Discussion:

Section 13.03, subdivision 3, states that [u]pon request to a responsible authority or designee, a person shall be permitted to inspect and copy public government data at reasonable times and places, and, upon request, shall be informed of the data's meaning. Section 13.02, subdivision 7, defines government data to mean ...all data collected, created, received, maintained or disseminated by any state agency, political subdivision, or statewide system regardless of its physical form, storage media or conditions of use. (Emphasis added.)

As to Issue 1, Ms. Happe asserted that the City had already responded to similar requests for a considerable volume of data. However, pursuant to Section 13.03, the City has an obligation to provide access to the public data it receives and maintains. The only basis upon which access to government data may be denied is that the data are classified as not public by statute, temporary classification or federal law. The fact that a person may have already gained access to the data, or that the request was for a significant amount of data is not a basis for denying access to public data. The fact that the data may be involved in litigation between parties other than the City is also not a statutory basis upon which to deny access. Although the City now appears to have agreed to provide access to the data, the reasons Ms. Happe offered for the City's earlier position do not constitute a basis for denial of access to data which is allowed under Chapter 13.

The first part of Issue 2 concerns whether for purposes of inspection of public data the City may require the presence of a city attorney and the presence of the fire chief. Ms. Happe stated that she was asked by the fire chief to be present while the data were inspected. She also said that the City manager had asked her to ...attend as his representative to deal with requests that were related to City data.... and that she was there to answer questions from Mr. Wolter.

It is not clear whether Ms. Happe was acting in this case as the responsible authority's designee. If so, then she had the responsibility to ensure that the requirements of Section 13.03, which governs public access to government data, were fulfilled. Section 13.03, subdivision 1, states: ...[t]he responsible authority... shall keep records containing government data in such an arrangement and condition as to make them easily accessible for convenient use. Section 13.03, subdivision 2, states: ...[t]he responsible authority... shall establish procedures, consistent with this chapter, to insure that requests for government data are received and complied with in an appropriate and prompt manner.

There was nothing in the information provided to the Commissioner which indicated that Mr. Wolter requested that a City attorney be present while he inspected data. It is not clear if it is the City's consistent practice to make data available for public inspection only at times when a City attorney can be present. If the attorney's presence is required in order to protect the interests of the City whenever any citizen inspects public data, it appears that the City may need to review its policies and procedures to determine if they meet the standards of provision of reasonable, prompt and appropriate public access to government data, as set forth in Chapter 13.

Ms. Happe stated that the fire chief or his representative had to authorize release of the data, and had to be present during inspection ...to adequately answer questions and to insure security of original records. The data in question are data maintained by the City. The responsible authority for the City is the individual designated to be responsible for the City's data practices, pursuant to Section 13.02, subdivision 16. The City has not informed the Commissioner that the fire chief is handling this data request as the City's data practices designee. Presumably the fire chief is not the City's responsible authority. It is therefore puzzling why the fire chief must authorize access to and ensure security of government data maintained by the City, when those are responsibilities of the responsible authority. Again, there was nothing in the information provided to the Commissioner which indicated that Mr. Wolter requested that the fire chief be present while he inspected data in case he had any questions.

Presumably the City has developed the procedures necessary to ensure that it is in compliance with the public access provisions of Chapter 13, including procedures for providing answers to citizen's questions. (See Commissioner's Advisory Opinion #95-006, which also involved the City, for a detailed discussion of a government entity's affirmative obligation to make the determinations necessary to provide prompt access to public data.)

There appears to be a factual dispute regarding the issue of whether the City may impose certain time limitations upon public access to government data. The City said it has not imposed the constraints indicated by Mr. DeAntoni. In light of this dispute, the Commissioner will not comment on this aspect of the City's practice. However, the City must provide reasonable access to public data. If it were limiting access only to certain days of the week, or to one or two hours at a time, and only when certain high level employees of the City can be present, clearly this practice would not be considered reasonable.

Regarding Issue 3, Ms. Happe stated that the data are the records of a separate entity, and are not government data. (The Commissioner addressed the issue of the status of data maintained by the BFDRA in an earlier Advisory Opinion, #94-043. Please see that Opinion for further details and discussion.) However, as noted above, the data are government data if they are received or maintained by the City, regardless of the source of the data. In fact, the sources of a great deal of government data are individuals or entities which are not state agencies, political subdivisions, or statewide systems. For purposes of Chapter 13, the source of the data is not a determining factor with respect to public government data. That is, in part, why the definition of government data includes the word received. Apparently at least some of the data sought by Mr. DeAntoni and Mr. Wolter have been received and are maintained by the City. If so, they are government data, pursuant to Section 13.02, subdivision 7. There is nothing in the information provided to the Commissioner to indicate that the data are classified as anything other than public, and therefore the City has an obligation to make these data available for public access pursuant to Section 13.03.

Further, Ms. Happe stated that the data no longer exist and therefore cannot be provided. It is not entirely clear in this case if the data are no longer maintained by the City but exist elsewhere, or if the data were utterly destroyed. While it is true that access to data no longer in existence cannot be provided, if the data are official records of the City and were not destroyed pursuant to Section 138.17, then the City is obliged to pursue avenues available to it to restore the data. (See Commissioner's Advisory Opinion #94-035 for further discussion of this issue.)

Opinion: