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 are available for public access.

On May 15, 1995, PIPA received a letter dated May 11, 1995, from Dale Blanshan. In his letter, Mr. Blanshan requested that the Commissioner issue an advisory opinion regarding his dispute with the City of Roseau, hereinafter "City," over access to certain data maintained by the City. Mr. Blanshan enclosed several items, including a copy of an amended civil complaint he filed against the City, and a copy of the City's answer to his complaint. (The source of many of the details about the dispute that the Commissioner is relying upon in this opinion is Mr. Blanshan's civil complaint.) Mr. Blanshan also enclosed what he characterized as a conformed copy of a handwritten request for information which he submitted to the City.

In response to Mr. Blanshan's request, PIPA, on behalf of the Commissioner, wrote to Leland Lunos, the Roseau City Clerk. The purposes of this letter, dated May 17, 1995, were to inform Mr. Lunos of Mr. Blanshan's request, to ask him or Roseau's attorney to provide information or support for the City's position, and to inform him of the date by which the Commissioner was required to issue this opinion. On May 24, 1995, PIPA received a response from Pierre Regnier, attorney for Roseau. (In subsequent correspondence, Mr. Blanshan was notified that the Commissioner would be taking a portion of the additional 30 days allowed by statute to issue this opinion.)

A summary of the detailed facts surrounding this dispute is as follows. According to the information provided in Mr. Blanshan's civil complaint, on or about February 7, 1995, he telephoned Mr. Lunos's office, to request access to minutes of certain meetings of the City council. At those meetings, which took place in 1992, a certain proposed gift of land to the City was discussed or voted upon. Someone (unidentified) in Mr. Lunos's office told Mr. Blanshan that Mr. Lunos would return his telephone call.

According to Mr. Blanshan, on Friday, February 10, having not heard from Mr. Lunos, he went to Mr. Lunos's office, and asked to meet with him. After a wait of approximately two and one-half hours, Mr. Lunos met with Mr. Blanshan. At that meeting, Mr. Blanshan repeated his request to inspect the council meeting minutes. He said he informed Mr. Lunos that he ". . . intended to utilize the data requested in an attempt to influence a current political campaign to gather signatures on a petition to change the county seat from Roseau to Warroad. . . ." He said that Mr. Lunos refused to provide him with access. Mr. Blanshan said that he asked Mr. Lunos to cite the specific statutory basis for his denial, but that Mr. Lunos refused, ". . . saying only that the disclosures would be used to 'blacken someone's name'. . . ." Mr. Blanshan also stated that he asked Mr. Lunos whether he claimed the minutes were not public, or were not readily available. Mr. Lunos did not answer either question. Mr. Lunos said that he would talk to the city attorney on Monday.

Mr. Blanshan further stated that before he left the Clerk's office on February 10, he gave Mr. Lunos a handwritten request for access to the data he had previously requested orally, both by telephone and in person. In that written request, Mr. Blanshan again asked to be informed as to the specific statutory basis upon which the City relied to deny him access to the data.

Mr. Blanshan said that at that point, he went directly to the office of Bernie Burggraf, Mayor. He made the same request for access to the data, and was again denied. Mr. Blanshan said that Mayor Burggraf ". . . repeated the objection that the information requested would be used to 'blacken someone's name', and refused to intervene. . . ."

Mr. Blanshan also enclosed a letter, dated February 22, 1995, that he received from Mr. Lunos. In that letter Mr. Lunos referred to an enclosed "request for information form." He asked Mr. Blanshan to ". . . specify on this form the information you are requesting and mail it back to the City of Roseau." (There is no date on the form.) Mr. Blanshan stated that the information request form was sent to him "nearly two weeks after the original denial" of his request for information. He said that the form "asked for no information other than what I had already provided" (in his handwritten request, earlier referenced), and therefore he "chose to ignore it."

In his response to the Commissioner, Mr. Regnier stated that "this case is fact specific" and therefore, the City would address the issues raised in this opinion only generally.

In response to the first issue, Mr. Regnier stated that City council meeting minutes are public government data, pursuant to Section 471.705, the "Open Meeting Law." He quoted the relevant provisions of Section 13.03 and Minnesota Rules Part 1205.0300, which govern public access to government data. He also stated that the City has "resolved [that] all requests for government data must be in writing. . . ."

Mr. Regnier stated that the City's position is that ". . . the public has the same right to view three year old records as one week old records. However, it is only reasonable to assume it may take longer to retrieve older records." He said that "reasonable time" and "prompt manner" (as provided in Section 13.03 and Minnesota Rules Part 1205.0300) ". . . must be interpreted in light of the specific request."

Mr. Regnier stated that Mr. Lunos told Mr. Blanshan, on Friday, February 10, that before he could allow him access to the data, he "needed clarification" from the City attorney. He told Mr. Blanshan to return on Monday, ". . . at which time access would be granted according to the City Attorney's direction." Mr. Regnier further stated that Mr. Blanshan did not provide the dates of the meetings at which the topic of Mr. Blanshan's interest was discussed, and therefore "the . . . request involved investigation on behalf of [Mr. Lunos] besides simple access." He concluded that Mr. Lunos ". . . correctly requested one working day so that he could consult the city attorney."

Mr. Regnier said that Mr. Blanshan did not return for the data on the following Monday, or at all. He said that Mr. Blanshan then initiated the lawsuit ". . . even though the requested information was available for inspection the Monday after his request."

Regarding the second issue, Mr. Regnier stated that it is the City's position that ". . . a party who requests public government data must not initiate a lawsuit as long as the Responsible Authority is attempting, in good faith, to respond to the request." Mr. Regnier added that "[a] doctrine of exhaustion of administrative remedy" clearly should apply under [Chapter 13] to avoid unnecessary lawsuits such as this one."

Mr. Regnier further stated that ". . . it would only make sense that a person who feels that a city employee has not complied with [Chapter 13] be required to present the request to the city governing body which in this case would be the city council."

On the third issue, Mr. Regnier stated that Mr. Leland Lunos is the Responsible Authority of the City.

On the fourth issue, Mr. Regnier said that in accordance with Section 13.03 and Minnesota Rules Part 1205.0300, ". . . this question really inquires whether it is reasonable to require a request in writing on a specific form." (Emphasis his.) Mr. Regnier maintains that it is a reasonable requirement for the following reasons. He said that the Responsible Authority may limit public access to government data to regular working hours, pursuant to Minnesota Rules Part 1205.0300, subpart 3. He said that it is ". . . highly likely that some requests will not be processed on a walk-in basis. . . . [and] a request form allows the staff to compile and prepare requests without the requestor's presence."

Mr. Regnier also said that requiring data requests to be made in writing allows a government entity to "analyze frequency of requests for staffing and logistics purposes." He also stated that the written request requirement also serves to eliminate government staff errors, and increases efficiency. For these reasons, Mr. Regnier asserts that "a procedure requiring written requests is clearly reasonable."

Issues:

Discussion:

The City and Mr. Blanshan do not disagree regarding the classification of the City council meeting minutes. Pursuant to Section 13.03, subdivision 1, the minutes are classified as public government data. The first issue to be addressed in this opinion, therefore, concerns whether the City's response to Mr. Blanshan's request for access to public data was the response contemplated under Section 13.03, subdivision 3, and Minnesota Rules Part 1205.0300.

Section 13.03, subdivision 1, provides that "[t]he responsible authority in every state agency, political subdivision and statewide system shall keep records containing government data in such an arrangement and condition as to make them easily accessible for convenient use." (Emphasis added.) Subdivision 2 provides that "[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.)

Minnesota Rules Part 1205.0300, subpart 3, provides that "[t]he responsible authority shall establish procedures to describe how [access to public data] may be gained. The procedures established shall be in compliance with [Section] 13.03. . . . In such procedures, the responsible authority shall provide for a response to a request for access within a reasonable time."

Pursuant to Section 13.02, subdivision 16, "'[r]esponsible authority' in any political subdivision means the individual designated by the governing body of that political subdivision as the individual responsible for the collection, use, and dissemination of any set of data on individuals, government data, or summary data, unless otherwise provided by state law."

Mr. Lunos made his first request for access to the data by telephone, to someone in Mr. Lunos's office. A few days later, he again requested access, in person, and made that request directly to Mr. Lunos, the City's Responsible Authority. On that same day, according to Mr. Blanshan, he delivered his handwritten request to Mr. Lunos.

The City and Mr. Blanshan agree that Mr. Lunos, in response to Mr. Blanshan, said that before he would provide access to the data, he needed to consult the City attorney for clarification. Mr. Lunos told Mr. Blanshan to return on Monday, ". . . at which time access would be granted according to the City Attorney's direction."

Mr. Regnier said that the City's position is that ". . . the public has the same right to view three year old records as one week old records. However, it is only reasonable to assume it may take longer to retrieve older records." Mr. Regnier stated that "reasonable time" and "prompt manner" ". . . must be interpreted in light of the specific request." He said that Mr. Blanshan had not included the specific dates of the meetings, and therefore the ". . . request involved investigation on behalf of [Mr. Lunos] besides simple access."

Apparently, at no time did the City claim that the data sought by Mr. Blanshan were not public data. It certainly may be the case that it would require some time to research the specific dates of the council meetings of interest, and then to retrieve the minutes. Perhaps immediate access would not have been "reasonable" within the meaning of Section 13.03. If that was the case, the City should have told Mr. Blanshan that it needed extra time to locate the data he requested.

However, when Mr. Blanshan requested access to the data from Mr. Lunos, he was told that he couldn't have access until Mr. Lunos, the Responsible Authority, consulted with the City attorney. Mr. Lunos said that access to the data would be provided according to the attorney's direction. This response reasonably suggests to a citizen seeking access to public data that the City's position is not one of a need for time to retrieve data, but the possibility that the request for access may be denied.

If the City had in place the data practices policies and procedures it is required by statute to establish, presumably it could avoid this kind of situation. (See Section 13.03, and see also Commissioner's Advisory Opinion 95-006.) It ought not to be necessary for Mr. Lunos, the Responsible Authority of the City, i.e., the individual responsible for the City's data practices, to need to consult with the City attorney before providing Mr. Blanshan with appropriate access to the public data he requested.

Further, according to Mr. Blanshan, both Mr. Lunos and Mayor Burggraf said that Mr. Blanshan would use the data to "blacken someone's name." As the Commissioner stated in Advisory Opinion 95-001:

The Commissioner cannot determine if Mr. Lunos delayed in responding to Mr. Blanshan's request because he needed time to locate the specific data, or because he was concerned about what use Mr. Blanshan might make of the data. The former is a response which is authorized under Chapter 13, the latter is not. However, it is understandable that Mr. Blanshan may have thought that he was being stonewalled by Mr. Lunos. Again, if the City had implemented data practices policies and procedures, and had clearly communicated them to Mr. Blanshan, the City might better avoid this kind of situation.

Regarding the second issue, Mr. Regnier stated that it is the City's position that ". . . a party who requests public government data must not initiate a lawsuit as long as the Responsible Authority is attempting, in good faith, to respond to the request." Mr. Regnier added that "[a] doctrine of exhaustion of administrative remedy" clearly should apply under [Chapter 13] to avoid unnecessary lawsuits such as this one."

However, Chapter 13 does not contain a requirement of exhaustion of administrative remedy, except as provided in Section 13.04, subdivision 4, which is not relevant in this matter. A citizen who does not agree with a Responsible Authority's determination has two options: first, to file a lawsuit, and second, to request an advisory opinion of the Commissioner. Mr. Blanshan exercised both options. There is no requirement in either Section 13.03, or Section 13.072, that a citizen must request an advisory opinion before s/he may take any of the legal actions authorized in Section 13.08.

Mr. Regnier further stated that ". . . it would only make sense that a person who feels that a city employee has not complied with [Chapter 13] be required to present the request to the city governing body which in this case would be the city council."

The policy rationale underlying the requirement provided in Section 13.03, subdivision 2, i.e., "appropriate and prompt" access, is that citizens not encounter unreasonable delays, and undue bureaucratic hurdles, when trying to secure their rights under Chapter 13. In order to address, in part, this concern, the Legislature established the role of the Responsible Authority.

Minnesota Rules Part 1205.1000, provides that governing bodies, in this case the City, "shall confer on the responsible authority full administrative authority to carry out the duties assigned" by Chapter 13 and its implementing rules. Clearly, a review of Chapter 13 indicates that the role of the Responsible Authority is pivotal to a government entity's compliance with the statute. (See Sections 13.03, 13.04, 13.05, inter alia, and Minnesota Rules Chapter 1205.)

Regarding the third issue, there is no disagreement. Mr. Lunos, City Clerk, is the Responsible Authority for the City of Roseau.

On the fourth issue, the discussion of issue one also applies, with regard to what is "reasonable." Mr. Regnier stated that the City had resolved that all requests for government data be made in writing. He did not provide a copy of the City's policies and procedures implementing that resolution. Apparently, neither Mr. Lunos nor his staff explained to Mr. Blanshan, at the time of his original request, that the City had in place a policy which requires that data requests must be made in writing. Apparently Mr. Blanshan was not informed of this policy until nearly two weeks later, when he received a letter from Mr. Lunos, with a "request for information form" enclosed.

Pursuant to Section 13.03, as cited above, the Responsible Authority is supposed to establish procedures to insure that the public receives "appropriate and prompt" access to public government data. Although there is nothing in Chapter 13 which requires data requests to be made in writing, a government entity may choose to impose that requirement as part of its data access procedures. Mr. Regnier provided several reasons supporting a government entity's decision to do so.

If the City has complied with its obligation to establish such procedures, it may ask citizens to follow those procedures when making data requests. Once written compliance policies and procedures are established, and are communicated to the public, one important role they play is to depersonalize potential conflicts over access to data.

However, it is not reasonable for the City to hold citizens to a procedure which it does not explain or make available to them. Mr. Regnier did not offer any explanation why, if indeed the City had adopted a policy requiring written requests at the time of Mr. Blanshan's initial request, Mr. Lunos did not inform Mr. Blanshan of that policy the first three times he requested access to the data. The City did not tell him of that policy, or provide Mr. Blanshan with a copy of its "request for information form," until nearly two weeks after his initial request.

In addition, from the information provided, it appears that in this case, it was not reasonable for the City to require Mr. Blanshan to make his request on a specific form. First, it appears that Mr. Lunos understood what data Mr. Blanshan requested orally. It is not apparent, therefore, what the City gained by requiring that the request be made in writing. Second, in the conformed copy of the handwritten note Mr. Blanshan gave Mr. Lunos, all of the information requested by the City on its form is included. It cannot reasonably be argued that the City could better meet its obligations under Chapter 13, by rejecting the handwritten request, only to mail to Mr. Blanshan, nearly two weeks later, a form requesting the same information he had already provided. Such a procedure would also result in the City incurring unnecessary expense in responding to Mr. Blanshan's request.

Opinion:

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

1. Pursuant to Minnesota Statutes Section 13.03, the City is obligated to provide appropriate and prompt access to City council meeting minutes, which are public government data, and which, by nature of the role they play in documenting the City's actions, ought to be easily accessible by the public. In this case, it appears that the City needed some period of time to determine the specific dates of the council meetings, in order to retrieve the meeting minutes. However, it did not communicate that need to Mr. Blanshan. In this case, the City's response was not reasonable.
2. Chapter 13 does not require a person who is denied access to public government data to exhaust any administrative remedy prior to filing suit.
3. Leland Lunos, City Clerk, is the Responsible Authority for the City of Roseau.
4. A Responsible Authority may require that requests for access to government data be in writing, on a specific form, if the Responsible Authority has established policies and procedures which contain that requirement, and if that requirement is properly communicated to citizens making data access requests. In this case, it does not appear that the requirement was reasonable, or properly communicated to the citizen

Signed:

Elaine S. Hansen
Commissioner

Dated: June 26, 1995