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    Advisory Opinion 96-033

    July 29, 1996; City of Brainerd

    7/29/1996 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 citizen who requested this opinion and the response from the government entity with which the citizen disagrees are presented in summary form. Copies of the complete submissions are on file at the offices of PIPA and are available for public access.

    On June 14, 1996, PIPA received a letter dated June 11, 1996, from Richard Olmstead. Mr. Olmstead is the subject of data maintained by the Law Enforcement Center (which apparently is a joint entity operated by both the City of Brainerd and the Crow Wing County Sheriff), hereinafter LEC. In his letter, Mr. Olmstead requested that the Commissioner issue an advisory opinion regarding whether the LEC's alleged practice of allowing certain members of the public to view allegedly not public data about Mr. Olmstead violates his rights, under Minnesota Statutes Chapter 13, as a subject of those data.

    In response to Mr. Olmstead's request, PIPA, on behalf of the Commissioner, wrote to both Frank Ball, the City of Brainerd Police Chief, and Dick Ross, the Crow Wing County Sheriff. The purposes of this letter, dated June 20, 1996, were to inform Chief Ball and Sheriff Ross of Mr. Olmstead's request, to ask them or Brainerd's and/or Crow Wing's attorney to provide information or support for Brainerd's and/or Crow Wing's position, and to inform them of the date by which the Commissioner was required to issue this opinion. (In subsequent correspondence, Mr. Olmstead, Chief Ball and Sheriff Ross were informed that the Commissioner would be taking additional time, as allowed by statute, to issue this opinion.) On July 15, 1996, PIPA received a faxed response from Donald Ryan, Crow Wing County Attorney, and on July 16, 1996, PIPA received a faxed response from Daniel Vogt, Brainerd City Administrator.

    A summary of the facts surrounding this matter is as follows. In Mr. Olmstead's June 11, 1996, letter, he raised the following issue, Based on present knowledge of an agreement between Law Enforcement and Media representatives is the city of Brainerd in violation of the data practices act in releasing A [sic] confidential ICR #9500688 on May 5, 1995. The arranged agreement would allow certain media people to eye ball proc [sic] protected and confidential data contained on ICRs in the Law Enforcemetn [sic] Center in Brainerd MN. He further stated, On March 15 1996 this writer was with Hugh Phillips [of WJJY radio] at the LEC, Hugh was allowed to see protected a [sic] data but I was not....Ebnclosed [sic] is copy of letter that confirms such arrangement.

    Mr. Olmstead also enclosed a copy of a letter dated April 11, 1996, from Paul Thiede, Chair of the Crow Wing County Board of Commissioners, to Mike Rhyner, Director of the Minnesota Counties Insurance Trust. The pertinent portion of this letter stated:

    For some time now, we have had a dispute brewing over the Crow Wing County Sheriff's handling of Initial Complaint Reports (ICRs)....As you know, we have a shared relationship with the City in the Law Enforcement Center for dispatching and housing of our police department....Briefly, the Sheriff keeps a record of ICRs, notes some of them as protected , and makes that record available to some or all of the media. The protected entries are for information only and are not supposed to be printed until the protected designation is lifted. Questionably, that same information may or may not be available to individual members of the public. There has been an accusation of a book being kept on certain individuals that ostensibly is an internal file but may on occasion, eithin [sic] in part or totally, be leaked to the public.

    In his response to Mr. Olmstead's opinion request, Mr. Ryan wrote:

    The Crow Wing County Sheriff's department has reviewed its policy concerning letting the media review ICR information which the public in general is not allowed to review. The Crow Wing County Sheriff's department changed that policy and has adopted the procedures suggested by Don Gemberling in his May 3, 1996 responsive letter to Brainerd Police Chief Frank Ball. Crow Wing County agrees that this is the proper procedure for managing of the involved data.

    (It should be noted that the City of Brainerd had previously been in contact with PIPA and had requested that Donald Gemberling, Director of PIPA, review and comment on some of Brainerd's policies and procedures. Mr. Ryan's reference to Mr. Gemberling's May 3, 1996, letter is in relation to Brainerd's request for comments.)

    In Mr. Vogt's response to Mr. Olmstead's opinion request, Mr. Vogt wrote:

    Correspondence has been exchanged between my office and Don Gemberling of [PIPA's] office concerning Mr. Olmstead's issues revolving around the collection of data at the Law Enforcement Center (LEC) here in Brainerd....In discussing this matter with Chief Ball, he stated to me that there is no agreement now, or has there been one in the past, with the medica to inspect certain data considered not public. Further, the policy relating to the documents that are the subject of Mr. Olmstead's concerns has been recently clarified.


    Issue:

    In his request for an opinion, Mr. Olmstead asked the Commissioner to address the following issue:

    If an agreement exists which allows members of the media to inspect certain not public government data, does such an agreement violate the rights, provided by Chapter 13, of the subjects of the not public data?


    Discussion:

    In the situation-at-hand, Mr. Olmstead has alleged that an agreement exists that allows certain media representatives to view not public data. Further, Mr. Thiede, in his April 11, 1996, letter to Mr. Rhyner, implied that an agreement was in existence at that time. However, Mr. Vogt's July 16, 1996, response to Mr. Olmstead's opinion request stated that an agreement such as that alleged by Mr. Olmstead does not exist and never existed. Finally, Mr. Ryan's July 15, 1996, response does not address the specific issue of an agreement. Based on these differences of opinion, the Commissioner is unable to make a determination as to whether an agreement such as that alleged by Mr. Olmstead is/was actually in existence.

    If, however, an agreement does/did exist which permits/permitted certain members of the public to view not public data, that agreement would be in conflict with the provisions of Minnesota Statutes Chapter 13. Chapter 13 states the presumption that all government data are public unless those data are specifically classified otherwise in state statutes, federal laws, or temporary classifications. (See Section 13.03, subdivision 1.) In the case of data on individuals collected by law enforcement agencies, those data are classified pursuant to Section 13.82, which does provide for the private and confidential classification/treatment of certain law enforcement data. Section 13.02, subdivision 12, defines private data on individuals as, ...data which is made by statute or federal law applicable to the data: (a) not public; and (b) accessible to the individual subject of that data. (Emphasis added.) Section 13.02, subdivision 3, defines confidential data on individuals as, ...data which is made not publicby statute or federal law applicable to the data and is inaccessible to the individual subject of that data. (Emphasis added.)

    In summation, Section 13.02, subdivisions 3 and 12, state explicitly that if certain data are classified as private or confidential, those data are not accessible to the public. Therefore, if an agreement exists which allows for the dissemination of certain private and/or confidential contained in the LEC's ICRs to members of the public, and those data are then disseminated to members of the public, the statutory rights of the data subjects have been violated.

    Opinion:


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

    Pursuant to Minnesota Statutes Section 13.02, subdivisions 3 and 12, private and/or confidential data are not public and, therefore, are not accessible to members of the public. If a government entity enters into an agreement which permits members of the public to gain access to private and/or confidential data, and the government entity, on request of those members, then disseminates private and/or confidential data to the requestors, the rights afforded by Chapter 13 to the subjects of the data have been violated.


    Signed:

    Elaine S. Hansen
    Commissioner

    Dated: July 29, 1996


    Law enforcement data

    Media access policy

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