This is an opinion of the Commissioner of Administration issued pursuant to Minnesota Statutes, section 13.072 (2023). It is based on the facts and information available to the Commissioner as described below.

Facts and Procedural History:

Cheryll Reitmeier (Reitmeier) requested an advisory opinion regarding the City of Fertile’s (City) response to a request for its written data access policies, as required by Minnesota Statutes, section 13.025. The City’s legal counsel provided comments in response to the advisory opinion request.

A summary of the facts is as follows:

On May 23, 2024, Reitmeier hand-delivered a letter to the City, which was received by the deputy city administrator, requesting a copy of its data access policies. As of June 8, 2024, the City had not yet provided Reitmeier with a copy of its policies.

In her comments to the Commissioner, Reitmeier noted that another member of the public had also requested the City’s data access policies during two separate City Council meetings on November 13, 2023, and April 8, 2024. However, the other member of the public had not yet received a copy of the policies either.

Issue:

Discussion:

Minnesota Statutes, section 13.025, subdivision 2 requires a government entity’s responsible authority to prepare “a written data access policy” that informs members of the public about their rights under the Data Practices Act as well as how to request access to public data that the entity maintains.

Meanwhile, section 13.025, subdivision 3 requires the responsible authority to “prepare a written policy of the rights of data subjects under section 13.04 and the specific procedures used by the government entity for access by the data subject to public or private data on individuals.”

Both subdivisions require the responsible authority to update the policies “no later than August 1 of each year, and at any other time as necessary to reflect changes in personnel, procedures, or other circumstances that impact the public’s ability to access data.”

Additionally, section 13.025, subdivision 4 states that these policies must be made “easily available to the public by distributing free copies to the public or by posting the policies in a conspicuous place within the government entity that is easily accessible to the public or by posting it on the government entity’s website.”

The Commissioner has addressed these requirements in past advisory opinions, noting that they have been in place since 2001. Further, she has opined that the policies should be available in such a manner that the public would not need to ask for them. (See Advisory Opinions 22-001, 19-002, 13-007, 05-003, and 04-049.)

In its response to the Commissioner, the City wrote that it had a small staff that has received many data requests recently and has incurred substantial expenses when attempting to respond appropriately to these requests. The City added:

With regard to this data request, the City has been unable to locate its data access policy and has been working on updating their policy. The reason the City did not respond sooner to the data request was because it wanted to establish its new policy prior to responding. The City of Fertile is planning to adopt its new data access policy at their next regularly schedule council meeting on July 8, 2024.

As indicated above, the requirement for a government entity to have data access policies for the public and for data subjects is long-standing. Additionally, individuals should be able to easily find these policies in a public location at the entity’s offices or on the entity’s website.

The Commissioner appreciates the City’s update that it planned to adopt a new policy during its July 8 city council meeting. However, the City violated the requirements of section 13.025 because it appears no data access policies existed when Reitmeier made her request on May 23.

Opinion:

Based on the facts and information provided, the Commissioner’s opinion on the issue is as follows:

The City of Fertile did not respond appropriately to a request for its data access policies required under Minnesota Statutes, section 13.025.

Signed:

Tamar Gronvall
Commissioner

July 22, 2024