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June 16, 2000; Minnesota Department of Transportation
6/16/2000 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: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 that are not public, are available for public access. On November 16, 1999, the Commissioner received a letter dated November 15, 1999, from State Representative Philip Krinkie. In his letter, Representative Krinkie asked the Commissioner to issue an opinion regarding his access to certain data maintained by the Minnesota Department of Transportation (Mn/DOT). IPA, on behalf of the Commissioner, wrote to Elwyn Tinklenberg, Commissioner of Mn/DOT in response to Representative Krinkie's request. The purposes of this letter, dated November 19, 1999, were to inform him of Representative Krinkie's request and to ask him to provide information or support for Mn/DOT's position. On December 10, 1999, IPA received a response, dated same, from Margo LaBau, Mn/DOT Chief of Staff. A summary of the facts is as follows. On October 1, 1999, Representative Krinkie wrote to Commissioner Tinklenberg: As you know, I have repeatedly asked for e-mails relating to a number of topics surrounding the Hiawatha [LRT] project. Since you have not produced any of these documents, I am now making a formal request to access any computer backup tapes for 1999 that contain data from computers used by any members of or support staff for the MnDOT executive office. I also want access to the same information from MnDOT's Metro Office of Rail Transit. In letters dated October 7 and November 1, 1999, Ms. LaBau responded to Representative Krinkie's request by stating that the back-up tapes are not contained in data base format and that restoring the information would cost approximately $99,950. In addition, before beginning the retrieval and restoration process Ms. LaBau requested a pre-payment of $51,000. She also stated, All e-mails that were printed and added to our paper files were subject to your review. Representative Krinkie objected to Mn/DOT's position and requested this opinion. For reasons communicated to Representative Krinkie by letter dated January 25, 2000, issuance of this opinion was delayed until this time. Issues:In his request for an opinion, Representative Krinkie asked the Commissioner to address the following issues:
Discussion:Issue 1.Pursuant to Minnesota Statutes, Chapter 13, are e-mails generated or received by the Minnesota Department of Transportation (Mn/DOT) employees and that contain information about the Hiawatha Light Rail Transit (LRT) project public data? Pursuant to Minnesota Statutes, section 13.02, subdivision 7, government data are defined as all data collected, created, received, maintained, or disseminated by any government entity regardless of their physical form, storage media or conditions of use. Further, in defining data, Minnesota Rules, 1205.0200, subpart 4, states, Data can be maintained in any form, including, but not limited to, paper records and files, microfilm, computer medium, or other processes. Section 13.03, subdivision 1, provides that government data are public unless otherwise classified by state statute, federal law, or temporary classification (see section 13.06). Mn/DOT collected, created, received, maintained, or disseminated the e-mails in question. Therefore, they are government data. Further, the data contained in those e-mails (in paper or electronic form) are treated the same as data contained in any other type of document. In other words, the data are public unless otherwise classified. Access to data in e-mails may be restricted only if those data are classified as not public pursuant to state statute or federal law. Pursuant to Chapter 13, e-mails generated or received by Mn/DOT employees that contain information about the Hiawatha LRT project are presumed public. Issue 2.Pursuant to Chapter 13, has Mn/DOT complied with a request for access to all e-mails related to the Hiawatha LRT project by allowing access only to e-mails MnDOT has printed and has in paper files? Pursuant to section 13.03, subdivision 3, an individual has the right to gain access to public government data. Section 13.02, subdivision 7, defines government data as all data collected, created, received, maintained, or disseminated by a government entity. Minnesota Rules, 1205.0200, subpart 4, states that data can be maintained in any form, including, but not limited to, paper records and files, microfilm, computer medium, or other processes. In her response to the Commissioner, Ms. LaBau wrote, Mn/DOT, however, has taken the position that an e-mail that is printed and added to file documentation is subject to [Chapter 13] and made those available to Mr. Krinkie at the same time that all LRT information was made available. She also wrote, It is obvious that [Chapter 13 or other current statutes] was not written to accommodate an electronic environment. In his opinion request, Representative Krinkie wrote, On November 1st, Mn/DOT's Chief of Staff responded by implying I did have access to e-mails. I quote from her enclosed letter to me: 'All e-mails that were printed and added to our paper files were subject to your review.' Representative Krinkie is asserting that he is entitled to gain access to e-mails existing in forms other than paper. Pursuant to section 13.02, subdivision 7, government data are not defined by physical form, storage media, or conditions of use. The Legislature added the regardless of physical form, storage media, or conditions of use language to the definition of government data specifically to clarify that electronic and other forms of non-traditional government records are subject to Chapter 13. Therefore, any public data collected, created, received, maintained, or disseminated in e-mails are government data and, unless classified as not public, are accessible to the public in printed or electronic form. Issue 3:Pursuant to Chapter 13, are government data stored on Mn/DOT's computer backup tapes public data? In her response to the Commissioner, Ms. LaBau wrote: It is Mn/DOT's position that the computer back-up tapes are not data because they are not in a format that can be used by Mn/DOT personnel nor the public. This back up data, in its current encrypted form is intended to be retrieved only in the wake of a disaster of such magnitude that would justify the cost of such an effort. Back up tapes capture a moment in time and are erased periodically in order to capture more current moments in time so our system could be restored to some working platform but would certainly not return us to a perfect world. Back up tapes are not intended to be a substitute for our responsibility to maintain public data. To what extent there may or may not be e-mail recorded on the back-up tapes regarding LRT is impossible to determine. Only what is active in a mailbox on the day when a back up is made would appear on the tape and would not be in an accessible form. Back up tapes are only made periodically and not daily. Section 13.02, subdivision 7, defines government data as all data collected, created, received, maintained, or disseminated by a government entity regardless of physical form, storage media, or conditions of use. Therefore, back-up tapes are government data. If the data on the tapes are public, members of the public may gain access to public data contained on the tapes. Issue 4:Is Mn/DOT in violation of Chapter 13 by requiring the data requestor to make an initial payment of $51,000 before Mn/DOT will begin processing the request for access to data? When the Legislature enacted the public access provision in 1979, the following was part of the original statutory language: The responsible authority in every [government entity] shall keep records containing government data in such an arrangement and condition as to make them easily accessible for convenient use. See section 13.03, subdivision 1, and Minnesota Session Laws 1979, Chapter 328. As discussed above, the back-up tapes are government data. Pursuant to section 13.03, subdivision 3, the public is entitled to inspect all public data, free of charge, as follows: Upon request to a responsible authority or designee, a person shall be permitted to inspect and copy public government data at reasonable times and places, and, upon request, shall be informed of the data's meaning. If a person requests access for the purpose of inspection, the responsible authority may not assess a charge or require the requesting person to pay a fee to inspect data. Public data, however maintained, as defined by statute, must be provided for simple inspection free of charge. Thus, it is a government entity's responsibility to make public data contained on back-up tapes easily accessible and intelligible for public inspection. For a more extensive discussion of this issue, see Advisory Opinion 94-032. The issues addressed in this opinion raise questions concerning data practices and management in an increasingly complex environment of electronic use, transmittal and storage of data, both public and nonpublic. Given the complex issues raised in this opinion, the Commissioner would welcome an opinion by the Minnesota Attorney General regarding the application of Minnesota law and regulation to the circumstances of this case. Opinion:Based on the facts and information provided:
Signed: David F. Fisher
Dated: June 16, 2000 |
Electronic data
Inspection
Email/internet
Regardless of physical form
Electronic data, email
