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Advisory Opinion 98-044

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:

All reports and summaries of a special MPCA inspection of Koch Refining Company, conducted in April 1997.
All transcripts of approximately three dozen interviews of Koch employees taken by the MPCA during a six-month investigation in 1997. (MPCA officials have confirmed that Koch officials were present during most if not all of these interviews, that the sessions were taped and the tapes transcribed, and that the transcripts have been provided to the Environmental Protection Agency.)
Any briefing papers, summaries, or other written records of the 1997 investigation prepared for MPCA staff members.
All documents associated with negotiations between the MPCA and Koch that resulted in a $6,900,000 penalty, and corrective actions agreed to in a stipulation between the parties and signed on May 18, 1998.
All correspondence in the MPCA's files concerning Koch, from January 1, 1997 to the present, related to water quality and hazardous waste, including but not limited to information about wastewater treatment and hazardous waste management.

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:

Pursuant to Minnesota Statutes Chapter 13, did the Minnesota Pollution Control Agency respond in a timely fashion to a request by the Star Tribune for access to data?
Did the Minnesota Pollution Control Agency violate the Star Tribune's rights under Minnesota Statutes Chapter 13 if it did not cite the statutory basis for denying the request?

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:

The reporters who contacted the MPCA were informed that the investigative file was not public and would not be available for public review until the investigation was closed. As a result, the reporters did not request review of this file but instead reviewed files related to cleanup [sic] of aboveground storage tank spills and air quality issues [Commissioner Larson wrote that those files were not part of the active investigation].

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:

I understand that [MPCA Public Information Office staff] has had some telephone conversations with you concerning the fact that we were recently made aware of a provision in the state data practices law that appears to restrict the release of information in our files more than we had previously thought. [The letter referenced Minnesota Statutes Section 181.932.]...

We have since alerted the Department of Administration of this situation and have asked for urgent resolution at the policy level by them.

In the meantime, we have no option but to freeze the Koch investigation file (as well as other company files that may contain employee identity as described above) until we can put in place a means to be able to comply fully with the law....

We recognize your interest in the files and also that your request has been on hold for some time now. I understand that as an interim solution to your desire for access to certain information in the files, [MPCA Public Information Office staff] is attempting to set up a meeting for you with staff here to more narrowly define the documents in which you have an interest and then perhaps to have those files expunged of employees names and any other pertinent information that might relate to the statute mentioned above....

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:

The letter listed the statutory basis for the MPCA's decision not to release certain documents falling within the scope of the request. The MPCA noted that it had recently responded to a request for an Advisory Opinion from the Commissioner of Administration filed by an attorney representing Koch employees regarding the scope of Minn. Stat. 181.932, and that the MPCA would not be releasing information potentially within the scope of that statute until it had received direction from the Commissioner of Administration.

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:

Regarding the Star Tribune's request(s) for access to data made prior to July 25, 1998, because of lack of documentation, the Commissioner cannot determine whether the Minnesota Pollution Control Agency's response was timely (per Minnesota Statutes Chapter 13). However, regarding the July 25, 1998, request, the MPCA's response was timely.
Regarding the Star Tribune's request(s) for access to data made prior to July 25, 1998, because of lack of documentation the Commissioner cannot determine whether the MPCA violated the Star Tribune's rights under Chapter 13 regarding the requirement to cite the statutory provision upon which a denial of access is based. However, regarding the July 25, 1998, request, the MPCA did cite the statutory basis for denial and therefore did not violate the Star Tribune's rights.

Signed:

Elaine S. Hansen
Commissioner

Dated: September 25, 1998