Facts and Procedural History:

Mr. Weissman initially called the state Bureau of Criminal Apprehension (BCA), a part of Public Safety, to ask how he could obtain information about a specific individual. In addition to the individual's name, Mr. Weissman knew that the individual had been convicted of a crime and had been incarcerated in the Hennepin County Workhouse. The person he spoke to at the BCA told him that criminal history data was not accessible without the individual's birth date. She then referred him to the Department of Corrections as a possible source of the birth date information.

Mr. Weissman contacted the Department of Corrections. Someone at Corrections told him that its data were arranged so that a birth date was needed to access criminal history data. Corrections staff suggested that he contact two other government agencies. Mr. Weissman was not able to get birth date information from one of those agencies. He did not mention what response, if any, he got from the other agency. Mr. Weissman then decided to ask for an opinion from the Commissioner to raise the issue as to whether the requirements of the two state agencies that citizens provide birth dates of individuals in requesting access to criminal history data about those individuals violate the statutes that provide the public with access to government data and specific access to public criminal history data. (The full text of the issues raised by Mr. Weissman is reproduced in the Issue section below.)

In his request for an opinion, Mr. Weissman offered arguments as to why Public Safety should not require the public to provide the date of birth of an individual when the member of the public requests access to the criminal history data made public by Minnesota Statutes Section 13.87, subdivision 2. It was Mr. Weissman's position that, when Public Safety requires the public to provide the birth date of an individual about whom the member of the public is seeking criminal history data, Public Safety is in violation of two statutory provisions. Mr. Weissman argued that Public Safety's position violates the provision in Minnesota Statutes Section 13.03, subdivision 1, that requires government entities to keep their records containing government data conveniently accessible to the public. He also argued that this requirement effectively contravenes the legislative purpose in classifying certain criminal history data as public.

Mr. Weissman also presented what he called a sub-issue concerning the classification of birth dates in the government data held by Public Safety. It was Mr. Weissman's position that Public Safety, by refusing to release birth date data to him, was effectively treating birth date data as private. It was his opinion that the provisions of Minnesota Statutes Section 13.87, subdivision 2, should lead to a conclusion that birth date data are part of the identifying data that are made public by that section.

In response to Mr. Weissman's request, PIPA, on behalf of the Commissioner, wrote to Mr. Michael Jordan, the Commissioner and responsible authority for Public Safety. The purposes of this letter, dated July 22, 1994, were to inform Commissioner Jordan of Mr. Weissman's request, to ask Commissioner Jordan or Public Safety's attorney to provide any information or support for Public Safety's position and to inform him of the date by which the Commissioner was required to issue this opinion.

On August 5, 1994, PIPA received a response from Commissioner Jordan. Commissioner Jordan summarized the position of Public Safety as follows. He quoted the provisions of the 1993 amendment to Minnesota Statutes Section 13.87 that provide that certain criminal history data are public and that require the BCA to provide public access to that data at no charge through a computer monitor located at the offices of the BCA. Commissioner Jordan described how the BCA was implementing that requirement. The computer monitor provides the public access to certain data in the BCA's criminal history system. A person seeking access to that system must provide the name, sex and date of birth of the individual whose public data, if any, they wish to inspect. Commissioner Jordan pointed out that law enforcement agencies seeking access to criminal history data through criminal justice system terminals must also provide name, sex and date of birth data.

The Commissioner stated that the BCA has established procedures, in compliance with Minnesota Statutes Section 13.03, subdivision 2, to ensure requests are received and complied with in an appropriate and prompt manner. The BCA is quite willing, through the use of the computer terminal to provide access to the public data when the subject of the data can be sufficiently identified. If sufficient identifying data are presented, the person's public record is easily accessible to the public.

It is Public Safety's position that its insistence on a birth date to gain access to the public criminal history data does not subvert legislative intent to have the data public and to provide convenient access to the data. The Commissioner pointed out that the individual about whom Mr. Weissman is seeking data has a common name and that Mr. Weissman is unable to provide sufficient information to form a computer inquiry specific enough to identify the individual record he desires. The Commissioner stated his opinion that the BCA records are contained in an arrangement and condition as to make them easily accessible for convenient use as is required by Minnesota Statutes Section 13.03, subdivision 1.

According to the Commissioner, if Mr. Weissman could provide sufficient identifying information, specifically name, date of birth and sex, the public criminal history records are easily accessible. Mr. Weissman simply does not possess sufficient 'identifying information' to access the record he desires. Just because Mr. Weissman cannot gain access does not mean the criminal history records are not arranged in a condition to make them easily accessible for convenient use. They are simply not convenient for Mr. Weissman's use because he does not have sufficient information to narrow his inquiry.

On the issue of whether all birth date data in BCA files are being treated as private data, the Commissioner offered the following. For those individuals within the fifteen year period during which some criminal history data are public under Section 13.87, subdivision 2, the birth date is part of the identifying data that are made public by that section. For all other data about individuals contained in the BCA files, the date of birth is private data. In the case of the individual about whom Mr. Weissman is seeking information, Public Safety cannot, according to the Commissioner, know whether the data about that individual are private or public until the birth date is provided. The computer search will then determine whether the data about an individual with the name and birth date provided are private or public data.

Issues:

Discussion:

The Minnesota legislature has stated a very strong public policy position favoring public access to government data. The presumption that government data are public, as contained in Minnesota Statutes Section 13.03, subdivision 1, is one reflection of that position. However, the language, also contained in Section 13.03, subdivision 1, that requires responsible authorities to keep their records in such an arrangement and condition so that the data in them are easily accessible for convenient use by the public expands on the strong public policy favoring public access to government data. This language places an affirmative duty on government agencies to design data storage, data retrieval, records storage, records retrieval and filing systems in such a way that those systems will assist and not hinder the public in gaining access to government data. This particular language has been a part of legislatively enacted public policy in this state since 1941.

The language concerning convenient use that now appears in Section 13.03, subdivision 1, was first enacted by the legislature in 1941 and made a part of Minnesota Statutes Section 15.17, the states Official Records Act . (See Session Laws of Minnesota, 1941, Chapter 553, Section 4.) Virtually all of the modern record-keeping and management information systems, both manual and electronic, that have come into existence in the state in the last 50 years have been subject to the requirement that they be designed and implemented so that the data contained within them will be easily accessible for convenient use by the public.

The language of Section 13.87, subdivision 2, makes it clear that the legislature intends that the criminal history data made public by that section be available to the public in as convenient a fashion as possible. The section requires a public access computer monitor and access to criminal history data at no charge to the public. The real issue implicit in both these statutes and in Mr. Weissman's inquiry is whether requiring the public to provide both the name and birth date of an individual about whom the member of the public wants to receive public criminal history data effectively deprives the public convenient access to the public criminal history data. Although the BCA also asks for data about the sex of the individual, that is a relatively easy requirement to meet. The name of the individual will usually indicate the gender. Even if it does not, there are only two possibilities as the BCA files contain only two gender identifiers, male or female.

Public Safety's position is that Mr. Weissman could gain convenient access to the criminal history data if he had the birth date of the individual he is seeking. Mr. Weissman's position is that requiring a birth date means he is not getting convenient access to the data. He is getting access to only that data which is convenient for Public Safety to provide him. Webster's New World Dictionary, College Edition, copyright 1968, defines convenient as follows: favorable to one's comfort; easy to do, use or get to; causing little trouble, work, etc; handy to use. The Public Safety requirement that the public provide a birth date before the Department will search for public data is clearly not easy for the public to do . It does not make the public data easy to get to or handy to use .

Public Safety's position is that all persons seeking access to criminal history data using terminal access to the computer file, including law enforcement agencies, must provide name, date of birth and sex to gain access. However, at one time it was the practice of Public Safety to provide name only access to the much larger driver license file. It is possible in this circumstance that Public Safety has not exhausted all of the possible methods available, particularly with a computerized file, to provide the public with convenient access to the public criminal history data.

A common method used to resolve the dilemma presented by Mr. Weissman's request is to search the file using name only and to indicate to the requestor how many individual records exist using that name. To the extent that those files fit within the criteria of what is public under Section 13.87, the actual number of individual records that are possible matches to the request can be reduced so that the public could then view the files to determine whether the individual they are seeking is found in any of those individual records. This method, as an example, would come much closer than the BCA's current method of compliance with statutory requirement that files be easily accessible for convenient use by the public.

It is understandable, given the fact that the legislature only recently, in 1993, classified the data described in Section 13.87, subdivision 2 as public, that Public Safety would try to find the simplest and least costly way to respond to the legislative requirement. However, the plain words of Sections 13.03 and 13.87, and the history of the convenient access language of Section 13.03, indicate that the Department must provide convenient access to the public criminal history data. Compliance with the two statutory sections cited means providing access to the criminal history data with a name only access capability. Members of the public who request access and can provide date of birth information may be able to get quicker access. However, in the long run all requestors, including those who can provide only name and sex, would, if another access method is implemented, get the convenient access required by Minnesota Statutes Section 13.03, subdivision 1.

Mr. Weissman raised the additional issue of whether Public Safety's requirement that the public provide a birth date effectively treats all birth date data in the criminal history file as private. What he seems to be saying is that birth dates in the public criminal history identifying data must always be public even if a birth date is not associated with the name of an individual. However, it is not clear from Mr. Weissman's letter whether or not he put his perception to the test by asking Public Safety to provide to him the birth dates of all individuals, sharing the same name as the individual about whom he was seeking information.

Public Safety has responded to this issue by stating that classification of birth date data depends on whether a given date of birth is part of the identifying data made public by Minnesota Statutes Section 13.87. Public Safety's position is an accurate statement of the effect of the language, in Section 13.87, that classifies some criminal history data as public and the balance of the data as private. If the data concerns an individual who is within the window of 15 years following the discharge of a sentence for a felony offense, then the birth date data are public. If the data concerns an individual who is not in the 15 year window, the birth date data are private.

Opinion: