August 14, 1998; Hennepin County Conservation District
8/14/1998 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:For purposes of simplification, the information presented by the person who requested this opinion and the response from the government entity with which the person disagrees are presented in summary form. Copies of the complete submissions are on file at the offices of PIPA and, except for any data classified as not public, are available for public access. On June 22, 1998, IPA received a letter from H (the requestor will be identified by a pseudonym). In H's letter, s/he asked the Commissioner to issue an opinion regarding H's right to gain access to certain data maintained by the Hennepin Conservation District ( HCD ). H enclosed copies of related correspondence. H's initial request required clarification, which involved subsequent correspondence and conversation with IPA staff regarding issues that the Commissioner is able to address. In response to H's request, IPA, on behalf of the Commissioner, wrote to Greg Chock, District Manager of HCD. The purposes of this letter, dated June 26, 1998, were to inform him of H's request, and to ask him to provide information or support for HCD's position. On July 6, 1998, IPA received a response from James P. Michels, an attorney representing HCD. A summary of the detailed facts of this matter follows. H is a former employee of HCD. In a letter to Mr. Chock dated January 13, 1998, H requested, in essence, copies of all data about her/him that are (1) maintained by HCD, (2) maintained by certain agents of HCD and (3) maintained by Best Flanagan, Mr. Michels' law firm. In addition, H requested copies of certain public data. Some of the data H requested were at issue in Commissioner's Advisory Opinion 98-001. (H described the data s/he sought in fourteen paragraphs.) In a letter to Mr. Chock dated February 9, 1998, H wrote that s/he had received no response to the January 13 letter, and repeated her/his request for copies of data. In addition, H requested access to tape recordings or transcripts of any closed meetings or executive sessions of the [HCD] board, or any tape recorded meeting wherein any comment is made about me. In his response to the Commissioner, Mr. Michels enclosed copies of two letters from him to James Wicka, an attorney representing H. According to Mr. Michels, the first letter, dated January 21, 1998, is HCD's initial response to H's January 13 data request. The second letter, dated March 2, 1998, is HCD's response to H's February 9 letter. In his responses to the Commissioner and to Mr. Wicka, Mr. Michels asserted that some of the documents H requested contain data about H and other individuals, at least some of whom are employees of HCD. In his letter to Mr. Wicka dated January 21, 1998, Mr. Michels wrote: HCD will comply with [H's] request, as required by law; however, we require a reasonable amount of time to obtain, review and copy the data. Mr. Michels stated: We will be unable to provide these copies within five days for the following reasons: 1) we need to contact each person to determine whether any such data exists; 2) if such data exists, we must determine whether [H] has already received a copy of the data; and 3) if such data exists, we must determine whether it discusses any other employee of HCD. . . . A response to this request will be provided within a reasonable period of time. In his March 2, 1998, letter to Mr. Wicka, Mr. Michels stated: Copies of all data which is within the scope of the request and subject to disclosure as public data' or private data on individuals' (for which [H] is the only subject of the data), have been made and are available to be released upon receipt of payment for copying. Certain data within the scope of the request also contains references to other staff members who may be subjects of the data.' References to such persons are inexorably intertwined with references to [H]. We are seeking an opinion from the Department of Administration as to the proper classification of this data and whether it may be released. HCD will follow the guidance given by the Department of Administration. Any data of which [H] is the subject disseminated by Best Flanagan to Board members, with the exception of the July 14, 1997 report and copies of responses to the charges filed by [H], is not subject to disclosure pursuant to Minn. Stat. 13.30. In regard to the additional data to which H requested access in the February 9, 1998, letter, Mr. Michels wrote: The February Request did not request any additional data that was subject to disclosure ([H] did request tapes of closed sessions of the HCD Board meetings, but all such data are clearly protected from disclosure by the attorney-client privilege and Minn. Stat. 13.30 and 471.705, subd. 1d(e)). Thus, it was decided that the response to the February Request would be made in conjunction with the response to the January Request. Issues:In her/his request for an opinion, H asked the Commissioner to address the following issues:
Discussion:In her/his January 13, 1998, data request, H asked for copies of all public or private data of which H is the subject, and certain other data H believed to be classified as public. There are different statutory time frames in which HCD was required to comply with H's requests for access to data. Pursuant to Section 13.04, subdivision 3, upon request from a data subject, the responsible authority shall comply with the request within five working days. If the responsible authority is unable to comply within that time, upon notice to the requestor, the responsible authority may have an additional five working days to comply with the request. Pursuant to Section 13.03, subdivision 2, government entities must comply with requests for public data in an appropriate and prompt manner. When a responsible authority receives a request for copies of public data, the copies shall be supplied at the time the request is made, or as soon as reasonably possible. (See Section 13.03, subdivision 3.) H asked HCD to provide copies of data of which H was the subject, and data not about H. H was notified on March 2, 1998, that copies of some of the data requested were available, upon payment of the copying fee. At that time, HCD notified H that some of the data were not available, pursuant to Sections 13.30 and 471.705, subdivision 1d(e), and that HCD was seeking an advisory opinion concerning the classification of documents that contained data about H and other HCD employees. In addition, Mr. Michels stated that H was informed that the total copying cost of the 1378 pages was $340.00, . . . consistent with HCD's standard copying policy (no charge for first ten pages, 25 cents per page thereafter) . . . . Mr. Michels stated that he had not had any communication with H or Mr. Wicka since his letter of March 2, 1998. H has not challenged the copying costs, and has not picked up the copies of the data that have been made available. In his response to the Commissioner, Mr. Michels wrote: . . . because [H] was not the only subject of some of the data, and because [H's] request included a request for data not in the possession of HCD, it was impossible for HCD to respond within five days. Nevertheless, HCD did respond promptly to the request. In regard to his assertions to Mr. Wicka that HCD would be requesting an advisory opinion from the Commissioner, Mr. Michels wrote: At the time I drafted my response to [H's] requests for data, I treated the requests as though they were made in good faith. Although HCD is under no obligation to request an opinion from [IPA], I indicated in my responsive letter that HCD would proceed with a request for an opinion. . . . . However, when no response to my letter was forthcoming, it appeared to me and to HCD that [H's] request was not made in good faith but rather was merely more harassment of a nature similar to that which [H] has repeatedly subjected HCD. We determined, therefore, that no further resources would be wasted on finalizing a request for an opinion until [H] made some indication that [s/he] intended to follow through with [her/his] request for data. None has been forthcoming. Mr. Michels' January 21, 1998, letter to Mr. Wicka in response to H's January 13, 1998, request was made five working days after the date of H's request. However, HCD did not notify H that any copies of the data s/he requested were available until Mr. Michels wrote to Mr. Wicka on March 2, 1998. Section 13.04, subdivision 3, provides that, at most, a government entity must comply with a request for data from a data subject within ten working days. Some of the data H requested contain data about other HCD employees as well as about H. Mr. Michels stated: [r]eferences to such persons are inexorably intertwined with references to [H]. Mr. Michels said that HCD would be seeking an advisory opinion from the Commissioner. As of this date, HCD has not done so. Pursuant to Section 13.43, subdivisions 2 and 4, certain specific data about public employees are public, and all other personnel data are private. HCD is obligated to redact data that would result in the dissemination of private data about other data subjects. If, however, HCD is unable to redact data such that other data subjects cannot be identified, HCD may not have the authority to release the data to any of the data subjects. That is a judgment that is HCD's responsibility to make. (See also Commissioner's Advisory Opinions 96-002 and 97-030.) Regarding the data that are maintained by certain agents of HCD, Mr. Michels stated in his January 21 letter to Mr. Wicka that HCD would need more than five days to respond to H's request, in order to 1) contact persons not within the control of the HCD to see if they possessed any data about H and 2) to request an advisory opinion on whether data which discussed several employees may be released to [H] absent permission of those employees. It is not clear what obligation, if any, HCD had to try to retrieve data from persons outside its control. HCD is responsible only for the data it maintains, or should maintain. The Commissioner was not provided information regarding the agency relationship HCD had with those persons. It is possible that, pursuant to Section 15.17, HCD has a responsibility to maintain the data and to make it available to H. (See Commissioner's Advisory Opinions 94-035 and 96-037.) None of the persons contacted by Mr. Michels had any data about H. In any case, Mr. Michels' decision to contact those persons in response to H's request does not obviate HCD's obligation to provide H with access to the data HCD does maintain within, at most, ten working days of receipt of the request. The Commissioner acknowledges that the request H made was extensive, and that H apparently has not retrieved the copies HCD has made available. Nonetheless, HCD did not provide H with copies of the data of which H is the subject within the statutory time frame. In regard to the data H requested that are not about H, and are classified as public data, the government entity is required to respond in a time frame which is prompt and reasonable. H requested copies of various completed reports and HCD Board meeting minutes. HCD took approximately six weeks to provide H with copies. Given the nature of the public data H requested, a response six weeks later does not meet the statutory standard. (See also Commissioner's Advisory Opinions 95-006 and 96-003.) Mr. Michels asserted that some of the data sought by H are not available pursuant to Section 13.30, which governs data maintained by attorneys working in their professional capacities for government entities. The Commissioner opined in Advisory Opinion 96-038: Before proceeding with an analysis of the College's argument, it is important to discuss the significance of treating data held by a government entity as Section 13.30 data. When a government entity determines that certain data are subject to Section 13.30, the data in question are no longer government data for the purposes of Chapter 13. The government entity is no longer required to follow any of the requirements set forth in Chapter 13 that relate to government data. In other words, none of the data classifications would apply to those data, none of the rights of access would apply to persons requesting those data, none of the rights of subjects of data would apply to persons requesting those data, and none of the duties of responsible authorities would apply to government entities maintaining those data. Given that a Section 13.30 claim has such an extreme result, it is important that such a claim be critically examined. Because of this result, the Legislature saw fit to include some limiting language in the final clause of Section 13.30. This provision states clearly that Section 13.30 must not be construed to relieve any responsible authority, other than the attorney, from his/her duties and responsibilities under Chapter 13. Therefore, any claim made by a government entity that certain data are subject to Section 13.30 must also be examined to determine if the claim will relieve responsible authorities of their duties under Chapter 13. Accordingly, it is appropriate for HCD to withhold data from H on the basis of a Section 13.30 argument only if it will not relieve a responsible authority of her or his duties under Chapter 13. The Commissioner was not provided with enough information to determine whether HCD is appropriately denying H access to data under Section 13.30. (See also Advisory Opinion 97-009.) HCD's response to H is problematic for another reason. Mr. Michels wrote to Mr. Wicka: In [H's] February 9, 1998 request (the February Request'), [H] alleges that there has been no response from [HCD]' to [H's] January request. This allegation can only mean that [H] is misrepresenting the truth or that you did not forward to [H] my letter to you dated January 21, 1998 which did timely respond to the January Request. If you have not already done so, please advise [H] that all communication forwarded by [her/him] to HCD is sent to me for response and that I am not permitted to make such responses directly to [H]. To eliminate this confusion, HCD hereby requests that all future communications by [H] be made through you and be directed to me. In his response to the Commissioner, Mr. Michels wrote: Dating back prior to [H's] termination from HCD, [H] has retained attorneys who periodically threaten suit against HCD for a variety of claims relating to [H's] employment. Because of pending administrative actions and the continuing threat of litigation, and because [H] has repeatedly demonstrated to HCD that every communication or contact from [her/him] may result in some sort of contested claim, HCD determined it necessary to take the position that all communications, inquiries and other contacts from [H] be referred to me, as its legal counsel, for response. [H] has repeatedly been advised that all communications to [her/him] will be made by HCD's counsel. Further, HCD has repeatedly requested that [H] direct all communications to HCD through its counsel. Because I know that [H] is represented by legal counsel, I am prohibited by Rule 4.2 of the Rules of Professional Conduct from corresponding directly to [H]. Instead, I am ethically obligated to respond to [H] through [her/his] counsel. The Commissioner considered the relationship between the Rules of Professional Conduct and Chapter 13 in Advisory Opinion 96-038. In that Opinion, the Commissioner opined that a government entity violates an individual's right to gain access to government data when, in response to a request for access to data, the government entity takes the position that because the requestor has initiated a lawsuit against the entity, the requestor can gain access to the data only by acting through the requestor's attorney and in compliance with the rules of civil procedure. It is the Commissioner's position that HCD may not require [H] to make her/his data requests through an attorney. Minnesota Statutes Chapter 13 describes in great detail the process and procedures by which a person can make requests for access to government data and nowhere is it written that a person can be required to make her/his requests through an attorney. The implication of accepting HCD's position, as set forth by Mr. Michels, is that when a person is involved in a legal dispute with a government entity, s/he can no longer gain access to data in the fashion so precisely prescribed by the Legislature in Chapter 13. That person would be required to hire an attorney or resort to asking other parties to request the data on her/his behalf. The fact that an agency chooses to refer a data access request to an attorney should not relieve a responsible authority of her/his duties under Chapter 13. Therefore, any delay in responding to H's request that is attributable to HCD's requirement that H request data only through an attorney is not appropriate. Opinion:Based on the facts and information provided, my opinion on the issues raised by H is as follows:
Signed: Elaine S. Hansen
Dated: August 14, 1998 |
Attorney data
Litigation
Request for data through attorney
Data involved in litigation
