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Advisory Opinion 97-008

February 25, 1997; City of Minneapolis

2/25/1997 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 person who requested this opinion and the response from the government entity with which the person disagrees are presented in summary form. Copies of the complete submissions are on file at the offices of PIPA and, with the exception of any data classified as not public, are available for public access.

On January 3, 1997, PIPA received a letter dated same from J. In the letter, J requested that the Commissioner issue an advisory opinion relating to her/his access to data about her/him from the Minneapolis Police Department. Attached to J's opinion request were copies of three requests to the Police Department from J as well as copies of two responses from the Department. Because the requests from J were undated, PIPA staff contacted J by telephone to determine those dates.

In response to J's request, PIPA, on behalf of the Commissioner, wrote to Jim Moore, Minneapolis Assistant City Attorney. The purposes of this letter dated January 10, 1997, were to inform Mr. Moore of J's request and to ask him to provide information or support for the City's position. On January 21, 1997, PIPA received a response dated January 17, 1997, from Mr. Moore.

A summary of the facts relating to this matter is as follows. In a letter which J alleges was dated October 2, 1996, J wrote to Chief John Laux of the Minneapolis Police Department. (Mr. Laux is the most recent former Minneapolis Chief of Police.) In this letter, J first stated that her/his apartment had been raided in February of 1996. J then wrote, My letter is to request information on whether I am the subject of stored data. Under Minnesota Statutes I have the right to view data gathered on me and to know if I am still the subject of investigation....Also, if the information is considered confidential I have the right to know this also. (J provided to PIPA a copy of a certified mail receipt which indicates a letter was mailed to Chief Laux in Minneapolis on October 2, but the year is obscured. The date on the return receipt is illegible.)

Then, in a letter which J alleges was dated October 18, 1996, s/he wrote to the Minneapolis Chief of Police and asked the following questions: Does the Minneapolis Police Dept. maintain data about me? How is this data classified? If the data is confidential what statute classifies it as such? J again cited Minnesota Statutes Section 13.04 as the basis under which s/he was making the request. J also referred to her/his letter of October 2, 1996, and noted that s/he had received no response. (J provided to PIPA a copy of a receipt for certified mail dated October 18, 1996, which indicates a letter was mailed in Minneapolis to Chief Robert Olson on October 18, 1996.)

Next, in a letter which J alleges was dated October 30, 1996, s/he wrote to Mr. Moore. J wrote, I have enclosed two separate letters that I mailed to the Minneapolis Police Department [sic] requesting information as to whether or not The [sic] Minneapolis Police Dept. maintains data about me. Each letter was received but I wasn't notified as to whether or not I was the subject of stored data. (J provided to PIPA a copy of a return receipt which indicates a letter was received by Mr. Moore's agent on October 31, 1996. The date of the mailing of the letter is unclear.)

In a letter dated November 5, 1996, J received a response from Assistant City Attorney Allison Baskfield. She wrote, There is a police report documenting the [February 1996] execution of a search warrant on your home. That report, along with any other data not classified as 'confidential' is available to you....You can obtain a copy...There is a nominal copying fee.

In a letter dated November 11, 1996, J received a response from Sheila Isaacson, Supervisor of the MPD Criminal History/Records Unit. Ms. Isaacson wrote:

We currently have two reports, listed under your name, in our system....Both reports may be purchased by you for a total cost of $6....Only one case, depending on the outcome of your violation ticket, would be considered public data. In the case from 1993, you were listed as a suspect, and this would not be classified as public data. However, since you are the suspect, showing proper identification, would allow staff to sell you personally a copy of the report.

In his response to the opinion request, Mr. Moore first addressed the issue of a timely response. He first stated that although he is unable to locate [the October 2, 1996] letter in our files, the Department did not respond in timely fashion to J's October 18, 1996, letter. However, Mr. Moore further stated that the response received by J regarding his/her October 31, 1996, letter was timely.

Mr. Moore went on to address whether the responses received by J were deficient in content. Mr. Moore argued that because Minnesota Statutes Section 13.82, subdivision 5, classifies active criminal investigative data maintained by law enforcement agencies as confidential, the MPD was not required to answer J's inquiries about whether s/he is the subject of confidential data. Mr. Moore wrote, The purposes of Minn. Stat. section13.82 would be completely undermined if individuals could, by simply asking, be advised whether or not they are the subject of an active investigation.

Mr. Moore also addressed Ms. Isaacson's November 6, 1996, letter. He wrote:

...[her letter was an] attempt to advise [J] that the full report related to that incident was not available on the public access computer terminal in Room 30, City Hall, because the alleged crime was never solved. Nevertheless, because of its age and status, the Police Department was not currently claiming that it was confidential under Minn. Stat. section13.82, Subd. 5. Thus, access to the report was available upon request.

Issue:

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

Pursuant to Minnesota Statutes Section 13.04, subdivision 3, has the City of Minneapolis Police Department responded appropriately to J's request for access to data about J?

Discussion:

Minnesota Statutes Section 13.04, subdivision 3, states that upon request, an individual shall be informed whether that individual is the subject of stored data and whether those data are classified as public, private or confidential. The individual also has the right to inspect those data, free of charge, and/or may request and be given copies of the data. Subdivision 3 of Section 13.04 also states the government entity must respond to a request within five working days, or notify the data subject that the entity requires an additional five working days in which to respond.

In the present situation, J made at least two written requests for access to data about her/him maintained by the MPD. J specifically asked the following questions: Does the Minneapolis Police Dept. maintain data about me? How is this data classified? If the data if the data [sic] is confidential what statute classifies it as such? Some of the data collected, created, and maintained by law enforcement agencies, such as the MPD, are classified in Section 13.82.

In the first response from the MPD, Ms. Baskfield advised J that a police report existed which documented the February 1996 execution of a search warrant on his/her home. She further wrote, That report, along with any other data not classified as 'confidential' is available to you.

In the second response, one day later, from the MPD, Ms. Isaacson wrote that the Department had two reports listed under J's name. She also stated that both reports could be purchased by J. In addition, she wrote, Only one case...would be considered public data. In the case from 1993, you were listed as a suspect, and this would not be classified as public data. However, since you are the suspect, showing proper identification, would allow staff to sell you personally a copy of the report.

In his response to J's opinion request, Mr. Moore wrote that although Ms. Isaacson's letter was not as clear as it could have been, the collective response given by the City was appropriate and not violative of [J's] rights. In response to J's specific question about whether s/he is the subject of confidential data, Mr. Moore wrote:

Of course, Minn. Stat. section13.82 is designed to exempt the Police Department from answering that very question. If there is in fact an ongoing investigation within the meaning of Minn. Stat. section13.82, subd. 5, that data is confidential....The purposes of Minn. Stat. section13.82 would be completely undermined if individuals could, by simply asking, be advised whether or not they are the subject of an active investigation. Answering the question for individuals who are not the subject of an investigation would lead to the presumption that a refusal to answer the inquiry means that there is an ongoing investigation and enable criminal [sic] to avoid arrest. Thus, it is clear that the police department is within its rights in refusing to answer the question whether or not there is an ongoing investigation.

The Commissioner respectfully disagrees with the conclusion reached by Mr. Moore. Pursuant to Section 13.04, subdivision 3, a person shall be informed whether the individual is the subject of stored data on individuals, and whether it is classified as public, private or confidential. Thus, if J's request to the MPD is regarding whether J is the subject of confidential data, the MPD must answer the question. Section 13.04 is clear on this point. There is no provision in Section 13.82 that relieves any law enforcement agency of its statutory obligation to respond to a request such as J has made.

Therefore, the response from the MPD should have contained the following elements. One, J should have been advised whether s/he is the subject of data maintained by the Police Department. Two, J should have been advised as to the classification of any data about him/her maintained by the MPD. Three, if J is the subject of either public or private data, s/he should be given access to those data; either for the purposes of inspection (free of charge, see Section 13.04, subdivision 3), or in the form of copies (the MPD may charge only for the actual costs of making, certifying, and compiling the copies, see Section 13.04, subdivision 3). Because the MPD's response did not contain these elements, it is the Commissioner's opinion that the response was not appropriate.

Also pursuant to Section 13.04, subdivision 3, government entities must respond to requests for access to data within five working days. Requests must be responded to within five working days. If the entity cannot meet its obligation within those five days, it must so notify the requestor and may then take an additional five working days to respond.

In the present situation, J alleges that s/he made requests for access to data in 1996 in letters dated October 2, October 18, and October 30. While Mr. Moore cannot locate the letter dated October 2, he acknowledged that the MPD did not respond in a timely fashion to the October 18 letter. However, he also stated that the response to the October 30 letter was timely.

There appears to be a dispute regarding the receipt of the October 2 letter. Although the Commissioner received a copy of a letter J allegedly sent to the MPD, Mr. Moore was not able to verify that such a letter was received by the MPD. Furthermore, the additional certified mail information provided by J does not prove that this particular letter was actually mailed and/or received. Given that the receipt of this letter has been placed into question, the Commissioner cannot address the issue of whether the MPD responded within the statutorily prescribed time frame.

In regard to the October 18 letter, Mr. Moore stated it was received on October 21, 1996. He acknowledged the MPD had not responded in a timely fashion and wrote, This letter should have been responded to within the timeframe provided by Minn. Stat. section13.03, but no response was mailed until November 5, 1996. He further wrote, The City conducts routine training of its employees with regard to the requirements of the statute. It is unclear to me why J's letter was not responded to in accordance with statutory requirements. I am requesting that Chief Olson remind his administrative employees about the City's obligations under the law.

In regard to the October 31 letter, Mr. Moore stated that on November 6, 1996, he left a message on J's answering machine advising J that the City maintained police reports and that [J] could view those reports at Room 31, of City Hall and that the Police Records Department would follow-up with him. Mr. Moore added, A letter was sent to [J] by Ms. Sheila Isaacson of the Minneapolis Police Department Records Unit that same day. It is my belief that the City's response to the third letter complies with the requirements of Minn. Stat. section13.04.

In conclusion, the MPD did not respond to the October 18, 1996, letter within the time frame prescribed by Section 13.04, subdivision 3. In addition, although Mr. Moore is correct that a response to the October 30, 1996, letter appears to have been issued to J within the five day deadline, that response was not substantively complete, i.e., J was not provided with the data s/he requested.

Opinion:

Based on the correspondence in this matter, my opinion on the issue raised by J is as follows:

The City of Minneapolis Police Department did not respond appropriately, pursuant to Minnesota Statutes Section 13.04, subdivision 3, to J's request for access to data about her/him.

Signed:

Elaine S. Hansen
Commissioner

Dated: February 25, 1997

Data subjects

Subject's right to know

Informed of existence/classification