two types of data requested by Mr. Lindrud are not public. Mr. Gartner apparently made this determination based on the fact that the City General Records Retention Schedule states that a lease of real property is nonpublic/private data pursuant to Minnesota Statutes Section 13.51 (assessor's data). Mr. Gartner argued, Since the rental slip agreement is a lease of City property, i.e., dock space, owned and operated by the City, to a third party and because the Certificate of Insurance relates to a requirement of said lease, that said documentation is not public data. In response to Mr. Lindrud's request for documentation of the agreements, Mr. Gartner noted that on May 15, 1996, Mr. Lindrud made an additional request for access to all checkbook ledgers and canceled checks for the Lake City Marina for the years 1992, 1993, and 1994. Mr. Gartner provided a copy of a letter he faxed to the Lake City Administrator on May 20, 1996, which stated that Mr. Lindrud should be granted access to those data. Upon reviewing Section 13.51, it is the Commissioner's opinion that Section 13.51 does not apply to the data in question. Subdivision 1 of Section 13.51 relates to data contained on sales sheets received from private multiple listing service organizations where the contract with the organizations requires the political subdivision to refrain from making the data available to the public. Subdivision 2 relates to data collected from individuals or business entities concerning income properties. Subdivision 3 relates to income information on individuals collected and maintained to determine eligibility of property for classification of 4c under Minnesota Statutes Section 273.13, subdivision 25, paragraph (c). None of the data sought by Mr. Lindrud are classified as not public by the language of Section 13.51. Therefore, given that the data contained in both the slip agreements and the certificates of insurance are public data, pursuant to Minnesota Statutes Section 13.03, Mr. Lindrud should have gained access to those data within a reasonable time of having made the request. Mr. Lindrud made his first request for those data on April 16, 1996, and was still not in possession of the data on May 10, 1996. This does not seem to be a prompt or reasonable response on the part of Lake City. Furthermore, also under Section 13.03, Lake City is obligated, either orally at the time of the request, or in writing as soon thereafter as possible, to notify the requestor that the requested data are not public and to cite the specific statutory section, etc., so stating. In this instance, Mr. Lindrud received notification of Lake City's determination approximately three weeks after making his initial request. Finally, while the Commissioner appreciates the fact that Mr. Gartner has determined that the data requested by Mr. Lindrud on May 15, 1996, (checkbook ledgers and canceled checks for the years 1992, 1993, and 1994) are public and are, indeed, some of the same data Mr. Lindrud requested on April 16, 1996, the real issue is whether Mr. Lindrud has been granted access to those data. To the best of the Commissioner's knowledge, those data have not yet been made accessible to Mr. Lindrud. Given that Mr. Lindrud made his original request for those data on April 16, 1996, Lake City's response has not been prompt or reasonable. One final note is necessary. In his response to Mr. Lindrud's opinion request, Mr. Gartner informed the Commissioner that if data relating to the slip rental agreements and the certificates of insurance were determined to be public data, Lake City wished to request a temporary classification. Such requests cannot be handled as part of an advisory opinion. If, indeed, Lake City does wish to pursue a temporary classification regarding these data, Lake City should notify the PIPA office under separate notice and request the necessary application forms. Opinion:Based on the correspondence in this matter, my opinion on the issue raised by Mr. Lindrud, is as follows:
Signed:
Elaine S. Hansen
Dated: June 28, 1996
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Response to data requests
Assessor data (13.51)
Temporary classification (13.06)
