July 31, 2003; Nobles County
7/31/2003 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 June 26, 2003, IPAD received a letter from Patricia Wolff. In this letter, Ms. Wolff asked the Commissioner to issue an advisory opinion regarding her right to gain access to certain data maintained by Nobles County. In response to Ms. Wolff's request, IPAD, on behalf of the Commissioner, wrote to Melvin J. Ruppert, Nobles County Administrator. The purposes of this letter, dated June 30, 2003, were to inform him of Ms. Wolff's request and to ask him to provide information or support for the County's position. On July 10, 2003, IPAD received a response from Gordon L. Moore, III, Nobles County Attorney. A summary of the facts of this matter follows. In her opinion request, Ms. Wolff wrote that a new policy in Nobles County, which she characterized as restricting access to information on feedlots, appeared to be in violation of Minnesota Statutes, Chapter 13. The new policy, approved by the Nobles County Board of Commissioners on June 24, 2003, contains the following provisions regarding public access to the feedlot inventory: the requestor must submit a written application; there is a five-day waiting period; the cost for a copy is $250; the copy must be picked up in person; and a copy is available in printed format only. In his comments to the Commissioner, Mr. Moore provided some background regarding the feedlot inventory. He stated that the County had considered classifying the inventory as security information as that term is defined at Minnesota Statutes, section 13.37, subdivision 1 (a). According to Mr. Moore, the reason was the County's great interest in the value added to the local economy by animal agriculture and the concern regarding potential acts of bio-terrorism and the devastating potential of such acts on Nobles County. Instead, the County sought recommendations from its Planning Advisory Commission and its Environmental Advisory Committee. Those recommendations were adopted by the Board as the new policy at issue here. In 1994, Nobles County passed a feedlot-licensing ordinance. Under this ordinance, Nobles County received a delegation of feedlot permitting from the State allowable under Minnesota Statutes, section 116.07. Counties that assume responsibility for the feedlot permitting process must complete a Level II Feedlot Inventory, which, according to Mr. Moore, was an extensive and expensive process. (The Inventory is a requirement under rules promulgated by the Minnesota Pollution Control Agency. See Minnesota Rules, section 7020.0350.) Mr. Moore stated the following: Nobles County received a grant from the Board of Water and Soil Resources for $35,000 to assist with the costs of developing the Feedlot Inventory. However, this grant covered only a part of the over $100,000 cost to the County for the completion of the inventory. On July 7, 2003, the [inventory] consisted of 104 separate 11 by 17 printed pages of data. The [Excel] spreadsheet does not print out the data in an immediately reviewable manner; the pages are not sequentially numbered but it has to be assembled by staff and is eight pages across and 13 pages down when placed together. The spreadsheet also requires explanation by staff as to what it means. Unfortunately, due to the limitations of the present computer equipment in the Public Works Office, printing off the entire Feedlot Inventory is a laborious and time-consuming process for Office staff. The large paper size necessitated [sic] for the Inventory and the large amount of data printed typically results in computer crashes and/or paper jams in the printer, and requires a staff member to monitor printing status. Additionally, the assembly of the inventory into a meaningful document requires staff time as well. It is typical for the printing and assembly of the entire inventory to take up to two hours. The full-time benefited [sic] secretary who is handling this printing makes $13.96 per hour excluding benefits, which typically can add an additional 35% to total County cost. The $250.00 fee for a copy of the entire Inventory is based upon staff time for printing the inventory, paper cost, and ink cost ($75.00), in addition to the commercial value of the inventory ($175.00). The commercial value is based on a prior history of feed and livestock building salespersons who have contacted Wayne Smith [Director of Environmental Services for the County] regarding the Inventory for assistance with their sales routes. For those persons, the Feedlot Inventory constitutes a targeted mailing list for such persons in one of the largest livestock producing Counties in the State. The County spent in excess of $100,000 on development costs for the inventory and the County believed that recouping a small amount of this fee would be appropriate if the entire Inventory was requested. If an individual wishes to see a specific part of the inventory or get specific information about feedlots in a particular part of the County, County staff will provide that information for inspection at no cost. The County policy regarding the waiting period was included to let people know that the Inventory would not necessarily be available immediately and to give staff a reasonable chance to copy the inventory off without interrupting other County business. Mr. Smith explains that if his staff could complete the copying prior to the expiration of five days he would certainly provide the data at that time. Because the inventory changes sometimes on a weekly basis, a copy made last month would not necessarily reflect the status of the Inventory, necessitating a new printout. The Inventory has never been made available by the County in an electronic format on the County's website or on any remote access location. Mr. Moore discussed each component of the County's policy, which the Commissioner will consider below. Issue:In her request for an opinion, Ms. Wolff asked the Commissioner to address the following issue:
Discussion:The Commissioner does wish to note, at the outset of this discussion, that the County's policy arose from a discussion about potential County targets for terrorism. The County contemplated, but chose not to assert that the inventory is security information within the meaning of section 13.37, subdivision 1 (a). Accordingly, there is no dispute here that the inventory is classified as public. (If the County continues to have reasonable concerns for security, it may ask the Commissioner to address in a separate opinion whether it may invoke section 13.37 to deny public access to the inventory.) Several provisions of Minnesota Statutes, section 13.03, govern access to public government data. A fundamental requirement is that government entities must establish procedures, consistent with [Chapter 13], to insure that requests for government data are received and complied with in an appropriate and prompt manner. The County did not address how the policy at issue here conforms to the County's general data access procedures. It would seem, that if the County has established those procedures, it would not have needed to enact a policy that applies to a particular document. The Commissioner has opined that government entities must apply such procedures consistently to all data they maintain. With respect to the County's requirement that anyone seeking a copy of the inventory apply in writing, Mr. Moore stated that section 13.03 does not require data requests to be made in writing, [and] it does not prohibit such requirements either. Mr. Moore said the County's requirement is communicated clearly to the public, and is intended to avoid disputes. Mr. Moore also stated: . . . requiring someone to request a copy of [the inventory] in writing provides a record of whom it has been distributed to . . . . Mr. Moore is correct that section 13.03 is silent with respect to any requirement that a data request be made in writing. He cited Advisory Opinion 95-030, in which the Commissioner opined that a government entity may chose to require written requests for data. Government entities are free to establish that requirement as part of their public access policies and procedures. As noted above, it is not clear to the Commissioner if that requirement is consistently applied to requests for other government data the County maintains. The Commissioner finds Mr. Moore's statement about the County maintaining a record of individuals who have requested a copy of the inventory problematic. According to section 13.05, subdivision 12, [u]nless specifically authorized by statute, government entities may not require persons to identify themselves, state a reason for, or justify a request to gain access to public government data. A person may be asked to provide certain identifying or clarifying information for the sole purpose of facilitating access to the data. The Opinion Mr. Moore cited predates the section 13.05 prohibition on requiring persons to identify themselves in order to gain access to data. The County may ask for identification only for the purpose of facilitating access to the data, not in order to create a record of those seeking copies of the inventory. In his discussion of the County's five-day waiting period for a copy of the inventory, Mr. Moore discussed the laborious process involved in creating a copy. He stated: . . . the Inventory typically takes . . . up to two hours to copy and assemble. Depending on the press of business, this could be an extreme inconvenience to the County if the requirement was that the copy be immediately available for pickup. Mr. Moore noted that the Commissioner has previously opined that government entities do not need to provide immediate access to public government data, but must respond promptly. Section 13.03, subdivision 3 (c) provides that if a government entity cannot provide copies at the time a request is made, copies shall be provided as soon as reasonably possible. In addition, according to section 13.03, subdivision 1, government data must be maintained in such manner as to be easily accessible for convenient use by the public. Mr. Moore stated that the County included the five-day waiting period in its policy as a means to communicate clearly with the public, and that if a copy can be produced sooner, it will be. On its face, that seems reasonable. However, the reasons Mr. Moore cited to explain the waiting period are problematic. According to Mr. Moore, the County maintains the feedlot inventory data in a manner that is clearly not easily accessible for convenient use. The large-size paper jams the copier, the computer containing the data often crashes during printing, the pages must be assembled and explained in order to make sense, etcetera. Apparently the County opted to assume responsibility for the feedlot permitting process, at which time it should have taken whatever steps it needed to ensure that it could provide the public with related data as required by Chapter 13. Furthermore, Mr. Moore suggested that the County's need to provide copies of the inventory can interfere with other County business. Although Chapter 13 does not require government to drop everything to respond to data requests, providing the public with appropriate access to public government data, as required by Chapter 13 and other statutes, is County business. The County should examine its current process and amend it in order to be in compliance with Chapter 13. With respect to the $250.00 copy fee, Mr. Moore stated that $75.00 of that total represents the County's actual cost to search for and retrieve the approximately 104 pages of data, as well as the cost of ink, paper and employee time to make the copies. Those charges are allowable under section 13.03, subdivision 3 (d), if they are the County's actual costs. The County collects the remaining $175.00 of the copy fee because it asserts, per section 13.03, subdivision 3 (d), that the inventory has commercial value and was developed with significant expenditure of public funds. Subdivision 3 (d) provides: When a request under this subdivision involves any person's receipt of copies of public government data that has commercial value and is a substantial and discrete portion of or an entire formula, pattern, compilation, program, device, method, technique, process, database, or system developed with a significant expenditure of public funds by the agency, the responsible authority may charge a reasonable fee for the information in addition to the costs of making, certifying, and compiling the copies. Any fee charged must be clearly demonstrated by the agency to relate to the actual development costs of the information. The responsible authority, upon the request of any person, shall provide sufficient documentation to explain and justify the fee being charged. From the information the County provided, it appears that the $175.00 add-on fee is appropriate, because the inventory is an entire compilation that was developed with a significant expenditure of public funds, assuming the County can provide sufficient documentation as to how the fee relates to recovery of a portion of the $100,000 development cost of the inventory. However, the County did not explain why, if the fee is new, it did not charge it in the past, and how it relates to the County's public data access policies and procedures. Government entities must apply their data access policies and procedures consistently; it is particularly helpful to the entity when dealing with data that have high public interest. In addition, the County's justification for charging an add-on fee because of the commercial value of the inventory underscores the need to maintain those data in a manner as to be reasonably accessible for convenient use. Chapter 13 does not directly address the County's requirement that copies of the inventory must be retrieved in person. Mr. Moore did not discuss the County's rationale, and he did not discuss whether the County requires in-person retrieval of all copies of any County data. As long as the County complies with the statutory requirement that it cannot require a requestor to supply her/his identity, the County may impose this requirement. The Commissioner wishes to note that this requirement likely means that some persons who desire access to County data will be unable to gain access, because they are unable to travel to Nobles County. That result violates the spirit, if not strictly the letter, of laws governing the rights of the public to have access to data about their government. Furthermore, strict application of this provision may cause both the County and the public practical problems and unnecessary expense. For example, in some circumstances, it may be more cost effective for the County to provide copies of government data via fax, e-mail or U.S. mail. With respect to the County's policy that the inventory will not be made available in electronic format, Mr. Moore stated that the inventory has never been available on the County's website, via the internet, or on any of the County's remote computer terminals. Mr. Moore stated that a government entity is not required to provide data in an electronic format that is different from the format in which the entity maintains the data. He wrote: [t]he County's policy means that the inventory is unavailable over the internet. Accuracy of the data requires that it not be subject to manipulation or change via computer programs. It is currently unknown whether or not the County has the ability to provide the data on a computer disc or CD-ROM with appropriate security devices to prohibit alteration of the data . . . . Section 13.03, subdivision 3 (e) provides: The responsible authority of a state agency, statewide system, or political subdivision that maintains public government data in a computer storage medium shall provide to any person making a request under this section a copy of any public data contained in that medium, in electronic form, if the government entity can reasonably make the copy or have a copy made. This does not require a government entity to provide the data in an electronic format or program that is different from the format or program in which the data are maintained by the government entity. The entity may require the requesting person to pay the actual cost of providing the copy. The issue here is not whether or not the inventory has been available electronically in the past. The inventory is maintained in an Excel spreadsheet. Mr. Moore stated that it is unknown whether the County is reasonably able to produce or have produced an electronic copy of the spreadsheet. The County must, per the requirements of section 13.03, subdivision 3 (e), make available an electronic copy of the inventory. An additional comment is in order. Mr. Moore said portions of the inventory may be inspected free of charge, but did not say whether the County makes the entire inventory available for free inspection. If it does not, it must, per the requirements of section 13.03, subdivision 3 (a). Opinion:Based on the facts and information provided, my opinion on the issue raised by Ms. Wolff is as follows:
Signed:
Brian J. Lamb
Dated: July 31, 2003 |
Commercial value
Copy costs
Requests for data
Commercial value
Easily accessible for convenient use (13.03, subd. 1)
Reason/justify request and identity not required (13.05, subd. 12)
Written requests, procedures may require
