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January 15, 1997; City of Grand Rapids
1/15/1997 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 PIPA and, with the exception of any data classified as not public, are available for public access. On November 27, 1996, PIPA received a letter requesting this opinion from Chad Haatvedt. In that letter, Mr. Haatvedt described his attempts to gain access to certain data maintained by the City of Grand Rapids. Mr. Haatvedt enclosed copies of related correspondence. In response to Mr. Haatvedt's request, PIPA, on behalf of the Commissioner, wrote to Mr. Craig Mattson, Administrator, City of Grand Rapids. The purposes of this letter, dated December 2, 1996, were to inform Mr. Mattson of Mr. Haatvedt's request, to ask him or the City's attorney to provide information or support for its position, and to inform him of the date by which the Commissioner was required to issue this opinion. On December 10, 1996, PIPA received a response from Steven C. Fecker, attorney for the City. A summary of the detailed facts of this matter follows. In a letter dated October 30, 1996, Mr. Haatvedt requested, from Mr. Mattson, access to . . . the information that you and the City's Finance Director have provided to the City Council during the past several weeks regarding the 1997 budget. In a letter dated October 31, 1996, Mr. Mattson responded that it was his understanding that the data were not public, because . . . this information falls under the privileged communication status (communication between the City Administrator and the City Council) . . . . Mr. Mattson also stated that he had asked Mr. Fecker for an opinion regarding the classification of the data in question. In his opinion request, Mr. Haatvedt sought access to the following data: One set of documents is a weekly series referred to as the Friday Memo or Friday Status Report in which the Administrator provides information about items on Council meeting agendas, attaches reports and communications from other staff members, etc. for Council Review. I have also requested access to those attachments, specifically as they relate to information the Council has received regarding the proposed 1997 City budget. In his response to the Commissioner, Mr. Fecker stated that the information sought by Mr. Haatvedt is provided by the City Administrator only to the members of the City Council and the City attorney. Mr. Fecker further stated: It is the City's position that the requested documents are protected private data under [Minnesota Statutes Section 13.33] relating to correspondence between individuals and elected officials. The City Administrator, like any individual, is entitled to protection under [Section 13.33] in corresponding with the City Council. . . . . For example, in the October 25, 1996 Friday Status Report . . . the City Administrator provides the Council with his own analysis, both pro and con, of an agenda item which will be considered at a public hearing the day of the Council meeting . . . . The Friday Status Memo is data on individuals because it reflects the private opinions and perspectives of the City Administrator. It is irrelevant that the Friday Status Memo is prepared by the City Administrator on City time and City letterhead. . . . . Finally, Mr. Haatvedt refers to certain attachments to the Friday Status Memo which may not have been prepared by the City Administrator but which were attached to the correspondence. In the City's view, such an attachment would also be protected if it was prepared for purposes of correspondence with the City Council. If it was simply a document prepared for other purposes which the City Administrator attached for reference, then such a document would be governed by its own classification status and could be separately accessed. . . . Issue:In his request for an opinion, Mr. Haatvedt asked the Commissioner to address the following issue:
Discussion:Minnesota Statutes Section 13.03 provides that government data are presumptively public, unless specifically classified otherwise by statute, temporary classification (see Section 13.06), or federal law. Minnesota Statutes Section 13.33 provides [c]orrespondence between individuals and elected officials is private data on individuals, but may be made public by either the sender or the recipient. According to Mr. Fecker, Section 13.33 applies to internal governmental communications between staff and any elected official. If his logic were accepted, then it would be possible that no communication between any government employee and any elected official would ever be public, unless one of the parties agreed to its release (or the data were disclosed in a public meeting.) Such a result would have the effect of nullifying much of Section 13.03, the purpose of which is to make government data available to the public to the greatest extent possible. The Commissioner cannot support that result. Government employees are not operating as individuals when they prepare documents, reports and other data as part of their jobs as public servants, but instead are acting as agents of government entities, and ultimately as agents of the citizens of Minnesota. Mr. Fecker's interpretation would also create disparate treatment for data prepared by government employees depending upon whether the recipient of the data were an elected official or not. The Commissioner cannot agree that is the result intended by the Legislature when it enacted Section 13.33. The only reasonable interpretation of Section 13.33 is that it applies to correspondence between members of the public and elected officials. As further support that Section 13.33 ought not to be interpreted as the City proposes, in 1995 the Legislature enacted Section 13.646, which provides that legislative and budget proposals, communicated between and among the Governor's office and any state agency that is under the direct control of the Governor, are not public until after the budget is presented to the Legislature. (See Laws of Minnesota for 1995, Chapter 259, Article 1, Section 16.) It is possible that a memorandum between the City Administrator and the City Council could contain data that are not public; for example personnel data (see Section 13.43.) However, the data in such a memorandum are presumptively public. Each data element would need to be examined to determine whether any other provision of law classifies it otherwise. The same logic holds with regard to the classification of any attachments to the City Administrator's communication with the City Council. Opinion:Based on the correspondence in this matter, my opinion on the issue raised by Mr. Haatvedt is as follows:
Signed:
Elaine S. Hansen
Dated: January 15, 1997 |
