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June 2, 2003; Minnesota Department of Public Safety
6/2/2003 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:On May 5, 2003, IPAD received a letter from Trish Van Pilsum, a reporter for Fox 9 News/KMSP-TV. In her letter, Ms. Van Pilsum asked the Commissioner to issue an advisory opinion regarding her access to certain data the Minnesota Department of Public Safety maintains. Upon IPAD's request, Ms. Van Pilsum sent additional information which IPAD received on May 9, 2003. IPAD, on behalf of the Commissioner, wrote to Rich Stanek, Commissioner of the Department, in response to Ms. Van Pilsum's request. The purposes of this letter, dated May 12, 2003, were to inform him of Ms. Van Pilsum's request and to provide information or support for the Department's position. On May 19, 2003, IPAD received a response, dated same, from Laurie Beyer-Kropuenske, the Department's Data Practices Compliance Official. A summary of the facts is as follows. In a letter dated March 18, 2003, Ms. Van Pilsum wrote to Mr. Stanek: Following our verbal request of February 25, 2003, Fox 9 News/KMSP-TV is now making a formal written request of a videotape of a pursuit by the Minneapolis police department and the Minnesota state patrol on March 28th 2002 resulting in the arrest of Geralyn Mornson. We believe this is public data under Minnesota Statute 13.82, Subdivision 2 (c) and Subdivision 6 (d) as data, documenting pursuit... In a letter dated March 21, 2003, Deputy Commissioner Sara Schlauderaff responded to Ms. Van Pilsum's request. She stated: ...As you are aware, Judge Catherine L. Anderson issued a protective order on March 20, 2003, which directs the Minnesota Department of Public Safety-State Patrol not to release the videotape until further order of the court... In a letter dated April 1, 2003, Ms. Beyer-Kropuenske wrote to Ms. Pilsum. She stated: ...Judge Catherine L. Anderson lifted her protective order yesterday, which directed the Minnesota Department of Public Safety-State Patrol not to release the videotape. As you know, the Department initially refused your oral request for a copy of the videotape under MN Stat. 13.82 Subd. 7 - active criminal investigative data. The Department's position is that the data are not response/incident data under MN Stat. 13.82 Subd. 6(d) for two reasons. First, subdivision 6(d) makes the existence of a pursuit public data and not data that represents/details the actual pursuit. Additionally, the Minnesota State Patrol was not responding to a request for service from the public nor did they initiate action on their own initiative, which are elements of response/incident data. The State Patrol's involvement was for assistance from a local law enforcement agency. Active criminal investigative data under MN Stat. 13.82 Subd. 7(c), becomes inactive when all appeals have been exhausted. Ms. Mornson has 90 days during which to withdraw her guilty plea.... Issue:In her request for an opinion, Ms. Van Pilsum asked the Commissioner to address the following issue:
Discussion:In analyzing Ms. Van Pilsum's question, it is helpful to review some of the basic principles behind the operation of section 13.82: (1) the general presumption that all data are public unless otherwise classified applies to data that law enforcement agencies collect and maintain; (2) the Legislature made it expressly clear that active criminal investigative data are to be classified as confidential or protected nonpublic - however, once an investigation is inactive, most data the agency was withholding are public pursuant to the general presumption; and (3) even if an agency is withholding certain data because they are active criminal investigative data, the agency must release the data elements listed in subdivisions 2 (arrest data), 3 (request for service data), and 6 (response or incident data). In her comments to the Commissioner, Ms. Beyer-Kropuenske reiterated the Department's position: The Department has continued to deny Ms. Van Pilsum's request for the videotape as active criminal investigative data. Ms. Van Pilsum's [sic] argues in her request for an advisory opinion that the plain meaning of MN Stat 13.82 Subd. 6(d) makes all data related to a pursuit public. The Department disagrees. Specifically, it is the Department's position that subdivision 6(d) makes the existence of a pursuit public data, and not data that represents/details the entire pursuit. In responding to any request under this subdivision, the Department should release whether or not a pursuit occurred. Additionally, the Department believes that subdivision 6(d) covers data that results from requests for service from the public or actions initiated by an agency's own initiative. The State Patrol's involvement in this pursuit was at the request of a local law enforcement agency for assistance. As our correspondence with Ms. Van Pilsum's [sic] reflects, the Department continues to maintain the videotape as active criminal investigative data under MN Stat 13.82 Subd. 7(c). Unless the defendant, Ms. Mornson withdraws her guilty plea, the videotape will become inactive investigative data (public) 90 days after her plea was entered. Since Ms. Mornson entered her plea on March 31, 2003, the Department will be able to release the videotape after June 29, 2003. The Commissioner first would like to address Ms. Beyer-Kropuenske's assertion that the videotape is not public because it is not response or incident data as that term is defined in section 13.82, subdivision 6. Response or incident data are collected and/or created in response to a request for service. Ms. Beyer-Kropuenske notes that section 13.82, subdivision 3, defines request for service data as data created or collected by law enforcement agencies which documents requests by the public for law enforcement services. She argues that a local law enforcement agency requested the State Patrol's assistance, not a member of the public. The Commissioner respectfully disagrees with Ms. Beyer-Kropuenske's assertion. Section 13.82, subdivision 3, states that data so classified are created and/or collected when a member of the public requests law enforcement services. It is the Commissioner's opinion that the Legislature's choice of the term public is meant to be all-inclusive rather than restrictive. Thus, Ms. Beyer-Kropuenske cannot argue that the videotape is not response or incident data because the request for service came from a local law enforcement agency. However, the fact that the Commissioner disagrees with this assertion does not mean he agrees with Ms. Van Pilsum's position. The Department's main argument is that the videotape of the pursuit was created as part of the criminal investigation against Ms. Mornson. Ordinarily, such data would be treated as confidential or protected nonpublic until the one of the following three events occurred: (1) the agency or prosecutorial authority decided not to pursue the case; (2) the applicable statute of limitations expired; or (3) the person convicted exhausted all rights of appeal or those rights expired. The situation here is complicated by the fact that one of the data types listed as public in subdivision 6 of section 13.82 is any pursuit engaged in by the agency. Ms. Van Pilsum argues the videotape constitutes the pursuit the Legislature contemplated when it enacted section 13.82, subdivision 6. When the Legislature adopted the language in subdivision 6 of section 13.82, the Commissioner is confident that few, if any, law enforcement agencies were creating data by using videocameras in squad cars. Thus, it seems highly unlikely the Legislature knowingly intended for a videotape of a pursuit to fit the definition of any pursuit engaged in by the agency. Furthermore, while the tape presumably contains data stemming from the pursuit, it also may contain data that do not necessarily relate to the pursuit. For these reasons, the Commissioner is inclined to agree with the Department and opines that it may protect the videotape until Ms. Mornson's opportunity to appeal has expired. To conclude otherwise would be unreasonable. The Commissioner notes, however, that he intends to raise this issue with Legislature. Opinion:Based on the facts and information provided, my opinion on the issue that Ms. Van Pilsum raised is as follows:
Signed:
Brian J. Lamb
Dated: June 2, 2003 |
