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April 21, 1994; City of Rosemount
4/21/1994 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 March 22, 1994, the Commissioner of Administration received a letter from Mr. Larry Walsh, a resident of Rosemount, Minnesota. In this letter Mr. Walsh described attempts by him to gain access to data maintained by the City of Rosemount pertaining to actions taken by the City to comply with the Minnesota Government Data Practices Act, Chapter 13 of Minnesota Statutes and hereinafter MGDPA. Mr. Walsh provided copies of the written requests he had made to the City of Rosemount, hereinafter Rosemount.On December 12, 1993, Mr. Walsh asked Rosemount who was the city's responsible authority from 1990-1993. On January 26, 1994, Mr. Walsh asked that the city provide him with a copy of the public document described in Minnesota Statutes Section 13.05 that would identify the responsible authority for the city. He also asked for . . . any materials describing specific procedures set by the city for accessing government data. After describing the history of those requests, Mr. Walsh stated that Rosemount had not provided him with information identifying the responsible authority and had not clearly identified the procedures to be followed to access data maintained by Rosemount. Mr. Walsh then asked that the Commissioner of Administration (Commissioner) issue an opinion on the issue described in the section labeled issue below. In response to Mr. Walsh's request, PIPA, on behalf of the Commissioner, wrote to Mr. Ron Wasmund, Rosemount's interim city administrator. The purposes of this letter, dated March 28, 1994, were to inform Mr. Wasmund of Mr. Walsh's request for an opinion, to ask Mr. Wasmund or the city's attorney to provide information concerning the issue raised and to inform him of the date by which the Commissioner was required to issue this opinion. On April 8, 1994, PIPA wrote to Mr. Walsh to explain to him the twenty day period for issuing an opinion in this matter would be extended. The reasons given included the demands of the legislative session and the fact that no response had been received from Rosemount. Subsequently, there were discussions with Rosemount and its attorney and on April 13, 1994, by facsimile transmission, Mike Miles, the attorney for Rosemount, presented a letter of response. In his letter, Mr. Miles explained that he had discussed the issue raised by Mr. Walsh with his client. Based on those discussions, it was Mr. Miles' understanding that Rosemount had for many years empowered its city administrator to serve as the city's responsible authority. Some years ago, after Rosemount hired its first city clerk, that position was designated as the official to serve as responsible authority and to receive and handle requests for data either personally or through delegations to others. Mr. Miles did not make any other comments about specific public access procedures established by Rosemount.
Issue:
In his letter to the Commissioner, Mr. Walsh asked the Commissioner to address the following issue:
Discussion:
When the legislature first began formulating the public policies that have now evolved into the full blown MGDPA, there was a recognition that policy objectives concerning the regulation of government data could not be attained unless there was a clear identification of who, within each government entity subject to the MGDPA, would be responsible for the entity's compliance with the MGDPA. The concept of the responsible authority evolved out of this discussion. Within the MGDPA, the responsible authority is given the assignment of making the decisions and taking actions to establish the policy and procedure framework for an entity's compliance with the MGDPA. After establishing the framework, the responsible authority then works with personnel of the entity and with citizens on an ongoing basis to assure compliance. (See Minnesota Session Laws 1974, Chapter 479 and Minnesota Statutes Sections 13.03, 13.05 and 13.08.)
In this particular instance, Mr. Walsh has come to understand that the MGDPA requires that he make his requests for access to data held by Rosemount to the responsible authority for the city. To be able to do that, Rosemount must be able to tell him who functions as its responsible authority. For some reason they have chosen not to do so. This appears to be the case even though the attorney for Rosemount indicates in his letter to PIPA that the responsible authority has been either the city administrator or the city clerk. In the case of a city, the actual designation of the responsible authority takes place when a city council, by resolution, appoints the responsible authority for the city. (Minnesota Statutes Section 13.02, subdivision 16.) So that the public can ascertain the actual identity of the individual appointed, the MGDPA requires the responsible authority to prepare a document containing the name, title and address of the responsible authority. (Minnesota Statutes Section 13.05, subdivision 1.) The requirement that this document be prepared has been a part of the MGDPA since 1975. (Minnesota Session Laws 1975, Chapter 401, section 2.) Beginning on August 1, 1977, the MGDPA required public entities to annually update this document. (Section 13.05, subdivision 1.) In one of his requests to Rosemount, Mr. Walsh specifically cited to Section 13.05, subdivision 1 and asked for a copy of the Rosemount public document. It was not provided to him. Rules promulgated by the Department of Administration in 1981 were, among other things, intended to assist government entities in complying with the responsible authority appointment process and public document preparation. In addition to legal rules dealing with those topics, the Department of Administration also provided model advisory forms for resolutions to appoint a responsible authority and to produce the public document required by Section 13.05, subdivision 1. (See Minnesota Agency Rules, Chapter 1205 and its Appendix.) The best evidence that Rosemount could offer to Mr. Walsh, as to its compliance with the provisions of the MGDPA regarding the appointment of a responsible authority, would be copies of all appointment resolutions acted upon by the Rosemount City Council and of the public document required by Section 13.05, subdivision 1. Although Mr. Miles has identified the city clerk and city administrator as Rosemount's responsible authorities over the years, copies of appointment resolutions and the public document would demonstrate clearly that Rosemount has actually done what the MGDPA requires it to do in appointing a responsible authority and identifying that responsible authority to the public. An important feature of the MGDPA is its provisions that deal with public access to government data. In his attempts to get access to data at Rosemount, Mr. Walsh also asked the city to provide him with information about its procedures regarding how citizens get access to public data maintained by the city. Mr. Walsh states that Rosemount has not provided him with copies of those procedures or any information about them. In his comments, Mr. Miles states that Rosemount has directed its city clerk and administrator to deal with public requests for access to data. However, he provided no further detail. After stating the presumption that all government data are presumed to be public, the legislature went on to require that the responsible authority in every entity subject to the MGDPA . . . shall establish procedures, consistent with this chapter, to insure that requests for government data are received and complied with in an appropriate and prompt manner. (Minnesota Statutes Section 13.03, subdivision 2.) Although the MGDPA does not necessarily require that these procedures be in writing, it would be difficult for a government entity to properly deal with the public access requirement and all the detail associated with it, if the entity did not prepare the public access procedures in writing. In addition, members of the public would have a difficult time in gaining access to public data because they would not know, on an ongoing basis, just exactly what makes up the detailed guidance of the unwritten procedures. For those reasons, agencies are strongly encouraged by PIPA and associations of government entities, like the League of Minnesota Cities, to have written procedures. The problems that Mr. Walsh has encountered in gaining access to government data at the City of Rosemount are a good illustration of the problem. (See the Commissioner's previous opinion concerning Mr. Walsh's requests for access to data at Rosemount issued March 7, 1994.) He has asked for certain government data. He has not received a reply from the city. He has no way to know if the reasons for which he is not being provided the data he is seeking are in the format of his request, to whom he is directing his request or some other problem. Without access to the actual procedures Rosemount has established to direct its personnel on how to comply with requests for access to public, citizens like Mr. Walsh cannot fully exercise the right of public access conferred on them by the MGDPA. Although Rosemount, through its attorney, indicates it has assigned responsibility for handling requests made under Section 13.03 to its city clerk, it has not provided what Mr. Walsh asked for on January 26, 1994. Specifically, he asked for any materials describing the specific procedures set by Rosemount for accessing government data. The best evidence Rosemount can offer about its procedures is a copy of those procedures themselves. They have not been provided to Mr. Walsh and they were not provided as part of Rosemount's comments on Mr. Walsh's request for an opinion. Rosemount should either provide Mr. Walsh with a copy of its procedures, explain to him in detail how he gains access to public government data maintained by the city or acknowledge that procedures do not exist. Opinion:Based on the correspondence in this matter, my opinion on the issue raised by Mr. Walsh is as follows:
Signed:
Debra Rae Anderson
Dated: April 21, 1994
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Legislative authority and intent
Responsible authority
Responsible authority
Public document/annual report (13.05, subd. 1 and 1205.1200)
Name, title, and address
