Issue:

In her request for an opinion, Mr. Magnotta asked the Commissioner to address the following issue:

Discussion:

Pursuant to Minnesota Statutes, section 13.03, subdivision 3(a), an individual has the right to inspect and copy public government data at reasonable times and places. Further, a government entity may not require the requesting person to pay a fee to inspect data.

In his opinion request, Mr. Magnotta explained that, in the past, he and/or his staff took his scanner to the OSS office and scanned images of paper documents into his computer system. The Commissioner, in a previous opinion, described such an act as akin to an inspection of data. In Advisory Opinion 01-086, he wrote:

Pursuant to Minnesota Statutes, Chapter 13, an individual is entitled to inspect and obtain copies of government data. There is no provision, however, in Chapter 13 that provides guidance on how to handle a case in which the requestor uses his/her own scanner to make copies of the data. Therefore, the Commissioner urges a common sense solution. He finds this situation akin to the requestor inspecting the documents. The government entity is not required to provide paper or labor for staff to make the copies. Thus, it does not seem reasonable for the entity to assess any charge. The Commissioner adds, though, that if an individual were to scan an unusually large number of documents, e.g., for days at a time, it seems reasonable for the government entity to recoup some cost for electricity.

The situation currently before the Commissioner, however, is somewhat different; Mr. Magnotta wishes to go to the OSS office, hook up his computer equipment to that of OSS, and make his own copy(s) of certain data free of charge.

In his comments to the Commissioner, Mr. Black made several arguments as to why Mr. Magnotta should not be allowed to gain direct access to the OSS system. It appears Mr. Black's arguments revolve around (1) OSS has authority to charge a fee for the type of access Mr. Magnotta seeks and (2) the type of access Mr. Magnotta seeks will threaten the security of the OSS system.

Mr. Black asserted that Minnesota Statutes, section 336.9-531, subdivision 1, gives OSS the authority to charge Mr. Magnotta a fee. This provision states:

The secretary of state may allow private parties to have electronic access to the central filing system and to other computerized records maintained by the secretary of state on a fee basis, except that: (1) visual access to electronic display terminals at the public counters at the secretary of state's office must be without charge and must be available during public counters hours; and (2) access by law enforcement personnel, acting in an official capacity, must be without charge.

Mr. Black wrote, Under this provision, electronic access is discretionary and it [sic] not an absolute public access right. This fee authority, originally adopted in 1987 and readopted in 2001, is in addition to, and is both recognized by and supersedes certain provisions of [section 13.03]. Upon review, the Commissioner learned that in 1999, the Legislature amended this provision so that the first clause was changed from electronic-view-only access to electronic access. However, Mr. Black provided no information as to whether the language change has any significance, or what OSS intended electronic access to encompass when OSS sought the language change. The Commissioner, therefore, cannot conclude that this provision is meant to cover requests such as Mr. Magnotta has made.

Mr. Black also argued that section 13.03, subdivision 3(b), permits the OSS to charge Mr. Magnotta for gaining accessing to the data. Section 13.03, subdivision 3(b) states:

For purposes of this section, inspection includes, but is not limited to, the visual inspection of paper and similar types of government data. Inspection does not include printing copies by the government entity, unless printing a copy is the only method to provide for inspection of the data. In the case of data stored in electronic form and made available in electronic form on a remote access basis to the public by the government entity, inspection includes remote access to the data by the public and the ability to print copies of or download the data on the public's own computer equipment. Nothing in this section prohibits a government entity from charging a reasonable fee for remote access to data under a specific statutory grant of authority. A government entity may charge a fee for remote access to data where either the data or the access is enhanced at the request of the person seeking access.

Mr. Black argued that because OSS has specific statutory authority, it is not prohibited (as per the last sentence in section 13.03, subdivision 3(b)), from charging a reasonable fee for remote access to data. The Commissioner, however, concludes that the sentence to which Mr. Black refers does not seem to be relevant. Mr. Magnotta is not seeking remote access to data. The term remote access suggests that an individual is working from a computer device or system situated at some distance from but communicating with a central computer. It implies that the individual does not come in direct, physical contact with the central computer. Here, Mr. Magnotta wants to access the data directly from the OSS computers.

Mr. Black also argued that if Mr. Magnotta were to directly connect into the UCC system, the security and integrity of the data would be at risk. Mr. Black wrote:

The UCC system application and database is designed for use by authorized state and satellite office staff. Security and navigation is authorized for staff cleared and trained in the use of the system. For public access, the Direct Access component is designed as a subscription service that permits subscribers to view certain OSS data. This operation is not permitted to penetrate the system's firewall security systems. Mr. Magnotta proposes to be permitted to achieve this system's firewall breach.

Certain data functions are not conducted directly in the database in order to maintain high performance standards. The UCC subscription system is an on-line system. Significant data retrieval operations like the one requested by Mr. Magnotta can have a major negative impact on on-line response time. Our customers demand quick response times. Therefore various data products that must be extracted from the database are produced as batch jobs on off-peak hours. The data Mr. Magnotta is requesting falls into that category and cannot be provided on an on-demand basis.

Multiple outside parties attaching their own equipment to the UCC computer system presents a variety of serious security and performance issues. The equipment could contain viruses that could contaminate the OSS network. Applications that their machines could be running could compromise the OSS network and could disrupt computers [sic] operations or render the system inoperable.

Uncontrolled links by multiple parties presents significant security and performance issues, subjects the data to manipulation and severely undermines the ability of this office to present these documents to the financial world as accurate and valid.

The Commissioner has the following comments. It is clear, pursuant to Chapter 13, that individuals have the right to inspect government data free of charge. However, it is not clear whether the Legislature intended this right to extend to requests such as Mr. Magnotta has made. In other words, does Mr. Magnotta's request constitute an inspection, or is it a type of hybrid between an inspection of data and obtaining copies of data? The Legislature recently has updated a couple of public access provisions so they are meaningful in light of technological advances; however, given Mr. Magnotta's request, it appears other provisions need to be discussed and clarified/revised.

Mr. Black wrote that OSS is meeting its obligations under Chapter 13 because it provides Mr. Magnotta with free inspection of the data and the ability to purchase copies of the data (the copying fee that OSS charges is not the subject of this opinion). Based on this fact, combined with the comments above, the Commissioner is not prepared to conclude, without direction from the Legislature, that Mr. Magnotta's request is a type of inspection to which he is entitled. Another reason for the Commissioner's position is related to the language in section 13.03, subdivision 3(d). When the Legislature adopted this provision, it gave clear direction that, in certain specific cases, when an entity has expended significant funds in developing a database, program, and so forth, involving data that have commercial value, the entity may recoup some or all of the development cost by adding an additional charge to the fee for providing copies of the data. Although the Commissioner is not of the opinion that Mr. Magnotta technically has asked for a copy of data, and doubts, therefore, that this provision applies, the Commissioner believes it is the Legislature's place to determine whether a commercial value charge might apply in a case such as this. (Mr. Black asserted that (1) the data Mr. Magnotta requested have commercial value and (2) the total cost of developing the UCC filing system has been in excess of $2.8 million.)

Finally, the Commissioner is sensitive to Mr. Black's arguments about data and system security. Pursuant to section 13.05, subdivision 5, OSS is required to establish (1) procedures to ensure that data on individuals are accurate, complete, and current and (2) appropriate safeguards for all records containing data on individuals. The UCC system is comprised of vast amounts of data about individuals. With a request such as Mr. Magnotta's, there is a chance that both the data and the system will be compromised. If the Legislature deems that individuals have the right to make their own copies by means of downloading data from a government computer, Chapter 13 will need to be amended so that both parties - the public and the government - are aware of this right/obligation.

Opinion:

Based on the facts and information provided, my opinion on the issue that Mr. Magnotta raised is as follows:

Signed:

David F. Fisher
Commissioner

Dated: October 7, 2002