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:

For purposes of simplification, the information presented by the citizens who requested this opinion and the response from the government entity with which the citizens disagree are presented in summary form. Copies of the complete submissions are on file at the offices of PIPA and are available for public access.

On February 27, 1995, PIPA received a letter from Mr. Charles W. Wolter and Mr. Antonio J. DeAntoni, in which they described their efforts to gain access to certain accounting data of the Bloomington Fire Department (BFD) which they believe are maintained by the City of Bloomington (City.) Specifically, Mr. Wolter and Mr. DeAntoni stated that they had asked the City for access to Bloomington Fire Department cancelled bank checks. According to Mr. Wolter and Mr. DeAntoni, they

...had not been granted access to all of the checks issued by the Bloomington Fire Department for much of the period 1994 through 1989 and no access to checks for the years 1988 and prior. The reason given was because the checks and records were lost or destroyed. A check with the First National Bank indicates that they have at least the last seven years of checks on file and possibly longer.

They also said that they asked the City to obtain copies of the missing checks from the bank in order to provide them with access to the data, and according to Mr. Wolter and Mr. DeAntoni the city manager denied the request ...stating that these are records of the Bloomington Fire Department and not subject to...[Minnesota Statutes Chapter 13].

In response to Mr. Wolter's and Mr. DeAntoni's request, PIPA, on behalf of the Commissioner, wrote to Mr. Mark Bernhardson, Bloomington City Manager. The purposes of this letter were to inform Mr. Bernhardson of this opinion request, to provide a copy of the request to him, to ask Mr. Bernhardson or the City's attorney to provide information or support for the City's position, and to inform him of the date by which the Commissioner was required to issue this opinion.

On March 13, 1995, PIPA received a response, via facsimile transmission, from Ms. Sheila Happe, Associate City Attorney. In her response to the first issue, Ms. Happe stated that ...the records of the City of Bloomington Fire Department are subject to Minnesota Statutes, Chapter 13; however, the records of the separate entity, the Membership of the Bloomington Fire Department (Membership) are not subject to [Chapter 13]. Ms. Happe provided some information about the relationship between the City and the Membership, and the City and the Bloomington Fire Department Relief Association (BFDRA.) Ms. Happe also stated that some of the monies paid by the City to the Membership are placed in the general fund of the BFDRA. Apparently the Bloomington Fire Department, the Membership of the Bloomington Fire Department, and the Bloomington Fire Department Relief Association are three distinct entities which have entered into various agreements between and among one another.

According to Ms. Happe, the City ...funds the acquisition of equipment, maintenance of trucks and stations, uniforms, and other necessary expenses.... including the provision of Worker's Compensation coverage for the volunteer firefighters as part of its budget for a fire department. In addition, the City makes contributions to the BFDRA ...special fund to provide a service pension to the volunteer firefighters as required under Minnesota Statutes, Section 69.772, Subd. 3(1995). The BFDRA is a separate entity from the City and has its own Articles of Incorporation.... It appears that the Membership has established the BFDRA as a means to provide retirement benefits for its members. (See Minnesota Statutes Chapter 317A.)

Ms. Happe explained that the portion of the City fire department's budget that is not spent as described above is

...for personnel services. Historically, the City has entered into an arrangement each year with the Membership to provide fire suppression services and selected fire protection programs to the City....The Membership, which has earned these monies through services rendered, decides by vote as to how the funds are to be spent....The Membership votes...to place any balance of the money remaining...into a fund to provide severance payments for firefighters who terminate their service with the BFD. This money is placed in the general fund of the BFDRA.

Ms. Happe further stated that [t]he Membership is separate from the City. It must be kept in mind that the firefighters are volunteer residents of the City, not employees....the Membership maintains its own checking account to spend the monies it receives from the City as it deems appropriate and the Membership signs its own checks from that account. The City obviously may not sign checks for an entity separate from the City.

In addition, according to Ms. Happe, [t]he City's records of the BFD are certainly subject to Chapter 13....However, the records of the Membership are not...as these records are not City records or government records....Records of how the Membership, a separate entity, chooses to spend the monies it receives for providing fire suppression services and fire protection program services are not public data.

In response to the second issue, Ms. Happe referred to the portion of Mr. Wolter's and Mr. DeAntoni's opinion request which stated that they had not been provided access by the City ...to all of the checks issued by the Bloomington Fire Department.... Ms. Happe stated that the checks in question are ...checks issued by the Membership of the BFD.... Ms. Happe stated that ...Mr. Wolter reviewed many of the checks issued by the Membership...when the BFD chief voluntarily provided these records to Mr. Wolter for his inspection.

Ms. Happe further stated that

...the 'lost or destroyed' checks that Mr. Wolter refers to are Membership checks and the City is unable to provide those checks....They are checks issued by the Membership and are issued from its own accounts. Mr. Wolter may certainly request the Membership to provide those records, but the City has no authority to request those checks from First National Bank where the Membership's checking account is located...The City has no obligation to reconstruct records that the Membership has lost....

In conclusion, Ms. Happe stated that [a]ll records relating to the City's payments for fire trucks, equipment, maintenance, personnel services, fire department relief association contributions are subject to [Chapter 13].... She stated that the City had provided Mr. Wolter with access to all of the public records he has requested in this matter.

Issues:

Discussion:

It appears, from documents provided to the Commissioner by both the requesters and the City, that the City has a fire department, established by City ordinance. The main function of this department is to acquire and maintain firefighting equipment and stations. The City contracts with the Membership to supply personnel who use the City's equipment and facilities to provide the fire suppression and prevention services. The City pays the Membership for these services. According to the Agreement Between the Membership of the Bloomington Volunteer Fire Department and the City of Bloomington, a copy of which Ms. Happe submitted, the City may examine the Membership's ...books, records, documents, and accounting procedures.... The City's position is that within the meaning of the definitions of government entities which are subject to Minnesota Statutes Chapter 13 (Section 13.02, subdivisions 11, 17 and 18), the Bloomington Fire Department is subject to Chapter 13, but the Membership is a separate entity that is not subject to Chapter 13.

In order to address these issues, it is necessary to examine the definition of government data contained in Chapter 13, the Minnesota Government Data Practices Act. Section 13.02, subdivision 7, states that government data are ...all data collected, created, received, maintained or disseminated by any state agency, political subdivision, or statewide system regardless of its physical form, storage media or conditions of use. (Emphasis added.)

In their opinion request, Mr. Wolter and Mr. DeAntoni indicated that they requested data that the City maintains about the Bloomington Fire Department. In its response, the City stated that the request to the City was for data that are not under the City's jurisdiction, but are instead the Membership's data. It is possible that there is some confusion as to just what data Mr. Wolter and Mr. DeAntoni sought access. Given that it appears that at least three entities are involved in some aspect of the City's provision of firefighting services, some confusion is not surprising.

Apparently, Mr. Wolter and Mr. DeAntoni are attempting to gain access to data the City maintains which relate to firefighting services provided by the City, either directly or through contracts, and have phrased their requests as requests for access to data about the Bloomington Fire Department. It also appears that they may reasonably, if perhaps incorrectly, have assumed that the data they requested are government data which the City has created, received, or maintains. It is possible that the City's own actions have contributed to that assumption or expectation. Ms. Happe, in her letter to the Commissioner, referred to three meetings in which she and the fire chief met with Mr. Wolter in order to provide him with access to City andMembership data. If the City is involved in meetings in which citizens are provided access to data which are not City data, it is understandable that some confusion may result regarding the status of those data.

If Mr. Wolter and Mr. DeAntoni sought access to data that are maintained by the Membership, but not maintained by the City, then that request is outside the scope of this opinion. If the request was for data that are maintained by the BFDRA, but are not maintained by the City, then that request is also outside the scope of this opinion. (There is an on-going dispute concerning the status of data which are maintained by the BFDRA, but are not maintained by the City. In Advisory Opinion 94-043, the Commissioner said that the BFDRA is an entity subject to Chapter 13.)

However, if the request was for data that the City does or should maintain, the status of the source of the data is not relevant. The definition of government data makes it clear that if the City collects or receives data, those data are government data. In Advisory Opinion 95-012, which also involved the City, the Commissioner emphasized that, regardless of the source, data which the City maintains are government data, and unless otherwise classified, are public, pursuant to Section 13.03.

The City's agreement with the Membership includes a provision that authorizes the City to gain access to the Membership's records. The City relies on the Membership to provide firefighting services. In light of these facts, it is reasonable to conclude that the City obtains and maintains data concerning the Membership. If, for the sake of argument, the Commissioner accepts the City's position that the Membership is not an entity subject to Chapter 13, it does not alter the reality that to the extent that data about this separate entity are collected or generated by the City, the data are government data.

Certainly, given that the City makes payments to both the Membership and the BFDRA, the data on checks written by the City are accessible to the public. If the data are on checks written by the Membership or the BFDRA, then those are outside the City's control, unless the City has obtained copies of those checks. If the City does maintain those data, there is no indication that they are classified as anything other than public, and therefore the City is obligated to provide access to the data it maintains.

As to Issue two, apparently at least some of the data in question are recoverable from the bank, according to correspondence between the City Manager and Mr. Wolter. The question then is whether the City has an obligation to recover the data it can recover, in order to provide the public with appropriate access. The answer to this question is dependent upon whether or not the data requested are data which the City does or should maintain, but which were lost or destroyed. The Commissioner has addressed this issue in previous Advisory Opinions, 94-035 and 95-012. If the cancelled checks are the City's government data then the City has an obligation to restore the data, if the data were not properly disposed of, pursuant to the Records Management Act. (See Minnesota Statutes Section 138.163, et.seq.) If the data at the bank are retrievable, and are the City's data, then retrieval from the bank is the simplest way for the City to restore the data.

Opinion:

Based on the correspondence in this matter, my opinion on the issues raised by Mr. Wolter and Mr. DeAntoni is as follows:

1. As to Issue 1 , the City of Bloomington Fire Department is a government entity subject to Minnesota Statutes Chapter 13. The City has an obligation to provide access to all public data it maintains regarding City firefighting services, regardless of whether the provider of the service or the data is the Bloomington Fire Department, the Membership of the Bloomington Fire Department, the Bloomington Fire Department Relief Association or any other entity.
2. As to Issue 2 , the City has an obligation to recover records which were mislaid or destroyed in order to provide public access to those records, if the City has not properly disposed of the data pursuant to Section 138.17, and if the data actually are retrievable.

Signed:

Elaine S. Hansen
Commissioner

Dated: April 5, 1995