Discussion:

Minnesota Statutes Section 13.03 contains the general provisions that govern public access to government data. Subdivision 1 provides that government data shall be kept in such an arrangement and condition as to make them easily accessible for convenient use and further provides that [p]hotographic, photostatic, microphotographic, or microfilmedrecords shall be considered as accessible for convenient use regardless of the size of such records. (Emphasis added.)

According to Mr. Yantos, the County Recorder's office does not retain the original mechanic's lien filings. Instead, the filings are microfilmed, the originals are returned to the filer, and . . . the microfilmed copy is the county record . . .. Documents received by the office of the Registrar of Titles are retained by that office. Mr. Yantos also stated that [b]oth the microfilmed Recorder's documents and the actual Registrar's documents are available at all times during normal business hours for public inspection and are routinely inspected on a daily basis . . ..

It does not appear, pursuant to the provisions of Minnesota Statutes Chapter 386, which governs county recorders, that the County has an obligation to retain the originals of documents filed in the Recorder's office. Therefore, it appears that the County is not required to provide access to the original mechanic's liens, and it appears that the County is meeting its statutory requirement to provide convenient access to public government data. The fact that the newspaper may disagree with the standard provided in statute is something for which the County may not be held responsible. Finance and Commercemay reasonably prefer a different accommodation than that provided by the County, but the County does not appear to be required to provide the kind of access the newspaper prefers.

Issue 2. Is the County required to provide access to mechanic's lien filings on a timely basis?

Section 13.03, subdivision 2, provides that [t]he responsible authority . . . shall establish procedures . . . to insure that requests for government data are received and complied with in an appropriate and promptmanner. (Emphasis added.)

In addition, Minnesota Rules Part 1205.0300, subpart 2, provides that . . . the responsible authority may limit the time during which access to public data is available to the time during which the normal operations of the agency are conducted. . . . The responsible authority shall provide for a response to a request for access within a reasonable time.

Further, pursuant to Section 386.17 of the recorder statute, [t]he county recorder shall exhibit free of charge, during the hours that the office is or is required by law to be open, any of the records or papers in the recorder's official custody to the inspection of any person demanding the same. . . .

According to Mr. Yantos, mechanic's lien filings are accessible to the public during County business hours, and County personnel are available to offer assistance. Mr. Yantos also stated that if a special computer run is required, those data are available the next business day after the request is made.

Mr. Boulay stated in his correspondence with the County that the newspaper required access to all filings as they are made. The newspaper may prefer access to the mechanic's liens as they are filed, but the statutory standard is appropriate and prompt, not immediate access to government data. From the information provided by Mr. Yantos, it appears that the County is meeting its statutory obligation to provide appropriate public access to government data. Members of the public may gain access to the microfilmed or actual mechanic's liens during regular County business hours, and access to copies of the computer printouts on the next business day following the request.

Issue 3.Must the County permit members of the public to inspect mechanic's lien data at no charge?

Section 13.03, subdivision 3, provides that [i]f a person requests access for the purpose of inspection, the responsible authority may not assess a charge or require the requesting person to pay a fee to inspect data.

According to Mr. Yantos, [t]he County does not charge the public for the inspection of the microfilmed or actual mechanic's lien documents . . .. However, according to Mr. Yantos, it is not possible for a member of the public to inspect the liens via a computer terminal, due to the County's design of the system.

Again, it appears that the County is meeting its statutory obligation to provide free inspection of government data, i.e., free inspection of the microfilmed mechanic's liens, at the Recorder's office, or the actual liens at the office of the Registrar.

Issue 4.Must the County provide members of the public direct access to the data via a computer terminal, if the County has the capability to do so?

Various sections of Chapter 386 provide specific requirements for the maintenance of records by county recorders. For example, Sections 386.03 and 386.05 provide for the maintenance of reception books and tract index books. Section 386.32 requires recorders to keep a consecutive index of all records or files kept in the office. Sections 386.03 and 386.32 provide that the records include specific references to the kind of instrument recorded.

According to Mr. Yantos,

In his March 14, 1995 letter to the County, it appears to be Mr. Boulay's understanding that the design of the system resulted in a change in the ways that information is made available to the public. (From the information provided to the Commissioner, it is not clear whether, or what kind, of change has occurred.

Mr. Yantos indicated that the County's computer system was not designed to accommodate the kind of request the newspaper has made, i.e., direct public access to mechanic's lien data. Apparently the kind of instrument is not a searchable criterion. According to Mr. Yantos,

In his response to the Commissioner, Mr. Yantos stated that the County is neither required by statute nor has a business reason to maintain mechanic's lien data such that direct public access to the data via computer is possible.

Strictly speaking, Mr. Yantos is correct in his assertion that there is no statutory requirement for the County to maintain its computer database in such a manner as to allow for the kind of search desired by Finance and Commerce. There is no statutory requirement that the data filed with the County Recorder and Registrar be computerized at all. Minnesota Statutes Chapter 386, sections of which were enacted in 1907, does not make reference to electronic data maintenance systems. However, given the requirements of Sections 386.03, 386.04, and 386.32, that County Recorders make notations and maintain written records of the kind of instrument filed, it raises questions with respect to the County's obligation to continue that practice in its computerized system.

Apparently the County found it necessary, from a business perspective, to implement a computerized record-keeping system. Mr. Yantos himself said that the records of the Recorder and Registrar are routinely inspected on a daily basis by title companies, real estate professionals and other members of the general public.

The County, as a government entity subject to the requirements of Minnesota Statutes Chapter 13, and Minnesota Rules Chapter 1205, is obliged to provide appropriate, prompt and convenient access to government data. Mr. Yantos said that direct access to Recorder and Registrar data via computer terminal is available, however, kind of instrument is not a searchable criterion.

Given that access to the data in question appears to be in widespread public demand, and given that the type of access requested by the newspaper appears to be more convenient to the public, it is puzzling that the County does not consider providing direct access to the mechanic's lien data a business reason. Had the County so considered, it might have designed its computer system to accommodate the apparently routine request for access that the newspaper has made.

From the information provided by Mr. Anfinson, it is possible that decisions made by the County in its system design may have resulted in its providing, in the newspaper's view, less convenient access to the data than was previously the case. However, questions relating to a government entity's specific obligations to design computer systems to provide convenient access involve issues not currently addressed in statute.

Issue 5.Are the County's charges for computer printouts of mechanic's lien data authorized under Minnesota Statutes Chapter 13?

Minnesota Statutes Section 13.03, and Minnesota Rules Part 1205.0300, provide that government entities must grant prompt, appropriate, and reasonable access to public government data. (As discussed above, it appears that the County is doing so.) However, those provisions of statute and rule do not provide members of the public the right to dictate the specific form in which the data to which they seek access are provided.

According to Mr. Yantos, [i]n order to retrieve the specific type of data requested, the County must assign certain qualified personnel to compile this request. The computer must then be specifically programmed to compile this type of data. Clearly, the County did not design its record system in such a manner that allows direct retrieval of the data the newspaper seeks. Instead, a special computer program is required.

The County does provide direct access to mechanic's lien data in the form of the actual documents, in the Registrar's office, and on microfilm, in the Recorder's office. Apparently Finance and Commerce finds the County's provision of access to mechanic's liens inconvenient, and excessively time consuming. However, Section 13.03, subdivision 1, defines access to microfilmed records as accessible for convenient use.

If a government entity were readily able to satisfy a request for a particular form of access, it is reasonable for a member of the public to expect that it would do so. However, Section 13.03 does not provide members of the public the right to demand access to data in any particular form. Therefore, the question of what the County may charge for providing the newspaper with the kind of access it prefers is up to the parties to negotiate.

Certainly, the newspaper may ask the County to accommodate its special request, to reorganize and retrieve the data electronically. Certainly, the County is free to negotiate the terms under which it is willing to do so, including the amount of a reasonable fee to recover its costs.

Issue 6.Must the County provide computer printouts of mechanic's lien data to members of the public promptly, upon request?

As discussed above, Section 13.03 provides that government entities must respond to public requests for access to government data in an appropriate and prompt manner. However, that does not mean that government entities must provide immediateaccess to public data. As discussed in Issue 2, it appears that computer printouts of mechanic's lien data are available on the next business day following the request. Therefore, it appears that the County is meeting its statutory obligation to provide prompt access to the mechanic's lien data it maintains in its computer system.

Issue 7.May the County determine the frequency with which a member of the public requests access to mechanic's lien data?

In his response, Mr. Yantos stated that [t]here is no legal authority for the County to determine the frequency of access to the mechanic's lien data found among the public records. As stated earlier, members of the public have unlimited access during business hours to the public records in the format which Minn. Stat. sectionsection 386 and 508 require.

Mr. Anfinson stated that the County . . . has resisted requests to make the data available on a regular basis . . .. As noted earlier, Mr. Boulay suggested that, although the paper often required access to the mechanic's lien data on a daily basis, it might, in order not to be burdensome, agree to limit its requests to three times per week, if the County could provide direct electronic access.

There is nothing in statute which limits Mr. Boulay's, or any citizen's ability to enter into that kind of agreement with a government entity. However, as Mr. Yantos stated, there are no provisions within Chapter 13 which enable a government entity to impose that kind of limitation. Members of the public, seeking access to public government data, may make as many requests for access to data as they choose, as frequently as they choose. Government entities are required, in response, to provide appropriate, prompt, and reasonable access to public data. Again, that does not imply that government entities are obliged to provide immediate access to public data.

A further comment is in order. In Mr. Dalien's April 26, 1995, letter to Mr. Boulay, Mr. Dalien said that the cost for the computer printouts was $63.50, plus sales tax. As the Commissioner addressed in Advisory Opinion 94-059, [t]his issue was previously raised with the Minnesota Department of Revenue, which requires collection of sales tax by entities which are in the business of selling copies. The Department specifically exempted entities which are subject to [Chapter 13] from including sales tax in their charges for copies of government data. In the fee schedule enclosed with Mr. Yantos' response, a charge for sales tax was not indicated. However, if the County is collecting sales tax in its charge for copies of government data, it should review that policy with the Department of Revenue.

Opinion: