Facts and Procedural History:

Noah McCourt asked for an advisory opinion about certain data that Carver County (County) maintains. Thomas W. Haines, Assistant Carver County Attorney, submitted comments on behalf of the County.

Mr. McCourt provided a summary of the facts. On March 14, 2018, Mr. McCourt made a request to the Carver County Administrator for the following data: “[a]ny and all correspondence, documents, letters, electronic messages, memoranda, social media communications, telephone messages, and any other forms of data which includes the name Noah McCourt.”

Mr. McCourt further wrote, “Carver county [sic] has failed to meet the 10 day stipulation as cited from the MN Data Privacy act [sic] and in fact they have not responded to the request at all.”

Issue:

Discussion:

When a data subject requests access to government data about him/herself, the Data Practices Act sets a strict time limit for the entity to provide access.

The responsible authority or designee shall comply immediately, if possible, with any request made pursuant to this subdivision, or within ten days of the date of the request, excluding Saturdays, Sundays and legal holidays, if immediate compliance is not possible. (Minnesota Statutes, section 13.04, subdivision 3.)

The Commissioner has issued a number of opinions about the requirement to respond to data subjects immediately or within ten days. (See Advisory Opinions 03-026, 04-070, and 14-006.)

In its letter to the Commissioner, the County wrote: 

Mr. McCourt’s foregoing claim [that the County did not contact him about his request] is demonstrably false. In fact, the Carver County Attorney’s Office has exercised nothing but good faith in attempting to comply with Mr. McCourt’s extensive data request.

The County argued that Mr. McCourt’s request was “patently distinguishable from the vast majority of typical data requests” because the Chief Deputy County Attorney, who is the data practices Responsible Authority for the County in these circumstances, was also the assigned prosecutor in a criminal matter involving Mr. McCourt. Relying on Minnesota Rules of Professional Conduct 4.2, Communication with Persons Represented by Counsel, the Chief Deputy determined that he could not reply directly to Mr. McCourt, because Mr. McCourt was represented by counsel in the criminal matter. 

Based on this reasoning, beginning on March 26, 2018, the Chief Deputy sent six emails regarding the data request to Mr. McCourt’s attorney for the criminal case. Specifically, he noted that the County identified about 3,000 responsive emails and that before providing the emails, each one would be reviewed to determine if it contained any not public data about others. He also noted that the County was implementing new software to respond more effectively to data requests and that installation and training were causing some of the delay. On April 24, 2018, the Chief Deputy determined that there would be a conflict of interest for him to review the documents and assigned the task to another attorney at the County. At a hearing for the criminal matter, Mr. McCourt’s attorney stated that she represented him in the criminal matter and it would not be “proper or appropriate for [her] to be dealing with the data practices portion.”

The Commissioner cannot opine on the proper application of the ethical rules governing the conduct of attorneys; that is strictly within the purview of the Courts. For further guidance, the Commissioner refers the County to the comments to Rule 4.2, in particular Comment 4.

However, notwithstanding the attorney conduct concerns, the County’s obligation under the Data Practices Act to comply immediately or in ten business day with a data subject’s request is clear. (The Commissioner has also previously opined that the existence of litigation between a data requester and an entity does not relieve the entity of its data practices responsibilities. See Advisory Opinions 96-038 and 97-005.) As the Commissioner noted in Advisory Opinion 03-030: 

The Commissioner acknowledges that circumstances can arise that make it more difficult for government entities to fulfill their duties under Chapter 13. Nevertheless, the District was obligated, per section 13.04, subdivision 3, to provide X with access to the data requested within ten working days. The statute does not provide additional time for mitigating circumstances.

Here, Mr. McCourt asked for data about himself on March 14, 2018. As of April 18, 2018, the date the Commissioner received Mr. McCourt’s opinion request, Mr. McCourt had not received any data from the County. (The County subsequently contacted Mr. McCourt on May 18, 2018, with an update but, to the Commissioner’s knowledge, has not yet provided any data.) 

The issue of responding to requests that result in a large amount of emails is a challenging one. Though the amount of data created and maintained by government is ever-increasing due to the transition to electronic and digital records, the strict time limit to provide access to data about data subjects remains the same. The Commissioner acknowledges that entities are sometimes in the difficult position of being unable to comply fully – by providing all of the data – within ten business days (though entities can certainly provide some of the data within ten business days). 

Finally, the Commissioner has a note regarding the County’s access policies required by Minnesota Statutes, section 13.025. The County’s current access policy for data subjects identifies the Chief Deputy County Attorney as the Responsible Authority for offices not otherwise designated by statute. Thus, given the Chief Deputy’s prosecutorial responsibilities, it seems likely that situations similar to this one will arise in the future. The Commissioner encourages the County to revisit its access policies and procedures so that any issues related to representation or apparent conflicts of interest do not interfere with the statutory time limits for responding to requests. 

Opinion:

Based on the facts and information provided, the Commissioner’s opinion on the issue is as follows:

Carver County did not respond appropriately to a March 14, 2018, data request from a data subject because it did not provide access to the data within ten business days, pursuant to Minnesota Statutes, section 13.04.

Signed:

Matthew Massman
Commissioner

Dated: May 21, 2018