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Advisory Opinion 97-014

April 1, 1997; City of Northfield

4/1/1997 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, with the exception of any data classified as not public, are available for public access.

On February 3, 1997, PIPA received a faxed letter dated January 30, 1997, from Evelyn Hoover, the Managing Editor of the Northfield News, a newspaper. In her letter, Ms. Hoover requested that the Commissioner issue an opinion regarding the newspaper's access to certain data maintained by the City of Northfield.

In response to Ms. Hoover's request, PIPA, on behalf of the Commissioner, wrote to Scott Neal, Administrator of the City of Northfield. The purposes of this letter dated February 5, 1997, were to inform him of Ms. Hoover's request and to ask him or the City's attorney to provide information or support for the City's position. On March 3, 1997, PIPA received a faxed letter dated same from Mr. Neal.

A summary of the facts surrounding this matter is as follows. Ms. Hoover wrote that the newspaper received information that a letter had been sent by Rice County Attorney Jeffrey Thompson to Northfield Chief of Police Ron Pieri. Ms. Hoover stated, The letter is critical of the Northfield Police Department's handling of a recent murder investigation. She further wrote that, via telephone, the newspaper had sought access to a copy of the letter. Ms. Hoover stated that the City Attorney, Maren Swenson, in responding to the request, advised the reporter that the letter was protected under Minnesota Statutes Section 13.33 as correspondence and that either Mr. Thompson or Mr. Pieri would need to release the letter to the newspaper. Ms. Hoover stated that newspaper made the same request to Mr. Thompson who cited the same statute.

The whole of Mr. Neal's response to Ms. Hoover's opinion request is as follows:

I am writing to reaffirm the City of Northfield's position to [staff of the office of the Commissioner] that documents requested recently by the Northfield Newsrelating to correspondence between the City's Chief of Police and the Rice County Attorney's Office are not public documents pursuant to the Minnesota Data Privacy statutes. On behalf of the City of Northfield, I request a judgement from your office in support of the City's position.

Issue:

In her request for an opinion, Ms. Hoover asked the Commissioner to address the following issue:

What is the classification of the data contained in a letter from the Rice County Attorney to the City of Northfield Police Chief regarding the City's handling of a recent murder investigation?

Discussion:

The Commissioner has not been provided with a copy of the letter referred to by Ms. Hoover; however, the balance of the opinion will proceed under the assumption that the letter does exist.

Pursuant to Minnesota Statutes Section 13.03, government data are public unless otherwise classified by statute, temporary classification (see Section 13.06), or federal law. The City of Northfield, alleging that the data contained in the letter in question are classified as private pursuant to Section 13.33, has refused to release a copy of the letter. Section 13.33 states, Correspondence between individuals and elected officials is private data on individuals, but may be made public by either the sender or the recipient. The Commissioner assumes the City of Northfield has invoked Section 13.33 by determining that the Rice County Attorney is the elected official and that the Northfield Chief of Police is the individual.

The Commissioner addressed an issue of similar nature in Advisory Opinion 97-002. She wrote:

If his logic [that Section 13.33 applies to internal governmental communications between staff and any elected official] were accepted, then it would be possible that no communication between any government employee and any elected official would ever be public, unless one of the parties agreed to its release (or the data were disclosed in a public meeting.) Such a result would have the effect of nullifying much of Section 13.03, the purpose of which is to make government data available to the public to the greatest extent possible. The Commissioner cannot support that result. Government employees are not operating as individuals when they prepare documents, reports and other data as part of their jobs as public servants, but instead are acting as agents of government entities, and ultimately as agents of the citizens of Minnesota.

[The City's] interpretation would also create disparate treatment for data prepared by government employees depending upon whether the recipient of the data were an elected official or not. The Commissioner cannot agree that is the result intended by the Legislature when it enacted Section 13.33. The only reasonable interpretation of Section 13.33 is that it applies to correspondence between members of the public and elected officials.

As further support that Section 13.33 ought not to be interpreted as the City proposes, in 1995 the Legislature enacted Section 13.646, which provides that legislative and budget proposals, communicated between and among the Governor's office and any state agency that is under the direct control of the Governor, are not public until after the budget is presented to the Legislature. (See Laws of Minnesota for 1995, Chapter 259, Article 1, Section 16.)

It is possible that a memorandum between the City Administrator and the City Council could contain data that are not public; for example personnel data (see Section 13.43.) However, the data in such a memorandum are presumptively public. Each data element would need to be examined to determine whether any other provision of law classifies it otherwise. The same logic holds with regard to the classification of any attachments to the City Administrator's communication with the City Council.

Although the facts of this opinion are slightly different from those presented in Advisory Opinion 97-002 (i.e., the parties involved do not work for the same governmental entity) the conclusion is the same; Section 13.33 does not apply to correspondence between elected officials and government employees doing their required work.

Opinion:

Based on the correspondence in this matter, my opinion on the issue raised by Ms. Hoover, is as follows:

The data contained in the letter from the Rice County Attorney to the City of Northfield Police Chief regarding the City's handling of a recent murder investigation, are presumed public, unless some of those data are specifically classified as not public.

Signed:

Elaine S. Hansen
Commissioner

Dated: April 1, 1997