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July 29, 2003; City of Brainerd
7/29/2003 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:On June 19, 2003, IPAD received a letter, dated same, from Richard Olmstead. In his letter, Mr. Olmstead asked the Commissioner to issue an advisory opinion regarding his rights as a subject of data that the City of Brainerd maintains. IPAD, on behalf of the Commissioner, wrote to Dan Vogt, Administrator of the City of Brainerd, in response to Mr. Olmstead's request. The purposes of this letter, dated June 24, 2003, were to inform him of Mr. Olmstead's request and to ask him to provide information or support for the City's position. On July 10, 2003, IPAD received a letter, dated same, from Mr. Vogt. A summary of the facts as Mr. Olmstead presented them is as follows. In a letter dated March 12, 1997, Mr. Olmstead wrote to Mr. Vogt, ...I am requesting that I see all data about me or my likeness that the city or any of its entitys [sic] have on file about me this [sic] request is free of charge per sec 13.04 sub 3. In his opinion request, Mr. Olmstead wrote: ...the City of Brainerd's Respon [sic] Authority willfully withheld data of the Hoff + Allen Report + its [sic] clear such data was in possession of the City in 1997 to this date + in a recent disclosure such data was provided but was withheld in 1997. Issue:In her request for an opinion, Mr. Olmstead asked the Commissioner to address the following issue:
Discussion:Pursuant to Minnesota Statutes, section 13.04, when an individual makes a request for access to government data of which s/he is the subject, the entity must respond within ten working days. In his response, Mr. Vogt noted that he was the one who responded to Mr. Olmstead's 1997 data request. He described his efforts to locate data about Mr. Olmstead. Mr. Vogt stated he first sought advice from IPAD staff. He described his next steps:
(1) I sent a memo to City department heads asking them to promptly forward any data in their department files requested by Mr. Olmstead.
Mr. Vogt stated that Mr. Olmstead reviewed the assembled data. Mr. Vogt continued: Over six years later, on April 17, 2003, Mr. Olmstead requested to see the entire so-called Hoff and Allen Report....The Hoff and Allen Report was the result of an investigation conducted in late 1990 and early 1991 into allegations of misconduct within the Brainerd Police Department. The independent investigation was conducted by the law firm of Hoff and Allen, hence the name of the report. ...The law firm which conducted the investigation warned that the report and the supporting material contained considerable nonpublic material....As a result, the material was segregated from other City files in a locked storeroom in the basement of City Hall. When Mr. Olmstead requested the opportunity to see the Hoff and Allen Report this spring, I found it in the basement where it had been secured twelve years before. I reviewed the report and its backup material to separate the data Mr. Olmstead was legally entitled to see under [Chapter 13]. During this process I found that Mr. Olmstead's name was mentioned one time in the 47 page final report. If I had ever known this, I had forgotten it by the time other department heads and I searched City files in response to Mr. Olmstead's 1997 request.... Upon a detailed review of all the backup data assembled by Hoff and Allen, I found Mr. Olmstead's name was mentioned a total of six or seven more times. It turns out that he was not a prominent part of the investigation.... Now, after providing Mr. Olmstead with the data he requested from the Hoff and Allen Report in 2003, he alleges that the City willfully withheld this material in 1997. The simple fact is that the Hoff and Allen Report never occurred to me while searching City files for Mr. Olmstead's name back in 1997.... The City has acted in good faith in its efforts to respond to Mr. Olmstead's data requests. Although a challenge, the sweeping 1997 request was answered within the 10 day statutory limit. I regret that the references to Mr. Olmstead within the Hoff and Allen Report were not discovered and provided in 1997. However, the City has acted responsibly, and certainly didn't willfully withhold any data in 1997 to which he was legally entitled. Based on Mr. Vogt's description of the process used in 1997 to locate data about Mr. Olmstead, it appears the City conducted a thorough and diligent search. Mr. Vogt was able to complete a fairly exhaustive search of the City's files by reviewing data from his own department as well as asking other City department heads to locate related data. The Commissioner applauds such an effort. However, as Mr. Vogt acknowledged, the City did not discover the references to Mr. Olmstead in the Hoff and Allen Report. This, in large part, appears to be because of the circumstances associated with the storage of the Report. As stated above, government entities are required to respond to requests from data subjects within ten working days. Technically, therefore, the City did not respond appropriately to Mr. Olmstead's 1997 request. As a final note, the Commissioner reminds government entities of the following requirement in section 13.03, subdivision 1: 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. Opinion:Based on the facts and information provided, my opinion on the issue that Mr. Olmstead raised is as follows:
Signed:
Brian J. Lamb
Dated: July 29, 2003 |
