August 18, 2004; Middle-Snake-Tamarac Rivers Watershed District
8/18/2004 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 July 6, 2004, IPAD received a letter dated June 30, 2004, from Jim Stengrim and Wallace Dietrich. In their letter, Mr. Stengrim and Mr. Dietrich asked the Commissioner to issue an advisory opinion regarding their access to certain data that the Middle-Snake-Tamarac Rivers Watershed District maintains. In response to Mr. Stengrim and Mr. Dietrich's request, IPAD, on behalf of the Commissioner, wrote to Ronald Adrian, the Watershed District's engineer. The purposes of this letter, dated July 9, 2004, were to inform him of Mr. Stengrim and Mr. Dietrich's request and to ask him to provide information or support for the Watershed District's position. On July 30, 2004, IPAD received a response, dated same, from Blake Sobolik, an attorney representing the Watershed District. A summary of the facts as Mr. Stengrim and Mr. Dietrich provided them is as follows. In a letter dated May 17, 2004, Mr. Stengrim wrote to the Watershed District and asked to schedule an appointment to review certain data relating to the Agassiz Valley Water Management Project:
1. Organization document for the Project Work Team.
Mr. Stengrim and Mr. Dietrich arranged to review the data at the Watershed District's office on May 28, 2004. In a letter dated May 31, 2004, Mr. Stengrim and Mr. Dietrich wrote to Mr. Adrian regarding the visit. They wrote: You came to the table with a box full of what appeared to be files. You then asked if a recorder was going to be used. I informed you that one was going to be used for note taking. You then informed us that if we used a recorder you would not allow us to review the data requested. You stated that you had been in contact with the District's attorney about the recorder issue. We responded that we were only there to review the data requested and not to interview you or anyone else. You were asked if you had the data requested ready for review. Your response was that we would need to look through the box to find it. Since we were firm in our decision to use a recorder you told us the meeting was over and that we should leave. We left the District office without the opportunity to review the requested public data. In a letter dated June 11, 2004, Mr. Adrian wrote to Mr. Stengrim and Mr. Dietrich: ...Your account of the meeting is different from mine. When the meeting started I asked if this meeting was being recorded. Mr. Stengrim's response was that it was. Based on what he said I believed that either Mr. Stengrim or Mr. Dietrich were recording the conversation. I informed both of you that you did not have permission to record conversations with me or any District employee. Your insistence on recording the conversation led to me to conclude that the meeting should be ended. At no time were you denied access to view the data. If you still want to view the documents you requested let me know and I will set up a time to do that as soon as possible. Issue:In his request for an opinion, Mr. Stengrim and Mr. Dietrich asked the Commissioner to address the following issue:
Discussion:Pursuant to Minnesota Statues, section 13.03, when a government entity receives a data request from an individual who is not the subject of the data, the entity is required to respond in an appropriate and prompt manner and within a reasonable time. (See section 13.03, subdivision 2(a), and Minnesota Rules, section 1205.0300.) Minnesota Statutes, section 103D.315, subdivision 5, states, in relevant part, The records [of a watershed district] must be open to inspection by the property owners within the watershed district and all other interested parties at all reasonable times. In his comments to the Commissioner, Mr. Sobolik wrote: The letter of Mr. Stengrim and Mr. Dietrich to your Department dated June 30, 2004, correctly stated that they had filed a request for data pursuant to the District's data practices policy and that an appointment to meet with Mr. Adrian was scheduled for May 28, 2004.... When Mr. Stengrim and Mr. Dietrich arrived at the District Office on Friday, May 28, 2004, Mr. Adrian did in fact carry a box full of documents that were intended to be reviewed by Mr. Stengrim and Mr. Dietrich. Mr. Adrian had spent several hours prior to the meeting gathering the documents that he hoped would satisfy their request although there was [sic] some questions he had regarding their request. The documents that they requested to inspect are quite voluminous. The actual files Mr. Adrian pulled from the file cabinets to hopefully address their request filled approximately 1.5 file storage boxes. Mr. Adrian knew that some of the requested data required additional clarification and once this was received, he was prepared to get any other additional data the District had or inform them if the District did not have it. After Jim Stengrim and Wallace Dietrich arrived at the office, Mr. Adrian entered the meeting room with a box of files....Also present at the meeting was Nick Drees, an employee of the District....Mr. Adrian asked Mr. Stengrim if they were being recorded. Mr. Stengrim responded yes . Mr. Adrian then told Mr. Stengrim that he did not have Mr. Adrian's permission to record any conversation with him. Mr. Adrian also informed Mr. Stengrim and Mr. Dietrich that he would not give any permission to be recorded. Without dealing with the issue of recording, Mr. Stengrim proceeded to ask several questions including (not verbatim) was Mr. Adrian denying him access to the data he requested. Mr. Adrian's response was, no, he was not denying him access to data, he was simply not allowing him to record his conversation with Mr. Adrian.... When it became clear to Mr. Adrian that Mr. Stengrim was not going to stop recording, he asked them to leave.... [Chapter 13] only applies to [government] data....Clearly, recording secretly conversations between Mr. Adrian and Mr. Stengrim is not government data or data of any sort which is covered by [Chapter 13]. ...At no time was Mr. Stengrim denied access to review the data that Mr. Adrian brought to the meeting. It is Mr. Stengrim himself that did not want to review the documents when he decided not to turn his recorder off. In fact, Mr. Stengrim was offered to view the data as long as he would not record any conversation of Mr. Adrian. Mr. Stengrim and Mr. Dietrich refused to do this.... In the present case, there is a dispute over Mr. Stengrim and Mr. Dietrich's use of a tape recorder. Mr. Stengrim and Mr. Dietrich contend that the purpose of the recorder was for note taking and that they informed Mr. Adrian they were not interested in having a conversation with him. Mr. Stengrim and Mr. Dietrich also assert they were asked to leave without being able to review any of the data they had requested. Conversely, Mr. Sobolik, on behalf of the Watershed District, argues that Mr. Stengrim and Mr. Dietrich were simply being denied the ability to record conversations under the guise of [Chapter 13]. The Commissioner cannot resolve this dispute. Furthermore, the issue of whether or not a member of the public is permitted to tape record an employee of a government entity is beyond the Commissioner's authority as granted in section 13.072. Chapter 13 provides that Mr. Stengrim and Mr. Dietrich, upon request, have the right to inspect data. If they want to bring in tape recorders and take voice notes while inspecting data, that is appropriate, just as it would be appropriate for them to take notes on paper. However, Mr. Stengrim, Mr. Dietrich, and Mr. Adrian will have to resolve, in another forum, the central dispute over the use of the tape recorder. Opinion:Based on the facts and information provided, my opinion on the issue that Mr. Stengrim and Mr. Dietrich raised is as follows:
Signed:
Brian J. Lamb
Dated: August 18, 2004 |
Inspection
Personal electronic device used
Scope of authority
