Issues:

In their request for an opinion, the Mighells asked the Commissioner to address the following issues:

Discussion:

Issue 1

Pursuant to Minnesota Statutes, section 13.03, subdivision 1, all government data are public unless otherwise classified by statute, federal law, or temporary classification (not applicable in this case). In addition, pursuant to section 13.03, subdivision 3, and Minnesota Rules, part 1205.0300, government entities are required to respond to requests for access to public data in an appropriate and prompt manner, and within a reasonable time, respectively. Pursuant to section 13.04, if a data subject is requesting access to data about him/herself, the entity is required to respond within ten working days.

In response to the Mighells' March 3, 2000, request, the City provided all but two items - two letters. The Mighells, in their opinion request wrote:

We were directed by the city clerk to go to the city council and request same - no written explanation - verbal client/attorney for not including.

Went to council in march - council said they had not seen letters - made motion to release - city attorney stated attorney/client privilege possible impending litigation - I stated that litigation was not pending and quoted the provisions of the statute related to the issue - council passed a motion to review the letters and make a decision on releasing them - city attorney closed meeting to the public to discuss the issues the Mighells have raised...still no response to date.

In her response, Ms. Wellvang wrote that in early May, Ely hired Attorney Andy Phillips as an independent contractor to represent the City in matters regarding the Mighells' requests. She stated:

Attorney Phillips contacted Mr. Mighell by letter several times to set up a time and date to meet with him, so he would know how better to answer his letters dated April 18 and April 19...but Mr. Mighell never responded to Attorney Phillips [sic] communications. The Ely City Council then proceeded to set up a meeting with Mr. Mighell invited, the Ely City Council, members of the Planning Commission and Attorney Phillips, which took place on Tuesday, May 30, 2000, to discuss these issues, and Mr. Mighell never appeared although he was informed of this meeting well in advance.

At the regular city council meeting of June 20th, the Ely City Council forwarded letters...to the Zoning Officer to work with the Planning Commission, to answer Mr. Mighell's requests as best they understand them. The Zoning Administrator and Planning Commission are taking this matter up at their regular meeting of July 6, 2000, of which Mr. Mighell was notified.

The Mighells initially requested the data at issue (two letters) on March 3, 2000. Someone at the City informed the Mighells that the letters were not accessible. However, according to the Mighells, the City Clerk then directed them to go to the City Council and request same - no written explanation - verbal client/attorney privilege. The Mighells made another request for the letters on April 19, 2000 and as of June 1, 2000, the Mighells had not received a final answer regarding their access to those data. The City's handling of this request is problematic. Pursuant to Chapter 13, the responsible authority must respond to requests for access to data promptly/appropriately and within a reasonable time (when request is for public data), or within ten working days (when the requestor is the data subject). If the Mighells are subjects of the data in the letters, the City needed to determine the classification and respond within ten days - this apparently did not happen. If the data in the letters are public, and not about the Mighells, then the City needed to respond within a reasonable time. The fact that the City hired Mr. Phillips to clarify some of the issues is irrelevant for the purposes of this opinion. The Mighells should have received a final answer before early May (time of Mr. Phillips' hiring) as to whether the data were accessible.

Issue 2

On April 18, 2000, the Mighells requested access to the following data:

...the comprehensive data held by the city of Ely planning, zoning, or Building dept. In relationship to building plans and specifications and all related documents for all types of structures with in the city of Ely or it's [sic] jurisdiction. These would consist of, but not be limited to, building permits, plans, specifications, reports, citation, office notes in files, letters from to the city, maps charts in general or specific to a structure, environmental conditions of a site or structure, occupancy permits as well as compliance with peripherals such as signage, parking, etc.

This is not to suggest that there is any request for, or expectations of access to alarm systems, vaults, safes, or other proprietary information that would be reasonable [sic] anticipated being classified as non-public and is required to be separated, held separate and non-public.

There appears to be a dispute regarding the City's response to the April 18, 2000, request. The Mighells assert that they have not received a reply from the City. Ms. Wellvang, in her letter, stated that Mr. Phillips has contacted Mr. Mighell several times by letter to set up a time and date to meet with him, so he would know how better to answer his letters. Ms. Wellvang did not provide the Commissioner with a copy of any of Mr. Phillips' letters. Ms. Wellvang also wrote that the Ely City Council invited Mr. Mighell to a May 30, 2000, meeting with the Council, members of the Planning Commission, and Mr. Phillips. Ms. Wellvang wrote that Mr. Mighell did not attend the meeting. However, the City did not provide any indication to the Commissioner that staff had, at any time, offered to make any of the requested data available to the Mighells.

As discussed above, when a data subject requests access to data about him/herself, entities must respond within ten working days. If the Mighells are the subject(s) of any of the data they requested, the City did not respond within the statutorily prescribed time.

Regarding other of the requested data of which the Mighells are not the subject, the City was required to respond in an appropriate/prompt manner, and within a reasonable time. If an entity does not understand a request, it is appropriate for that entity to seek clarification from the requestor. However, any request for clarification should come fairly soon after the data request so that the entity is still able to meet its obligation to provide the data within a reasonable time. In this case, it is not clear when or if the City sought clarification from the Mighells. Furthermore, it does not seem appropriate that Mr. Mighell be required to attend a meeting with Ely's elected officials to discuss these issues. Pursuant to Chapter 13, it is Ely's responsible authority who is responsible for responding to requests for data. The Mighells requested data on April 18, 2000. If the City has not yet provided those data, it should do so promptly or advise the Mighells as to which statutory provision allows the City to withhold the data. If the City does not understand the Mighells' request, the responsible authority should immediately seek clarification, determine the classification of the requested data, and then provide the Mighells with any data to which they are entitled.

Opinion:

Based on the facts and information provided, my opinion on the issues that the Mihgells raised is as follows:

Signed:

David F. Fisher
Commissioner

Dated: August 15, 2000