Facts and Procedural History:

On June 17, 1996, PIPA received a letter dated June 13, 1996, from Roger O'Connor. In his letter, Mr. O'Connor requested that the Commissioner issue an advisory opinion regarding his gaining access to certain data maintained by the St. Paul Technical College, hereinafter College.

In response to Mr. O'Connor's request, PIPA, on behalf of the Commissioner, wrote to Donovan Schwichtenberg, President of the College. The purposes of this letter, dated June 25, 1996, were to inform Mr. Schwichtenberg of Mr. O'Connor's request, and to ask him or the College's attorney to provide information or support for the College's position. On July 11, 1996, PIPA received a response dated July 10, 1996, from Steven Gunn, Assistant Attorney General, Office of the Minnesota Attorney General.

A summary of the facts surrounding this matter is as follows. In a letter dated November 30, 1995, (a copy of which was attached to Mr. O'Connor's opinion request) Mr. O'Connor wrote to Lori Brandmire at the College. In that letter he wrote, I have been told that all teaching vacancies /or positions that come up are posted. Would you send to me a copy of the vacancy and or posting that existed when a Mr. Leonard Livingston, Math Teacher, retired.

In his opinion request, Mr. O'Connor wrote, They did not respond but, a Mary Ann Bernard of the State Office of the Attorney General, a lawyer, did respond and state that I was attempting to do discovery unilaterally and directly with 'my' client....

To his opinion request, Mr. O'Connor also attached a copy of a letter, dated December 28, 1995, from Ms. Bernard to Roger Peterson and Scott Higbee, attorneys representing Mr. O'Connor in a lawsuit against the College. In that letter, Ms. Bernard wrote:

Mr. Gunn asserted that at the time of Mr. O'Connor's request for access to data, a lawsuit was pending which Mr. O'Connor had brought against the College. Mr. Gunn also stated that upon receipt of Ms. Bernard's December 28, 1995, letter, Mr. O'Connor's attorneys did not object to this request. Mr. Gunn further stated, In fact, the next day Mr. O'Connor's attorneys directed Mr. O'Connor not to contact any employee of the State or the St. Paul Technical College who might have information relevant to his claims. (Mr. Gunn attached a copy of Mr. Higbee's December 29, 1995, letter to Ms. Bernard. Mr. Higbee wrote, In response to your letter dated December 28, 1995 in this matter, we have directed Mr. O'Connor to have no contact with any employee of the State or Technical College who might have information relevant to his claims. )

Mr. Gunn then stated that because the litigation between Mr. O'Connor and the College has concluded, Mr. O'Connor is now free to renew his data practices request. Mr. Gunn added, Had he renewed his data practices request, or had his attorneys made such a request while litigation was pending, they would have learned that neither the State nor the St. Paul Technical College has in its possession the data requested by Mr. O'Connor.

Mr. Gunn then argued that the December 28, 1995, letter to Mr. O'Connor's attorneys did not deny Mr. O'Connor access to data. He wrote:

Mr. Gunn then cited an unpublished Minnesota Court of Appeals opinion stating, The facts regarding Mr. O'Connor's opinion request closely parallel the facts in an unpublished opinion in which the Minnesota Court of Appeals determined that a government entity had not denied access to data when it requested a litigant to make data/discovery requests through counsel.

In summation, Mr. Gunn wrote:

Issue:

Discussion:

In regard to the first argument, Mr. Gunn stated, Under the Minnesota Rules of Professional Conduct, the College's attorney could not contact Mr. O'Connor directly about his data request, and was ethically prohibited from doing through her client what she could not directly do herself....These ethical obligations take precedence over any conflicting provision of the Minnesota Government Data Practices Act. Minn. Stat. section 13.30 (1994). The College's position appears to be that because the College's attorney (acting in her professional capacity) used, collected, stored, and/or disseminated the data requested by Mr. O'Connor, those data should be treated as Section 13.30 data and, therefore, must be handled pursuant to the Minnesota Rules of Civil Procedure and the Minnesota Rules of Professional Conduct. Taken a step further, the College's position is that when a person who is in litigation with a government entity makes a request to that entity for any public data, he/she must make the request through her/his attorney and the entity must deliver its response through its own attorney.

Section 13.30 provides:

Before proceeding with an analysis of the College's argument, it is important to discuss the significance of treating data held by a government entity as Section 13.30 data. When a government entity determines that certain data are subject to Section 13.30, the data in question are no longer government data for the purposes of Chapter 13. The government entity is no longer required to follow any of the requirements set forth in Chapter 13 that relate to government data. In other words, none of the data classifications would apply to those data, none of the rights of access would apply to persons requesting those data, none of the rights of subjects of data would apply to persons requesting those data, and none of the duties of responsible authorities would apply to government entities maintaining those data. Given that a Section 13.30 claim has such an extreme result, it is important that such a claim be critically examined.

Because of this result, the Legislature saw fit to include some limiting language in the final clause of Section 13.30. This provision states clearly that Section 13.30 must not be construed to relieve any responsible authority, other than the attorney, from his/her duties and responsibilities under Chapter 13. Therefore, any claim made by a government entity that certain data are subject to Section 13.30 must also be examined to determine if the claim will relieve responsible authorities of their duties under Chapter 13.

Upon a close examination of the College's position, the Commissioner respectfully disagrees that the data requested by Mr. O'Connor can be treated as Section 13.30 data. For one thing, the data requested by Mr. O'Connor, had they been in existence, would not have been generated by the College's attorney acting in her professional capacity; rather, the data in question, job postings for a vacant position, would have been created and, presumably, maintained by the College's human resources department. Therefore, to treat them as Section 13.30 data would discharge the College's responsible authority who is responsible, among other things, for handling requests for access to public data, from her/his duties in regard to responding to Mr. O'Connor's request and any other requirements of Chapter 13. Based on the language in the last clause of Section 13.30, such a result is plainly prohibited.

Mr. Gunn's second argument is that the College's handling of Mr. O'Connor's request was appropriate because the College never actually denied Mr. O'Connor access to the data; rather Mr. O'Connor was informed he could not make his request directly to the College and would have to go through his attorney(s). Mr. Gunn takes the position that the December 28, 1995, letter from Ms. Bernard to Mr. Peterson was not a denial but rather a statement of the College's procedures for gaining access to data. He cites Section 13.03, subdivision 2, which states, The responsible authority in every state agency, political subdivision, and statewide system shall establish procedures, consistent with this chapter, to insure that requests for government data are received and complied with in an appropriate and prompt manner.

There are a number of problems with the College's position. First there is a question as to whether the process described in the December 28, 1995, letter is actually that which is consistently applied to all situations in which the data requestor is involved in litigation with the College, or whether this process was created on an ad hoc basis in relation to Mr. O'Connor's particular situation. The statutory requirement that government entities create and use procedures reflects a legislative decision that persons requesting public data be advised by government entities, on a consistent basis, what steps must be followed to gain access to public data. Thus, it appears Section 13.03, subdivision 2, requires government entities to establish procedures which are consistently applied to each and every like-request for data.

From Mr. Gunn's comments, it is impossible for the Commissioner to determine whether the directions given to Mr. O'Connor's attorney represent those which are being consistently applied by the College when a person involved in litigation requests access to government data. If the College has created such procedures, they were not provided to the Commissioner. Based on the language of Section 13.03, if the procedures set forth in the December 28, 1995, letter were created on an ad hoc basis in regard to Mr. O'Connor's specific situation, it is inappropriate for the College to suggest that they represent the procedures required by Section 13.03. Ad hoc creation of procedures would not communicate to Mr. O'Connor, or anyone else, how, on an ongoing basis, he can gain access to the College's public data.

However, even if the procedures outlined in the letter do represent those which are being consistently applied by the College, there are additional problems. The procedures required by Section 13.03 must be developed consistently with the language of Section 13.03. (See Minnesota Rules Section 1205.0300, subpart 3.) Section 13.03 states, among other things, that upon request to a responsible authority, a personshall be permitted to inspect and copy public government data at reasonable times and places, and upon request, shall be informed of the data's meaning. The procedures described in Section 13.03, subdivision 2, are meant to ensure that a person'srequest is complied with in an appropriate and prompt manner.

Nowhere in Section 13.03 does it state that a government entity can require a person to make requests through his/her attorney. Nowhere in Section 13.03 does it state that a government entity can require a person to hire an attorney, and incur the resulting expense, so that the attorney can make requests on behalf of the person. Thus, given that the language in Section 13.03 describes a process by which an personcan make requests directly to a government entity, it seems reasonable to conclude that the Legislature did not contemplate a government entity creating procedures which would effectively result in the following: that a request for access to public data by a person would trigger a letter to the person's attorney advising the attorney to advise his/her client that the client could make requests for public data only through her/his attorney. Such a result contradicts the Legislative policy behind Chapter 13 of making public government data easily and promptly accessible to members of the public. (See Section 13.03.) Therefore, Mr. Gunn's assertion that the procedures described in the December 28, 1995, letter are appropriate because they are sanctioned by Section 13.03 is not justified.

To augment his argument that the College never actually denied Mr. O'Connor's request, Mr. Gunn cites an unpublished opinion of the Minnesota Court of Appeals, Nieszner v. Minnesota Department of Jobs Training, No. C9-94-2422 (Minn. Ct. App. July 3, 1995) (unpublished). Before discussing this unpublished opinion, it is important to note that pursuant to Minnesota Statutes Section 480A.08, subdivision 3 (c), unpublished opinions of the court of appeals are not precedential.

However, the case cited by Mr. Gunn is distinguishable. In the Niesznercase, an individual brought suit against a state agency and, at some point thereafter, requested information from the agency. The agency's attorney responded by stating that the individual should make requests for information through his attorney. The individual did not object, nor did his attorney contact the agency and state that the agency could correspond directly with the individual. In addition, neither the individual nor his attorney submitted a discovery request. The court found there were no genuine issues of material fact regarding the data practices claim. The court wrote, Had appellant made his objection clear, or had he made a discovery request, and then been denied access to data, then he might have had a claim.

Mr. Gunn wrote:

While the Commissioner acknowledges some similarities between the Nieszneropinion and Mr. O'Connor's situation, a significant difference does exist; although Mr. Nieszner may not have objected to the state agency's response, Mr. O'Connor, in requesting an advisory opinion, has made known his objection to the College's response. Therefore, because the court opined that Mr. Nieszner might have had a data practices claim had he made his objection clear, and Mr. O'Connor has voiced his opposition, then it is possible Mr. O'Connor has a data practices claim. Thus, the value of citing the Niesznercase is severely diminished.

In conclusion, it is the Commissioner's position that the College's act of requiring Mr. O'Connor to make his data requests through an attorney was, in fact, a denial of Mr. O'Connor's request. Minnesota Statutes Chapter 13 describes in great detail the process and procedures by which a person can make requests for access to government data and nowhere is it written that a person can be required to make his/her requests through an attorney. The implication of accepting the College's position, as set forth by Mr. Gunn, is that when a person is involved in a legal dispute with a government entity, s/he can no longer gain access to data in the fashion so precisely prescribed by the Legislature in Chapter 13. That person would be required to hire an attorney or resort to asking other parties to request the data on his/her behalf.

Opinion:

Signed:

Elaine S. Hansen
Commissioner

Dated: August 14, 1996