Note: the Commissioner wishes to clarify an issue brought to her attention. The "record" the Commissioner refers to in 08-030 is the record discussed in section 260B.171, subdivision 5. This section discusses peace officers records, not court records. The Commissioner's opinion in 08-030 is that if the proceedings involving the juvenile are public under Minnesota Statutes, section 260B.163, subdivision 1, the peace officer records, including the booking photo, are not classified pursuant to section 260B.171, subdivision 5, but are classified pursuant to the general presumption in Chapter 13 - public unless otherwise classified. Pursuant to section 13.82, subdivision 26, booking photographs are public. Thus, when a juvenile has committed an offense for which the proceedings are public pursuant to section 260B.163, subdivision 1, law enforcement and detention records about that juvenile no longer are specially protected and are classified as if the juvenile were an adult.

Facts and Procedural History:

On August 22, 2008, the Information Policy Analysis Division (IPAD) received a letter dated August 19, 2008, from Mark Anfinson, an attorney representing the Chaska Herald. In his letter, Mr. Anfinson asked the Commissioner to issue an advisory opinion regarding the newspaper's right to gain access to certain data from the Carver County Sheriff's Office.

IPAD, on behalf of the Commissioner, wrote to Byron Olson, Carver County Sheriff, in response to Mr. Anfinson's request. The purposes of this letter, dated August 29, 2008, were to inform him of Mr. Anfinson's request and to ask him to provide information or support for his position. On September 18, 2008, IPAD received a response, dated same, from Thomas Haines, Assistant Carver County Attorney.

A summary of the facts as Mr. Anfinson provided them is as follows. Mr. Anfinson wrote in his opinion request:

Recently, a 16-year-old Carver County resident was detained by the Carver County Sheriff's office after allegedly committing a serious assault, for which he was charged. The assault charge alone would constitute a felony-level offense, but the victim subsequently died, and as we understand it, more serious charges are therefore pending. The newspaper has asked for a copy of the booking photograph (mug shot) of the juvenile that was obtained when the juvenile was taken into custody, citing Minn. Stat. section13.82, subd. 26.

However, the county attorney takes the position that the photograph is not publicly accessiblehellip;.The Carver County attorney's office has cited language found in section260.171, subd. 5(c) [sic], which authorizes law enforcement agencies to obtain booking photographs of juveniles, and then restricts the ways in which the photographs may be "used."

We disagree with this interpretationhellip;

Issue:

Discussion:

Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1.)

Data that law enforcement agencies collect, create, and maintain are classified pursuant to Minnesota Statutes, section 13.82. Pursuant to section 13.82, subdivision 26, booking photographs are public.

While section 13.82 applies to most law enforcement data, peace officer records about children who are or may be delinquent, or who may be engaged in criminal acts are classified pursuant to Minnesota Statutes, section 260B.171, subdivision 5. Generally, section 260B.171, subdivision 5(a), classifies those data as private. However, records relating to an offense where proceedings are open to the public under section 260B.163, subdivision 1, are, based on the general presumption, classified pursuant to section 13.82.

The Commissioner has few details about the facts of this particular situation. She knows only what Mr. Anfinson wrote in his opinion request - that the Carver County Sheriff's office detained a 16-year-old who allegedly committed a serious assault. Mr. Anfinson stated, "The assault charge alone would constitute a felony-level offense, but the victim subsequently died, and, as we understand it, more serious charges are therefore pending."

Based on the relevant statutory sections cited above, the Commissioner's conclusion is as follows. The data subject is a minor child. Because s/he may be delinquent or may be engaged in criminal acts, the data about him/her are classified pursuant to section 260B.171. However, the next part of the analysis is dependent upon facts the Commissioner does not have. Pursuant to section 260B.171, subdivision 5(a), if the proceedings in this situation are open to the public and the photograph is part of that record, those data are not classified pursuant to section 260B.171, subdivision 5, but, pursuant to the general presumption, are classified pursuant to section 13.82. Section 13.82, subdivision 26, provides that booking photographs are public.

If the proceedings in this situation are not open to the public, the photograph is classified pursuant to section 260B.171, subdivision 5, and is private.

In his comments to the Commissioner, Mr. Haines cited language in section 260B.171, subdivision 5(c), which relates to photographs taken of a child who has been taken into immediate custody in accordance with the laws relating to arrests:

A photograph may be taken of a child taken into custodyhellip;provided that the photograph must be destroyed when the child reaches the age of 19 yearshellip;.Photographs of juveniles authorized by this paragraph may be used only for institution management purposes, case supervision by parole agents, and to assist law enforcement agencies to apprehend juvenile offenders. The commissioner shall maintain photographs of juveniles in the same manner as juvenile court records and names under this section.

This clause does not change the private classification of a photograph but does clarify that photographs of minor children who are taken into immediate custody may be used only for the purposes specified.

Opinion:

Signed:

Dana B. Badgerow
Commissioner

Dated: October 8, 2008