Note: Minnesota Statutes section 144.807 was repealed in 1989. 

This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.

Facts and Procedural History:

On February 17, 1994, the Public Information Policy Analysis Division (PIPA) received a letter from Mr. Mark R. Anfinson, the attorney for the Red Wing Republican Eagle, a newspaper published in Red Wing, Minnesota. In this letter, Mr. Anfinson stated that he was requesting a Commissioner's opinion concerning the classification of certain data maintained by publicly operated ambulance services. He went on to state that his client has, for some time, obtained and published basic data concerning ambulance calls. The data was obtained from the City of Red Wing Fire Department which operates a local ambulance service and responds to requests for ambulance service from the public. Mr. Anfinson described the data obtained by the Eagle as being consistent with the disclosures of data that are required by Minnesota Statutes Section 13.82.

Mr. Anfinson went on to relate that the fire department recently informed his client that ambulance run data would no longer be provided. According to Mr. Anfinson, this change came about due to the advice of an attorney for the City of Red Wing, that Minnesota Statutes Section 144.807 classifies ambulance run data as non-public . Mr. Anfinson stated that on his advice, his client took the position that Section 144.807 does not classify ambulance call data as not public but is intended only to classify the data provided in reports made to the Commissioner of Health. Mr. Anfinson then stated the issue, quoted below, that he was asking the Commissioner of Administration to address in an opinion.

In response to Mr. Anfinson's request, PIPA, on behalf of the Commissioner of Administration wrote to Mr. Steven Perkins, Red Wing City Administrator. The purposes of this letter, dated February 17, 1994, were to inform Mr. Perkins of Mr. Anfinson's request for an opinion, to ask Mr. Perkins or the City's attorney to provide any information or support for the position taken and to inform him of the date by which the Commissioner was required to issue this opinion. A copy of this letter was sent to Mr. George C. Hoff, who was identified as the City's attorney.

On March 4, 1994, PIPA received a response from Mr. Peter M. Schaub, an assistant Red Wing City Attorney. He stated that it was the City of Red Wing's position that ambulance run reports and information contained within them are classified as private data on individuals and may not be released except upon the request of the individual who is the subject of the data. He described the City's support for this position as follows.

While acknowledging that Minnesota Statutes Section 13.82 does govern the release of data collected by municipal police and fire departments, Mr. Schaub pointed out that Minnesota Statutes Section 144.807, which he quoted in its entirety, classifies as private information that operators of ambulance services must report to the Commissioner of Health. He also quoted a provision of the statutory interpretation act, Minnesota Statutes Section 645.26, subdivision 2, that provides when a general and specific provision in the same or another law cannot be reconciled that the special provision shall prevail as an exception to the general provision. Lastly, he quoted Section 13.03, subdivision 9. This provision states that the classification of government data is determined by the law applicable to the data at the time a request for that data is made regardless of the time the data was collected, created or received.

Given those statutory provisions, Mr. Schaub stated that it was the position of the City of Red Wing that while the Section 13.82 and Section 144.807 provisions are not mutually exclusive, their applicability depends on the form of the data requested and the time the request is made. Although information initially collected by the Red Wing Fire Department in the operation of the ambulance service . . . may initially appear to be private or non-public, once it is included in a report pursuant to Minn. Stat. Section 144.807, subd. 1, it becomes 'private data on individuals' and may not be released to anyone except the subject of the data.

Issue:

Discussion:

Minnesota Statutes Section 13.82 was first enacted in the 1981 legislative session. (See Session Laws of Minnesota 1981, Section 36.) This section was enacted after a long negotiation between representatives of the media and of law enforcement about public access to law enforcement data. To facilitate public access and minimize disagreements between law enforcement and the public, the legislature listed in great and specific detail what elements of data maintained by law enforcement agencies, including police and fire departments, have to be made available to the public. Typically, this public data includes data about actions taken by law enforcement agencies and data about people and events involved with those actions. For example, if a member of the public requests services from a law enforcement agency, the following request for service data , as listed in Section 13.82, subdivision 3, are public:

1. (a) the nature of the request or the activity complained of;
2. the name and address of the individual making the request unless the identity qualifies for protection under subdivision 10;
3. the time and date of the request or complaint; and
4. (d) the response initiated and the response or incident report number.

In an instance where a law enforcement agency responds to the public's request for services or takes action on its own initiative, the following response or incident data , as listed in Section 13.82, subdivision 4, are also public:

1. date, time and place of the action;
2. agencies, units of agencies and individual agency personnel participating in the action unless the identities of the agency personnel qualify for protection under subdivision 10;
3. any resistance encountered by the agency;
4. any pursuit engaged in by the agency;
5. whether any weapons were used by the agency or other individuals;
6. a brief factual reconstruction of events associated with the action;
7. names and addresses of witnesses to the agency action or the incident unless the identity of any witness qualifies for protection under subdivision 10;
8. names and addresses of any victims or casualties unless the identities of those individuals qualify for protection under subdivision 10;
9. the names and location of the health care facility to which victims or casualties were taken;
10. response or incident report number;
11. dates of birth of the parties involved in a traffic accident;
12. whether the parties involved were wearing seat belts.

All of the request for service data and most probably items (b), (f), (h), (i), (k) and (l) of response of incident data would be the items of data collected or created by a fire department ambulance service about a fire, accident or criminal event that would generate the most public interest. Minnesota Statutes Section 13.82, subdivisions 1, 3 and 4 state quite clearly that these and the other data elements listed are public data when maintained by a law enforcement agency including a municipal fire department.

Minnesota Statutes Section 144.807 requires operators of licensed ambulance services to report information about those services to the Commissioner of Health. The actual data to be reported is whatever data the Commissioner of Health requires. The reports made to the Commissioner are classified as private data on individuals. This particular section of Minnesota Statutes, first enacted in 1974, has evolved from a statute requiring reports that do not contain identifying data to a statute in which any data on individuals included in the report are classified as private. (See Minnesota Session Laws 1974, Chapter 300, section 1 and Minnesota Session Laws 1989, Chapter 134, section 8.)

Given the statutory treatment, described in Sections 13.82 and 144.807, of data collected, maintained or reported by a municipally operated fire department, Mr. Anfinson asked which one of these provisions controls access to this data by members of the public such as his client. It must be noted that Mr. Anfinson and Mr. Schaub did not provide as part of their submissions either a description or listing of the data that Mr. Anfinson says was previously provided or a copy of the form or a description of the data that must be reported under Section 144.807. For purposes of this opinion, it will be assumed that Mr. Anfinson's client has been receiving data similar to the request for service data and response or incident data as described above. It will also be assumed for purposes of this opinion, that some or all of those data elements are similar to data that is required to be provided in the Section 144.807 reports.

It is very clear that the legislature intends to make certain data about law enforcement activities, including the activities of fire departments, public data. (See Minnesota Statutes Section 13.82, subdivision 1 through 4.) It is also clear that when operators of ambulance services, including municipal fire departments, make reports, under Section 144.807, to the Commissioner of Health about the services they provide that those reports are classified as private. However, there is nothing in those two points of clarity that is necessarily in conflict. What is classified as private by the Section 144.807 provision is the contents of reports made to the Commissioner of Health. In other words, when personnel of a city fire department sit down and fill out the form required by the Commissioner of Health, that form, once completed, is what is classified as private. The fact that this data may have been compiled and brought together from public data, collected and maintained as request for service and response or incident data , or from private medical data does not change the classification of the source data.

All that Section 144.807 classifies as private is the data that appears on the forms that report to the Commissioner of Health. By its terms the section does not classify all data about the provision of ambulance services as private. It merely says when the reports are prepared . . .the reports shall be classified as 'private data on individuals' under the Minnesota government data practices act, chapter 13. As with many data classification issues, it is important to focus, not so much on what classification of data is stated but on what data is being classified. In this instance, the data being classified as private, is data on certain forms. The classification as stated does not say all data about ambulance services provided by a city fire department are not public. What is classified is only the data that appears on the forms.

The City of Red Wing's position is based on reliance on language in the Minnesota Government Data Practices Act that states that the classification of certain data is determined by the law applicable to the data at the time a request for access to the data is made regardless of the time the data was collected created or received. (Minnesota Statutes Section 13.03, subdivision 9.) This provision was enacted by the legislature for the purpose of harmonizing changes that it may make over time to the treatment of data.

The language in subdivision 9 grew out of the legislative reaction to the case of Annandale Advocate v. City of Annandale 435 N.W. 2d 24 (Minn. 1989) and is a legislative attempt to state a policy that when the legislature changes the classification of a given set of data that it intends that data, no matter when it was collected or created, to have the classification that is presented in the most recent legislative enactment. (See Minnesota Session Laws 1991, Chapter 319, section 2.) In the case of its response to the Annandale case, the legislature was attempting to ensure through a series of amendments, including the Chapter 319, section 2 amendment, that the treatment of data associated with public employee disciplinary actions be treated uniformly no matter when the data associated with the disciplinary action was created or collected. For example, the legislature wanted data about disciplinary actions created or collected in 1988 treated the same as data about disciplinary actions created or collected in 1992.

The City of Red Wing's interpretation of Section 13.03, subdivision 9 would establish the proposition that data, clearly and specifically classified as public at the time of its collection or creation, can become not public just because a government agency replicates the same or comparable data in a report that is classified as not public. This interpretation clearly suggests that if a member of the public asks for access to the request for services or response or incident data before the comparable data is inserted by the City into a report to the Commissioner of Health, the classification of the data is public. However, merely because the City prepares the health department report those data would be not public.

To agree with that interpretation would seriously injure the Data Practices Act data classification system that rests firmly on the policy that the legislature and not government agencies controls classification of all government data. (See Minnesota Statutes Section 13.03, subdivision 1.) Acceptance of the City's position would mean that data can be classified by an agency's preparation of a form and not by legislative action. In a worst case scenario a city, that received a request from the public for public request for service data or response or incident data , could change the classification of that data to private merely by delaying its response to the public's request until after a Section 144.807 report was generated.

Acceptance of the City's position could mean that other elements of data described in subdivisions 2, 3 and 4 of Section 13.82, would become not public because some of this data, once reported to the Bureau of Criminal Apprehension, become private criminal history data under Minnesota Statutes Section 13.87. An interpretation of Sections 13.82 and 144.807 that reaches a result that harmonizes the public access requirements of section 13.82 with the privacy requirements of section 144.807 is that the data identified as public data in Section 13.82 continues to be public no matter if similar data is subsequently reproduced and made a part of a section 144.807 report.

Opinion: