June 5, 2001; Washington County
6/5/2001 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 government entity that requested this opinion is presented in summary form. Copies of the complete submission are on file at the offices of IPA and, with the exception of any data that are not public, are available for public access. On April 17, 2001, IPA received a letter from Meredeth Magers, Assistant Washington County Attorney. In this letter, Ms. Magers asked the Commissioner to issue an advisory opinion regarding the classification of certain data maintained by the County. A summary of the facts of this matter follows. Ms. Magers stated: This office has received a request for a specific video tape of the booking area within the secured portion of the Washington County Jail. The request is for the video of a specific individual in the process of being booked into the facility. All incoming inmates are personally escorted into and through this area, but never have any diagrams, photographic depictions or videos of the area ever been allowed to be taken or released. This office believes that the video recordings of this particular type of area is classified as non public security data pursuant to Minn. Stat. section 13.37 subd 1 (a) and 13.85. We believe that the public disclosure of this specific type, booking and other secured/controls [sic] areas within the correctional facility, places the individuals coming into the facility (and their property) as well as the staff within the facility at risk or harm. With public disclosure of this type of video, the public could become aware of the dimensions of the location of various objects, cameras, security systems and any other information which compromises security within the facility. Ms. Magers stated that the video of the booking area is an accurate depiction of such things as location of security cameras, entrances and exits to a secured area, personal property, number of personnel present at particular times, types of equipment used, methods used when an inmate is processed, floor plans, and depictions of persons in custody. Issue:In her request for an opinion, Ms. Magers asked the Commissioner to address the following issue:
Discussion:Section 13.37, subdivision 2, classifies security information as not public. Security information is defined at subdivision 1 (a) as government data the disclosure of which would be likely to substantially jeopardize the security of information, possessions, individuals or property against theft, tampering, improper use, attempted escape, illegal disclosure, trespass, or physical injury. The Commissioner also addressed the proper classification of data as security information in Advisory Opinion 01-006. In that Opinion, the Commissioner opined: The Legislature did not define substantially jeopardize. In an attempt to clarify this term and the applicable language in section 13.37, the Commissioner reviewed various statutes, laws, and case law but was unable to locate anything specifically applicable to the situation at hand. Because the Commissioner is not comfortable with the broad discretion seemingly available to government entities in using the security data provision to deny access to data, he intends to present this issue to the 2001 Legislature, in hopes that they will clarify the language. This is a particularly prudent time for the Commissioner to seek legislative guidance because, in addition to the issues raised in this opinion, he is aware of several recent instances in which government entities have used the security data provision as a basis upon which to deny access to data. However, the issue raised by Ms. Kramer remains. The Commissioner of Public Safety is charged by law with the responsibility of providing the Governor's security detail, and for protecting the Governor's person. The Commissioner of Public Safety and his staff have the training, experience, and expertise to determine security risk in this regard, and how this security function is to be best performed. See Cable Communications Board v. Nor-West Cable Communications Partnership, 356 N.W.2nd 658, 668 (Minn. 1984); In re the Petition to Adopt S.T. and N.T., 497 N.W.2d 625, 628 (Minn. App. 1993). Under the circumstances of this case, there is not sufficient showing that the Commissioner of Public Safety is acting arbitrarily or beyond the scope of his responsibility in determining that release of the specific data in question presents a security risk to the person of the Governor. This office is not in a position to overrule this determination. As stated above, we recognize a need for legislative clarification regarding the security information provision. In that case, the data in question all related to the protection of a specific individual, i.e., the Governor. Here, Ms. Magers proposes protecting ALL videotapes depicting the booking area of the Jail. The Commissioner has previously opined that section 13.37, subdivisions 1 (a) and 2, may not be employed as a blanket classification scheme, but instead applies to otherwise public data in those specific situations in which an entity has reason to believe that the disclosure would be likely to substantially jeopardize the security of information, possessions, individuals or property. (See, for example, Advisory Opinions 98-046 and 01-029.) The Commissioner opined in Advisory Opinion 01-029: For example, in conversation with IPA staff, County staff mentioned a situation involving domestic abuse, in which a woman asked that the data not be made available to her former partner, whom she had reason to fear. In such a case, a classification as not public under section 13.37 might be appropriate. However, the County may not withhold from the public all addresses and telephone numbers because it is concerned about the possibility, in general, of a security risk. In order for section 13.37, subdivision 1 (a), to be applicable, the County must make a determination on a case-by-case basis. Also, the Commissioner considers the security information issue raised here to be distinct from that addressed in Advisory Opinion 01-006. In that Opinion, the Commissioner deferred to the expertise of the Commissioner of the Minnesota Department of Public Safety in law enforcement and security matters, by accepting Commissioner Weaver's determination regarding the classification as security information of certain data maintained by Public Safety. In this case, the Commissioner is again inclined to defer to the expertise of the County. The general public does not enjoy free access to the secured areas of the County Jail. Only staff and inmates may gain access. Therefore, a video depiction of those secured areas is not otherwise public data in the same way as the data at issue in Advisory Opinion 01-029. In this situation, the broad discretion granted entities to classify data as security information overcomes the Commissioner's reluctance to approve this kind of blanket classification. The nature of the data at issue here makes the difference. Ms. Magers also raised the question of the applicability of section 13.85 to the videotapes. Section 13.85 governs data on individuals created, collected, used or maintained because of their lawful confinement or detainment in . . . county jails . . . . Pursuant to subdivision 2, data on individuals are classified as private . . . to the extent that the release of the data would either (a) disclose medical, psychological, or financial information, or personal information not related to their lawful confinement or detainment or (b) endanger an individual's life. (Emphasis added.) The Commissioner does not agree that a videotape depiction of an inmate being processed into the County Jail is not related to his/her lawful confinement. Furthermore, section 13.85 classifies data only about individuals. Therefore, any data on a videotape of the booking area that does not depict individuals would not be covered by section 13.85. Accordingly, section 13.85 does not apply to the data in question. The Commissioner wishes to note that a 1985 Minnesota Appellate Court case may have implications as to the discoverability of the videotapes. (See State v. Hopperstad, 367 N.W.2d 546 (Minn.App. 1985.)) Opinion:Based on the facts and information provided, my opinion on the issue raised by Ms. Magers is as follows:
Signed: David F. Fisher
Dated: June 5, 2001 |
Law enforcement data
Booking area
