July 25, 1995; Scott County
7/25/1995 10:14:43 AM
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 citizen who requested this opinion and the response from the government entity with which the citizen disagrees 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 June 26, 1995, PIPA received a letter dated June 22, 1995, from Mary Britton Clouse. In her letter, Ms. Clouse requested that the Commissioner assist her in obtaining government data from the Scott County Sheriff's Department, hereafter Sheriff. In a subsequent telephone conversation with PIPA staff, Ms. Clouse indicated that she desired an advisory opinion regarding her dispute with Scott County over access to data. In response to Ms. Clouse's request, PIPA, on behalf of the Commissioner, wrote to William Nevin, Scott County Sheriff. The purposes of this letter, dated June 28, 1995, were to inform Sheriff Nevin of Ms. Clouse's request, to ask him or the Sheriff's attorney to provide information or support for the Sheriff's position, and to inform him of the date by which the Commissioner was required to issue this opinion. On July 10, 1995, PIPA received a response from Susan McNellis, Assistant Scott County Attorney. A summary of the detailed facts surrounding this issue is as follows. Attached to Ms. Clouse's request were copies of five letters documenting her correspondence with Scott County officials, all relating to her attempts to gain access to data. In the first letter, dated May 18, 1995, Ms. Clouse wrote to Thomas Harbinson, Scott County Attorney, requesting access to, all photographs and videotapes taken as evidence in the investigation of animal mistreatment/cruelty in which 69 diary cows were starved to death last spring to which [citizens] pled guilty. This evidence was documented in [Scott County Deputy's] report of 4/22/94 (ICR #94011374). I inspected all of the above requested records when I met with you on June 14, 1994. You told me at that meeting that the photographs and video tape would be available to me as soon as the case had been concluded...The sentencing order was filed on February 23, 1995. In her letter to Mr. Harbinson, Ms. Clouse also stated that she contacted the Sheriff's office on May 1, 1995, and was told that the photographs were releasable for $10 each and the cost of the videotape was uncertain. Ms. Clouse related that the Sheriff's office called later to say they would not release any of the materials until the County Attorney's office made a decision about their availability. Ms. Clouse added in her letter that the County Attorney's office was to call her but did not. She recounted that she then called the prosecuting attorney for the particular case and left a message asking him to return the call. Ms. Clouse stated that her call was not returned. In the second letter, dated May 30, 1995, Ms. McNellis responded to Ms. Clouse's May 18, 1995, letter and stated, Our office does not oppose the release of the materials you seek, after the appeal period has expired, which is today's date, May 30, 1995...You can make arrangements to obtain those items and the costs involved by contacting the Scott County Sheriff's Department. In the third letter, dated June 7, 1995, Ms. Clouse wrote to Sheriff Nevin and included a copy of her May 18, 1995, letter. In her correspondence to Sheriff Nevin, Ms. Clouse requested the data referenced in the May 18, 1995, letter. In the fourth letter, dated June 9, 1995, David Einertson, Chief Deputy, Scott County Sheriff's Office, wrote to Ms. Clouse and advised her that the Scott County Sheriff's Office is the agency which retains custody of all investigative data and information. He further stated, I am declining to release either the photographs or videotape to you because I am of the opinion that the items are not public data. One of the factors in my decision is that the videotape and photos are clearly offensive to common sensibilities, as described in MN Stat. 13.83, subd. 5. In the fifth letter dated June 14, 1995, Ms. Clouse wrote again to Sheriff Nevin, recounting her communications with Scott County officials, and again requested the photographs and videotape, citing the reasons she believed the data are public. At the time Ms. Clouse communicated with the Commissioner, she had received no response from Sheriff Nevin. In Ms. McNellis' response to Ms. Clouse's opinion request, Ms. McNellis stated, The responsible farmers pled guilty to cruelty to animals charges and the time for appeal has expired. Thus, the photographic evidence is part of the case evidence now classified as inactive investigation data, which is usually public data. In her letter, Ms. McNellis went on to provide graphic descriptions of some of the photographs and stated, Given the graphic and detailed depictions of the loathsome, repugnant, and grotesque situation, it is clear that the Scott County Sheriff's Office is correct in its decision to withhold the data from publication.
Issue:
In her request for an opinion, Ms. Clouse asked the Commissioner to address the following issues:
Discussion:
There appears to be no dispute that the data in question are inactive investigative data.
Investigative data are classified in Minnesota Statutes Section 13.82, subdivision 5: Inactive investigative data is public unless the release of the data would jeopardize another ongoing investigation or would reveal the identity of individuals protected under subdivision 10. Section 13.82, subdivision 5, also states, photographs which are part of inactive investigative files and which are clearly offensive to common sensibilities are classified as private or nonpublic data, provided that the existence of the photographs shall be disclosed to any person requesting access to the inactive investigative file. In this situation, the Sheriff, as stated by Ms. McNellis, is asserting that because the photographs and videotape sought by Ms. Clouse are clearly offensive to common sensibilities, those data are classified as nonpublic data and therefore, are not available to members of the public. It is apparent from the language in Section 13.82, subdivision 5, that a law enforcement agency has the authority to make a determination that photographs which are part of an inactive investigative file are clearly offensive to common sensibilities. Once that determination is made, the photographs with clearly offensive content are classified as private or nonpublic data. However, if a law enforcement agency makes such a determination, the agency must consistently treat the photographs as clearly offensive. In other words, it makes no sense that a law enforcement agency would treat the photographs as public at one point in time, and treat them as not public at another point in time. Ms. Clouse states that on June 14, 1994, she viewed all the photographs and the videotape now in dispute. At that time, she apparently was advised by the Scott County Attorney that the data would be available to her as soon as the case concluded. In her May 30, 1995, letter, Ms. McNellis, of the County Attorney's Office, related that the case had, indeed, become inactive and that Ms. Clouse could arrange to obtain the data by contacting the Sheriff's Department. Then, in the June 9, 1995, letter from the Sheriff's Office, Ms. Clouse was informed that the photographs and videotape were not public data, because the Sheriff had determined that the data were clearly offensive to common sensibilities. The Sheriff's determination is problematic for two reasons. First, Ms. Clouse has already had access to the data. Given that she viewed all of the photographs and the videotape on June 14, 1994, it appears Scott County did not, at that time, consider those data to be clearly offensive to common sensibilities. Further, since the Sheriff's response does not address the fact that the data have already been treated as public, it is not clear on what basis, if any, Scott County is relying to abruptly alter the classification of the data. Therefore, the Commissioner must conclude that because the Sheriff has already treated the photographs and videotape as public data, those data remain public data. The second reason the Sheriff's determination is problematic is that Ms. Clouse had twice previously (in June of 1994 and in May of 1995) been informed by the County's legal advisor that the data would be available to her when the case became inactive. Furthermore, in May of 1995, the Sheriff's Office advised Ms. Clouse that the data would be available to her for a price. The clear message communicated to Ms. Clouse by Scott County officials was that she could gain access to the data once the criminal case for which the data were collected became inactive. When the County's legal advisor states that certain data will be available to the public upon a criminal investigation becoming inactive, a member of the public ought to be able to rely on those statements. An additional issue relating to the nature of the responses from Scott County is that they were not in concert with the clear Legislative intent behind the requirements placed on government entities in Section 13.03 that relate to the handling of requests for access to public data. For instance, given that Ms. Clouse had to make requests to both the County Attorney's Office as well as the Sheriff's Office, it does not appear, in this situation, that the Sheriff is keeping data in such an arrangement and condition as to make those data easily accessible for convenient use. (See Section 13.03, subdivision 1.) In addition, given that the Sheriff took approximately 5 weeks, from the time of Ms. Clouse's first request for access to the photographs and videotape, to notify her that the data were not public, it does not appear that the Sheriff responded to Ms. Clouse's request in an appropriate and prompt manner. (See Section 13.03, subdivision 2.) Finally, it is clear the Sheriff did not notify Ms. Clouse, either orally at the time of her request or in writing as soon after that time as possible, that the photographs and videotape are classified as other than public data. (See Section 13.03, subdivision 3.) Opinion:Based on the correspondence in this matter, my opinion on the issues raised by Ms. Clouse are as follows:
Signed:
Elaine S. Hansen
Dated: July 25, 1995
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Law enforcement data
Photographs/videotapes (See also: Law enforcement - Booking photos)
Photographs
