September 14, 2007; Mahnomen County Treasurer
9/14/2007 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 July 30, 2007, IPAD received a letter dated same, from Jeff Armstrong. In his letter, Mr. Armstrong asked the Commissioner to issue an advisory opinion regarding his right to gain access to certain data from the Mahonmen County Treasurer. IPAD, on behalf of the Commissioner, wrote to Brenda Lundon, Mahnomen County Treasurer, in response to Mr. Armstrong's request. The purposes of this letter, dated August 7, 2007, were to inform her of Mr. Armstrong's request and to ask her to provide information or support for the Office's position. On August 13, 2007, IPAD received a response, dated August 9, 2007, from Ms. Lundon. A summary of the facts as provided by Mr. Armstrong is as follows. In a letter dated June 11, 2007, he wrote to Ms. Lundon: Pursuant to the Minnesota Data Practices Act, I request copies of all documents relating to state county tax assessments on the Shooting Star Casino property belonging to the White Earth Indian Reservation, including but not necessarily limited to relevant correspondence between state/county officials and tribal officials, judicial or administrative determinations of state and county taxation authority, records of all actual tax payments or payments in lieu of taxes by White Earth to the county for aforementioned property, and any relevant formal or informal agreements pertaining thereto between the county and White Earth and/or official accounts of negotiations thereof. In his opinion request, Mr. Armstrong wrote: . . . My request was directed to the Mahnomen County Treasurer, who forwarded it to the county attorney. My request has not been formally acknowledged . . . I have tried on two occasions to contact the Mahnomen County Attorney, but she has not returned my calls. It seems apparent to me that the county is attempting to deny my request for public information without providing any statutory authority for doing so. . . .
Issue:
Based on Mr. Armstrong's opinion request, the Commissioner agreed to address the following issue:
Discussion:
Pursuant to Minnesota Statutes, section 13.03, when a government entity receives a data request from an individual who is not the subject of the data, the entity is required to respond in an appropriate and prompt manner, and within a reasonable time. (See section 13.03, subdivision 2(a), and Minnesota Rules, part 1205.0300.) In responding, the entity must provide the data, advise that the data are classified such as to deny the requestor access, or inform the requestor that the data do not exist. In her comments to the Commissioner, Ms. Lundon wrote: Mr. Armstrong followed up his written request with a phone call about one week after he sent it to me. I recall speaking with him on the phone at that time and acknowledging his request. I informed him that the Treasurer's office only deals with current year information as everything is turned over to the Auditor's office at the end of the year and they are the custodian of the records. . . . I also informed him that we are currently in litigation with the White Earth Reservation over taxation of the Casino property and were advised by our attorneys in handling the case not to give out information regarding it. I also informed him that I had forwarded his request to our County Attorney. My intention in doing that was to have her respond in writing to his request. Approximately one month later, I reminded her about this issue . . . She advised me to respond to him and before I did he called me again. At that time I informed him that the County Attorney and I had spoken and we both agreed that I could not give out the information because of litigation. However, we both also felt that we could not deny him access to the information. Therefore, he could come to our courthouse and view the records to glean the information he required. He then asked me a few more questions regarding the litigation and upon my attorney's advice I told him I could not give out any information. Ms. Lundon's response to Mr. Armstrong is problematic. First, as required under section 13.03, subdivision 3, Ms. Lundon did not provide Mr. Armstrong with the statutory citation upon which her Office is relying to deny access to the data. From her comments, it appears as if the Treasurer's Office may be basing its decision on section 13.39, civil investigative data. This section can be employed only if the chief attorney has determined that a civil legal action is pending. Civil investigative data are confidential/protected nonpublic while the investigation is active. Second, Ms. Lundon appears to have informed Mr. Armstrong that he can inspect the data but cannot get copies of the data; the statutory basis for which is unclear. Generally, when data are classified as confidential/protected nonpublic, members of the public are not allowed to inspect or get copies of the data - both types of access are restricted. Conversely, if Mr. Armstrong can inspect the data, he should be able to get copies of the data. For the reasons stated above, the Treasurer's Office did not comply with Chapter 13 in regard to Mr. Armstrong's request for data. Opinion:Based on the facts and information provided, my opinion on the issue that Mr. Armstrong raised is as follows:
Signed:
Dana B. Badgerow
Dated: September 14, 2007 |
