Facts and Procedural History:

On December 14, 1993, the Public Information Analysis Division (PIPA) received a request for an opinion from Ms. Sonja Kerr who is the attorney for X, a minor, and his mother, Y. The facts Ms. Kerr alleged in her request were as follows.

On October 9, 1992, Y made a request for information about X to the Waseca Police Department. Her written request stated that she was X's mother and that she was . . . requesting a copy of any and all information you have concerning him on. (sic.) In response, she received two pages. One is labeled: Waseca Police Department. Juvenile Master Name and Incident Listing . The other is labeled: Waseca Police Department. Initial Complaint Report . They both indicate that X was a possible victim of child abuse. They carried report dates of November 8, 1991.

According to Ms. Kerr, Y later learned that X was interviewed about the alleged abuse sometime in May, 1992. On May 3, 1993, in a letter to the Acting Chief of Police in Waseca, the Waseca City Attorney and the Waseca County Attorney, Ms. Kerr summarized a conversation she had with the Acting Chief, Mr. James M. Staloch on April 15, 1993, in which, according to Ms. Kerr, she emphasized to Mr. Staloch that she needed the police reports on X and another minor. In that letter, she also summarized a conversation she had with Keith Deike, the Waseca City Attorney, in which, according to Ms. Kerr, Mr. Deike told her the City could not forward data about X to Ms. Kerr because they had not received a release of information from Y.

On May 4, 1993, Y hand-delivered a release of information to the Waseca Police Department. In a letter dated May 17, 1993, Ms. Kerr wrote to the same parties and told them that she still had not received any response or information from any of them. In that letter, she also pointed out various statutory provisions which she maintained entitled her clients and, through them, her to have access to police reports about X and another child being represented by Ms. Kerr.

On May 18, 1993, Ms. Kerr received a letter from Keith Deike that enclosed all of the records the police had in their possession regarding X. These records included copies of reports, interview notes and other materials involving two instances of alleged abuse of X by a teacher at his school, one in November, 1991 and one in May, 1992.

Following this recitation of interactions with the City of Waseca, Ms. Kerr then requested an opinion on the two issues described below. In response to Ms. Kerr's request, PIPA on behalf of the Commissioner, wrote to Michael Mc Cauley, the city manager of Waseca. The purposes of this letter, dated December 16, 1993, were to inform Mr. Mc Cauley of Ms. Kerr's request, to acquaint the City with the Commissioner's authority to issue opinions, to ask the City or its attorney to provide any information in support of the City's position and to inform the City of the date on which the Commissioner was required to issue this opinion. A copy of the letter was also sent to Mr. Deike.

On December 21, 1993, PIPA received a letter from Mr. Deike, attorney for the City of Waseca. According to Mr. Deike, it is the City's position that with the exception of the information initially provided to Y on October 9, 1992, that no other data was available to her because there was an active investigation concerning the alleged incident of abuse. Mr. Deike also discussed the release of information issue and agreed that on May 4, 1993, that he did receive a release of information from Y authorizing the release of data on X to Ms. Kerr.

Mr. Deike stated that a decision about charges growing out of the incident was not made by his office until May 18, 1993. His decision was not to charge anyone in regard to the incident of alleged abuse. According to Mr. Deike, he then sent the records and a letter about the charging decision to Ms. Kerr. Mr Deike also discussed the history of the receipt of releases of information from Mr. Kerr. It is his position that Ms. Kerr asked for information regarding both children and two releases would be forthcoming. He did not feel it was necessary to act on her request until he received releases from parents of both the children. Lastly, Mr Deike stated that it was his understanding that Ms. Kerr also wanted information about his charging decision. It was his interpretation of the law that active investigative data could not be released until he made a decision about whether or to bring criminal charges.

Issues:

In her request for an opinion, Ms. Kerr stated the issues as follows:

Discussion:

Issue 1

Was the police department required to provide all records regarding X within five days of her request of October 9, 1992?

Whether Y was entitled to receive copies of data regarding X and held by the City of Waseca police department is a function of the classification of the data maintained about X. As the parent of a minor child, Y acts as the data subject for any data held by a government entity subject to the Minnesota Government Data Practices Act, Chapter 13 of Minnesota Statutes and hereinafter MGDPA , about her child. She was therefore entitled, pursuant to Minnesota Statutes Section 13.04, subdivision 3 to gain access, either for purposes of inspection or receipt of copies, to all public and private data maintained about X by the Waseca Police Department on October 9, 1992.

In her May 17, 1993 letter to city and county officials, Ms. Kerr offered a position that this data was available to Y under the provisions of Minnesota Statutes Section 626.555, subdivision 11, the child abuse reporting provisions that deal with record access, and under the provisions of Minnesota Statutes Section 13.82, subdivision 5a. The position of the City, as advanced by Mr. Deike, is that with the exception of the basic data provided to Y in response to her October 9, 1992, request that all other data pertaining to the alleged incidents of abuse were criminal investigative data and therefore confidential under Minnesota Statues Section 13.82, subdivision 5 as long as the investigation was active. In Mr. Deike's view, the investigation did not cease to be active until May 18, 1993, when he made a decision not to charge anyone.

Ms. Kerr is correct in quoting from Minnesota Statutes Section 626.556, subdivision 11 certain language that states that the subject of a report of alleged abuse is entitled to have access to the record. However, the record described in Section 626.556, subdivision 11 is the record maintained by a child protection agency that is processing the report of alleged abuse. This is not the record maintained by a law enforcement agency that is investigating whether a report of abuse or neglect involves a criminal act.

For a considerable period of time, data maintained about abuse reports by both law enforcement and child protection agencies was regulated by the Section 626.556, subdivision 11 provision. However, a few years ago, the legislature clarified that law enforcement data, with the exception of the initial report of alleged abuse, is to be regulated not by the provisions of Section 626.556, subdivision 11 but by the applicable provisions of the MGDPA. The legislature accomplished this result by adding the following language to Minnesota Statutes Section 626.556, subdivision 11: Section 13.82, subdivisions 5, 5a and 5b apply to law enforcement data other than reports .(Sept 11-12,2013)

An examination of Section 13.82, subdivisions 5, 5a and 5b reveal the following. Law enforcement investigative data about alleged criminal acts is confidential data while the alleged crime is being actively investigated. Section 13.82, subdivision 5 states very clearly when investigations cease to be active. In either an active or inactive law enforcement investigative file, data that identify a victim of child abuse or neglect are private data. This is the provision relied on by Ms. Kerr in arguing that her client has access to active investigative data about X. The problem with that argument is that the only data made private by this provision is data that identifies the alleged victim. The Waseca Police Department did make data that identified X as a victim available to his mother after her October 9, 1992, request. They did not make available other data, including interviews with the alleged perpetrator, because it was the City's position that this was active investigative data.

Minnesota Statutes Section 13.82, subdivision 5b says that inactive investigative data that become inactive either because the statute of limitations for the alleged offense has run or there is a decision not to pursue a criminal case, instead of becoming public data become private data. The intent of this language is to make the details of the case involving both the alleged perpetrator (s) and victim (s) private data.

Given the complex interrelationship of the detailed guidance provided by these various provisions, it is not surprising that good faith arguments can be made by both Ms. Kerr and Mr. Deike. However, it was not unreasonable for the City to deny Y access to details about the criminal investigation when she sought access to the data based on an argument that the data in question were private. Minnesota Statutes Section 13.82 makes active investigative data confidential and therefore inaccessible to any subjects of the data. If a victim wants access to active investigative data, the legislature has provided, at Minnesota Statutes Section 13.82. subdivision 6, a means for victims and their legal representatives to gain access. Once the investigative data became inactive, and, in the City's view private data about X, it provided the data to Ms. Kerr.

Issue 2

Was the police department entitled to delay providing the data without advising X's parents and their attorney of the reasons for the delay?

Once an individual data subject requests access to data about him or herself, he or she is entitled to gain access to private and public data. Individuals are also entitled to be informed if they are the subject of confidential data maintained by the agency. (Minnesota Statutes Section 13.04, subdivisions 3.) As described by Mr. Deike, the City took the position that although there was additional data being maintained in the police department of which X was arguably the data subject, Y was not entitled to access to that data because it was confidential. In the information provided to the Commissioner, there is nothing that indicates that the City informed Y or X's attorney, Ms. Kerr, that he was the subject of additional and confidential data. Section 13.04, subdivision dictates that a subject should, upon his or her request, be informed if they are the subject of confidential data being maintained by an entity subject to the MGDPA. Y should have been informed, when she was provided the minimal data in response to her initial request, that the City was maintaining additional confidential data about X.

Opinion:

Based on the correspondence in this matter, my opinion on the issues raised by Ms. Kerr are as follows:

Signed:

Debra Rae Anderson
Commissioner

Dated: January 4, 1994