Facts and Procedural History:

On September 12, 2002, IPAD received a letter from Mark R. Anfinson, on behalf of his client, the Olivia Times-Journal newspaper. In this letter, Mr. Anfinson asked the Commissioner to issue an advisory opinion regarding his client's right to gain access to certain data maintained by the City of Bird Island Police Department.

In response to Mr. Anfinson's request, IPAD, on behalf of the Commissioner, wrote to Deb Lingl, City Clerk. The purposes of this letter, dated September 16, 2002, were to inform her of Mr. Anfinson's request and to ask her to provide information or support for the City's position. On October 16, 2002, IPAD received a response from Jon C. Saunders, attorney for the City. A summary of the facts of this matter follows.

According to Mr. Anfinson, a reporter for the Times-Journal was told by Bird Island Police Chief Dale Kennedy that he had received complaints about certain thefts and identified the person accused of these crimes. He also stated that someone from the police department had investigated these accusations. The City initially told the reporter that she could not have a copy of the incident report because a minor's name was in the report. When she asked for a redacted copy of the incident report, Chief Kennedy responded that he would not provide her with any information because the incident was still under investigation.

In a letter to the reporter, dated July 31, 2002, Mr. Saunders stated that the data the reporter was seeking were related to an ongoing open investigation file and were therefore not public. Mr. Saunders stated: I do not believe that your description of the documents you are seeking fit into any of [the exceptions that would make the data public under Minnesota Statutes, section 13.82.]

In a letter dated August 2, 2002, Mr. Anfinson wrote to Mr. Saunders: [i]t is difficult for me to believe that the police department did not collect any of the information referred to in [section 13.82,] subdivisions 2, 3, and 6 (for example, the time, date, and place of the action, or the identities of individual officers involved).

Mr. Saunders replied to Mr. Anfinson on August 2, 2002:

I have talked to Chief Kennedy concerning what information he has. After describing what information he has in his file, it is my opinion that he never took any actions to cite, arrest, incarcerate or otherwise substantially deprive an adult individual of liberty. In addition, it is my opinion after talking with Chief Kennedy, that he was never requested to provide law enforcement services to the public. Finally, it is my opinion, after talking with Dale Kennedy, that he was never asked to respond to a request for service by a member of the public. Therefore, it would appear that my original letter was correct when I indicated the information the Olivia Times Journal was requesting was investigative data created by a law enforcement agency in order to perform its duties, and therefore was not public data. [Emphasis his.]

In his opinion request, Mr. Anfinson stated that it was his position that under the circumstances of this case, particularly in light of Mr. Saunders' acknowledgment that some information was collected, at least a portion of it must have constituted public law enforcement data pursuant to the subdivisions cited. In other words, not all of the data gathered by the police department could be purely investigative data, given the express provisions of subdivisions 2, 3, and 6 in section13.82.

In his response to the Commissioner, Mr. Saunders stated: [t]he City of Bird Island has no desire to violate Minn. Stat. section13.82 by disclosing investigative data in violation of that Act or failing to disclose non-protected information. I simply made a decision on behalf of the City, which indicated that the information held by the City was investigative in nature and there was no information that was public data.