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September 5, 2003; Office of the Minnesota Attorney General
9/5/2003 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:On August 5, 2003, IPAD received a letter, dated same, from Michael Brodkorb on behalf of the Republican Party of Minnesota. In his letter, Mr. Brodkorb asked the Commissioner to issue an advisory opinion regarding his request to gain access to certain data from the Office of the Minnesota Attorney General (OAG). IPAD, on behalf of the Commissioner, wrote to Mike Hatch, Attorney General, in response to Mr. Brodkorb's request. The purposes of this letter, dated August 8, 2003, were to inform him of Mr. Brodkorb's request and to ask him to provide information or support for the OAG's position. On August 25, 2003, IPAD received a response, dated same, from Kristine Eiden, Chief Deputy Attorney General. A summary of the facts is as follows. In a memorandum dated July 25, 2003, Mr. Brodkorb wrote to Attorney General Hatch. Mr. Brodkorb wrote: Please consider this fax transmission my formal request of public data under [Chapter 13].... I am requesting all public materials related to the following task forces coordinated by the Attorney General's Office. This is including, but not limited to complete rosters of members; dates, times, and minutes of meetings; conclusions and reports of the task forces; and official internal and external correspondence to and from the Attorney General's Office, including electronic and paper communications of task force members; and the official filings of all the following task forces with the Office of the Secretary of State. Task Forces
1. Attorney General's Force on Consumer Rights and Health Care
(In the issue statements below, Mr. Brodkorb referred to this data request as Exhibit B.) Attorney General Hatch responded in a letter dated July 30, 2003. He wrote: I thank you for your letter dated July 25, 2003 (Exhibit A). The only document this Office could find which is responsive to your request is a letter to Representative Phil Krinkie dated September 13, 2002 (Exhibit B). Representative Krinkie made the inquiry to this Office after Tom Kelly, the Republican nominee for Attorney General, held a news conference on September 9, 2002 over the same issue. The document you sent to me is an exact copy of the document prepared by Mr. Kelly and used by him at his press conference. A copy of the MPR version of the news conference is attached as Exhibit C.... It appears Attorney General Hatch's letter and the three attachments (Exhibits A - C) were mailed to Mr. Brodkorb in an envelope that is postmarked August 1, 2003. In his opinion request, Mr. Brodkorb wrote: ...rather than providing this public information as required by the Act, Minnesota Attorney General Mike Hatch held a press conference in which he apparently publicly denied the Information Request. This press conference was held prior to delivery or receipt to the undersigned of any written communication from the Attorney General denying the Information Request. Additionally, in his written denial of the Information Request, the Attorney General has provided no statutory or regulatory authority or basis for refusing to comply with the Act's requirements. Issues:In his request for an opinion, Mr. Brodkorb asked the Commissioner to address the following issues:
Discussion:Issue 1:Whether the information sought in the information request attached hereto as Exhibit B is public data that must be disclosed under Minnesota Statutes, section 13.03? Pursuant to Minnesota Statutes, section 13.03, subdivision 1, government data are public unless otherwise classified. In her comments to the Commissioner, Ms. Eiden wrote: On or about July 25, 2003, the Republican Party faxed a data practices request to the OAG. The Republican Party requested a copy of all public materials related to a number of task forces ... On or about July 30, 2003, the OAG responded to the Republican Party's request. In response to that request, the OAG provided a copy of a letter dated September 13, 2002 to Representative Philip Krinkie. The OAG advised the Republican Party that the letter was the only data in the possession of the OAG which was responsive to the Republican Party's request. Ms. Eiden continued: The OAG does not dispute that the information requested by the Republican Party, if it existed, would be public data. Other than the letter provided, the OAG has no data responsive to the data request. As you know, [Chapter 13] does not require government agencies to create data to respond to a request....Because the OAG would have to create data in order to respond to the Republican Party's request, the request is not subject to the requirements of chapter 13. Mr. Brodkorb asked the Commissioner whether the information he requested is public data. Ms. Eiden provided the OAG's response, Other than the letter provided, the OAG has no data responsive to the data request....Because the OAG would have to create data in order to respond to the Republican Party's request, the request is not subject to the requirements of chapter 13. Thus, if no data exist, the Commissioner is unable to determine their classification. The Commissioner adds that according to Ms. Eiden, The OAG does not dispute that the information requested by the Republican Party, if it existed, would be public data. Mr. Brodkorb made his data request in a memorandum dated July 25, 2003. The OAG's response apparently was postmarked on August 1, 2003, and Mr. Brodkorb stated he received the response on August 4, 2003. The Attorney General's response was that the only data the OAG could find was a September 13, 2002, letter from Representative Krinkie. The Commissioner reminds his readers of the importance of clear communication in requesting data and responding to requests for data. Here, the Attorney General's response could be interpreted as ambiguous. Either the data exist or they do not. Since, in this case, the OAG's position as stated by Ms. Eiden is that the data do not exist, it would have been more clear if the Attorney General simply had made that statement in his initial response. The position of the OAG is that detailed data about the composition and activities of the task forces do not exist. It should be noted that Minnesota Statutes, section 15.17, requires all public officers to make and preserve all records necessary to a full and accurate knowledge of their official activities. Further, pursuant to Minnesota Statutes, Chapter 138, government entities may dispose of government records only as provided by that Chapter. Section 15.17, read in concert with section 13.03, imposes an obligation upon government entities to make and preserve a record of their actions, so that those records will be available for public inspection. Thus, to the extent these task forces carried on official activities within the meaning of section 15.17, data about them constitute official records and should be recorded and accessible. Issue 2:Whether the information sought in the information request attached hereto as Exhibit B is private or nonpublic data under Minnesota Statutes, section 13.65 that must not be disclosed to the public under Minnesota Statutes, Chapter 13? See analysis related to Issue 1. Issue 3:Whether the information sought in the information request attached hereto as Exhibit B is otherwise private or nonpublic data that must not be disclosed to the public under Minnesota Statutes, Chapter 13? See analysis related to Issue 1. Opinion:Based on the facts and information provided, my opinion on the issues that Mr. Brodkorb raised is as follows:
Signed:
Brian J. Lamb
Dated: September 5, 2003 |
Copy costs
Existence of data
Records management/retention
Response to data requests
Data does not exist
Records Management Act statute (138.17) (See also: Official Records Act)
