Issue:

In his request for an opinion, Captain Roehl asked the Commissioner to address the following issue:

Discussion:

Data collected or created by a law enforcement agency in order to prepare a case against a person, whether known or unknown, for the commission of a crime or other offense for which the agency has primary investigative responsibility are classified at Minnesota Statutes, section 13.82, subdivision 5. These data, criminal investigative data, are not public while the investigation is active. When the investigation becomes inactive, the data become public.

Government data are defined at section 13.02, subdivision 7, as all data collected, created, received, maintained or disseminated by any [government entity] regardless of its physical form, storage media or conditions of use.

The word data is defined as Information, esp. information organized for analysis or used as the basis for a decision. (See The American Heritage Dictionary, Second College Edition, Houghton Mifflin Company, Boston, 1985.)

As part of its investigation, the Brooklyn Park Police Department collected and is maintaining the videotape. The tape is a form of government data because it contains information stored and recorded in a specific medium; as such, it is subject to the requirements of Chapter 13.

As discussed above, section 13.82, subdivision 5, provides that criminal investigative data are not public during the active phase of an investigation. However, those data, with a few exceptions, become public when the investigation is deemed inactive. Thus, if the Police Department is still investigating the crime, the hotel videotape and any copies thereof are not public. When the case is no longer active, the videotape and any copies are public, unless the tape contains any data classified as not public by other provisions in section 13.82.

In his opinion request, Captain Roehl discussed the possible applicability of language in section 13.82, subdivision 5, that classifies as not public those photographs which are part of inactive investigative files that are clearly offensive to common sensibilities. Captain Roehl described the videotape as depicting a near death man being dragged by the waist into a hotel room where he is left to die. The Commissioner discussed the clearly offensive to common sensibilities language in Advisory Opinion 94-030. She wrote:

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.

Thus, if the Police Department determines that the videotape, or portions thereof, is such that it is clearly offensive to common sensibilities, the Department is required to treat it as not public. However, Captain Roehl's description of the contents of the tape does not suggest that the contents are particularly violent in nature.

The Commissioner would also like to address the ownership issue of the original videotape. Although the tape is clearly subject to the requirements of Chapter 13, it is also clearly the property of the hotel. The Commissioner does not foresee any problem with the Department returning the original tape as long as the Department keeps a copy to fulfill its obligations under Minnesota Statutes, section 15.17. Subdivision 1 of 15.17 requires that government entities make and preserve all records necessary to a full and accurate knowledge of their official activities. In this case, assuming the Police Department relied on the contents of the videotape in determining the outcome of the investigation, the Department needs to maintain a copy of the tape.

Opinion:

Based on the facts and information provided, my opinion on the issue raised by Captain Roehl is as follows:

Signed:

David F. Fisher
Commissioner

Dated: October 7, 1999