Facts and Procedural History:

KARE 11 had made a number of requests for access to photographs taken during the investigation of a woman's death. An investigation of the matter resulted in a determination that the woman had committed suicide. The investigation concerning her death is no longer active. For purposes of access to law enforcement investigative data, the data concerning this investigation are in an inactive file and the City has provided portions of the inactive file to KARE 11. However, Mr. Kupchella has been told by the City that it is their policy that no photographs taken at death scenes will be released to the public regardless of the contents of the photos. KARE 11's requests for access to photos have been denied.

Mr. Kupchella went on to discuss how Minnesota Statutes Section 13.82, subdivision 5 handles the classification of data that are part of an inactive investigative file. He pointed out that, generally, data in inactive criminal investigative files are public. One exception to that rule is that photographs in inactive investigative data, that are clearly offensive to common sensibilities are not public. It was Mr. Kupchella's opinion that the City's policy that all death scene photos are not public is not consistent with the statutory guidance. It was his position that the statute requires a case by case determination based on the content of the photographs and not a blanket policy making all death scene photographs not public. He then asked for a Commissioner's opinion on the issues described in the Issue section below.

In response to Mr. Kupchella's request, PIPA, on behalf of the Commissioner, wrote to Mr. David M. Johnson, who had previously identified himself as the responsible authority for the City police department. The purposes of this letter, dated July 22, 1994, were to inform Mr. Johnson of Mr. Kupchella's request, to ask Mr. Johnson or the City's attorney to provide any 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 August 1, 1994, PIPA received a response from Mr. Johnson. Mr. Johnson summarized the position of the City as follows.

Mr. Johnson reviewed the history of KARE's requests for data concerning this particular death. Given that history, it was Mr. Johnson's opinion that this particular dispute was not a data practices dispute but a dispute about whether the City had honestly answered questions from KARE 11. He stated that he had encouraged KARE to bring an action under Minnesota Statutes Section 13.08, subdivision 4 to resolve the dispute. Mr. Johnson then focused on the City's position relative to the statutory guidance in Chapter 13.

Mr. Johnson quoted the language of Minnesota Statutes Section 13.82, subdivision 5, as it relates to the handling of photos in inactive investigative files, and pointed out that within the statute itself there were no definitions for the terms clearly offensive and common sensibilities. In Mr. Johnson's view, this lack of definition indicates a lack of legislative direction to responsible authorities. It also means that a responsible authority, in making judgments about the contents of photographs, must use his or her discretion. Mr. Johnson then cited Minnesota Statutes Section 13.072 subdivision 1 (b), a part of the Commissioner's opinion authority, that says the Commissioner cannot issue opinions when the question involves . . . the exercise of discretionary power specifically granted by statute to a responsible authority to withhold or grant access to government data in a manner different than the data's general statutory classification. Given that language, it was the City's position that the Commissioner is barred from issuing an opinion in this instance.

In case the Commissioner decided to issue an opinion, Mr. Johnson went on to review the basis for the City's position that all death scene photographs are not public. It has been the City's experience that the release of death scene photographs, no matter what their content, causes anguish to families of victims and to others. The City has often received calls of complaints when death scenes and family agony are displayed by the media. Because, according to Mr. Johnson, the statute provides no guidance to responsible authorities in making decisions about whether or not to release death scene photographs, the experience and opinion of the City is that all death scene photographs meet the statutory test.

In further support of that position, Mr. Johnson cited Minnesota Statutes Section 13.83, the medical examiner's section of the Minnesota Government Data Practices Act, hereinafter Act or Chapter 13. This section makes most medical examiner data not public. According to Mr. Johnson, the authority conferred on the Hennepin County medical examiner by Minnesota Statutes Section 383B.225, subdivision 6, gives the medical examiner control of the body and scene of a death. After expanding on that authority and its relationship to law enforcement investigations, it was Mr. Johnson's conclusion that the data in question were actually medical examiner data and were therefore classified as private or nonpublic and not discloseable to the public or KARE 11.

In regard to the third issue raised by Mr. Kupchella, relating to the provision of the non- offensive portions of photographs to the public, Mr. Johnson made the following arguments. The City does not possess the equipment to separate offensive from non-offensive portions. Even if the City could conduct such a separation it would be open to charges that things removed had been removed because the police did not want the public to see them. Because of the nature of a photograph, it is a single piece of data which should be judged only in its entirety.

Mr. Johnson summarized the City's position urging that the Commissioner should not issue an opinion and that a dispute about a classification of data made by a responsible authority should be addressed by the public taking recourse to Minnesota Statutes Section 13.08, subdivision 4, the portion of the remedies section of the Act that gives any aggrieved person the right to bring an action to compel an agency to comply.

Issues:

Discussion:

When the opinion authority was being considered by the legislature, concern was expressed that there were situations where the authority given to a responsible authority either to withhold or grant access to data in a manner different than the data's general classification was so critical that the exercises of discretion in those instances should not be subject to Commissioner's opinions. However, expression of that concern, led to an additional concern that if all decisions of responsible authorities were viewed as discretionary then the opinion authority would be meaningless. The legislative response was to craft a middle position that says that the Commissioner cannot issue an opinion in instances where:

In the statutory guidance as to whether or not photographs in inactive criminal investigative files are discloseable to the public, the legislature has said that all inactive criminal investigative data, with certain exceptions, are public. Photographs in inactive criminal investigative files are classified as public unless the agency determines that the photographs being requested by the public are clearly offensive to common sensibilities. First, this is not a specific grant of discretionary power to a responsible authority. Instead, it is a grant of authority to an agency. Second, this is not a grant of authority to withhold or release data. It is direction to an agency to make decisions about whether the contents of photographs are or are not clearly offensive to common sensibilities.

Contrary to the position of the City, the decisions about whether photographs are public or not are not decisions totally within the discretion of the City but are decisions to be made within the confines of whether or not certain photographs are clearly offensive to common sensibilities. Although, as the City points out, the terms, clearly offensive and common sensibilities are not defined in Chapter 13, any number of terms and words used within Chapter 13 are not defined by the Chapter itself. A word or phrase not defined by the Act is to be construed according to the common and approved usage of that word. (See Minnesota Statutes Section 654.08.) The dictionary and other reference works are common sources to be used in determining the meaning of words and phrases used within a statute and not defined by the statute itself.

Because this question does not involve a specific grant of discretionary power to a responsible authority, it is appropriate for the Commissioner to issue an opinion in this matter.

Issues 1 and 2:

When the legislature was discussing the implications of a possible decision to have most inactive criminal investigative data classified as public, the effect of such a decision on photographs appearing in inactive data was actively discussed. The discussion of the status of data in photographs focused heavily on photographs involving death scenes, pictures of a sexual or what might be perceived to be a sexual nature and pictures illustrating physical violence. Much of the discussion about these types of photos was concerned with photos of deceased individuals. At the end of that discussion, the legislature enacted Minnesota Statutes Section 13.82, subdivision 5 which, in part, states that all inactive investigative data, which implicitly includes photos, are public data. The legislature did create an exception by stating that photographs that are clearly offensive to common sensibilities are not public.

It seems clear from the language of the statute that when a request for access to inactive criminal investigative data is made, and those data include photographs, the appropriate response from the law enforcement agency should be to examine the content of each photograph to determine if the content is clearly offensive to common sensibilities. A policy, such as the one adopted by the City, that states that all death scene photographs are not public, does not accomplish what Section 13.82, subdivision 5 requires.

As noted above, the legislature actively discussed concerns such as those raised by the City about release of photos to the public. The legislature concluded that photographs are to be treated as not public only if their content is clearly offensive to common sensibilities. The City's policy, that holds that all death scene photographs are inherently offensive, and are therefore not public, does not comply with the treatment accorded to photographs in inactive criminal investigative data by the Act.

In its response, the City also argued that the photographic data ought to be treated as medical examiner data. It is in the nature of the data classification system, and how the legislature has applied the system in making classification decisions, that the legislature will sometimes prescribe different treatment for the exact same data held by two different government entities. For example, home addresses of public employees are private personnel data. Home addresses of public employees in state driver license files are public unless the driver requests otherwise. The fact that the legislature provides different treatment for photographs held by a medical examiner and photographs held by a police department is a consequence of specific legislative decisions about the photographic data in two different organizational and functional contexts.

Since 1981, the legislature has specifically declared that inactive criminal investigative data, including some kinds of photographic data in law enforcement agencies, are classified as public. (See Minnesota Statutes Section 13.82, subdivision 5.) In a subsequent enactment amending the original language of Section 13.82, subdivision 5, the legislature made it clear that the regulation of photographic data held by law enforcement agencies includes regulation of law enforcement photos of deceased persons. Section 13.82, subdivision 5 was amended in 1985. The 1985 amendments clarified that photos of deceased individuals, taken after their death are treated as data not on individuals. (See Session Laws of Minnesota 1985, Chapter 298, Section 31.)

The data regulated by Section 13.82, subdivision 5, are data specifically maintained by law enforcement agencies such as the City. The fact that a law enforcement agency may work closely with a medical examiner in the investigation of a death does not make the data collected and maintained by the law enforcement agency medical examiner data. Therefore, the data requested by Mr. Kupchella are subject to the requirements of Section 13.82 and not Section 13.85.

Issue 3:

In theory, depending on the exact content of a given photograph, it is possible to separate offensive from non-offensive portions. Contrary to the concerns of the City about the need for specialized equipment to perform such a separation, the equipment necessary may be a scissors or other cutting instrument that could separate the offensive and non-offensive portions. In a given situation that may be a reasonable compromise to deal with public concerns that photographic details are being unreasonably withheld.

However, the plain language of Section 13.82, subdivision 5 indicates that once an agency makes a determination that a photograph contains content which is clearly offensive to common sensibilities , the photograph in its entirety is classified as private or nonpublic. This is a situation where the legislature could have said that the offensive content is not public. Instead the plain language of the statute indicates that the entire photograph containing offensive content is not public. Although a law enforcement agency might choose to separate the contents of a photograph, the Act does not require it to do so.

Opinion: