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    Advisory Opinion 01-074

    September 18, 2001; City of Burnsville

    9/18/2001 10:15:43 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 IPA and, with the exception of any data that are not public, are available for public access.

    On July 30, 2001, IPA received a letter from Jeffrey Kummer, on behalf of the St. Paul Pioneer Press. In this letter, Mr. Kummer asked the Commissioner to issue an advisory opinion regarding his right to gain access to certain data maintained by the City of Burnsville Police Department.

    In response to Mr. Kummer's request, IPA, on behalf of the Commissioner, wrote to Greg Konat, City Manager. The purposes of this letter, dated August 7, 2001, were to inform him of Mr. Kummer's request and to ask him to provide information or support for the City's position. On August 22, 2001, IPA received a response from Roger N. Knutson, City Attorney for Burnsville. A summary of the facts of this matter follows.

    On July 13, 2001, a Pioneer Press reporter asked members of the Burnsville Police Department for information involving specific incidents. The Department responded by providing a news release that contained some information. The reporter than asked for additional information, including police reports containing request for service data and response or incident data.

    In response, the Burnsville Chief of Police told the reporter not to expect police reports because the case remained the subject of an ongoing investigation. Later that day, the suspect was charged, and the City provided a copy of the criminal complaint, but still refused to release any police reports, including request for service data and response or incident data.

    In a letter to the Police Chief dated July 16, 2001, the reporter repeated her request for data, and stated: [i]f you are denying my request, please provide the required [written] statement and legal basis for your actions. In response, by telephone, the Police Chief told the reporter that any police reports would have to come from the city attorney. An attorney for the City subsequently told the reporter in a telephone conversation that she couldn't have the reports because the case was still under investigation. The reporter asked the City again for the legal basis for its denial in writing.

    As of the date of this opinion request, the City had neither provided the data nor certified in writing the legal basis for its denial.

    In his response to the Commissioner, Mr. Knutson stated that the requests for data were not submitted to the City's responsible authority, as required per section 13.03, subdivision 3. According to Mr. Knutson, had they been, there would have been less chance for confusion over what was wanted. Mr. Knutson stated that the requests for data were not specific, but very general.

    Mr. Knutson also stated that the data provided, i.e., a copy of the criminal complaint, contains the data requested in the July 16, 2001, letter, except for the names of the victims, which were withheld under section 13.82, subdivision 17, (b) and (g), because the incident involved sexual conduct.

    Mr. Knutson further stated: [t]he City did not receive any request for public data that was denied. [The reporter] was told that the investigative data was being withheld because it was an active investigation. She was also told why the name [sic] of the victims were being withheld.

    Issues:

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

    1. Pursuant to Minnesota Statutes, Chapter 13, did the City of Burnsville improperly deny access to police reports containing public data, i.e., arrest data, request for service data and response or incident data?
    2. Pursuant to Minnesota Statutes, Chapter 13, did the City of Burnsville fail to comply with its responsibility to provide written notice that a request for public data was denied and the City's legal basis for that decision?

    Discussion:

    Issue 1

    Pursuant to Minnesota Statutes, Chapter 13, did the City of Burnsville improperly deny access to police reports containing public data, i.e., arrest data, request for service data and response or incident data?

    Data collected and maintained by law enforcement agencies are classified at section 13.82. The specific data elements described at subdivision 2, so-called arrest data, and subdivision 3, request for service data, are always public. Response or incident data, as described at subdivision 6, may be temporarily withheld from the public under certain circumstances, none of which appear to apply here. (See section 13.82, subdivisions 6 and 14.)

    However, the data described in those subdivisions are not the only public data maintained by law enforcement agencies. Those data elements were specified to ensure that a law enforcement agency could not protect them as active criminal investigative data under section 13.82, subdivision 7. The general presumption of section 13.03, that government data are public unless otherwise classified by state or federal law, applies to law enforcement data. (See also Advisory Opinions 97-023 and 97-024.)

    In addition, certain law enforcement data are never public. For example, under section 13.82, subdivision 17, the identities of undercover agents, informants, certain witnesses and victims (under certain conditions), and victims of criminal sexual conduct, among others, are never public.

    Further, some law enforcement data, i.e., active criminal investigative data, are not public while an investigation is active. (See section 13.82, subdivision 7.) When the investigation no longer is active, criminal investigative data, with certain exceptions, are classified as public.

    With the exception of the names of victims of criminal sexual conduct, the data requested by the Pioneer Press, i.e., arrest data, request for service data and response or incident data, may not be withheld from the public on the basis of section 13.82, subdivision 7, as asserted by the City.

    It may be the case that some, or even most, of the data the Pioneer Press requested are contained in the criminal complaint filed in District Court. However, that does not negate the City's obligation, upon request, to provide access to all of the relevant data it maintains, including any public law enforcement data contained in police reports.

    Issue 2

    Pursuant to Minnesota Statutes, Chapter 13, did the City of Burnsville fail to comply with its responsibility to provide written notice that a request for public data was denied and the City's legal basis for that decision?

    Pursuant to section 13.03, subdivision 3 (f): [u]pon the request of any person denied access to data, the responsible authority or designee shall certify in writing that the request has been denied and cite the specific statutory section, temporary classification, or specific provision of federal law upon which the denial was based.

    The purpose of this provision is to let the public know why, when making a request for data it believes to be public, a government entity denies access to the data. Mr. Knutson's comments notwithstanding, the City did not meet its obligation to certify, in writing, the legal basis for its denial of access to requested data.

    Mr. Knutson stated that had the reporter directed her request to the City's responsible authority, there would have been less chance for confusion over what was wanted. The Commissioner cannot determine the clarity or lack of same of the initial verbal requests, and the data request contained in the July 16, 2001, letter to the Police Chief refers back to those initial requests. The Commissioner agrees that, in order to ensure one's rights under Chapter 13, the procedures in place should be followed, including that requests for government data should be directed to the entity's responsible authority. However, both the City's police chief and attorney responded to the reporter's requests, and neither directed her at the time to the City's responsible authority.

    Opinion:

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

    1. Pursuant to Minnesota Statutes, Chapter 13, the City of Burnsville improperly denied access to police reports containing public data, i.e., arrest data, request for service data and response or incident data, on the basis of section 13.82, subdivision 7.
    2. Pursuant to section 13.03, subdivision 3 (f), the City of Burnsville failed to comply with its responsibility to provide written notice that a request for public data was denied and the City's legal basis for that decision.
     

    Signed:

    David F. Fisher
    Commissioner

    Dated: September 18, 2001

    Legislative authority and intent

    Requests for data

    Law enforcement data

    Law enforcement data

    To responsible authority or designated person, required

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