May 30, 1997; University of Minnesota
5/30/1997 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 person who requested this opinion and the response from the government entity with which the person 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 classified as not public, are available for public access.On April 10, 1997, PIPA received a letter, dated April 9, 1997, from Tom Lamphere. Mr. Lamphere requested that the Commissioner issue an opinion regarding his access to certain data maintained by the University of Minnesota, or U of M. PIPA, on behalf of the Commissioner, wrote to Tracy Smith, Associate General Counsel for the University of Minnesota. The purposes of this letter, dated April 11, 1997, were to inform her of Mr. Lamphere's request and to ask her to provide information or support for the University's position. On April 24, 1997, PIPA received a response, dated April 22, 1997, from Tracy Smith regarding one of Mr. Lamphere's issues. On April 23, 1997, PIPA received a response, dated April 22, 1997, from Anne Lewis, an attorney, regarding the second issue raised by Mr. Lamphere. A summary of the facts surrounding this matter as presented by Mr. Lamphere is as follows. In a letter dated December 23, 1996, Mr. Lamphere requested access to the following data from the University: 1) the University's policy on the serving of alcohol by the University, on University property, at an official University function; 2) itemized receipts for all items purchased for an October 19, 1996, brunch that Chancellor Kathryn Martin hosted at her home, as well as the name of the caterer, if applicable; and 3) itemized receipts for a November 30, 1996, event held at the Glensheen Mansion, as well as the name of the caterer, the name of the liquor store that supplied alcohol, and the name of the decorating company. Mr. Lamphere also requested an account of all items returned to all venders [sic] involved with this UMD function. On February 11, 1997, Mr. Lamphere met with William Donohue, Associate General Counsel, and was assured that the requested information was public and that copies of the data would be forthcoming. As of April 9, 1997, Mr. Lamphere had not gained access to any of the data. In a letter dated March 12, 1997, Mr. Lamphere requested information concerning file # 7 of the University's audit of the Duluth campus' athletic department. In his opinion request he wrote, This file contains information on three UMD athletic booster clubs (Blueline Club, Hoop Club and Quarterback Club). He further wrote that the University had denied access to file # 7 data because those data are classified pursuant to Minnesota Statutes Section 13.39. Attached was a letter dated March 20, 1997, from Anne Lewis. She stated, As active investigative data, these materials are not available to the public pursuant to Section 13.39 of the Government Data Practices Act. Issues:
In his request for an opinion, Mr. Lamphere asked the Commissioner to address the following issues:
Discussion:
Minnesota Statutes Section 13.03 sets forth a government entity's obligations in responding to requests for access to public government data. Subdivision 2 of Section 13.03 provides that the entity must respond in an appropriate and prompt manner. Subdivision 3 of Section 13.03 provides that if the entity determines that the data are not accessible to the requestor, the responsible authority must so inform the requestor at the time of the request or as soon thereafter as possible.
In regard to the first issue, Mr. Lamphere made a request at the end of December, 1996, for access to certain data maintained by the University. After numerous phone calls resulting in no action, he met with William Donohue, Associate General Counsel. At that meeting, Mr. Donohue apparently advised Mr. Lamphere that the data he had requested were public and would be made available to him. Eight weeks after the meeting, Mr. Lamphere had apparently heard nothing further regarding those particular data. Attached to Ms. Smith's response to the Commissioner was a letter, dated April 18, 1997, from her to Mr. Lamphere. With this letter, Mr. Lamphere apparently received a copy of the Alcohol Beverages on Campus Policy of the University of Minnesota Board of Regents. Ms. Smith wrote, With respect to the other items in your request, no event was hosted at the Chancellor's home on October 19, 1996. There are therefore no documents related to this request. No event was held at Glensheen on November 30, 1996. There are therefore no documents related to this request. In her response to the Commissioner, Ms. Smith stated, While I regret the delay in responding, I see nothing in the Data Practices Act that requires a state agency to respond to a request when there is no data responsive to the request. Ms. Smith is correct that Chapter 13 does not require government entities to create data that do not exist. The problem in this case is that Mr. Lamphere was advised on February 11, 1997, that the data were public and accessible. Two months later he was advised that the data do not exist. The University's obligation under Section 13.03, subdivision 3, is to respond in an appropriate and prompt manner. If Mr. Lamphere was provided with incorrect information, that is not appropriate, and informing him three and one-half months after his request that the data do not exist is not prompt. In addition, while Mr. Lamphere did receive a copy of the Regent's policy regarding alcohol at University functions, he received it three and one-half months after his initial request. This is not prompt. Therefore, the University did not respond properly, pursuant to Section 13.03, to Mr. Lamphere's December 23, 1996, request for access to data. In regard to the second issue, Ms. Lewis, described the situation relating to the data in the file numbered 7. She wrote:
Ms. Lewis stated that as chief attorney acting on this matter for the University, she has advised that the data sought by Mr. Lamphere are classified by Section 13.39 as confidential or nonpublic. She wrote:
She also wrote, Mr. Lamphere was informed that this file contains investigative data which are currently nonpublic under the terms of Minnesota Statutes 13.39. In response to his March 12 inquiry to the undersigned, he was given confirmation of this reason. Section 13.39, subdivisions 1 and 2, provide that when the chief attorney acting for an entity determines that a civil legal action is pending, the following data are classified as confidential and/or protected nonpublic while the investigation is active: data collected as part of an active investigation undertaken for the purpose of the commencement or defense of a pending civil legal action; or data which are retained in anticipation of a pending civil legal action. Once the investigation is inactive, most of those data become public. (See Section 13.39, subdivision 3.) In the case at hand, Ms. Lewis stated that she, acting as the chief attorney for the University, has made a determination that a civil legal action is pending. Therefore, pursuant to Section 13.39, subdivision 2, data collected by the University that relate to the pending civil legal action(s), i.e., the investigation into the booster club contributions, are confidential until the investigation becomes inactive. In her response, Ms. Lewis added that the data requested by Mr. Lamphere are classified as confidential and/or protected nonpublic also pursuant to Section 13.794, internal auditing data. She wrote that because the final report of this aspect of the audit has not been published and because the investigation is continuing, the data can be classified under Section 13.794. Section 13.794, subdivision 1, classifies data, notes, and preliminary drafts of reports created, collected, and maintained by the internal audit offices of state agencies, such as the University of Minnesota, or persons performing audits for state agencies and relating to an audit or investigation. Such data are confidential and/or protected nonpublic until the final report has been published or the audit is no longer being actively pursued. Therefore, because the data in question appear to be internal audit data as defined per Chapter 13, and because the final report has not been published and the audit is still being pursued, it appears that the data are rightly currently classified as confidential and/or protected nonpublic pursuant to Section 13.794. Opinion:Based on the facts and information provided, my opinion on this issue is as follows:
Signed: Elaine S. Hansen
Dated: May 30, 1997 |
Civil investigative data
Copy costs
Existence of data
Response to data requests
Internal audit
Civil investigative data (13.39)
Requestor must be informed
