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December 13, 2001; Dodge Soil and Water Conservation District
12/13/2001 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.
Note: In 2014, the Legislature amended Minnesota Statutes, section 13.05, subd. 11(a), related to government contracts. 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 October 30, 2001, IPA received a letter dated October 24, 2001, from Kathleen Loew. In her letter, Ms. Loew asked the Commissioner to issue an advisory opinion regarding her access to certain data that the Dodge Soil and Water Conservation District maintains. At IPA's request, Ms. Loew clarified her opinion request in a letter dated November 6, 2001. IPA, on behalf of the Commissioner, wrote to Gary Gray, Chair of the District, in response to Ms. Loew's request. The purposes of this letter, dated November 7, 2001, were to inform him of Ms. Loew's request and to ask him to provide information or support for the District's position. On November 26, 2001, IPA received a response, dated same, from Ann Goering, an attorney representing the District. A summary of the facts according to Ms. Loew is as follows. Ms. Loew noted that in a letter dated September 17, 2001, addressed to Mr. Gray, she requested the following data: copies of allpublic and private data that has been collected, created, maintained, stored, or dispersed by the Dodge SWCD board, or Ratwik, Roszak Maloney, or DMG Maximus that relates to my job rating or job description. Ms. Loew further wrote that she did not receive any response from the District. She also stated, When I asked for all the data relating to my most recent job rating that was adopted at the January 13, 2000, board meeting, I believe there is information that DMG Maximus used to put together this current job rating. Issue:In her request for an opinion, Ms. Loew asked the Commissioner to address the following issue:
Discussion:Pursuant to Minnesota Statutes, section 13.03, and Minnesota Rules, Part 1205.0300, when an individual makes a request for public data of which the requestor is not the subject, the government entity must respond in a prompt and appropriate manner, and within a reasonable time, respectively. Pursuant to Minnesota Statutes, section 13.04, when an individual makes a request for data of which the requestor is the subject, the government entity must respond within ten working days. In her comments to the Commissioner, Ms. Goering made several assertions. One is that Mr. Gray did not receive a request for data. Ms. Goering wrote: The first notice of the alleged request Mr. Gray received was the letter dated November 7, 2001 from the Department of Administration, which he received the week of November 17. Now that the request has been received, Mr. Gray will respond to it....all of the data requested is public, and therefore a response will be made within a reasonable amount of time. Ms. Goering's second assertion is that under the Local Government Pay Equity Act job ratings are not related to the performance of the individual. Ms. Goering stated, Therefore, all materials related to the requestor's job rating and job description are public, not private data....In fact, such data is not data on individuals at all. Ms. Goering's final assertion is that records created and maintained by DMG Maximus and Ratwik, Roszak Maloney are not subject to the provisions of Chapter 13. The Commissioner has the following comments. First, the issue of whether or not Ms. Loew requested data on or about September 17 is a factual dispute the Commissioner cannot resolve. Ms. Loew states that she made a data request. Ms. Goering states that Mr. Gray was not aware of any data request until the week of November 17. However, now that the District confirms it has Ms. Loew's request it must respond according to the statute, i.e., within ten working days for any data of which Ms. Loew is the subject, and/or promptly, appropriately, and within a reasonable time for any data of which Ms. Loew is not the subject. Second, the issue of whether data collected, created, maintained, etc., by DMG Maximus and/or Ratwik, Roszak, Maloney are subject to Chapter 13 depends on the contract that each of these parties has signed with the District. The Commissioner addressed a similar issue in Advisory Opinion 01-092. Assuming the contracts went into effect or were amended after August 1, 1999, the following language applies: (a) If a government entity enters into a contract with a private person to perform any of its functions, the government entity shall include in the contract terms that make it clear that all of the data created, collected, received, stored, used, maintained, or disseminated by the private person in performing those functions is subject to the requirements of this chapter and that the private person must comply with those requirements as if it were a government entity. The remedies in section 13.08 apply to the private person under this subdivision. (b) This subdivision does not create a duty on the part of the private person to provide access to public data to the public if the public data are available from the government entity, except as required by the terms of the contract. (See section 13.05, subdivision 11.) If the contracts were in effect prior to August 1, 1999, certain data collected, created, maintained, etc., by DMG Maximus and/or Ratwik, Roszak Maloney may be subject to Chapter 13. However, the answer depends upon the applicability of certain statutory provisions (in Chapter 13) and whether certain language regarding Chapter 13 has been included in the contracts. The Commissioner urges the reader to review Advisory Opinion 01-092. Opinion:Based on the facts and information provided, my opinion on the issue that Ms. Loew raised is as follows:
Signed: David F. Fisher
Dated: December 13, 2001 |
