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Advisory Opinion 94-004

January 6, 1994; Crow Wing County

1/6/1994 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 December 21, 1993, the Public Information Policy Analysis Division (PIPA) received a request for an opinion from Roy A. Luukkonen, who is the Crow Wing County Auditor. Enclosed with his request was a copy of a state Department of Human Rights charge and a series of letters discussing the issue described below. A review of the correspondence establishes the following:

On October 4, 1993, Mr. Luukkonen wrote to John Remington Graham, the Crow Wing County Attorney, and asked Mr. Graham whether the 1993 legislative enactment of Chapter 370, Section, 7, a provision making long distance telephone bills of the legislature, judges, state agencies and political subdivisions public data, was superseded by provisions of the Minnesota Government Data Practices Act, Chapter 13 of Minnesota Statutes and hereinafter MGDPA .

On October 25, 1993, County Attorney Graham wrote to the Chair of the Crow Wing County Board. In that letter, he summarized issues raised by various county personnel about the status of telephone records in light of various provisions of the MGDPA and Chapter 370, Section 7. Mr. Graham reviewed a variety of statutory provisions, including the child abuse reporting act, Minnesota Statutes Section 626.556 and the welfare data and law enforcement data sections of the MGDPA, that appear to classify data, no matter where or what form it appears in, as private or confidential data. Mr. Graham then reviewed the Chapter 370 provision and concluded the clear impact of the legislative enactment was to make telephone bills of public officers of Crow Wing County public data. His reading of Minnesota Statutes Section 645.26, a portion of the statutory interpretation act, was that where two statutes are in conflict, the later enactment prevails.

On December 2, 1993, Auditor Luukkonen received a request for access to data from a member of the public. Specifically, this individual asked the auditor to provide him with a list of long distance telephone calls made from the telephone extension assigned to a certain employee of the County Attorney's Office. This particular employee has filed a charge of discrimination against the County. In response to this request, the Auditor, also on December 2, wrote to Mr Graham. In that letter Mr. Luukkonen pointed out that while he was the custodian of the phone bills and telephone cost accounting records, Mr. Graham was the responsible authority for the data about his office under the MGDPA and as such, the County Attorney should decide whether this data should be released.

On December 7, 1993, County Attorney Graham wrote to Auditor Luukkonen. Mr. Graham referenced the opinion he had done on October 25 and summarized that opinion by stating that the records of telephone calls made from bills paid on behalf of the County Attorney's office and any other office of the county are public data. Mr. Graham asked the Auditor to assist the citizen to view telephone records of the County Attorney's office. Following his receipt of the response from the County Attorney, Mr. Luukkonen requested this opinion from the Commissioner of Administration.

Issue:

Although Mr. Luukkonen did not formally state an issue for the Commissioner's consideration in his request, the issue presented by the request can be stated as follows:

Are the long distance telephone billing records of a county employee public data?

Discussion:

Telephone bills of the legislature, and to some extent other government entities, were the subject of considerable discussion during the 1993 legislative session. In response to the public controversy about improper uses of telephone systems, the legislature, among other actions, amended Chapter 10 of Minnesota Statutes. This amendment was enacted as Minnesota Session Laws 1993, Chapter 370, section 7. It creates a Section 10.46 in Minnesota Statutes that reads as:

Long-distance telephone bills paid for by the state or a political subdivision, including those of representatives, senators, judges, constitutional officers, heads of departments and agencies, local officials and employees thereof, are public data.

Given that language, it appears that the question presented by Mr. Luukkonen can be answered quite simply. The individual whose phone records were sought is an employee of a political subdivision. To the extent that she used her telephone for long distance calls, the records of the bills paid on account of those calls are, by the provisions of Chapter 370, Section 7, public data. This person was employed as a technical clerk in the County Attorney's Office. Nothing in the information provided by the county indicates that she held a position where she would have been making long distance phone calls of a sensitive nature. If she been in a sensitive position, then the question posed by the Crow Wing County Auditor would present a more difficult and sensitive issue.

For example, if this employee were a child protection investigator making long distance phone calls to individuals who reported child abuse, would the presence of those individuals' phone numbers on a telephone bill be public data because of the enactment of Chapter 370, Section 7? It has been long standing legislative policy to provide maximum protection to any data that discloses the identify of an individual who reports child maltreatment. (See Minnesota Statutes Section 626.556, subdivision 11.) If this employee were the supervisor of undercover law enforcement officers, using long distance calls to monitor their work and check on the progress of investigations, should the telephone numbers of those undercover law enforcement officers, appearing on a telephone bill, be public data when the legislature has stated very clearly that all data relating to undercover law enforcement officers are not public? (See Minnesota Statutes Sections 13.43, subdivision 5 and 13.82, subdivision 10.)

For purposes of this opinion, however, the question before the Commissioner is whether the telephone billing records of calls made by the phone assigned to this particular employee are public data. For an employee working as a technical clerk in a county attorney's office, the billing records of her long distance phone calls are public data.

Opinion:

Based on the correspondence in this matter, my opinion on the issue raised by Mr. Luukkonen is as follows:

Long distance telephone billing records maintained about the telephone assigned to a person working as a technical clerk in the office of a county attorney are public data under Minnesota Session Laws 1993, Chapter 370, Section 7 and Minnesota Statutes Section 13.03 and those records should be made available to the citizen who has requested them.

Signed:

Debra Rae Anderson
Commissioner

Dated: January 6, 1994

Government Data

Telephone records/bills