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    Advisory Opinion 96-012

    March 14, 1996; Minnesota Department of Natural Resources

    3/14/1996 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 citizen who requested this opinion and the response from the government entity with which the citizen disagrees are presented in summary form. Copies of the complete submissions are on file at the offices of PIPA and, with the exception of any data classified as not public, are available for public access.

    On January 25, 1996, PIPA received a letter from Greg Spaulding, a citizen who is employed by the Minnesota Department of Natural Resources (DNR.) In his letter, Mr. Spaulding requested that the Commissioner issue an advisory opinion regarding his rights to gain access to certain data maintained by DNR. Mr. Spaulding enclosed copies of his related correspondence with DNR.

    In response to Mr. Spaulding's request, PIPA, on behalf of the Commissioner, wrote to Rodney Sando, Commissioner of DNR. The purposes of this letter, dated February 1, 1996, were to inform Mr. Sando of Mr. Spaulding's request, to ask him or DNR's attorney to provide information or support for the Department's position, and to inform him of the date by which the Commissioner was required to issue this opinion. (In subsequent correspondence, Mr. Spaulding and Mr. Sando were informed that the Commissioner would be taking additional time, as allowed by statute, to issue this opinion.)

    On February 15, 1996, PIPA received a response from Gail I. Lewellan, Assistant Commissioner for DNR. Ms. Lewellan enclosed a copy of a letter, with a printed date of February 6, 1996, revised by hand to February 14, 1996, and attachments, in which Mr. Sando responded to Mr. Spaulding's request for data. A summary of the detailed facts of this matter follows.

    In a letter dated December 12, 1995, Mr. Spaulding wrote to Mr. Sando. In that letter, Mr. Spaulding requested access to eleven items of data. (Mr. Spaulding was informed that the Commissioner will address his right to gain access to nine of those items, which are discussed in detail below.) According to Mr. Spaulding, in his letter to Mr. Sando, [w]hen I went through my 'chain-of-command' within the [DNR] Division of Enforcement I was ignored or denied access to this public information.

    In request for this opinion, Mr. Spaulding stated I have not received any correspondence from [Mr. Sando's] office [in response to his December 12 request for information.]

    According to Ms. Lewellan, in her response to the Commissioner, [a]s is evident from [Mr. Sando's February 14, 1996 response to Mr. Spaulding,] many of [Mr. Spaulding's requests for data] had previously been made and responded to. Ms. Lewellan then addressed each of the nine items, which are discussed in detail below.

    In conclusion, Ms. Lewellan stated:

    As is evident from the multiple questions asked and the fifty page length of the response, this inquiry was complex and involved research from a number of different people within the Department before a complete response could be made. As is evident from the response, and particularly Appendix 1, 8 and 9, many of the subjects of the December 12, 1995 letter had been previously addressed in writing or orally. These facts affected the amount of time it took to compile a complete answer. Answers have now been given to each of the requests for information.


    Issues:

    In his request for an opinion, Mr. Spaulding asked the Commissioner to address the following issues:

    1. Is Mr. Spaulding entitled to gain access to the data he requested?

    2. What is DNR's obligation under Minnesota Statutes Chapter 13 to respond to Mr. Spaulding's request?


    Discussion:

    First, it is clear that Mr. Spaulding and DNR disagree on whether, at the time he requested this opinion, he had previously received access to some or all of the data he requested. In Ms. Lewellan's response, she stated that Mr. Spaulding, previous to his December 12, 1995, letter to Mr. Sando, had already gained access to some of the data he requested. According to Ms. Lewellan, the rest of the data Mr. Spaulding requested was provided in Mr. Sando's February 14, 1996, letter (which was sent to Mr. Spaulding two weeks after DNR was notified about this opinion.) However, when Mr. Spaulding requested this opinion, it was his position that he had not been granted appropriate access to any of the data he requested from DNR. To the extent possible, the Commissioner will attempt a determination as to whether, and when, Mr. Spaulding was provided with the data he requested.

    The issues this opinion addresses concern Mr. Spaulding's rights to gain access to certain data, and DNR's obligations to provide him with appropriate access to those data, pursuant to Minnesota Statutes Chapter 13, the Minnesota Government Data Practices Act. In order to address those issues, it is first necessary to determine the classification of the data in question.

    Pursuant to Section 13.02, subdivision 7, government data are . . . 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.

    The data requested by Mr. Spaulding are data related to his, and other individuals', employment by DNR. Section 13.43 defines personnel data as . . . data on individuals collected because the individual is or was an employee of or an applicant for employment by . . . a state agency . . . . Section 13.43 provides that certain data about current and former public employees are public, and that all other personnel data are private.

    The following nine items are the data Mr. Spaulding requested, as he described those data in his December 12, 1995, letter to Mr. Sando.

    1. On April 24, 1995, you received a letter of complaint from RADM Suzanne Dahlman about my license fraud investigation concerning members of the USPHS Commissioned Officers. I want a copy of your response to her letter or the Departments [sic] response.

    2. Maj. William Spence told Capt. Byron Dyrland and Conservation Officer Tony Cornish he has a complaint from the Governors [sic] office on me. I want a copy of the complaint from the Governors [sic] office about me.

    3. I am requesting data from the last Enforcement Area Supervisors oral test. I want the names of the finalists, their score and rank. I want the data relevant to the criteria for scoring the tests.

    4. I am requesting data from the last Enforcement Area Supervisors written test, the finalists [sic] names, their score and rank. I want the original unrevised rankings and scores before appeals. I want the data relevant to the criteria for scoring the tests.

    5. I am requesting data from the last Special Investigations Team Leader written and oral tests. I want the names of the finalists, and their education. I want the data relevant to the criteria for scoring the written and oral tests. [Emphasis his.]

    6. I am requesting data relevant to letters appointing Scott Fildes and Scott Bradley to Work-out-of-class in positions before their eventual promotion into those jobs. (area supervisor and SIU team leader)

    7. I am requesting data which made the classified position Safety Training Coordinator into an unclassified position.

    8. I am requesting data on the last class study that was performed on the Conservation Officers and/or Area Supervisors positions. Dates started and finished.

    9. I am requesting data on when the last Area Supervisors certified list was abolished.


    The first two items of data requested by Mr. Spaulding relate to complaints that Mr. Spaulding had reason to believe had been made against him, based on his understanding of comments made to him by DNR staff. He requested a copy of DNR's response to one, and a copy of the other complaint.

    The details of a complaint about a public employee are private data, unless there has been a final disposition of a disciplinary action arising from the complaint. (See Section 13.43, subdivisions 2, 2a, and 4.) According to the information provided, it does not appear that either of these items of data relates to disciplinary action against Mr. Spaulding. Therefore, the question at hand is Mr. Spaulding's right to gain access to private data about himself.

    Pursuant to Section 13.04, subdivision 3, upon request to a responsible authority, an individual who is the subject of stored private or public data shall be provided copies of the private or public data. The responsible authority must respond to a request immediately, if possible, or within five working days of the date of the request, if immediate compliance is not possible. The responsible authority may take an additional five working days to respond, if the individual making the request is informed that the additional time is necessary.

    According to DNR, there are no written data, other than a letter of complaint, which relate to the first two items in Mr. Spaulding's request. In the first instance, according to Ms. Lewellan, DNR made no response to the letter of complaint against Mr. Spaulding. In the second case, the Governor's Office made a verbal inquiry of Mr. Sando, and, according to Ms. Lewellan, DNR did not make a written response.

    Pursuant to a 1993 holding by the Minnesota Court of Appeals, data must be recorded in physical form in order to be considered government data for purposes of Chapter 13. (See Keezer v. Spickard, 493 N.W. 2d 614 (Minn. Ct. App. 1992), review denied February 12, 1993.)

    Clearly, Mr. Spaulding does not have a right to gain access to data which do not exist. If DNR made no written response to a complaint against Mr. Spaulding, response data cannot be produced. However, individuals have the right, pursuant to Section 13.04, subdivision 3, to be informed whether government data about them exist. Mr. Spaulding should have been informed that the data he was seeking did not exist, either immediately upon his request, or within five working days.

    There is disagreement about when Mr. Spaulding was informed that the data he was seeking, in items 1 and 2, do not exist. In her response to the Commissioner, Ms. Lewellan stated that Mr. Spaulding had been informed prior to his December 12, 1995, letter to Mr. Sando that there was no written response to either complaint or inquiry. However, it is not clear to the Commissioner when and how that was communicated to Mr. Spaulding. Ms. Lewellan stated: Mr. Spaulding had on September 4, 1995 requested a copy of DNR's written response, and had previously been advised by his supervisor, Capt. Dyrland, that DNR had not sent a written response. Ms. Lewellan then referred to the February 14, 1996, letter to Mr. Spaulding.

    In regard to a complaint from the Governor's Office, Ms. Lewellan stated: [n]o written complaint was received from the Governor's Office. These facts were verbally communicated to Officer Spaulding by his supervisor, Capt. Dyrland, as indicated in [the attachments.]

    The reference to the attachments, apparently a memo from Major Spence to Captain Dyrland, is confusing. It is not clear to the Commissioner, based on the memo, that Mr. Spaulding was informed by Captain Dyrland that DNR did not have a written complaint on Mr. Spaulding from the Governor's Office. It appears to the Commissioner that Major Spence informed Captain Dyrland of that fact. It is possible that the Commissioner is mistaken in that interpretation. However, in any event, Mr. Spaulding requested access to the data on September 4, 1995. The memo from Major Spence to Captain Dyrland is dated September 26, 1995. Mr. Spaulding was entitled to learn that the data he sought did not exist within, at most, ten working days of his request, pursuant to Section 13.04, subdivision 3.

    The remainder of the data listed in Mr. Spaulding's request are public personnel data, pursuant to Section 13.43, subdivision 2. It appears that the classification of those data is not in contention between Mr. Spaulding and DNR. The relevance of the classification here is that Chapter 13 provides a different standard for public access to data than the standard for access by a data subject to public and private data about her/himself.

    Minnesota Statutes Section 13.03 contains the general provisions that govern public access to government data. Section 13.03, subdivision 2, provides: [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. (Emphasis added.)

    In addition, Minnesota Rules Part 1205.0300, subpart 3, provides: [t]he responsible authority shall provide for a response to a request for access within a reasonable time. (Emphasis added.)

    The question at hand is whether DNR's response to the remaining seven items Mr. Spaulding requested was in compliance with Chapter 13 and its implementing rules. Specifically, did DNR provide a response to Mr. Spaulding's request in a prompt manner and within a reasonable time ? In Commissioner of Administration Advisory Opinion Number 96-003, the Commissioner wrote:

    The Legislature has not provided a specific definition of prompt so guidance is appropriately sought from a dictionary. (See Minnesota Statutes Section 645.08.) As defined in The American Heritage Dictionary, College Edition, Houghton Mifflin Company, Boston 1985, prompt means on time; punctual; done without delay. According to the plain words of the statute, when read in light of the dictionary definitions, a response to a request for data, delivered six weeks later, cannot be considered prompt.

    Further, the Commissioner wrote:

    As defined in The American Heritage Dictionary, College Edition, Houghton Mifflin Company, Boston 1985, reasonable means within the bounds of common sense; not excessive or extreme; fair. Again, a response six weeks later, in a case in which the data requested were clearly identified, cannot be construed to be either prompt or reasonable.

    In the circumstance at issue in Advisory Opinion Number 96-003, at least six weeks passed before the data requestor received any kind of a response from the government entity. As the Commissioner stated in that opinion, such a response time is neither prompt nor reasonable.

    In Mr. Spaulding's case, it is not entirely clear whether, and when, he received the data he requested. The data described in items 3, 5, and 7-9 apparently were not provided to Mr. Spaulding until February 14, 1996. It is not possible to determine, from the information provided, whether all of the data Mr. Spaulding asked for in item 4 were provided to him at an earlier date than February 14, 1996.

    In his letter to Mr. Spaulding regarding item 6, Mr. Sando said that the letter of appointment for Mr. Bradley to work out-of-class was not available. It is not clear what Mr. Sando meant by not available. If DNR's reason is that the data are classified as not public, then pursuant to Section 13.03, subdivision 3, DNR is obligated to provide Mr. Spaulding with the specific statutory basis for its denial of access to those data.

    It appears to the Commissioner that DNR took eight weeks to respond to Mr. Spaulding's request, which, in the Commissioner's view, is not a reasonable or prompt response within the meaning of Chapter 13. In her response, Ms. Lewellan referred to the quantity and complexity of Mr. Spaulding's request as factors relevant to the amount of time DNR took to respond to Mr. Spaulding. The Commissioner acknowledges that there are times when such factors do result in reasonable delays in the provision of access to data. However, Mr. Spaulding did not receive any response for eight weeks. In the case of Mr. Spaulding's request for access to public and private data about himself, the response required from DNR was provision of the data or a clear statement that the data he was seeking do not exist. He was entitled to that response immediately, or within five working days of his request.

    In the case of Mr. Spaulding's request for access to public data, DNR needed to respond promptly, in a reasonable time. DNR made no response to Mr. Spaulding's request until four weeks after he requested this opinion, eight weeks after he made his request to DNR. Although it is not possible in all instances to determine exactly how DNR responded to each of Mr. Spaulding's requests, the Commissioner concludes that, for the most part, he was not provided timely access either to public and private data about himself, or to other public data maintained by DNR.

    Opinion:


    Based on the correspondence in this matter, my opinion on the issues raised by Mr. Spaulding is as follows:

    1. Mr. Spaulding is entitled to gain access to the data he requested, provided the data exist in physical form.

    2. DNR, under Minnesota Statutes Chapter 13, must provide Mr. Spaulding with access to public and private government data about himself immediately or within five working days of his request. DNR is obligated to provide access to other public government data in a prompt manner and within a reasonable time. Mr. Spaulding was not provided access to the majority of the data he requested for nearly eight weeks, which is neither prompt nor within a reasonable time.


    Signed:

    Elaine S. Hansen
    Commissioner

    Dated: March 14, 1996


    Data subjects

    Response to data requests

    Statutory construction (Ch. 645)

    Informed of existence/classification

    Definition of prompt or reasonable time

    Words and phrases construed (645.08)

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