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January 16, 1995; City of Saint Paul
1/16/1995 10:14:43 AM
Note: Minnesota Statutes section 13.82's subdivisions were renumbered in 2000. 13.82 subdivision 16 discussed below is now codified in 13.82 subdivision 25.
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 citizen who requested this opinion and the response from the government entity with which the citizen disagrees are presented in summary form. Copies of the complete submissions are on file at the offices of PIPA and are available for public inspection.On November 28, 1994, PIPA received a request for an opinion from Ms. Leslie J. Anderson, an attorney representing Mr. Rick Kupchella, a reporter working for KARE 11, a Twin Cities television station. In this letter, Ms. Anderson described attempts by Mr. Kupchella and others from KARE 11 to get access to a videotape of the interviews of Guy Harvey Baker that were recorded by the St. Paul Police Department, hereinafter the Department. She pointed out that audiotapes of those same interviews had previously been released to the public. Ms. Anderson stated that the Department has refused to release the videotape claiming that the videotape is classified as not public by the provisions of Minnesota Statutes Section 13.82, subdivision 16. This statutory provision states that data that reflect deliberative processes and investigative techniques of law enforcement agencies are classified as not public. Ms. Anderson went on to discuss the Department's reliance on this statutory provision and to argue that this provision cannot be properly applied to the videotape data in question. Ms. Anderson pointed out that the rules of criminal procedure require a tape like this to be made available to the defendant. The rule provision would conflict with the classification of the data as confidential under the provisions of Section 13.82, subdivision 16. Ms. Anderson also cited to the Scales case, a recent case in which, according to Ms. Anderson, the Minnesota Supreme Court required that all police interviews of arrested persons be recorded for judicial and public review of police practices. (State v. Scales, 518 N.W. 2d 587 (Minn. 1994).) It was her position that a not public classification for the videotape of the interviews with Mr. Baker would not be consistent with the Supreme Court's holding in the Scales case. In response to Ms. Anderson's request, PIPA, on behalf of the Commissioner, wrote to Mr. William Finney, the Chief of the Department. The purposes of this letter, dated November 29, 1994, were to inform Chief Finney of Ms. Anderson's request for an opinion, to ask the Chief or the attorney for the Department to provide any information about or support for the Department's position and to inform the Chief of the date by which the Commissioner was required to issue this opinion. (In subsequent correspondence, Ms. Anderson and Mr. Finney were notified that the Commissioner would be taking a portion of the additional 30 days allowed by the opinion statute to issue this opinion.) On December 12, 1994, in response to the letter to Chief Finney, PIPA received a letter from Mr. Paul F. McCloskey, an attorney for the Department. In this letter, Mr. McCloskey reviewed the Department's position and offered support for a finding that the Department's position is a reasonable interpretation of Minnesota Statutes Section 13.82, subdivision 16. A summary of Mr. McCloskey's comments is as follows. The videotape was never identified in court documents as part of the prosecution's case against Mr. Baker. Although the rules of criminal procedure may require videotapes such as these to be made available to a defendant, the rules do not, according to Mr. McCloskey, suggest that doing so would make the tapes public. In this particular instance, the defendant did not ask for access to the tape. Mr. McCloskey acknowledged that the Department was relying on Section 13.82, subdivision 16, but took the position that any explanation by the Department for its reliance on that provision would disclose the material the Department is trying to protect. Mr. McCloskey discounted the effect of the Scales case and pointed out that the case does not say that recording of defendant interrogations makes the recordings public. Mr. McCloskey concluded his remarks by arguing that a failure to recognize the application of Section 13.82, subdivision 16, to this situation would cause this subdivision to cease to exist and would remove the protection for data about crime fighting methodology that the legislature provided in Section 13.82, subdivision 16. Issue:
In her request for an opinion, Ms. Anderson asked the Commissioner to address the following issue:
Discussion:
The Department's assertion, as reported by Ms. Anderson, that this videotape was created for the sole internal use of the Department, has relevance only if the legislature has classified the videotape data as not public or has otherwise limited dissemination and use of the videotape data. The statutory provision claimed by the Department in support of its position that the videotape data are not public is Minnesota Statutes Section 13.82, subdivision 16. This subdivision states that data that reflect deliberative processes or investigative techniques of law enforcement agencies are confidential or protected nonpublic data. The subdivision also contains a proviso that information reports or memoranda adopted as the final opinion or justification for a decision of a law enforcement agency are public data.
The dispute over access to this videotape revolves around the central issue of whether the videotape of an individual being interviewed about the killing of two police officers and a police dog contains data that reflect deliberative processes or investigative techniques of the Department. Although the Department asserts that the videotape does contain those kind of data, the Department also takes the position that it cannot explain just how the data on the videotape actually reflect deliberative processes or investigative technique because to do so would reveal the material that the Department seeks to protect from public disclosure. Two primary sources of guidance are available to assist in determining whether this kind of videotape data actually constitutes deliberative process or investigative techniques. The first of these sources relies on the plain words of Minnesota Statutes Section 13.82, subdivision 16, itself. The legislature has not defined special terminology for the language used in Subdivision 16 so guidance on the language used is appropriately sought from a dictionary. (See Minnesota Statutes Section 645.08.) A summary of the definitions of the critical terms as defined in The American Heritage Dictionary, College Edition, Houghton Mifflin Company, Boston 1985, is as follows. Deliberative means assembled or organized for deliberation or debate or characterized by or for use in deliberation or debate. Deliberation means the formal discussion and debate of all sides of an issue. Process means a system of operations in the production of something or a series of actions, changes or functions that bring about an end result. Given those definitions, it would appear that for data to reflect a deliberative process, it must be data collected, created or maintained that explain or describe the actions, changes or functions that a given law enforcement agency follows to conduct formal discussion or debates of all sides of an issue. This definition appears to have little to do with a videotape that records a number of police officers interviewing a suspect about his commission of a crime and otherwise interacting with that suspect. This is an interrogative process not a deliberative process. The objective of officers conducting the interrogation is not to conduct a debate or discussion in order to reach a deliberative decision but to elicit inculpatory data and/or a confession from the suspect. It is possible, if the Department videotaped a discussion among its officers as to how they were going to approach the interrogation of this particular suspect, that a videotape of those kind of discussions could be said to be data that reflect a deliberative process. However, that appears not to be the case here. This is the videotape that documents the actual process of conducting the interrogations of Mr. Baker. It does not appear that the videotape documents any deliberative discussions about how the interrogation could or should be conducted. Investigate means to observe or inquire into detail, to examine systematically or to make a detailed inquiry. Technique means the systematic procedure by which a complex or scientific task is accomplished. Given the definition of those terms, it would appear that data which reflect investigative techniques are those data that describe the systematic procedures used by the officers of the Department to make detailed inquiries into the commission of crimes. The videotape data in question here do not seem to fit that definition. The videotape appears to contain a visual record of the actual interrogation of the suspect. It does not seem, based on Ms. Anderson's description, to contain a statement or record of the systematic procedures used by the Department to investigate crimes. It appears to be a videotape of the process of conducting an inquiry into a crime, not a set of data that reflect the procedures that the Department follows to investigate crimes or to curtail the commission of crimes through preventive measures. The Department's claims that the release of this videotape to the public would reveal deliberative processes or investigative techniques is further complicated by the fact, as asserted by Ms. Anderson and not denied by the Department, that an audiotape version of the interrogation of Mr. Baker has been made available to KARE 11 and to other members of the public. The Department has offered no information or explanation that supports the Department's apparent position that a videotape version of the interrogation of Mr. Baker would reveal deliberative processes or investigative techniques while the audiotape version of that same investigation would not reveal deliberative processes or investigative techniques. The Department also acknowledges that if Mr. Baker's case had gone to trial, under the Supreme Court's holding in the Scales case, this videotape would have been available to Mr. Baker and conceivably offered into evidence by either the prosecution or defense in Mr. Baker's trial. In that eventuality, the videotape data would have been shown to the public in attendance in the courtroom and would have been available to the public under Minnesota Statutes Section 13.82, subdivision 5, and the Rules of Public Access to Records of the Judiciary Branch. It is difficult to agree with the Department's assertion, now that it knows this case will not got to trial, that the data it collected for the express purpose of filing criminal charges against Mr. Baker, and the data it knew would be made public by the operation of Minnesota Statutes Section 13.82, subdivision 5, can now be withheld from release to the public by the Department's reliance on Minnesota Statutes Section 13.82, subdivision 16. In addition to examining the plain words used in Section 13.82, and the apparent fact that the audiotape version of this data has been made public, it is helpful to look at cases in other jurisdictions involving the deliberative process evidentiary privilege and the deliberative process public records exemption. Statutes and cases in a number of jurisdictions recognize that certain government data may be protected from discovery in litigation and may be protected from disclosure to the public when the public requests access to government data. The former protection is referred to as an evidentiary privilege while the latter is based on a statutory exemption contained in the jurisdiction's freedom of information or public records act. The focus in both the public records exemption and the discovery privilege is on whether the records sought are predecisional, i.e. prepared by a government agency to assist it with making decisions and whether the documents are deliberative, i.e. actually used during the agency's deliberative process to make the decision. (See Florida House of Representatives v. U.S. Department of Commerce, 961 F. 2d 941 (11th Cir. 1992) at p. 945.) A document is part of the deliberative process if disclosure of the document to the public would expose the agency's decision making process in a way that would discourage candid discussions within an agency. (Bay Area Lawyers Alliance v. Department of State, 815 F. Supp. 1291 (ND Cal. 1992, at page 1297.) Applying the definitions and logic, used in federal cases to explain the meaning of the deliberative processes exemption and privilege, to the videotape, claimed to be part of a deliberative process used by the Department, establishes that this videotape would not fall within the federal law exemption or privilege. The videotape in dispute here is government data that were collected to, if necessary, assist the State in convicting Mr. Baker of a crime. This videotape does not appear to be a record of members of the Department conducting a discussion of decisions to be made by the Department. It appears to be a videotape of an interrogation of a criminal suspect. There is nothing in the information provided to the Commissioner that establishes how release of this videotape would discourage candid discussion within the Department about decisions being made by the Department. As noted above, to the extent that the videotape reveals discussions among officers of the Department on this videotape about the questions being asked Mr. Baker and other matters, all of these discussions appear to have been previously released to the public in the form of audiotapes. The Department did not cite the provisions of Section 13.82, subdivision 16, when it released the audiotapes of Mr. Baker's interrogation. It has offered no explanation or basis for differentiating between the audiotape and videotape versions of the same event. Opinion:Based on the correspondence provided in this matter, my opinion on the issue raised by Ms. Anderson is as follows:
Signed: Robert A. Schroeder
Dated: January 16, 1995 |
Law enforcement data
Statutory construction (Ch. 645)
Deliberative processes (13.82, subd. 25 / subd. 16)
Interrogation/investigative technique, defined
Words and phrases construed (645.08)
