May 21, 1997; City of Winona
5/21/1997 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 March 31, 1997, PIPA received a letter dated March 28, 1997, from John Borger, an attorney representing the Star Tribune. In his letter, Mr. Borger requested that the Commissioner issue an opinion regarding the newspaper's access to certain data maintained by the City of Winona Police Department. PIPA, on behalf of the Commissioner, wrote to Richard Blahnik, the attorney for the City of Winona, in response to Mr. Borger's request. The purposes of this letter dated April 7, 1997, were to inform him of Mr. Borger's request and to ask him to provide information or support for the City's position. Rather than submitting additional comments, Mr. Blahnik stated by telephone to PIPA staff that his opinion on the matter is contained in a memo dated March 18, 1997, to Frank Pomeroy, City of Winona Chief of Police. A copy of this memo was submitted to PIPA by Mr. Borger. A summary of the facts surrounding this matter is as follows. On March 1, 1997, an automobile accident occurred in Winona in which the five occupants of the automobile were killed. As a result of the accident, the Winona Police Department collected, created, and is maintaining certain information. Following the incident, the Star Tribune requested access to all police incident data and all public medical examiner data. In a letter dated March 24, 1997, addressed to Mr. Blahnik, Mr. Borger discussed the specific issue of the blood alcohol content of each of five deceased individuals. He stated that the Star Tribune disagreed with Mr. Blahnik's conclusion that the blood alcohol content data are private. Mr. Blahnik responded in a letter dated March 28, 1997, stating that it was still his opinion that the data in question are classified as private. Mr. Blahnik added that if Mr. Borger remained firmly convinced that the data are classified as public, an advisory opinion might be beneficial. Mr. Borger then requested an advisory opinion. He wrote, Although there may be other questions concerning other information, one specific legal issue that has arisen is the status of data on the blood alcohol concentration of persons in the vehicle... (Subsequent to Mr. Borger's request, Mr. Blahnik also requested an opinion regarding some additional information relating to the May 1, 1997, accident.) Pursuant to her authority in Section 13.072, the Commissioner contacted the families of the persons involved in the accident and invited each to submit any comments regarding the classification of the data in question. Attorneys for four of the five families responded and each were of the opinion that the data are classified as not public.
Issue:
In his request for an opinion, Mr. Borger asked the Commissioner to address the following issue:
Discussion:
Pursuant to Minnesota Statutes Section 13.02, subdivision 11, data collected, created, and maintained by the City of Winona are subject to the requirements of Chapter 13. Data collected, created, and maintained by the City's Police Department are classified specifically in Section 13.82.
The central issue of this opinion is whether the blood alcohol content data in the possession of the Police Department are public or not public. These data include the results of blood alcohol analyses provided to the Police Department by the Medical Examiner and the Bureau of Criminal Apprehension (BCA). On behalf of the City, Mr. Blahnik made two arguments as to why the blood alcohol content data are not public. His first assertion is that because of language in Section 13.82, subdivision 4, the data must be private. Section 13.82, subdivision 4 (response or incident data), sets forth specific data created or collected by law enforcement agencies which documents the agency's response to a request for service...or which describes actions taken by the agency on its own initiative that shall always be public. One of the public data types, set forth in subdivision 4 (m), is the blood alcohol content of each driver. Mr. Blahnik argued that the blood alcohol content data maintained by the Winona Police Department are private because 1) the Police Department lacks evidence to establish conclusively the identity of the driver, and 2) the blood alcohol content of passengers is not specifically listed as a public type of data. The Commissioner respectfully disagrees with Mr. Blahnik. First, while Mr. Blahnik is correct that Section 13.82, subdivision 4, does not specifically classify the blood alcohol content of passengers as public, there is no provision that classifies those data as not public. In fact, subdivision 4 of Section 13.82, does not classify anydata as private or confidential. Rather, it states that certain data relating to a response or incident are always to be public. Therefore, if Mr. Blahnik insists that the data in question are classified pursuant to subdivision 4 of Section 13.82, those data have been public since the time they came into the possession of the Winona Police Department. (See Section 13.03, subdivision 1, the public data presumption section.)
However, the blood alcohol content data, as well as all the other data related to the disappearance and, then, discovery of the vehicle and its passengers, do not appear to be the result of the Winona Police Department responding solely to an incident. The data collection appears to be part of an investigation into the disappearance, and, then, death of the five individuals. The investigation continued until the fifth victim was located and a cause of death had been determined. Although no one was ultimately charged with a crime, the police investigators initially gathered information and evidence as if they were proceeding with a possible criminal investigation. Thus, the data appear to be more appropriately classified pursuant to subdivision 5 of Section 13.82, which, in part states:
Once the investigation is no longer active, those data become public (except in a few situations not applicable in this case.) In the case of the accident which occurred on March 1, 1997, the investigation is no longer active because charges will not be pursued. Thus, presuming the blood alcohol content data were collected as part of an investigation, those data are now public. The second argument made by Mr. Blahnik is that the blood alcohol content data are private because those data are classified as such under Section 13.83. Section 13.83 classifies certain data created, collected, used, or maintained by a medical examiner in the fulfillment of his/her official duties. When government data travel from one entity to another, as from the Medical Examiner to the Police Department, the classification of the data in the receiving entity is determined by examining the language in Section 13.03, subdivision 4. In some cases, data disseminated to another entity retain the same classification. (See Section 13.03, subdivision 4 (c)). However, in other cases, the classification of the traveled data must change to conform with a specific statute applicable to the data in the possession of the receiving agency. (See Section 13.03, subdivision 4 (a)). In the current situation, data traveled from the Medical Examiner to the Police Department. Once those data were received by the Police Department, the data became subject to the classification specified for law enforcement data in Section 13.82. Because Section 13.82, subdivision 5, states clearly that inactive law enforcement investigative data are public, the classification of the Medical Examiner data received by the Police Department are public. There is another reason Mr. Blahnik's second argument is problematic. The blood alcohol content data created by the BCA and disseminated to the Police Department are classified as public by the operation of Section 13.82, subdivision 5. It would not make sense that the same type of data collected from the Medical Examiner would be private. As stated above, the Commissioner sought comments from the families of the five persons involved in the accident. Two attorneys representing three of the families argued that because the driver has not been conclusively identified, the data in question are private pursuant to Section 13.82, subdivision 4 (m). Another of the attorney responders argued that the City of Winona is not subject to the requirements of Chapter 13. The appropriateness of Section 13.82, subdivision 4 (m), has been discussed above and there is no dispute that data collected, created, and maintained by the City of Winona Police Department are subject to the requirements of Chapter 13 (see Section 13.02, subdivision 11). Opinion:Based on the facts and information provided, my opinion on the issue raised by Mr. Borger is as follows:
Signed:
Elaine S. Hansen
Dated: May 21, 1997 |
Law enforcement data
Medical examiner data
13.83
Coroner data
Blood alcohol content
Traffic accidents (169.09)
Change in classification 13.03
