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December 5, 2000; Minnesota Department of Public Safety
12/5/2000 10:18:43 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, except for any data classified as not public, are available for public access. On July 13, 2000, X sent a written request to the Minnesota Department of Public Safety (DPS) to inspect all public and private data held about X. On July 24, 2000, X inspected data that had been collected by DPS in response to X's request. On July 25, 2000, X sent DPS a letter with concerns about the data that had been inspected on July 24th. Those issues were that: (1) there were no data from the Board of Private Detectives; (2) there were no data from the Division of Motor Vehicles; (3) documents had been withheld by the Office of the Attorney General; (4) the DPS justification for its photocopy charges had not been available; and (5) that no emails had been included. On August 1, 2000, DPS sent a letter to X responding to the concerns raised in X's letter of July 25th. The responses were that: (1) the Board of Private Detectives was separate from DPS and a data request would need to be made to that Board directly; (2) Division of Motor Vehicle records had been re-searched; a short list of the records was provided as well as the cost for copies of those records; (3) the documents withheld by the Office of Attorney General were classified as confidential according to Minnesota Statutes, section 13.65, subdivision 2 (1998); (4) a copy of the DPS justification for its photocopy charges was provided; and (5) the effort to find and produce responsive emails was described. In a letter dated August 11, 2000, X requested the Commissioner of Administration to issue an advisory opinion in this matter. IPA staff began discussions with X about the requested advisory opinion. Included in these discussions was the need for a delay in accepting the request due to a marked increase in the number of advisory opinions being requested by several individuals and entities. On August 23, 2000, DPS sent a letter to X notifying X that DPS did not have any audio or video tapes where X was the data subject. The letter also indicated that Division of Motor Vehicle and email data were available for X to review. On September 19, 2000, X sent DPS a written request to notify X if X was the subject of any confidential data maintained by DPS. DPS responded on September 27, 2000 that DPS did have confidential data about X and that those data were classified according to Minnesota Statutes, section 13.82, subdivision 5 (1998). On October 2, 2000, X reaffirmed X's request for an advisory opinion and requested that the issue of the classification of data about X as confidential be addressed in the opinion. The Commissioner accepted X's request for an advisory opinion on October 12, 2000, and notified DPS that it needed to respond to the request. On October 23, 2000, DPS responded to the request for an advisory opinion and indicated that data had been classified as confidential in error, that X had been able to inspect all of the data that were erroneously classified as confidential and the efforts that had been and would be made to provide X with access to email in which X was the data subject. DPS indicated that it had been unable to review all of the computer back up tapes containing email messages because it did not have the proper equipment in place. DPS indicated that once the new server was installed in early November, the back up tape would be checked and that this good faith effort to comply with the Minnesota Government Data Practices Act should be recognized. Issues:In the request for an opinion, X asked the Commissioner to address the following issues:
Discussion:1. Pursuant to Minnesota Statutes, Chapter 13, did the Minnesota Department of Public Safety appropriately respond to a data subject's request to gain access to all e-mails, either generated or received by Department personnel, that contain data about the data subject, including but not limited to e-mail messages generated by Captain Patrick Chase, former manager of Capitol Security? X's request for access to all emails that contain data about X may result in the need for DPS to produce both public and private data. To the extent that the data contained in the emails are classified as public, Minnesota Statutes, section 13.03, subdivision 3(c) requires that access to public data be provided as soon as reasonably possible. See also Advisory Opinions 00-017 and 00-019. DPS has provided X with access to some emails that contain data about X. By its own admission, DPS has not been able to check back up tapes for additional emails that may be responsive to X's request. Minnesota Statutes, section 13.03, subdivision 1, requires that a responsible authority ...keep records in such an arrangement and condition as to make them easily accessible for convenient use. DPS indicates in its response that the new server was scheduled for delivery in early November. Hopefully, the server has been delivered, installed, the backup tape reviewed and X has copies of responsive emails or has been informed that no responsive emails exist. As X made the data request in July, having to wait three months or more for a new server to be ordered, delivered and installed so that a back up tape can be reviewed is not keeping records in a way that makes them easily accessible for convenient use. Agencies need to act proactively to prepare their computer systems so that they are easily able to respond for requests for data, including review of backup tapes. Waiting for a request and then determining that data are not accessible is not responsive to the statutory authority. If the backup tape has not yet been reviewed, it would be appropriate at this point for the tape to be sent to a vendor for review; X should not have to wait any longer. In summary, with respect to emails on the back up tape that may contain public data about X, DPS should have acted more promptly in reviewing the back up tapes thereby meeting the requirement to produce public data as soon as reasonably possible. Minnesota Statutes, section 13.03, subdivision 3(c). With regard to emails that contain private data about X, Minnesota Statutes, section 13.04, subdivision 3 requires that private data be supplied immediately, if possible or within ten days for the date of the request, excluding Saturdays, Sundays and holidays. As was noted above, DPS has provided some email messages to X. DPS has not, however, made any responsive emails on the back up tape available to X. The statute provides that a government entity has ten days to respond to a request for private data. See also Advisory Opinions 00-033 and 99-044. DPS has not responded within the ten days, at least with respect to any emails that may be found on the back up tape. If DPS is unable to read the emails on the back up tape, it should have chosen one of the following: (1) stored the emails on the back up tape in such a way that they could be read using technology currently available at DPS; (2) sent the back up tape to an outside party capable of reading it and producing the emails responsive to X's request; or (3) established an approved records retention schedule with short time period for holding emails that would then satisfy inquirers such as X that data are no longer held by DPS. As a final note, DPS states in its response that it has made several good faith efforts to respond to X's request. Unfortunately for DPS, the Minnesota Government Data Practices Act, Minnesota Statutes, Chapter 13, does not recognize good faith efforts to comply. Rather, the provisions of Chapter 13 must be followed as set forth by the Legislature. 2. Has the Minnesota Department of Public Safety appropriately denied a data subject access to data about him/herself based on Minnesota Statutes, section 13.82, subdivision 5? Minnesota Statutes, section 13.82, subdivision 7 (2000) (previously codified as Minnesota Statutes, section 13.82, subdivision 5) classifies criminal investigative data as confidential and therefore not accessible to the subject of the data. A citizen such as X has no way of knowing how data are classified and is at the mercy of a government entity to correctly inform them how requested data are classified. In this case, DPS made data about X available for inspection on July 24, 2000, and then later told X that those same data were classified as confidential. Because X did not believe that DPS held data that could be classified as criminal investigative data, X continued to challenge the classification. Because X persevered, DPS reviewed their actions and determined that the data had been incorrectly classified. It was not the Legislature's intent that citizens continue to challenge a government entity over the classification of data. Rather, to the extent possible, government entities should know how their data are classified and act in accordance with the classification(s). See Minnesota Statutes, section 13.05, subdivision 1 and Minnesota Rules, section 1205.1200. In conclusion, although X had access to the data DPS later classified as confidential, DPS did not act appropriately in classifying the data as confidential when there was no basis for that classification. Opinion:Based on the facts and information provided, my opinion on the issues raised by X is as follows:
Signed: David F. Fisher
Dated: December 5, 2000 |
Electronic data
Easily accessible for convenient use (13.03, subd. 1)
Computer design
