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August 27, 2001; City of Farmington
8/27/2001 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.
Facts and Procedural HistoryFor 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 classified as not public, are available for public access. On July 13, 2001, IPA received a letter dated July 11, 2001, from David Gross, an attorney representing Gary Shade. In his letter, Mr. Gross asked the Commissioner to issue an opinion regarding his client's access to certain data that the City of Farmington maintains. IPA, on behalf of the Commissioner, wrote to Robin Roland, Interim Administrator for the City of Farmington, in response to Mr. Gross' request. The purposes of this letter, dated July 23, 2001, were to inform her of Mr. Gross' request and to ask her to provide information or support for the City's position. On July 31, 2001, IPA received a response, dated same, from Joel Jamnik, an attorney representing the City. A summary of the facts is as follows. On or about April 3, 2001, Mr. Shade requested from the City a copy of the Police Policy and Procedure Manual. Following Mr. Shade's request, he and the City corresponded a number of times; several of the letters related to the City's determination to withhold data pursuant to Minnesota Statutes, section 13.37, security information. In a letter dated April 27, 2001, Mr. Shade received a letter from the City indicating that a copy of the redacted manual was available. In his opinion request, Mr. Gross provided specific details about the pages that the City redacted from the Manual. In place of page 14, the City wrote: This page is a memo from the Chief to All Officers. It is dated May 17, 1996 and discusses shift schedules of the department, and indicates when there will be double or triple coverage of officers on weekends. In place of pages 61 and 62, the City wrote, These pages detail dispatch and patrol procedure and response protocols for officers responding to silent alarms at banks and businesses. In place of page 91, the City wrote, This page details officer protocols for responding to bomb threats. In place of pages 154 and 155, the City wrote, These pages discuss response protocol in/to hostage situations. In place of pages 181 and 182, the City wrote, 10 code. In one of his letters to Mr. Shade, Mr. Jamnik wrote, The release of this information could assist those inclined to criminal activity in determining when and how to engage in this activity, thus substantially jeopardizing the safety of property or persons...The same analysis applies to the release of 10 codes, which can assist criminal activity through the use of radio scanners. Issue:In his request for an opinion, Mr. Gross asked the Commissioner to address the following issue:
Discussion:Pursuant to Minnesota Statutes, section 13.03, subdivision 1, all government data are public unless otherwise classified. Section 13.37, subdivision 2, classifies security information as not public. Security information is defined as government data the disclosure of which would be likely to substantially jeopardize the security of information, possessions, individuals or property against theft, tampering, improper use, attempted escape, illegal disclosure, trespass, or physical injury. In one of his letters to Mr. Shade, Mr. Jamnik wrote: ...the nine pages of data that I am recommending to be withheld from release address specific police procedures and protocols employed by the Farmington Police Department in responding to silent alarms, bomb threats, and hostage situations, as well as information pertaining to the level and scheduling of officers on weekends and police radio codes....The rationale for my recommendation is that the safety of police officers or members of the public may be affected by the public release of the requested data thus meeting the statutory definition of security information and generally precluding it [sic] release. In his comments to the Commissioner, Mr. Jamnik wrote: he City is not seeking to employ the section as a blanket classification scheme for all Policy and Procedures matters. The information redacted comprises 8 pages of a 226 page Manual. The specific information details when the City will enjoy the protection of multiple officers, how the City Police Department will specifically respond to silent alarms, bomb threats, and hostage situations, and what radio codes will be employed by City officers. The Commissioner also addressed the proper classification of data as security information in Advisory Opinion 01-006. In that Opinion, the Commissioner opined: The Legislature did not define substantially jeopardize. In an attempt to clarify this term and the applicable language in section 13.37, the Commissioner reviewed various statutes, laws, and case law but was unable to locate anything specifically applicable to the situation at hand. Because the Commissioner is not comfortable with the broad discretion seemingly available to government entities in using the security data provision to deny access to data, he intends to present this issue to the 2001 Legislature, in hopes that they will clarify the language. This is a particularly prudent time for the Commissioner to seek legislative guidance because, in addition to the issues raised in this opinion, he is aware of several recent instances in which government entities have used the security data provision as a basis upon which to deny access to data. However, the issue raised by Ms. Kramer remains. The Commissioner of Public Safety is charged by law with the responsibility of providing the Governor's security detail, and for protecting the Governor's person. The Commissioner of Public Safety and his staff have the training, experience, and expertise to determine security risk in this regard, and how this security function is to be best performed. See Cable Communications Board v. Nor-West Cable Communications Partnership, 356 N.W.2nd 658, 668 (Minn. 1984); In re the Petition to Adopt S.T. and N.T., 497 N.W.2d 625, 628 (Minn. App. 1993). Under the circumstances of this case, there is not sufficient showing that the Commissioner of Public Safety is acting arbitrarily or beyond the scope of his responsibility in determining that release of the specific data in question presents a security risk to the person of the Governor. This office is not in a position to overrule this determination. As stated above, we recognize a need for legislative clarification regarding the security information provision. (The 2001 Legislature did not take up the issue of security information.) Also, the Commissioner has opined previously that subdivisions 1(a) and 2 of section 13.37 may not be employed as a blanket classification scheme. Rather, those subdivisions apply to otherwise public data in specific situations in which an entity has reason to believe that the disclosure would be likely to substantially jeopardize the security of information, possessions, individuals or property. (See, for example, Advisory Opinions 98-046 and 01-029.) In this case, the Commissioner is again inclined to defer to the expertise of the City. Furthermore, it is reasonable to conclude that the release of the types of data the City redacted, e.g., protocols for responding to silent alarms at banks and businesses, protocols for responding to bomb threats, and protocols for responding to hostage situations, would be likely to substantially jeopardize the security of information, individuals or property against theft, improper use, trespass, or physical injury. Opinion:Based on the facts and information provided, my opinion on the issue that Mr. Gross raised is as follows:
Signed: David F. Fisher
Dated: August 27, 2001 |
Security information
Entity's discretion to withhold
