In her letter, Ms. Storaasli appears to argue that because Ms. Johnson never received approval from the Personnel Services Department to submit the memo to X, Ms. Johnson, rather than X, is the subject of the memo. She argues that if X is not the subject of the data, he is not entitled to have access to the memo. In support, she cites Matter of Kokesch. In that case, the court examined Minnesota Statutes Section 13.79, Department of Labor and Industry Data, and found that because the employees who filed complaints were the subjects of the data, any data identifying them were private and not available to the employer. Ms. Storaasli's reference to this case is not entirely clear. First, the data X seeks are not Department of Labor and Industry data. Second, X is not an employer seeking data which identify employees who have made complaints about him.

Contrary to Ms. Storaasli's assertion, it would be very difficult to prove that X is not the subject of the data in the memo. First, the memo is addressed to him. Second, his behavior is the clear reason for its issuance. Third, it specifically requests that he discontinue engaging in certain behavior which Duluth apparently finds unacceptable. Finally, given the fact that Ms. Storaasli offered, more than six months after the original request, to provide a copy of the memo to X, it appears that even she now considers X to be the subject of the data.

In her response, Ms. Storaasli also argues that, ...the data were created as a proposal which was specifically not approved for existence and authorization. Based on Keezer v. Spickard...the data did not become 'government data' as it was not authorized to be recorded in some physical form.... Again, her reliance on this case, as applied to X's situation, is not entirely apparent. The holding in Keezerdoes limit the definition of government data in Chapter 13 but not in the way suggested by Ms. Storaasli. In Keezer, the Court of Appeals found that data held only in the mind of a government official are not government data and that data are government data, for purposes of Minnesota Statutes Chapter 13, when the data are recorded somewhere other than in the human brain. According to Keezer, as soon as Ms. Johnson transferred the information from her brain into computer storage or onto a piece of paper, it became government data. The physical existence of the memo clearly makes it government data.

Issues one and two as raised by Mr. Nickitas pertain to the time frame within which government entities are required by Minnesota law to respond to requests for access to government data. This issue has been addressed in several advisory opinions, most recently in Commissioner's Advisory Opinion 94-058. In that opinion, the Commissioner stated:

In this situation, X made his first request for a copy of the memo in a letter dated July 15, 1994. Having received no response, he made his second request in a letter dated October 13, 1994. By not responding until after December 20, 1994, Duluth obviously did not comply with the time requirements as set forth in Minnesota Statutes Section 13.04, subdivision 3.

In issues three and four, Mr. Nickitas questioned whether destruction or alteration of the memo would constitute a violation of Minnesota Statutes Chapter 13. In her response, Ms. Storaasli stated that the memorandum had not been destroyed or altered. Since X has now received a copy, it appears this is so. However, it is worth noting, for educational purposes, that destruction and alteration of government data could create implications for any government entity. These issues were discussed in Commissioner's Advisory Opinion 94-011. In that opinion, the Commissioner stated:

In this instance, Mr. Nickitas makes no claim that the memo had been altered and it clearly had not been destroyed. However, as discussed in the aforementioned Advisory Opinion, it is important for government entities to be aware of possible implications resulting from any such actions.

Opinion: