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Advisory Opinion 06-029

October 19, 2006; Hennepin County Attorney's Office

10/19/2006 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:

On September 1, 2006, IPAD received a letter dated August 31, 2006, from Mark Stephens, Executive Director of the National Republican Senatorial Committee. In his letter, Mr. Stevens asked the Commissioner to issue an advisory opinion regarding access to certain data from the Hennepin County Attorney's Office (Office).

In response to Mr. Stevens' request, IPAD, on behalf of the Commissioner wrote to Amy Klobuchar, Hennepin County Attorney. The purposes of this letter, dated September 12, 2006, were to inform her of Mr. Stevens' request and to ask her to provide information or support for the Office's position. On September 20, 2006, IPAD received a response, dated same, from Randy Johnson, Chair of the Hennepin County Board of Commissioners.

On a procedural note, Commissioner Johnson objected to IPAD seeking a response from the County Attorney to Mr. Stevens' opinion request. Commissioner Johnson wrote:

IPAD should have sent the letter to Gary Kamp, the Hennepin County Responsible Authority instead of Amy Klobuchar . . . In addition . . . [IPAD's] five proposed issues were incorrectly directed at the Hennepin County Attorney's Office. Hennepin County is the entity responsible for management of most, if not all, of the information requested by the National Republican Senatorial Committee's operatives. The request should have been issued to Hennepin County.

Minnesota Rules, Chapter 1205.0200, subpart 14, states:

For counties, each elected official of the county shall be the responsible authority for the official's office. An individual who is an employee of the county shall be appointed by the county board to be the responsible authority for any data administered outside the offices of the elected officials.

The County did not provide the Commissioner with sufficient information to demonstrate that Mr. Kamp is the responsible authority for certain data relating to the County Attorney's Office. For instance, do the County's procedures relating to access of public data specify to data requestors which requests should be made to whom? In addition, in 2001, an individual requested an advisory opinion involving the Hennepin County Attorney's Office. The letter requesting comments was directed to the County Attorney and the issues were directed at her Office, not the County. IPAD received comments from a senior assistant county attorney and did not receive any objection from the County at that time.

A summary of the facts is as follows. Beginning in a letter dated September 14, 2005, the Committee (or individuals working on its behalf) began requesting data relating to the Hennepin County Attorney's Office. The Committee requested an advisory opinion regarding whether the Office complied with Chapter 13 in responding to certain of the requests.



Issues:

Based on Mr. Stevens' opinion request, the Commissioner agreed to address the following issues:

  1. Did the Hennepin County Attorney's Office respond in a timely manner, as required by Minnesota Statutes, Chapter 13, to the following data requests made on September 14, 2005: (1) all travel records for Amy Klobuchar, in her capacity as Hennepin County Attorney from 1999 to the present, including itinerary, cost and purpose ; and (2) all daily, weekly and monthly schedules of Amy Klobuchar from 1999 to the present?
  2. Did the Hennepin County Attorney's Office respond in a timely manner, as required by Minnesota Statutes, Chapter 13, to the following data request made on February 22, 2006: all labor grievances filed against Amy Klobuchar in her capacity as Hennepin County Attorney; 1999-2006?
  3. Did the Hennepin County Attorney's Office respond in a timely manner, as required by Minnesota Statutes, Chapter 13, to the following data request made on March 3, 2006: list and description of all matters referred by the Hennepin County Attorney's Office to the Hennepin County Domestic Fatality Review Board?
  4. Did the Hennepin County Attorney's Office comply with Minnesota Statutes, Chapter 13 (in a timely and appropriate manner), to the following data request made on September 14, 2005: provide all caseload statistics tracked by the Hennepin County Attorney's Office from 1998 to present?
  5. Did the Hennepin County Attorney's Office comply with Minnesota Statutes, Chapter 13, in denying access to certain data that were requested on July 27, 2006?


Discussion:

Pursuant to Minnesota Statutes, section 13.03, when a government entity receives a data request from an individual who is not the subject of the data, the entity is required to respond in an appropriate and prompt manner, and within a reasonable time. (See section 13.03, subdivision 2(a), and Minnesota Rules 1205.0300.) In responding, the entity must provide the data, advise that the data are classified such as to deny the requestor access, or inform the requestor that the data do not exist.

Issue 1:

Did the Hennepin County Attorney's Office respond in a timely manner, as required by Minnesota Statutes, Chapter 13, to the following data requests made on September 14, 2005: (1) all travel records for Amy Klobuchar, in her capacity as Hennepin County Attorney from 1999 to the present, including itinerary, cost and purpose ; and (2) all daily, weekly and monthly schedules of Amy Klobuchar from 1999 to the present?

A. Travel records.

An individual working on behalf of the Committee requested from the County Attorney's Office, among other items, access to the travel records in a letter dated September 14, 2005.

In a letter dated September 21, 2005, Mr. Kamp acknowledged receipt of the letter. He wrote, [Chapter 13 gives] the responding agency a reasonable time to respond to a data practices request. Because of the expansiveness of your request, I anticipate that it will take several weeks to assemble the information requested. I will contact you once the estimated dollar amount to process your request has been determined.

In a letter dated January 13, 2006, an individual working on the Committee's behalf resubmitted the September 21, 2005, data request.

In a letter dated January 17, 2006, Mr. Kamp wrote again, requesting payment of $50 in advance. He stated, Once payment is received by the County, the copying of the data will commence.

In a letter dated February 2, 2006, an individual working on behalf of the Committee sent the requested prepayment of $50.

In a letter dated May 12, 2006, Mr. Kamp wrote that he was attaching the following information: All travel records for Amy Klobuchar, in her capacity as Hennepin County Attorney for the years 2004, 2003, 2002. County Attorney Klobuchar did not submit any travel reimbursement requests for the year 2005. Mr. Kamp further wrote, Hennepin County staff continues to assemble the data for years 2001, 2000, and 1999.

In a letter dated May 25, 2006, Mr. Kamp wrote that he was attaching the following information: All travel records for Amy Klobuchar, in her capacity as Hennepin County Attorney, for the years 1999, 2000 and 2001.

In a letter dated May 31, 2006, Mr. Kamp wrote that he was attaching travel information to supplement year 2002.

In his comments to the Commissioner (of Administration), Commissioner Johnson wrote:

The gravamen of the [Committee's] complaint is that Hennepin County took too long to respond to its numerous and expansive requests. It only challenges the timeliness of responses to four (4) of the twenty-two (22) requests it made. It also challenges two (2) of Hennepin County's responses that denied access to certain data as not public or because it was not an appropriate data practices request. It cannot be contested that Hennepin County has expended significant time, valuable employee resources and taxpayer dollars in responding to the [Committee's] broad and expansive requests. . . .

Commissioner Johnson also noted that between September 19, 2005, and June 5, 2006, the data requestor made written statements that she was appreciative of the County's responsiveness. He wrote, Since June 5, 2006, [Committee staff] has asserted that Hennepin County has not been responsive. Thus, almost nine (9) months elapsed without a complaint or statement of dissatisfaction. This claim of unresponsiveness is disingenuous and should be viewed for what it is, political maneuvering and strategy.

On the issue of timeliness, Commissioner Johnson wrote:

. . . To be sure, what constitutes a reasonable response time depends not only on the amount of data requested, but also on the complexity and difficulty involved in searching for the relevant information. . . . Hennepin County has produced almost 700 pages of data. The effort involved in locating this data, and attempting to ensure that no other responsive public information existed was substantial. To put this in perspective, over 400 bankers' boxes in the Hennepin County storage vault in the Hennepin County Government Center had to be located, retrieved, and sorted through just to locate the nearly eight (8) years of travel records. Each bankers' box contained several thousand individual pieces of paper. Public information was separated from nonpublic data. This locating, retrieving, sorting, pulling, copying and redacting took several hundred hours. Retrieving the travel records represents just one of the twenty-two (22) requests.

The Commissioner has the following comments. As stated above, when an individual requests data of which s/he is not the subject, the government entity is required to respond promptly, appropriately, and in a reasonable time. In addition, pursuant to section 13.03, subdivision 1, entities must keep records containing data in such as arrangement and condition as to make them easily accessible for convenient use.

There is no dispute that over the course of several months the individuals working on behalf of the Committee made numerous requests for data relating to the County Attorney. However, that does not mean the Office was relieved of its obligation to respond in a timely manner. The fact that the Office does not seem to have its files organized in a manner so that time spent locating data is kept to a minimum is not a burden that should be shifted to the data requestor. Further, the Office was obliged to respond in a timely manner regardless of whether the Committee appeared to be satisfied with the Office's responsiveness.

The Committee made its initial request on September 14, 2005. It was not until May of 2006, eight months later, that the Committee received the data. The Office's response was not timely.

An additional note is in order. In their policies regarding data practices requests, it may be useful for entities to include general standards for handling situations when a single party makes multiple data requests over a several month period of time. This will help ensure that entities respond to each request in a timely manner. The entity may choose to respond to each request in the order it was received. Or, the entity may ask the requestor to rank the requests in order of importance. Certainly, though, it is important for entities to seek clarification promptly regarding any request that is confusing or to identify any requests/questions that do not fall under the purview of Chapter 13. Also, if entities keep their data inventories up to date, determining the classification of certain data should be relatively uncomplicated. Finally, it is always important to keep in touch with the requestor on a regular basis by providing updates and data, as they are available.

B. Schedules.

It also was in the September 14, 2005, letter that the individual working on behalf of the Committee requested the schedule data. As discussed above, an individual resubmitted the request in a letter dated January 13, 2006, and in a letter dated February 2, 2006, she sent the pre-payment fee of $50.

In a letter dated June 5, 2006, an individual working on behalf of the Committee wrote to inquire about several outstanding requests, including the schedule data.

Mr. Kamp responded in a letter dated June 26, 2006, stating, This information is currently under review.

In a letter dated July 27, 2006, the Committee asked again about the schedule data.

In a letter dated August 25, 2006, Mr. Kamp denied access to the schedule records citing sections 13.43, 13.37, 13.39, 13.601, 13.80, 13.82, 13.822, 13.87, 13.875, and Minnesota Statutes, Chapter 611A.

As stated above, when an individual makes a request for data of which s/he is not the subject, government entities must respond in an appropriate and prompt manner, and within a reasonable time. Here, the Committee initially requested the schedule data on September 14, 2005. It was not until July 26, 2006, ten months later, that Mr. Kamp informed the Committee that the data were classified as not public. This was not a timely response.

Issue 2:

Did the Hennepin County Attorney's Office respond in a timely manner, as required by Minnesota Statutes, Chapter 13, to the following data request made on February 22, 2006: all labor grievances filed against Amy Klobuchar in her capacity as Hennepin County Attorney; 1999 - 2006?

In a letter dated February 22, 2006, an individual working on the Committee's behalf requested All labor grievances filed against Amy Klobuchar in her capacity as Hennepin County Attorney; 1999 - 2006.

In a letter dated May 19, 2006, Mr. Kamp responded:

Under Hennepin County's collective bargaining agreements, grievances are not filed against department heads. Rather, a labor grievance is filed against the employer which in turn is defined as the County of Hennepin. . . .

The County Attorney's Office does not keep a centralized file of all its labor grievances; instead grievances are contained in the files of the employee involved. Similarly, the County's Labor Relations Department does not organize grievances by department; it files them by employee name.

Accordingly, staff has been consulted with to try to create a list of all the grievances you are seeking. A total of nine grievances were located going back to 1994. . . .

In addition, many of the relevant employees with whom to consult have moved on. If additional information is found, it will be forwarded to you.

Attached please find copies of the documents. There are 36 pages. . . .

In his comments, Commissioner Johnson reiterated that the County does not have a centralized filing system for grievances by department. He wrote, Hennepin County staff searched the relevant files in the Labor Relations Department and the Human Resources Department. County staff reviewed files of numerous current and former employees to ascertain whether they had any responsive information. At least sixteen (16) current or former employees were consulted in this process.

The Commissioner (of Administration) has the following comments. The fact that the Office cannot easily locate grievances filed against the County Attorney should not significantly affect the response time. Chapter 13 confers upon individuals the right to request and gain access to data. The Committee asked for specific data - labor grievances filed against Amy Klobuchar - and the Office is obliged to provide those data regardless of how they are filed. The Committee made its request on February 22, 2006, and the County did not provide any data until May 19, 2006, three months later. This is not a timely response.

The Commissioner notes that Mr. Kamp discussed creating a list of all the grievances. The Committee did not ask the Office to create data and, as previous advisory opinions have discussed, government entities are not required to create data to respond to a request.

Issue 3:

Did the Hennepin County Attorney's Office respond in a timely manner, as required by Minnesota Statutes, Chapter 13, to the following data request made on March 3, 2006: list and description of all matters referred by the Hennepin County Attorney's Office to the Hennepin County Domestic Fatality Review Board?

In a letter dated March 3, 2006, an individual working on behalf of the Committee requested the following records: a list and description of all matters referred by the Hennepin County Attorney's Office to the Hennepin County Domestic Fatality Review Board.

In a letter dated August 3, 2006, Mr. Kamp responded:

Pursuant to Minnesota Session Laws 2000, Chapter 468 Sec. 31, Subd. 3b, the proceedings and records of the Domestic Fatality Review Team are not public. . . . The data received, kept, maintained and assembled by the Domestic Fatality Review Team are confidential data and protected non-public data as defined in Minn. Stat. section 13.02, Subds. 3 and 13, respectively.

The domestic fatality review team prepares an annual report. This is a public document. I have attached a copy of the report.

The Committee requested the data on March 3, 2006. Five months later, on August 3, 2006, the Office denied access because the data are classified as not public. The Office's response was not timely.

Issue 4:

Did the Hennepin County Attorney's Office comply with Minnesota Statutes, Chapter 13 (in a timely and appropriate manner), to the following data request made on September 14, 2005: provide all caseload statistics tracked by the Hennepin County Attorney's Office from 1998 to present?

In a letter dated September 14, 2005, an individual working on behalf of the Committee requested all caseload statistics tracked by the Hennepin County Attorney's Office from 1998 to the present.

In a letter dated June 26, 2006, Mr. Kamp wrote, It is estimated that this information will be sent the week of July 24, 2006.

In a letter dated July 31, 2006, Mr. Kamp wrote, Attached please find the Hennepin County Attorney's Office caseloads for 1998 to 2005. This represents the most up-to-date information.

In a letter dated August 4, 2006, the Committee wrote:

. . . yesterday we received a one and one-half (1) page spreadsheet of selected case statistics. The spreadsheet lists only the number of cases charged for various offenses. Notably, the spreadsheet lacks numerous caseload statistics ordinarily tracked by prosecutorial offices. . . .

The County Attorney has made several claims regarding her Office's performance . . . Assuming she relies on official caseload statistics, we expect to be provided with those same statistics.

In a letter dated August 16, 2006, the Committee wrote that they had received a copy of a memo dated August 10, 2006, from the County Attorney's Chief Deputy: With regards to the memorandum . . . I am pleased to learn that Hennepin County tracks more caseload statistics than what your office initially provided. Now, more than 11 months later, all that remains is for your office to provide them.

In a letter dated August 25, 2006, Ms. Jelink, Hennepin County Chief Information Officer, wrote:

The request you made in your letter dated August 4, 2006, provided some clarification. This clarification was helpful, but uninformed and lacked general knowledge of the criminal justice system. . . . You will be provided with the caseload statistics referenced in . . . [the August 10, 2006 memorandum]. Mr. Kamp will be sending this responsive data under a separate cover letter.

In a letter dated August 25, 2006, Mr. Kamp apparently provided additional caseload statistics including number of trial - court/bench and jury, conviction rate statistics - adult, adult career property cases, and mental health commitment petitions.

An individual working on behalf of the Committee first requested caseload statistics on September 14, 2005. It was not until July 31, 2006, ten months later, that Mr. Kamp responded by sending certain statistical data. After the Committee objected, Mr. Kamp sent additional data on August 25, 2006. Given the response time requirements set forth in section 13.03 and Minnesota Rules 1205.0300, the Office's reply was not timely.

On the issue of whether the Office's response was appropriate, the Commissioner offers the following comments. The Committee asked for caseload statistics. Nothing in Chapter 13 requires that the Office create additional data to respond to the Committee's request. Therefore, if the Office maintains additional statistics, it should forward those to the Committee promptly. If not, and the Committee is in possession of all caseload statistics, the County has responded appropriately.

Finally, it appears from some of the County's comments that there may have been some question about what caseload statistical data the Committee was seeking. If the County was unsure, it needed to seek clarification - but should have done so shortly after the request was received. Also, the Commissioner encourages data requestors to try to be as specific as possible in identifying the data they are seeking.

Issue 5:

Did the Hennepin County Attorney's Office comply with Minnesota Statutes, Chapter 13, in denying access to certain data that were requested on July 27, 2006?

In a letter dated July 27, 2006, the Committee made additional requests :

  • List, describe, and document all legislation Amy Klobuchar in her capacity as Hennepin County Attorney proposed or sought to have enacted during her time as County Attorney. This includes, but is not limited to, legislation relating to criminal activity and firearms.

  • List, describe, and document all instances or programs since January 1999 where the Hennepin County Attorney worked with the various Hennepin County City Attorneys to set uniform prosecution standards.

  • List, describe, and document all instances since January 1999 in which the Hennepin County Attorney supported the construction of new jails or detention facilities.

  • List, describe, and document all instances since January 1999 in which the Hennepin County Attorney made the public aware of certain judges it believed had treated offenders too leniently.

  • List, describe, and document any programs instituted by the Hennepin County Attorney's office since January 1999 to train police officers.

  • List, describe, and document all instances since January 1999 in which the Hennepin County Attorney's office appealed criminal sentences it considered too lenient.

  • List, describe, and document all instances or programs since January 1999 in which the Hennepin County Attorney's office took steps to discourage gang membership. This includes, but is not limited to, measures to prevent children from joining gangs, to help current gang members quit, or to encourage gang tattoo removal.

In a letter dated August 11, 2006, Mr. Kamp wrote:

These requests, however, are not really Data Practices Act requests . . . Neither Hennepin County, nor the County Attorney's Office have information organized in the very specific manner you are seeking.

To be sure, the Data Practices Act does not require a government entity to have its data organized in a particular manner, or in the precise way a data requestor desires. . . . The Act also does not give the public the right to dictate the specific form in which the data to which they seek access are provided. Advisory Opinion 95-037.

Commissioner Johnson wrote, [The July 27, 2006, requests] were not data practices requests, but framed as broad questions and not requests for data.

The Commissioner (of Administration) agrees with the County's position. Chapter 13 confers upon individuals the right to gain access to data that exist. Here, as the questions are written, they are not the type of requests that fall under the purview of Chapter 13. Rather, they appear to ask the Office to make a list, write a description, and create documentation. Had the Committee, for example, asked the County Attorney's Office for copies of data that document any legislation Amy Klobuchar proposed or sought to have enacted during her time as County Attorney, the Office would have been required to respond as prescribed by Chapter 13.


Opinion:

Based on the facts and information provided, my opinion on the issues that Mr. Stevens raised is as follows:

  1. The Hennepin County Attorney's Office did not respond in a timely manner, as required by Minnesota Statutes, Chapter 13, to the following data requests made on September 14, 2005: (1) all travel records for Amy Klobuchar, in her capacity as Hennepin County Attorney from 1999 to the present, including itinerary, cost and purpose ; and (2) all daily, weekly and monthly schedules of Amy Klobuchar from 1999 to the present.
  2. The Hennepin County Attorney's Office did not respond in a timely manner, as required by Minnesota Statutes, Chapter 13, to the following data request made on February 22, 2006: all labor grievances filed against Amy Klobuchar in her capacity as Hennepin County Attorney; 1999 - 2006.
  3. The Hennepin County Attorney's Office did not respond in a timely manner, as required by Minnesota Statutes, Chapter 13, to the following data request made on March 3, 2006: list and description of all matters referred by the Hennepin County Attorney's Office to the Hennepin County Domestic Fatality Review Board.
  4. The Hennepin County Attorney's Office did not respond in a timely manner, as required by Minnesota Statues, Chapter 13, to the following data request made on September 14, 2005: provide all caseload statistics tracked by the Hennepin County Attorney's Office from 1998 to present . The Commissioner is unable to determine if the response was appropriate.
  5. The Hennepin County Attorney's Office complied with Minnesota Statutes, Chapter 13, in responding to a request made on July 27, 2006.

Signed:

Dana B. Badgerow
Commissioner

Dated: October 19, 2006


Requests for data

Responsible authority

Clarification of request

Data request vs. question/inquiry

Responsible authority (RA)

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