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Advisory Opinion 96-051

December 2, 1996; City of Elk River

12/2/1996 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 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 October 10, 1996, PIPA received a letter requesting this opinion from W. In that letter, W described his/her attempts to gain access to data maintained by the City of Elk River Police Department concerning W's employment with the City. W enclosed copies of related correspondence.

In response to W's request, PIPA, on behalf of the Commissioner, wrote to Thomas D. Zerwas, Chief of the Elk River Police Department. The purposes of this letter, dated October 15, 1996, were to inform Chief Zerwas of W's request, to ask him or the City's attorney to provide information or support for its position, and to inform him of the date by which the Commissioner is required to issue this opinion.

On October 29, 1996, PIPA received a response from Dayle Nolan, attorney for the City. A summary of the detailed facts of this matter follows.

On February 20, 1996, W resigned his/her position as a police officer for the City. At the time of his/her resignation, W requested from Chief Zerwas access to data related to W's employment by the City. According to W:

I was given a copy of my background investigation file and my psychological evaluation when I arrived at the police department to turn in my resignation. At that time, I asked Sergeant Jeff Mordal if I could have copies of my Field Training Daily Observation Reports. Because Sgt. Mordal was the supervisor in charge of training new officer's [sic] and maintaining their records, I felt he was the department member to ask for the copies. Sgt. Mordal advised me that he would have to talk to the Chief and obtain his authorization to release them. I was then told by Sgt. Mordal that he would have the Chief get back to me with a reply.

W stated that his/her next contact with the City was approximately one month later, on March 15, 1996, when he/she spoke with Chief Zerwas. W said that Chief Zerwas told W he would not release the data to W. According to W, . . . because I was hoping for a good recommendation, I decided not to push the issue with Chief Zerwas.

W repeated the request for access to the data on September 6, 1996. W said he/she made a verbal request of Sergeant Mordal, because Chief Zerwas was not available. W was told to call Chief Zerwas on September 9, 1996. On that date, W called Chief Zerwas, who said he would have to contact the City attorney to determine whether the information could be released. According to W, he/she had heard nothing from Chief Zerwas as of Friday September 13, 1996. W then called Sergeant Mordal, who said he didn't know about the status of W's request.

W then wrote to Chief Zerwas, in a letter hand-delivered on September 17, 1996, and requested: . . . copies of all data that the City of Elk River, the Police Department, Police Supervisor's [sic] and Officers have gathered, acquired, and collected whatsoever, without limitation, during my search for employment with the City of Elk River including data collected while I was employed with the City of Elk River.

W received no response to his request for data, and on September 25, 1996, hand-delivered to the Elk River Police Department a second letter, in which he repeated his request. According to W, that afternoon Chief Zerwas left a message on W's home answering machine, saying that he would respond to W's request when he could, and that he would send W a letter to let W know what the charge for copies would be.

W was notified on September 27, 1996, that the copies W had requested were ready. On September 30, 1996, W learned from Chief Zerwas that there were 762 copied pages of data, and that the cost was $195.25. Chief Zerwas told W that the copy charge was $5.00 for the first page, and $.25 for each page thereafter.

In his opinion request, W stated [a]t no time did I request certified copies of the information.

In her response to the Commissioner, Ms. Nolan wrote that there are two principal reasons why the City did not violate W's rights under the Minnesota Government Data Practices Act, Minnesota Statutes Chapter 13. According to Ms. Nolan,

The first and foremost reason why the City did not violate [Chapter 13] is that W has never, even to this day, made a request to the City's responsible authority for such requests. A cursory review of [Chapter 13] reveals that a data subject's right to have access to information is triggered only by a request to the responsible authority. . . . For the City, the responsible authority' designated by the City Council . . . is Patrick Klaers, the City Administrator. . . . Because W never requested any information from the responsible authority, any failure to provide [him/her] with such information cannot possibly constitute a violation of [Chapter 13.]

Second, even if Chief Zerwas were the responsible authority for the type of request made by W in this case, the City substantially complied with [Chapter 13] in responding to W's request. The key factual inaccuracy in W's description of the events between February 20 and September 27, 1996 is the characterization of [his/her] conversation with Chief Zerwas on March 15. Although W describes this conversation as a request' for certain information, Chief Zerwas recalls the conversation as an unofficial inquiry as to whether certain information could be made available if [he/she] ever desired to obtain a copy of it. Similarly, . . . [Sergeant Mordal also recalls] that [his conversations with W] were more in the nature of casual inquiries, rather than requests that certain information be immediately provided to him. Accordingly, the first time at which W arguably made an actual request' under [Chapter 13] (albeit to the wrong person) was on September 9, in [his/her] conversation with Chief Zerwas. From that time until the time that the [City's Police Department] had the information copied and ready for delivery to W was 14 business days.

Ms. Nolan acknowledged that the City did not notify W, pursuant to Section 13.04, subdivision 3, that it required an additional five working days to respond to W's request. Ms. Nolan stated: [a]lthough Chief Zerwas did not notify W that additional time was needed until September 25, 12 business days after the first arguable request, W certainly knew, based on [his/her] past conversations, that producing the requested information within 5 business days might present a problem for the City. Ms. Nolan also listed other extenuating factors, in light of which . . . any possible technical violation of [Chapter 13] would clearly be inconsequential.

In regard to the City's photocopying charges, Ms. Nolan wrote:

First of all, the City would like to clarify that it does not charge every data subject these amounts for copies of government information. The amount which is charged in any given case depends on the actual costs of responding to the particular request which has been made. However, the charge in this particular case is not only reasonable, but significantly less than the actual cost of copying, certifying, and compiling the materials requested by W.

. . . . In the present case, the amount of time expended by various department employees in responding to W's request, along with the employee's rate of pay, is reflected below:

Kathy Anderson: 4 hours at $16.01/hour = $64.04

Sgt. Brad Rolfe: 3 hours at $23.93/hour = $71.79 2 hours at $35.86/hour (overtime) = $71.72

Chief Tom Zerwas: 2 hours at $30.53/hour = $61.06

Ms. Anderson's 4 hours were spent copying documents. Sgt. Rolfe's 5 hours were spent date stamping the 762 copies made by Ms. Anderson, and copying the date stamped copies. Chief Zerwas' time was spent assisting Sgt. Rolfe in copying the date stamped copies. . . . Thus, the total cost of making, certifying and compiling the documents requested by W was $268.61. In light of this number, it was entirely reasonable and permissible under [Chapter 13] for the City to charge W a total of $195.25 for the copies which [he/she] requested.

Issues:

In W's request for an opinion, W asked the Commissioner to address the following issues:

1. Has the City of Elk River complied with the requirements of Minnesota Statutes Section 13.04, subdivision 3, regarding access to data by a data subject?

2. Is the City's photocopy charge to a data subject of $5.00 for the first page, and $.25 for each page thereafter, allowable under Minnesota Statutes Chapter 13?

Discussion:

Ms. Nolan is correct that an individual's rights under Chapter 13 are invoked when the individual directs requests for access to data to the responsible authority of the government entity that maintains the data. In this case, W directed his/her requests to the Chief of the Police Department, not the City Administrator, who, according to Ms. Nolan, is the Responsible Authority for the City of Elk River. Therefore, according to Ms. Nolan, the City had no obligation to respond to W's requests for access to data about himself/herself. However, in spite of W's data inquiries, made from February 1996, through September 1996, at no time was W told that he/she had to direct his/her request for data to the City Administrator.

W's initial request for copies of data was made to Chief Zerwas, and the copies were provided to W by Police Department personnel. According to W, he/she then asked for access to additional data, and was told that Chief Zerwas would have to determine whether or not to provide W with access to those data. According to the City, Chief Zerwas did not understand W to be asking for access to data. According to W, he/she asked again for the data, in March 1996, and was told by Chief Zerwas that he wouldn't release it to W. Again the City disputes that W made an actual request for access to data.

W made his/her next requests for the data in September 1996. (According to W, he/she did not press the issue earlier because he/she hoped for a good recommendation from Chief Zerwas.) In a conversation with W on September 9, 1996, Chief Zerwas said that he'd have to consult with the City Attorney before releasing any data to W. Ms. Nolan acknowledges that Chief Zerwas understood from that conversation that W was requesting the data under Chapter 13.

At no time, from February 1996, through September 1996, was W told that he/she had to direct his/her request for data to the City Administrator. In fact, Chief Zerwas provided some data to W in February. It is not reasonable for the City, long after the fact, to argue that it had no obligation to provide W with the data he/she requested just because W did not direct his/her request to the responsible authority. The time to assert that requirement was at the time the City understood W to be making a request for access to data under Chapter 13. According to Ms. Nolan, City personnel were not sure whether W had actually made a Chapter 13 data request until months after W's requests commenced. The City's established data practices policies and procedures should provide a method for the City to clarify requests, and to direct a request to the responsible authority or appropriate designee, thus avoiding the confusion and delay that resulted in this case. Had the City provided W with a copy of its data practices policies and procedures, regarding how a data subject may gain access to data about him/herself maintained by the City, and asked W to follow those procedures, complicating factors could have been avoided. These policies and procedures are required to be prepared, in writing, by Minnesota Statutes Section 13.05, subdivision 8.

Further, pursuant to Minnesota Statutes Section 13.04, subdivision 3, upon request for access to data by a data subject, the responsible authority for a government entity must provide access to the data immediately, if possible, or within five business days. If the responsible authority requires additional time to respond, he/she may have up to an additional five business days if he/she so notifies the individual requesting the data.

Whether W asked for access to data on February 20, 1996, or September 9, 1996, the City did not meet its obligation to provide W with access to the data W requested within the time limit required by statute, and the City agrees.

In regard to the second issue, pursuant to Section 13.04, subdivision 3, a data subject may be required to pay the actual costs of making, certifying, and compiling copies of data about him/her. W stated that he/she did not ask for certified copies of data. Therefore, W was responsible for paying the actual cost to the City to make and compile the copies.

Pursuant to Minnesota Rules, Parts 1205.0300 and 1205.0400, a responsible authority may charge a reasonablefee for providing copies of data. Pursuant to Part 1205.0300, subpart 4, in determining the reasonable fee, the responsible authority may include the cost of materials and labor required to prepare the copies.

According to Ms. Nolan, the City charged W $5.00 for the first copy, and $.25 for each copy thereafter. She indicated that the City's actual charge for the copies included four hours of labor to make photocopies of 762 pages, and seven hours of labor to date-stamp the photocopies and to photocopy the date-stamped copies. W asked for photocopies, not date-stamped photo copies. The City may charge W only the actual cost to make the photocopies, including a reasonable labor cost.

The City has not justified a fee of $5.00 for the first page, and $.25 per page thereafter. If the City's actual cost to make uncertified photocopies is $.25 per page, then that is the allowable fee for each page, including the first page. The City has not demonstrated that the photocopy charges levied against W are in compliance with Chapter 13. (For further discussion of this issue, see Commissioner's Advisory Opinions 94-028 and 94-039.)

Opinion:

Based on the correspondence in this matter, my opinion on the issues raised by W is as follows:

1. The City of Elk River has not complied with the requirements of Minnesota Statutes Section 13.04, subdivision 3, regarding W's right to gain access to data about W.

2. The City of Elk River has not demonstrated that its photocopy charge to a data subject of $.25 for each page is in compliance with Minnesota Statutes Chapter 13. In this case, the City may charge W only its actual cost to make photocopies of the data W requested

Signed:

Elaine S. Hansen
Commissioner

Dated: December 2, 1996

Copy costs

Requests for data

Employee wage/labor cost

Data subject rights of access procedures (13.05, subd. 8)/(13.025, subd. 3)

To responsible authority or designated person, required