Facts and Procedural History:

Paul Seeman asked for an advisory opinion regarding his right to get access to data from the Rice County Sheriff’s Office, under Minnesota Statutes, Chapter 13 (Data Practices Act). The County submitted comments in response to Mr. Seeman’s request.

Mr. Seeman first asked the County in 2016 and 2017 for access to “employment related cell phone call and text records” for three employees. He asked for records from 2014. In response to his renewed request, on February 19, 2019, which is at issue here, the County reiterated its earlier responses, which are the same for each employee: 

Detective [XX] utilizes a personal cell phone for calls made away from his office phone at the Rice County Sheriff’s Office. Detective [XX]’s personal cell phone records are not an official government record. Rice County does not collect or maintain the requested records, nor are they in the possession of Rice County. The records you are requesting are not government data, and as such are not subject to the Minnesota Government Data Practices Act.

Issues:

Discussion:

Government data are defined as, “all data collected, created, received, maintained or disseminated by any government entity regardless of its physical form, storage media or conditions of use.” (See Minnesota Statutes, section 13.02, subdivision 7.) Government data are public unless classified by statute, temporary classification, or federal law. (See Minnesota Statutes, section 13.03, subdivision 1.) 

In arguing that the information Mr. Seeman requested does not constitute government data, the County wrote to the Commissioner: 

Rice County believes it responded appropriately when responding to Mr. Seeman’s February 1, 2019 request for personal cell phone records of the Sheriff Office’s employees. Rice County’s position is that the data requested is not government data. ….

The documents Mr. Seeman requested were not collected, received, maintained, or disseminated by any government entity and, accordingly, are not government data subject to the Minnesota Government Data Practices Act. Furthermore, Rice County did not create the cell phone records, the cell phone provider did, so Rice County did not create these records either. ….

Lastly, Rice County Sheriff’s Office is not in the possession of the requested record. As stated earlier, Minn. Stat. §13.82, subd. 18, provides “nothing in this section shall require law enforcement agencies to create, collect or maintain data which is not required to be created, collected or maintained ... “. Rice County did not need the cell phone records for its criminal investigation, therefore, it did not collect these records from the cell phone provider. Since there was no reason to gather this information as part of the investigation, Mr. Seeman, through a data request, cannot require the Sheriff’s Office to collect documents it would not normally obtain. Because the documents were never in the possession of Rice County, there is nothing to disclose. Rice County does not have records responsive to Mr. Seeman’s data request.

In 2008, the Commissioner opined that when a superintendent used a personal data recorder to record portions of a school board meeting, he was acting in his official capacity and therefore, the recording was government data. The Commissioner stated that in many situations, government employees use their own equipment (cars, computers, cell phones, pagers, etc.) for work-related purposes. It is not reasonable to conclude that in those situations, related data are not government data. (See Advisory Opinion 08-028; see also Advisory Opinion 12-019.) 

Further, the County’s policy 702.5.1 “PUBLIC RECORDS” states:

Work related information including data created, received, recorded or stored on a personally owned [Personal Communication Device “PCD”] in the course of office duties is considered government data subject to the requirements of the Minnesota Government Data Practices Act and discovery obligations (Minn. Stat. § 13.01 et seq.).

According to the County’s own policy, it recognizes that its employees may have government data on their cell phones (PCDs), which contradicts its statements to Mr. Seeman in denying him access. It is not clear from the record if the County ever searched for the data Mr. Seeman requested, or just rejected his request outright. Also, it does not matter if the County “did not need the cell phone records for its criminal investigation”. If the employees’ cell phones contained government data, the County needed to find out if any of the data were responsive to Mr. Seeman’s request. The Commissioner notes, however, that only those data that a government employee creates and maintains on a personal device, as part of the employee’s work related duties, are considered government data. 

Opinion:

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

The Rice County Sheriff’s Office did not respond appropriately to a February 1, 2019, data request, if it did not ascertain whether the employees’ cell phones contained government data. 

Signed:

Alice Roberts-Davis 
Commissioner

March 28, 2019