Discussion:

Pursuant to Minnesota Statutes, Chapter 13, an individual has the right to request and gain access to government data. Government data are defined as, all data collected, created, received, maintained or disseminated by any [government entity] regardless of its physical form, storage media or conditions of use. See section 13.02, subdivision 7. Further, all government data are public unless otherwise classified. See section 13.03, subdivision 1. If an entity denies an individual access to data, the entity must cite the specific statutory section upon which it denied access. See section 13.03, subdivision 3(f).

The County's response, in essence, is as follows. Mr. Christensen apparently created notes on his home computer to present at the February 4 staff meeting. He did not save a copy of the notes. At the staff meeting, he basically followed my typed notes, though it was not a verbatim speech.

After the meeting, Ms. Levasseur asked for a copy of the notes and Mr. Christensen referred her request to Mr. Miller. Mr. Miller wrote, ...I likened his notes as a type of 'work product' which is deemed non-discoverable in litigation matters. I also questioned whether notes, used in giving a speech or presentation constitute 'data' under the statute. Mr. Christensen wrote, I relayed to Mrs. Levasseur the opinion of the County attorney that the notes were work product and as such I did not give her a copy of my notes....I considered the issue concluded and in cleaning off my desk at the end of the day for the evening threw away my typed notes I had used as a guide at the staff meeting.

Ms. Levasseur then made a written request, on February 7, 2002, for the notes. Mr. Christensen reconstructed from memory the types of issues I had spoken about. Mr. Christensen provided Ms. Levasseur with a copy of the reconstructed notes, some of which had been redacted. Mr. Christensen also noted that Mr. Miller had advised him to destroy any handwritten or computer generated information he had created during the investigation (of the matter he reported on at the staff meeting). Mr. Christensen wrote, I had notes of my individual meetings with the Social Service employees, some of which were handwritten and some which were stored in the computer, all of which I then destroyed.

In explaining the redactions to the reconstructed notes, Mr. Miller wrote, Although I did not go into great detail, nor do I believe it's required, I did briefly explain why redactions were made and provided the statutory basis.

The Commissioner has the following comments. Pursuant to section 13.02, subdivision 7, the notes Mr. Christensen created to discuss at the February 4, 2002, staff meeting were government data. Therefore, the data in the notes were public unless otherwise classified. Although the Commissioner disagrees with Mr. Miller's assertion that the notes were work product and protected from public access, the point is moot given that Mr. Christensen destroyed the notes.

However, the issue of the notes' destruction raises a potential problem. Pursuant to Minnesota Statutes, section 15.17, All officers and agencies of the state, counties, cities...shall make and preserve all records necessary to a full and accurate knowledge of their official activities. Further, pursuant to Minnesota Statutes, Chapter 138, government entities may dispose of government records only as provided by that Chapter. Although it is not entirely clear whether Mr. Christensen's notes constituted an official record, because he, as a top County official, used the notes to explain certain actions by the County, it is more than likely they were a form of official record. If so, the County could destroy them only as Chapter 138 dictates. If the notes were not an official record, then their destruction is not prescribed by law.

Regarding the redaction of the reconstructed notes, section 13.03, subdivision 3(f), states that government entities must cite the specific statutory section upon which they are denying access to data. Here, Mr. Miller advised Ms. Levasseur that data had been redacted pursuant to section 13.02, subdivision 12. This subdivision contains the definition of private data; it does not classify particular data as not public. The Commissioner assumes some of the data were redacted pursuant to section 13.43, personnel data. Again, the County was required to cite the specific statutory section(s) classifying the redacted data as not public. Mr. Miller did not do so.

Finally, in his comments, Mr. Miller wrote, In hindsight, I would acknowledge that Lake of the Woods County should have handled this matter differently. The Commissioner concurs.

Opinion:

Based on the facts and information provided, my opinion on the issue that Ms. Levasseur raised is as follows: