Discussion:

Pursuant to Minnesota Statutes, section 13.03, subdivision 1, government data are public unless otherwise classified by statute, federal law, or temporary classification (see section 13.06).

In his response to the Commissioner, Mr. Varco referenced a letter that Patricia Seleen, former Ombudsman, wrote to X on August 2, 1999. (Mr. Varco attached a copy of this letter to his response.) Mr. Varco wrote that the letter informed X that the Ombudsman had reviewed his complaint regarding discrimination, his discharge from the [Sex Offender Treatment] SOT program, and the intermingled questions of staff professionalism and SOT program quality.

Mr. Varco further stated:

In her August 2 letter, Seleen gave [X] the results of her investigation of his allegations that he was discriminated against...and of his allegations regarding his discharge from the SOT program. Furthermore, she informed him that she was making recommendations to the Department of Corrections regarding documentation, training and compliance with program certification standards ....In fact, Seleen did this in a letter dated August 2, 1999, to [Director of the SOT program at Moose Lake] It is this letter which [X] did not receive from the Ombudsman.

(Mr. Varco did not provide to the Commissioner a copy of the letter from Seleen to the Director of the Moose Lake SOT program.)

Mr. Varco continued:

The statutory authority for the Ombudsman to deny release of the [letter to the Director of the Moose Lake SOT program] is found in legislation establishing the Office of the Ombudsman for Corrections [Minnesota Statutes, sections 241.41- 241.45].

Mr. Varco argued that section 241.44, subdivision 1(c), gives the Ombudsman extensive discretion as to the access to be granted to his reports and recommendations. In relevant part, section 241.44, subdivision 1 (c) provides:

Except as otherwise provided, [the Ombudsman may] determine the form, frequency, and distribution of conclusions, recommendations, and proposals; provided, however, that the governor or a representative may, at any time the governor deems it necessary, request and receive information from the ombudsman.

He further argued that because the general presumption language in section 13.03 was enacted after the except as otherwise provided language in section 241.44, subdivision 1(c), the Legislature could not have intended that this phrase allowed access to the Ombudsman's reports through [Chapter 13].

The Commissioner respectfully disagrees with the Ombudsman's position, as asserted by Mr. Varco. For purposes of Chapter 13, the Ombudsman for Corrections is a state agency. See section 13.02, subdivision 17. Therefore, all data collected, created, received, maintained, or disseminated by the Ombudsman's Office are government data and are public unless otherwise classified. Mr. Varco asserts that section 241.44, subdivision 1, classifies certain data that the Ombudsman maintains. The Commissioner respectfully disagrees. First, the provision at issue does not contain language specifically stating that certain data are not public. Rather, it states that the Ombudsman may determine the form, frequency, and distribution of conclusions, recommendations, and proposals. The terms form, frequency, and distribution suggest that the Ombudsman may determine how, how often, and to whom s/he distributes conclusions, not that certain information is restricted and cannot be released.

The Commissioner's position is further buttressed by actions taken by the Ombudsman in 1979. In that year, the Ombudsman applied for a temporary classification from the Commissioner of Administration. Government entities seek temporary classifications in an attempt to get data immediately classified as either private (nonpublic) or confidential (protected nonpublic). The Legislature must then act on those temporary classifications - either enacting a specific classification or not - within the next two Legislative sessions.

If it were the case, as argued by the Ombudsman, that section 241.44, subdivision 1 (enacted in 1973), classified, as not public, data maintained by the Ombudsman's Office, the Office would not have deemed it necessary to apply for a temporary classification from the Commissioner of Administration in 1979. In fact, one of the questions asked in the application for temporary classification is whether there is any Minnesota statute that classifies the data as not public. In its application, the Ombudsman's Office did not cite section 241.44.

Finally, accepting Mr. Varco's position means that there is potential conflict between section 241.44 and section 13.66. Minnesota Statutes, section 645.26, discusses irreconcilable provisions. Subdivision 4 of section 645.26, states, When the provisions of two or more laws passed at different sessions of the legislature are irreconcilable, the law latest in date of final enactment shall prevail. Section 241.44, subdivision 1, was enacted in 1973. Section 13.66 was enacted in 1980. Pursuant to section 645.26, section 13.66 prevails.

Specifically, subdivision 1 of section 13.66 classifies the following data as private:

a. All data on individuals pertaining to contacts made by clients seeking the assistance of the ombudsman, except as specified in subdivisions 2 and 3;

b. Data recorded from personal and phone conversations and in correspondence between the ombudsman's staff and persons interviewed during the course of an investigation;

c. Client index cards;

d. Case assignments data; and

e. Monthly closeout data.

In addition, section 13.66, subdivision 2, classifies the following data as confidential: the written summary of the investigation to the extent it identifies individuals.

Pursuant to section 13.03, subdivision 1, all other data that the Ombudsman's Office maintains are public.

X requested access to the Ombudsman's report/ recommendations/analysis of the SOT program. Pursuant to section 13.03, subdivision 1, and section 13.66, X is entitled any public data and any private data about which X is the subject. X is not entitled is a written summary of the investigation to the extent that it identifies individuals. If any data responsive to X's request exist, and the Ombudsman has not yet provided those data to X, the Ombudsman should do so promptly.

Opinion:

Based on the facts and information provided, my opinion on the issue raised by X is as follows:

Signed:

David F. Fisher
Commissioner

Dated: June 29, 2000