Facts and Procedural History:

On November 3, 2004, IPAD received a letter from Greg LaFond, City Administrator for the City of Luverne. IPAD required clarification from Mr. LaFond, which he provided on December 1, 2004. Mr. LaFond asked the Commissioner to issue an advisory opinion regarding the Rock County Auditor/Treasurer's Office's response to a request for access to the County's written data practices procedures, as required under Minnesota Statutes, section 13.03, subdivision 2(b). Mr. LaFond requested the same data from Rock County and the Rock County Sheriff's Department. The Commissioner addresses the issues involving the latter two entities in Advisory Opinions 05-001 and 05-003.

In response to Mr. LaFond's request, IPAD, on behalf of the Commissioner, wrote to Gloria Rolfs, Rock County Auditor-Treasurer and responsible authority. The purposes of this letter, dated December 6, 2004, were to inform her of Mr. LaFond's request and to ask him to provide information or support for the County Auditor-Treasurer's position. On December 21, 2004, IPAD received a response from Donald R. Klosterbuer, Rock County Attorney, on behalf of the County, the County Auditor-Treasurer's Office and the County Sheriff's Department.

A summary of the facts follows. In his opinion request, Mr. LaFond stated that the City had attempted, unsuccessfully, to obtain a copy of the Rock County Auditor/Treasurer's Office's public data access procedures.

In his response to the Commissioner, Mr. Klosterbuer stated that the County has consistently maintained a policy and practice of complying with Minnesota Statutes, Chapter 13. Mr. Klosterbuer described efforts the County has taken to comply with Chapter 13, both before and subsequent to Mr. LaFond's opinion request. He also stated:

The County has not adopted any single source data practices policy and, in particular, has not specifically adopted the concise and specific written procedures apparently contemplated by Minnesota Statutes section13.03, subd.2. When the County first became aware in early November of the initial complaint filed by [Mr.] LaFond, [Mr.] Oldre contacted your office in regards to the same. . . . .

Since that time, County administration has undertaken a concerted effort to bring the County into compliance with written requirements of the statute. . . . .

More importantly, we would also indicate that the County has consistently complied with the provisions of Minnesota Statutes Chapter 13 as relates [sic] to the provision of public data. I do not have any recollection of an instance where my office has been advised by any party of the County's failure to provide the data requested. Based on the same, it is our office's belief that the County, and all of its officials, have been in substantive compliance with the substantive provisions of Minnesota Statute [sic] Chapter 13 even if [the] County may not have been in technical compliance with the written requirements. While we certainly recognize that the 'written form requirements' of the statute have legitimate purposes, we do believe that substantive compliance with the intent of the law is perhaps paramount to 'technical concerns'.

Issue:

In his request for an opinion, Mr. LaFond asked the Commissioner to address the following issue:

Is the Rock County Auditor/Treasurer's Office in compliance with Minnesota Statutes, Chapter 13, if it has not prepared the public access procedures required pursuant to section 13.03, subdivision 2(b)?

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Discussion:

Minnesota Statutes, section 13.03, subdivision 2 (a), states: [t]he responsible authority in every state agency, political subdivision, and statewide system shall establish procedures, consistent with this chapter, to insure that requests for government data are received and complied with in an appropriate and prompt manner.

Minnesota Statutes, section 13.03, subdivision 2 (b), states:

The responsible authority shall prepare public access procedures in written form and update them no later than August 1 of each year as necessary to reflect any changes in personnel or circumstances that might affect public access to government data. The responsible authority shall make copies of the written public access procedures easily available to the public by distributing free copies of the procedures to the public or by posting a copy of the procedures in a conspicuous place within the government entity that is easily accessible to the public.

The language in section 13.03, subdivision 2(b), was adopted during the 1999 Legislative Session and went into effect on January 1, 2001. It states clearly that all government entities must create, and update annually, procedures relating to public access to data. The Commissioner acknowledges the County's efforts to comply with the requirements of Chapter 13. However, according to Mr. Klosterbuer, Rock County is working on, but has not yet adopted its public access procedures. Therefore, the County is not in compliance with Chapter 13.

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Opinion:

Based on the facts and information provided, my opinion on the issue raised by Mr. LaFond is as follows:

The Rock County Auditor/Treasurer's Office's is not in compliance with Minnesota Statutes, Chapter 13, because it has not prepared the public access procedures required pursuant to section 13.03, subdivision 2(b).

Signed:

Dana B. Badgerow
Commissioner

Dated: January 7, 2005

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