Facts and Procedural History:

On September 25, 2018, Leita Walker, counsel for Star Tribune Media Company LLC (the Star Tribune), asked the Commissioner to issue an advisory opinion regarding the Star Tribune’s right to access certain data maintained by St. Louis County (the County). Nick Campanario, attorney for the County, provided comments in support of his client.

According to facts provided by the Star Tribune, on March 20, 2018, Star Tribune reporter J. Patrick Coolican made a data request to the County for all correspondence between St. Louis County Commissioner Pete Stauber and the National Republican Congressional Committee (NRCC). On April 3, 2018, the County responded by stating it had recovered 15 responsive emails, but that they were withholding the data pursuant to Minnesota Statutes, section 13.601, subdivision 2. (The Duluth News Tribune also requested an advisory opinion regarding the County’s classification of the emails.) 

Issue:

Discussion:

Government data are presumed to be public unless otherwise classified. (Minnesota Statutes, section 13.03, subdivision 1). When an entity denies access to data, it must cite the specific statutory authority or other legal justification for the denial. (Minnesota Statutes, section 13.03, subdivision 3(f).)

Minnesota Statutes, section 13.601, subdivision 2, states “[c]orrespondence between individuals and elected officials is private data on individuals, but may be made public by either the sender or the recipient.”

The proper classification of correspondence between an elected official and a person who acts on behalf of an organization was previously addressed by the Commissioner in Advisory Opinion 10-023 (issued October 27, 2010):

In classifying the data as private, the Legislature provided a mechanism by which an individual can correspond with his/her elected official on a matter that is personal to that individual… [T]he Commissioner does not believe the Legislature intended for the protection afforded under section 13.601, subdivision 2, to apply to an individual writing as a representative of an organization. First, and foremost, the classification of private applies to data on individuals (as opposed to data about organizations or businesses). See International Brotherhood of Electrical Workers, Local No. 292 v. City of St. Cloud, 765 N.W.2d 64 (Minn. 2009). It is unlikely that someone corresponding on behalf of an organization is writing about an issue as a private citizen and not about an issue related to the organization. 

The Star Tribune justified its position as follows: 

We urge the Commissioner to issue an opinion concluding that, consistent with [Commissioner's Advisory] Op. No. 10-023, the requested data [are] public and should be disclosed immediately.

And:

[T]he private classification of data pursuant to § 13.601, subd. 2 applies only to data on individuals as private citizens, and does not apply to individuals acting as representatives of organizations.

In comments to the Commissioner, the County urged the Commissioner to “overrule” the conclusion in Advisory Opinion 10-023:

E-mail is a form of correspondence. Commissioner Stauber is an elected official. And the person on the other end of each withheld e-mail is an “individual,” a term that is defined in another unambiguous statutory provision, Minn. Stat. § 13.02, subd. 8 (2018), which specifically provides, “‘Individual’ means a natural person” – that is, a human being. Thus, the e-mails are classified as private data on individuals, as provided in the first part of section 13.601, subdivision 2… A natural person acting as something other than a private citizen is still a flesh-and-blood natural person and, thus, still an ”individual” for the purposes of the MGDPA in general and section 13.601, subdivision 2, in particular.

The Commissioner has not seen the emails that are the subject of this advisory opinion, but can opine on whether the data could have a private classification based on the rationale provided by the County. 

The Data Practices Act contains distinct definitions for both “individual” and “person.” As noted by the County, “individual” means a “natural person”, i.e. a human being. In contrast, the term “person” is more expansive, including “individuals” and also artificial persons such as partnerships, corporations, and associations. (Minnesota Statutes, section 13.02, subdivision 10). See Intl. Brotherhood of Elec. Workers, Loc. No. 292 v. City of St. Cloud and Design Electric Inc., 765 N.W.2d 64 (Minn. 2009) (“The definition of ‘individual’ stands in contrast to the definition of ‘person,’ which is defined as any “individual” or “corporation.”). The plain language of section 13.601, subdivision 2, is clear; had the legislature intended to classify correspondence between elected officials and organizations as private under section 13.601, it would have used the term “person” instead of “individual.” The legislature’s decision to use the term “individual” evidences an intent that correspondence between elected officials and organizations is not meant to be classified as private. 

Treating as a matter of course, as the County suggests, every instance of correspondence with individuals as if it were from an “individual” and not a “person” would render the distinction between those two defined terms moot. The County is correct that, by its very nature, correspondence will necessitate composition or receipt by a human being. The crux of the analysis under section 13.601, subdivision 2, however, is whether the correspondent is an agent of an artificial person such as a corporation or an organization. To that end, any correspondence between Commissioner Stauber and a party that communicates on behalf of the NRCC is presumptively public because, as an agent of an artificial person, that party is properly defined by the Data Practices Act as a “person.” 

The Commissioner would like to also address one additional issue. While the County ultimately determined that there were no text messages responsive to the Star Tribune’s data request, it stated in its original response: “[w]ith regard to text messages, Commissioner Stauber does not have a county owned mobile device, therefore the county is not the custodian of the data.” The Commissioner has previously opined that government employees and public officials can create and maintain government data on personal devices and accounts. (See Advisory Opinions 08-028, 10-023, and 12-019.) Therefore, to the extent that county commissioners are creating public government data via text, the County is responsible for providing access to those data. 

Opinion:

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

If the emails that are the subject of this opinion request are correspondence between County Commissioner Stauber and a representative of the NRCC, the data are public and the County did not respond appropriately to the Star Tribune’s request under Minnesota Statutes Chapter 13.

Signed:

Matthew Massman  
Commissioner

October 16, 2018