September 25, 1998; Minnesota Pollution Control Agency
9/25/1998 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, except for any data classified as not public, are available for public access.On July 31, 1998, IPA received a letter dated July 29, 1998, from Mark Anfinson, an attorney representing the Star Tribune. In his letter, Mr. Anfinson requested that the Commissioner issue an opinion regarding the newspaper's access to data maintained by the Minnesota Pollution Control Agency (MPCA). IPA, on behalf of the Commissioner, wrote to Peder Larson, Commissioner of the MPCA, in response to Mr. Anfinson's request. The purposes of this letter, dated August 10, 1998, were to inform him of Mr. Anfinson's request and to ask him to provide information or support for the MPCA's position. On August 19, 1998, the Commissioner received comments dated same from Commissioner Larson. Attached to Commissioner Larson's comments were copies of several documents that are discussed in this opinion. A summary of the facts as presented by Mr. Anfinson is as follows. In his letter to the Commissioner, he wrote that the Star Tribune requested certain information from the MPCA in March 1998 or shortly thereafter. Mr. Anfinson stated that the newspaper requested the following data:
Mr. Anfinson further wrote that as of the date of his opinion request, the information had not been provided nor had the MPCA given the Star Tribune a written description of the agency's reasons for failing to comply with the request. He added, Although there have been suggestions that the legal basis, at least in part, may be concerns about the application of Minn. Stat. 181.932, subd. 2 (a section of the whistleblower' statute), the newspaper does not know if this is the only reason. (In a recently issued Advisory Opinion, 98-042, the Commissioner discussed other matters regarding data collected by the MPCA in its investigation of the Koch Refining Company.)
Issues:
In his request for an opinion, Mr. Anfinson asked the Commissioner to address the following issues:
Discussion:
Minnesota Statutes Section 13.03 sets forth a government entity's obligations in responding to requests for access to public government data. Regarding the time frame for responding to requests, subdivision 2 of Section 13.03 provides that the entity must respond in an appropriate and prompt manner. Minnesota Rules Section 1205.0300 provides further guidance stating that the entity must respond within a reasonable time. If an entity determines that the requested data are not accessible to the requestor, subdivision 3 of Section 13.03 requires the responsible authority to so inform the requestor either orally at the time of the request, or in writing as soon after that time as possible and [to] cite the specific statutory section, temporary classification, or specific provision of federal law on which the determination is based. Subdivision 3 further states that the responsible authority must provide, in writing, the reason for the denial if the data requestor so requests.
Mr. Anfinson's first question is whether the MPCA responded to the Star Tribune's request in a timely manner. In his comments to the Commissioner of Administration, Commissioner Larson wrote that he disagreed with Mr. Anfinson's assertion that the MPCA had not responded within the statutorily mandated time frame. He stated that the newspaper first contacted MPCA regarding the Koch investigation in September of 1997. Commissioner Larson wrote:
In his comments, Commissioner Larson further stated that the MPCA concluded its investigation on May 18, 1998. He stated, Although the MPCA had not received a formal written request from the Star Tribune to review the investigation file, the MPCA nevertheless began to organize the documents collected as part of the investigation (literally thousands of pages) in anticipation of requests for public review. Commissioner Larson went on to state that on, or about, June 4, 1998, an attorney for Koch contacted the MPCA and raised the possibility that publicly releasing the documents would violate Minnesota Statutes Section 181.932, the whistle-blower statute. Commissioner Larson wrote that on June 16, 1998, the MPCA faxed a copy of the whistle-blower statute to the newspaper.
Commissioner Larson added that the MPCA then sent a detailed letter dated, July 2, 1998, to the newspaper. In this letter, MPCA staff wrote:
Commissioner Larson further wrote that on July 25, 1998, the MPCA received a written request from the Star Tribune to review a variety of information. The MPCA's August 4, 1998, response stated that it would release requested documents with certain exceptions. Commissioner Larson commented on the August 4 letter:
Commissioner Larson also noted that item number 4 of the data Mr. Anfinson asserted was requested in March or shortly thereafter refers specifically to the May 18, 1998, settlement. Therefore, asserted Commissioner Larson, those data could not have been requested until after May 18, 1998. It is difficult to determine with any degree of exactness whether the MPCA complied with the requirements of Chapter 13. The main obstacle is that prior to July 2, 1998, apparently neither the Star Tribune nor the MPCA documented, in writing, any communications concerning the newspaper's initial data request(s). Therefore, in terms of the situation prior to July 25, 1998 (when the newspaper made a request in writing), the Commissioner's knowledge is limited to that provided in Mr. Anfinson's and Commissioner Larson's comments: 1) it is not exactly clear which data the Star Tribune requested and when the newspaper requested the data; 2) it is not exactly clear when the MPCA responded to the request and whether the response included the statutory citation upon which the denial was based; 3) it is clear that the MPCA faxed a copy of the whistle-blower statute to the newspaper on June 16, 1998 (after Mr. Corwin had raised the issue that Minnesota Statutes Section 181.932 might affect the release of the data to the public); 4) it is clear that the MPCA sent a detailed letter to the newspaper dated July 2, 1998, denying access to some of the data based on Section 181.932; the text of the letter also indicates that MPCA staff and Star Tribune staff had verbally discussed how Section 181.932 seemed to impact release of certain information. In this case, primarily because there is no written record prior to July 2, 1998, the Commissioner is unable to determine whether the MPCA responded appropriately to the Star Tribune's data request(s) made prior to July 25, 1998. Alternatively, there is no documentation supporting a proposition that the MPCA did not respond appropriately. The history, which is grounded in the mental recall of both parties, is too muddled. This conclusion illustrates the desirability, particularly in complex and sensitive situations, of requestors making their requests in writing and government entities responding to those requests in writing. Regarding the Star Tribune's July 25, 1998, request, it appears the MPCA's response was timely and appropriate, i.e., the agency responded in a reasonable time and the agency cited the statutory sections upon which it relied to deny access to some of the data. Opinion:Based on the facts and information provided, my opinion on the issues raised by Mr. Anfinson is as follows:
Signed:
Elaine S. Hansen
Dated: September 25, 1998 |