Discussion:

Minnesota Statutes Section 13.03, subdivision 2, requires that government entities respond to requests for public data in an appropriate and prompt manner. In addition, Minnesota Rules Section 1205.0300, requires that entities respond within a reasonable time.

The issue here is whether the University responded in a timely manner to Mr. Lamphere's November 25, 1997, request. The fact that Mr. Lamphere also made a request for data on November 26 confuses the situation. Also confusing is Mr. Donohue's December 23 letter; although he discussed how Mr. Lamphere could gain access to the data requested on November 26, he did not specifically mention the November 25 request. Further, while Mr. Donohue stated that Ms. Smith has been in trial, it is not clear if Mr. Donohue was offering this as a reason for the University not responding to the November 25 request. Ms. Smith did not discuss her being in trial in the comments she submitted to the Commissioner.

The first item of Mr. Lamphere's request was for copies of all existing data and documentation pertaining to the North Star Fund for the years 1993 - 1996. In her response to the opinion request, Ms. Smith wrote, As for documents relating to the North Star Fund for the years 1993-1996, there is no fund by that name for those years. UMD is investigating whether there are responsive documents for another fund which Mr. Lamphere may be asking about.

Not until Ms. Smith submitted comments in relation to the opinion request did Mr. Lamphere learn that the data, as he requested them, do not exist. This is not a timely response; her comments were issued approximately two months after the request and furthermore, Ms. Smith was responding to the Commissioner, not Mr. Lamphere. If certain data requested by an individual do not exist, a prompt and simple response stating that fact will discharge an entity's duties under Section 13.03. If the University concluded that Mr. Lamphere did not know the correct name of the fund, it is not clear why the University did not ask him to clarify his request.

The second item Mr. Lamphere requested was copies of all existing data and documentation pertaining to any fund that gave scholarships to UMD football players and / or UMD hockey players other than the Rasmussen Fund. In response, Ms. Smith wrote, As for documents relating to other funds, UMD is working on gathering responsive data.

Again, the only communication from the University providing any clear response to the November 25 request was via Ms. Smith's comments to the Commissioner. In them, she did not explain why the University is still gathering the data. The University's response was not timely.

The third item Mr. Lamphere requested was copies of all data and documentation showing the recurring funds to support the newly added women's hockey team. Ms. Smith argued that his request was vague and not susceptible to a response under the Data Practices Act. She asserted that rather than asking for identifiable documents or identifiable classes of documents, Mr. Lamphere asked the University to make a judgments [sic] about the meaning of documents to determine whether documents show[] recurring funds' to support women's hockey. She further wrote:

The University is investigating whether there are public documents that it can disclose relating to funding for women's hockey. In light of the fact that the University is involved in two federal lawsuits and is responding to an investigation by the Office of Civil Rights related to women's sports at UMD, there are attorney-client privileged documents under Minn. Stat. 13.30 as well as active civil investigative data under Minn. Stat. 13.39 that are not public.

First, the Commissioner agrees that Mr. Lamphere's request, as stated, is somewhat vague. However, Mr. Lamphere did make a request for access to data and if the University needed clarification, it should have asked Mr. Lamphere to resubmit his request. The University did not communicate this to Mr. Lamphere.

Second, although Ms. Smith argued that Mr. Lamphere's request was vague and not susceptible to a response, it appears the University may be attempting to respond and is considering whether some data are protected under Sections 13.30 and/or 13.39. Per Section 13.03, subdivision 3, if the University determined that the data are not public, the University should have so informed Mr. Lamphere orally at the time of the request, or in writing as soon thereafter as possible. In addition, the University is supposed to cite the specific statutory section upon which it based its denial. The University did not provide this information to Mr. Lamphere; the response was not timely.

The final item Mr. Lamphere requested was copies of all data and documentation of the planning procedures and the thoughtful analysis of costs and benefits that went into the decision to add women's hockey. Ms. Smith wrote:

Again, this request is vague and does not adequately identify the documents sought. This document asks the University to screen documents according to whether they reflect a thoughtful analysis of a given course of action. A records custodian gathering documents in response to a data practices request is not obligated to make those kind of judgments.

She added that some data relating to Mr. Lamphere's request may be classified as not public pursuant to Section 13.30 or Section 13.39.

Mr. Lamphere asked for copies of data relating to the decision to add women's hockey specifically, the procedures (if any), and the analysis of costs and benefits (if any). Although Ms. Smith objected to the term thoughtful analysis, it appears Mr. Lamphere chose those words because the Chancellor of UMD used them. In his opinion request he wrote, . . . [the UMD Chancellor, in a letter] said that if the University's financial situation should change dramatically for the better, the addition of programs will take place through the normal planning procedures so that a thoughtful analysis of costs and benefits can occur. [Emphasis added.] Mr. Lamphere's use of thoughtful analysis did not materially change the content of his request.

Again, Chapter 13 requires the University to respond to Mr. Lamphere's request promptly and within a reasonable time. Not until Ms. Smith submitted comments to the Commissioner did Mr. Lamphere become aware that some of the data may be not public or that his request was vague. This is not a timely response.

Opinion:

Based on the facts and information provided, my opinion on the issue raised by Mr. Lamphere is as follows:

Signed:

Elaine S. Hansen
Commissioner

Dated: March 20, 1998