January 31, 1997; Carver County
1/31/1997 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, with the exception of any data classified as not public, are available for public access. On December 4, 1996, PIPA received a letter of the same date from Ann Walther, an attorney representing Teamsters Local 320 in an arbitration with Carver County over the termination of a Carver County employee. In her letter, Ms. Walther, requested that the Commissioner issue an advisory opinion regarding the Teamster's access to certain data maintained by Carver County. As the result of telephone discussions between Ms. Walther and PIPA staff, two issues were agreed upon. In response to Ms. Walther's request, PIPA, on behalf of the Commissioner, wrote to Richard Stolz, Administrator of Carver County. The purposes of this letter, dated December 10, 1996, were to inform Mr. Stolz of Ms. Walther's request and to ask him or Carver County's attorney to provide information or support for the County's position. On December 31, 1996, PIPA received a response dated December 19, 1996, from Peter Bergstrom, an attorney representing Carver County. A summary of the facts relating to this matter is as follows. In a letter dated October 31, 1996, James Michels, an attorney employed by the same law firm as Ms. Walther, made a request to inspect the following data maintained by Carver County: 1. The name and job title of each person employed by the Carver County Sheriff's Department from January 1, 1990 to the present date (this includes persons no longer employed by the Sheriff's Department but who were so employed at any time during the stated period). 2. With regard to each person within the scope of request number 1: each complaint or charge of misconduct made against the employee (or former employee) since January 1, 1990. 3. For each complaint or charge within the scope of request number 2: the nature of the complaint or charge, the status of the complaint or charge, whether or not the complaint or charge resulted in disciplinary action, and the final disposition of any disciplinary action together with the specific reasons for the action and the data documenting the basis of the action. 4. If any dispute relating to a complaint or charge of misconduct against an employee within the scope of request number 3 was resolved by an agreement: the terms of the agreement. In a letter dated November 16, 1996, Mr. Bergstrom responded to Mr. Michels' request. He wrote: The County does not have the data requested in a readily available form....we estimate that it will take approximately 145 hours to view the files and 10 hours to review the payroll records for a total of 155 hours....It is estimated that your request will require 155 hours of research at $20/hour for a total of $3,100.00....we estimate that it will take approximately eight work weeks to assemble this data. The calendar weeks needed to assemble the data will be greater because of the Thanksgiving, Christmas and New Years holiday schedule. In a letter dated November 18, 1996, Ms. Walther wrote to Mr. Bergstrom (apparently prior to receiving his November 16, 1996, letter) as a follow-up to a telephone conversation with Carver County staff regarding the status of Mr. Michels' request. In her letter, Ms. Walther stated that County staff was surprised by her call given that Mr. Bergstrom was to be responding to the request and that County staff advised Ms. Walther that the County could charge for inspection of the requested data. In her letter, Ms. Walther stated, ...the County may not charge us to compile the documents which we wish to inspect....As you are aware, the County is required to respond to this request within a reasonable time'....We have heard nothing from the County. In a letter dated November 20, 1996, Ms. Walther wrote again to Mr. Bergstrom reiterating that the County could neither charge for assembling the data requested nor segregating public from private or confidential data. In his response to Ms. Walther's opinion request, Mr. Bergstrom first wrote: The status of this case as subject to current litigation requires that the Department of Administration, if it chooses to issue an opinion in this matter, coordinate that opinion with the rights and responsibilities of the parties under the terms of the collective bargaining agreement, the Uniform Arbitration Act, the Public Employment Labor Relations Act and the court order in this matter. It is also essential that the Department not allow the Data Practices Act to be utilized as a weapon to harass a party in litigation or to interfere with the strong public preference for arbitration as a quick and cost effective method to resolve disputes between an employer and its employees. Mr. Bergstrom next stated, No request for data to be released by the Data Practices Act has been made. He wrote, ...[the Carver County employee] has requested that the County assemble a list of employees and former employees base [sic] upon criteria that he has selected. In addition, Mr. Bergstrom stated that the County did respond within a reasonable time to Mr. Michels' request. He wrote, Given the amount of preliminary leg work that the County had to perform, just to get a handle on the scope of this request, the amount of time taken to respond is not unreasonable. Further, the appropriateness of the request, in light of current and former litigation, has to be determined by review of the applicable statutes and rules. Mr. Bergstrom also stated that in regard to Mr. Michels' first request, the County does not maintain a list of the departments in which all employees are employed. In addition, he noted that Chapter 13 does not list an employee's department as public data. Next, Mr. Bergstrom asserted that Mr. Michels' request for data on all employees over a period of time is not in compliance with Chapter 13 and is overly broad. Mr. Bergstrom's final point was that because the data request is a discovery request related to [the Carver County employee's] grievance with the County, the request must be processed in accordance with the applicable rules and statutes and may not be circumvented by use of the Data Practices Act. He further wrote, In addition Minn. Stat. 13.30 indicates that data assembled for litigation should be released in accordance with the applicable rules rather than under the Data Practice [sic] Act. In summation, Mr. Bergstrom wrote: ...[the request] is outside the scope of the Data Practices Act. The request requires the County to assemble data for [the Carver County employee], not just reveal data already assembled, according to criteria that he has designated and that are outside the requirements of the Act. It is therefore not only reasonable, but mandatory, that the County preserve taxpayer funds and charge [the Carver County employee] for the time and effort necessary to meet his personal demands. More importantly the request made by [the Carver County employee] relates to his/her on going [sic] litigation with the County. Issues:In her request for an opinion, Ms. Walther asked the Commissioner to address the following issues:
Discussion:Before discussing the issues raised by Ms. Walther, the Commissioner must respond to Mr. Bergstrom's comments regarding the current status of [the Carver County employee's] apparent dispute with Carver County. According to Mr. Bergstrom, the matter is currently awaiting another arbitration hearing under a Court Order. Mr. Bergstrom wrote, [the Carver County employee's] request is a discovery request related to his grievance with the County.....In addition Minn. Stat. 13.30 indicates that data assembled for litigation should be released in accordance with the applicable rules rather than the Data Practice [sic] Act. As the Commissioner discussed in Advisory Opinion 96-038 , there is nothing in Minnesota Statutes Chapter 13 which prevents a person from requesting and gaining access to data just because that person is involved in litigation with the government entity maintaining the requested data. Furthermore, Ms. Walther has not been told she cannot gain access to the data. Rather, she was advised that pre-payment is required before data inspection will be allowed and that a response to the request will take at least eight weeks. Therefore, it is the Commissioner's opinion that the Carver County's employee's current legal dispute with Carver County has no effect on his/her, or his/her legal counsel's, ability and right to request and gain access to government data. The first issue raised by Ms. Walther is whether Carver County can charge a fee for inspection of public data. Section 13.03, subdivision 3, states, If a person requests access [to public government data] for the purpose inspection, the responsible authority may not assess a charge or require the requesting person to pay a fee to inspect data. The data requested by Mr. Michels, on behalf of the Carver County employee, are data about current and former employees of Carver County, specifically employees of the Sheriff's Department. Such data are classified in Section 13.43. Subdivision 2 (a) of Section 13.43 sets forth the various types of data about current and former employees that are public. Generally speaking, the remainder of data collected about current and former employees are private. Pursuant to subdivision 2 (a) of Section 13.43, with a few exceptions, the majority of the types of data requested by Mr. Michels are public. First, Mr. Michels has requested access to each complaint or charge of misconduct. Technically, unless a final disposition regarding the complaint and/or charge has occurred, only the existence of any complaints and the status of those complaints are public. (See subdivision 2 (a) (4).) Second, in regard to each complaint and/or charge, Mr. Michels has requested information regarding whether or not the complaint resulted in disciplinary action. Subdivision 2 (a) (4) states, [these data are public] the existence and status of any complaints or charges against the employee, regardless of whether the complaint or charge resulted in a disciplinary action; (Emphasis added.) Therefore, unless the complaint resulted in disciplinary action, Mr. Michels cannot be informed as to whether disciplinary action occurred. The thrust of Mr. Bergstrom's argument is that Mr. Michels has requested data in a format that requires Carver County to assemble data for [the Carver County employee], not just reveal data already assembled, according to criteria that he has designated and that are outside the requirements of the Act. It is correct that no provision in Chapter 13 requires government entities to create new data or to present existing data in a format prescribed by the data requestor. In fact, the Commissioner has so stated in several previous advisory opinions. However, in the situation at hand, Mr. Michels appears to have requested data, most of which are classified as public, regarding certain employees of Carver County. If Carver County does not have the requested data sorted or formatted according to the specific years that employees worked for the County, then it may be necessary for Mr. Michels to inspect data relating to all current and former employees and make the employment-date determination himself. Mr. Michels should be granted access to such information because the date of first and last employment are public pursuant to Section 13.43, subdivision 2 (a) (3). Further, if Carver County does not format or sort its personnel data according to the specific departments in which the various employees have worked, it may again be necessary for Mr. Michels to sort through data about all employees. Presumably, Mr. Michels would be able to determine which employees worked at the Sheriff's department because the job title and job description of all public employees are public data pursuant to Section 13.43, subdivision 2 (a) (2). In conclusion, most of the data requested by Mr. Michels are public. If those data exist, then Carver County must find a way to make them available for Mr. Michels' inspection, free of charge. Chapter 13 provides guidance for handling requests such as the one made by Mr. Michels. First, Section 13.03, subdivision 1, requires Carver County and other government entities to keep their records containing government data in such an arrangement and condition as to make them easily accessible for convenient use. Second, in instances where the practical and operational realities of government record keeping mean that public data are intermixed with not public data, Chapter 13 requires that public data be made available for public inspection and that any costs associated with separating public from not public data not be imposed on the public. (See Section 13.03, subdivision 3.) If it will be necessary for Mr. Michels to examine through extra data to locate the public information he is seeking, and he determines he would rather pay the County to format the data in a mutually agreeable fashion, it would certainly be appropriate for Mr. Michels and Mr. Bergstrom to work out some type of fee schedule. The second issue raised by Ms. Walther is whether Carver County responded to Mr. Michels' request within the time frame requirements of Section 13.03, subdivision 3. Subdivision 3 requires that government entities respond to requests for access to public government data within a reasonable time. In the current situation, although Mr. Bergstrom's response time of approximately two weeks appears to have been timely, the response itself was not appropriate given the request. His response was that Mr. Michels would need to make a prepayment of $3,100.00 and that the County would need at least eight weeks to assemble and copy the data. Mr. Michels did not ask for copies of data. Rather, he asked the County to make public data available for his inspection. A proper response would have been for the County to inform Mr. Michels how soon, within a reasonable time, the data would be available for inspection. Given the nature and volume of Mr. Michels' request, the County must be given a reasonable amount of time in which to provide access to the public data. (See Section 13.03, subdivision 3.) However, Mr. Michels made the data request in a letter dated October 31, 1996. As of December 4, 1996, approximately five weeks later, neither Ms. Walther nor Mr. Michels had received access (in the form of inspection) to those data. Opinion:Based on the correspondence in this matter, my opinion on the issues raised by Ms. Walther is as follows:
Signed: Elaine S. Hansen
Dated: January 31, 1997 |
Copy costs
Litigation
Prepayment
Data involved in litigation
