Note: In December 1999, staff of the Information Policy Analysis Division, on behalf of the Commissioner, redacted not public data from this opinion. The redaction was necessary to bring the data in the opinion into compliance with amendments the Legislature made to Minnesota Statutes, section 13.072, the advisory opinion enabling legislation

Facts and Procedural History:

On July 13, 1994, PIPA received a request for an opinion from X, a resident of Shoreview, Minnesota. In his letter, X described attempts by him and his attorney to gain access to data maintained by the Ramsey County Sheriff's Office, hereinafter Sheriff . A summary of X's view of those attempts and responses to them by the Sheriff is as follows.

On June 8, 1994, X, his wife and their attorney, Mr. Simcha Plisner, went to the Shoreview station of the Sheriff's department. The purpose of this trip was to obtain an investigator's report concerning allegations of child abuse. A clerk at the front desk of this station informed X that a report did exist and that it had a case number. However, after consulting with Deputy Stan Johnson, the investigator working on the case, the clerk informed them that the investigation was still open. X had previously been informed by Ramsey County Human Services that the investigation was closed. At this point, X asked to talk to Mr. Johnson. After waiting for twenty minutes, X and his wife and Mr. Plisner decided to leave.

X and Mr. Plisner proceeded to the main office of the Sheriff to make a direct request for the file from Sheriff Patricia Moen at her office on Kellogg Boulevard in St. Paul. At that office they were informed that the Sheriff was out of the office. They were referred to a sergeant whose name X believes was Nelson. Sergeant Nelson communicated with Deputy Johnson. Mr. Plisner then spoke directly to Deputy Johnson. According to X, Deputy Johnson told Mr. Plisner that the investigation was still open and that it would take him a week or two to close the case. According to X when Mr. Plisner pressed the Deputy for more specifics, Deputy Johnson told Mr. Plisner that neither he nor X would ever see the case file because of concerns about retaliation against some individuals.

After this conversation, X and his attorney spoke to an internal affairs officer. She agreed to look into the matter. The next day she called Mr. Plisner and left a message saying that based on an opinion from the Ramsey County Attorney's Office they could not gain access to the investigative file.

Mr. Plisner, in a letter to Sheriff Moen dated June 22, 1994, requested on behalf of X and his wife access to all data maintained by the Sheriff concerning the allegations of maltreatment. He asked for a response within five days as required by law. In a letter dated June 29, 1992, Dick Dornbusch, a lieutenant writing on behalf of the Sheriff, informed Mr. Plisner that the Sheriff maintained public, private and confidential data about the allegations. He reiterated that some of the data relating to the allegations was confidential and this data would be withheld pursuant to Minnesota Statutes Section 13.82, subdivision 5a and Minnesota Statutes Section 13.82, subdivision 10 (d). Lieutenant Dornbusch asked for an additional week in which to make the data available for review and informed Mr. Plisner that copies of the data, if requested, would be provided at a cost of $5.00 for the first page and $1.00 for each additional page.

In a letter to Sheriff Moen, dated July 5, 1994, Mr. Plisner reviewed the history of X's and his wife's attempts to gain access to this data. He asked for immediate production of the documents, for citations to authority for deletions or omissions from the data and for an explanation of Deputy Johnson's actions in denying X and his wife access to the file.

X stated the Sheriff subsequently called Mr. Plisner and told him that the records could be picked up. A receipt provided by X indicates copies of the records were paid for on July 6, 1994. X enclosed copies of the data that were received from the Sheriff with his letter requesting a Commissioner's opinion. X then asked that the Commissioner issue an opinion and address five issues that he specifically described. Three of those issues are reproduced in the Issue section below. Two of the issues X raised are not within the opinion authority of the Commissioner and will not be addressed.

In response to X's request, PIPA, on behalf of the Commissioner, wrote to Ms. Patricia Moen, the Ramsey County Sheriff. The purposes of this letter, dated July 15, 1994, were to inform Sheriff Moen of X's request for an opinion, to ask Sheriff Moen or her attorney to provide any information about or support for the Sheriff's position and to inform her of the date by which the Commissioner was required to issue this opinion. Copies of this letter were sent to X and Mr. Plisner. Sheriff Moen was asked to submit any comments no later than July 27, 1994.

On July 27, 1994, PIPA received a letter from Ms. Karen Kushner, an Assistant Ramsey County Attorney. She explained that the Sheriff had forwarded PIPA's letter to her for a response. She responded specifically to each of the three issues raised by X as follows.

Ms. Kushner discussed Deputy Johnson's actions in denying X and his wife access to the investigative file. She stated that those actions were in accordance with the Minnesota Government Data Practices Act, Chapter 13 of Minnesota Statutes and hereinafter Act or Chapter 13 . Specifically, she cited Minnesota Statutes Section 13.82, subdivision 5 that classifies active criminal investigative data in law enforcement agencies as confidential data. She stated that at the time X contacted Deputy Johnson the investigation was still active and that none of the events that would make an investigation inactive had occurred.

Ms. Kushner discussed the costs assessed by the Sheriff's department for copying the material provided to X and his wife. She cited Minnesota Statutes Section 13.03, subdivision 3 that authorizes a responsible authority to require a person requesting copies to pay the actual costs associated with providing the copies. She stated that X was charged the same charges that all individuals who request copies from the Sheriff are required to pay. She stated a belief that these charges . . . fairly compensate the County for all of the activities authorized by the statute.

Lastly, Ms. Kushner discussed the justification for the deletion of certain data from the records that were provided to X and his wife. In explaining the Sheriff's justification for deleting the data, she referenced Lieutenant Dornbusch's letter of June 29, 1994, in which the Lieutenant, speaking for the Sheriff, cited Minnesota Statutes Section 13.82, subdivisions 5a and 10 (d) as the statutory provisions on which access to certain data was denied. She stated that Lieutenant Dornbusch's reference to Section 13.82, subdivision 5a also, by reference, includes a basis for denying access to data under Minnesota Statutes Section 626.556. She stated, in explaining the Sheriff's basis for denying access under Minnesota Statutes Section 13.82, subdivision 10 (d), that the Sheriff had denied access . . . after receiving communications from witnesses who feared reprisals from X based on threatening statements they had heard him make.

To further document the Sheriff's position, Ms. Kushner provided PIPA copies of the data in question in both edited (data deleted as explained above) and unedited (no deletions of data) versions. Ms. Kushner provided the unedited version on an understanding that the data would be treated as confidential pursuant to Minnesota Statutes Section 13.03, subdivision 4.

Issues:

In his request for an opinion, X raised the following issues:

Discussion:

Statutory guidance, that will provide the framework within which answers to the first and third issues raised by X and his wife, is found in the section of the Minnesota Government Data Practices Act that regulates law enforcement data. Minnesota Statutes Section 13.82, subdivision 5 establishes the following classifications for criminal investigative data:

. . . investigative data collected or created by a law enforcement agency in order to prepare a case against a person, . . . for the commission of a crime or civil wrong is confidential or protected nonpublic while the investigation is active. Inactive investigative data is public unless the release of the data would jeopardize another ongoing investigation or would reveal the identify of individuals protected under subdivision 10.

Section 13.82, subdivision 5 provides specific guidance as to when a criminal investigation becomes temporarily or permanently inactive. The occurrence of any one of three specific developments in a specific criminal investigation will, subject to certain exceptions, render an investigation inactive. These developments include: a decision by a law enforcement agency or the appropriate prosecutor not to pursue the case, expiration of the statute of limitations for the alleged crime or exhaustion or expiration of the rights of appeal of a person convicted on the basis of the investigative data.

Generally when criminal investigations become inactive, most of the data collected, created and maintained for the investigation become public. However, the legislature has made certain exceptions to that general rule. Since Section 13.82 was first enacted, in 1981, the legislature has provided for the protection of the identities of certain types of individuals in both active and inactive investigative files. (See Session Laws of Minnesota 1981, Chapter 311.) From time to time, the legislature adds to the list of identities protected. (See, for example, Session Laws of Minnesota 1991, Chapter 319.) In 1989, the legislature provided that criminal investigative data that relate to the alleged abuse or neglect of a child by a person responsible for the child's care, and that become inactive because of a decision by a law enforcement agency or prosecutor not to pursue the case or because the statute of limitations has run, do not become public data but instead become private data. (See Session Laws of Minnesota 1989, Chapter 351.)

Issue 1

Access by X and his wife to the Sheriff's investigative data.

When X and his wife first approached the Sheriff on June 8, 1994, they were eventually, after a persistent inquiries, told that the data which they requested was part of an active criminal investigative file and was therefore confidential data. A written statement that this was the position of the Sheriff was provided to them after Mr. Plisner had directed his June 22, 1994 letter to the Sheriff. This is the letter from Lieutenant Dornbusch to Mr. Plisner described above.

X and his wife made their initial request for this data on June 8, 1994. Their attorney made his written request in a letter dated June 22, 1994. The copies of the investigative file provided by the Sheriff include a form entitled Investigative Disposition Supplementary . This form includes a notation that the criminal prosecution of the case was declined after review of the case by the Ramsey County Attorney's Office. The form also contains the following notation: Case closed pending additional information. The form is dated June 28, 1994. It appears from this form that when X and his wife made their June 8, 1994, request for access to the investigative file, an alleged criminal act was still under investigation. This file contained active criminal investigative data and therefore, pursuant to Minnesota Statutes Section 13.82, subdivision 5, the criminal investigative file was classified as confidential and the data contained therein was not accessible by X and his wife.

In his letter requesting this opinion, X stated that he had been advised by the Ramsey County Human Services Department that the investigation had been closed. This statement from another department of Ramsey County contributed to a concern on the part of X and his wife and their attorney that the Sheriff was improperly denying them access to data. The reality is that a report of alleged maltreatment of a child will yield two separate inquiries into that report. In response to a report concerning any alleged maltreatment, child protection units within the human services system are mandated to do an assessment to determine whether maltreatment has occurred and whether child protective services are needed. Parents and alleged perpetrators must be given notice of these determinations. (Minnesota Statutes Section 626.556, subdivisions 10, 10e and 10f.) In response to a report alleging maltreatment, the nature of which could be the basis for a criminal prosecution, law enforcement agencies are mandated to do a criminal investigation to determine, in consultation with prosecutors, whether criminal charges should be brought. (Minnesota Statutes Section 626.556, subdivision 10.)

It is in the nature of these two separate and distinct activities of assessment and investigation that they may be concluded at different times and may yield different results. With regard to timing, this appears to be what happened to X and his wife. They were notified by Ramsey Human Services that the child protection personnel assessment of alleged maltreatment of their child had been completed. However, this assessment had no bearing on the status of the data in the active criminal investigation being conducted by the Sheriff. Although this may be confusing to citizens, it is also a very probable result given the requirements of Minnesota Statutes Section 626.556 and the workings of the Data Practices Act. In this particular situation, the Sheriff could deny X and his wife access to the active criminal investigative file even though the Ramsey County Human Services agency had told X and his wife the child protection assessment/investigation was closed.

Issue 2

Cost of the copies provided by to X and his wife.

X and his wife were charged by the Sheriff $5 for the first page and $1 for each additional page for the data they requested. The receipt provided by X indicates that they were charged a total or $37.00 by the Sheriff. This means that they received 33 pages of documents from the Sheriff. In support of that charge, Ms. Kushner cites Minnesota Statutes Section 13.03, subdivision 3 which allows responsible authorities to require a person requesting copies of public data to pay the actual costs of providing the data. She goes on to state that X and his wife were charged the same charges for copies that all individuals who ask for copies of government data are charged.

The position of the Sheriff is incorrect. First, the data that X and his wife asked for was not public data. Given the operation of Minnesota Statutes Section 13.82, subdivision 5b, the data they sought was classified as private. It appears from the correspondence provided by X and his wife that they were making their requests as data subjects and not as members of the public. Their request for access to the data, including receipt of copies, was subject to the requirements of Minnesota Statues Section 13.04, subdivision 3 and not to the requirements of Minnesota Statutes Section 13.03, subdivision 3.

Under Section 13.04, subdivision 3, agencies are not authorized to charge data subjects for the cost of searching out data to be copied, as is allowed under Section 13.03, subdivision 3. This is consistent with a related policy, stated in Section 13.04, subdivision 3, that requires government entities to inform data subjects, upon request and at no charge to them, that they are data subjects. If agencies could impose a charge for searching out the data that tells them that a given individual is a data subject, they would be able to charge to individuals the costs of doing something they are required to do at no charge by statute. If the Sheriff charges all individuals requesting copies of data the same charges, and does not differentiate between requests from the public and from data subjects, that position would appear to be in conflict with the statutory provisions discussed above.

There is an additional problem with the Sheriff's position. Ms. Kushner stated that the charges of $5 for the first page and $1 for each additional page were the same charges made to everyone who asks for copies of data and were intended to . . . compensate the County for all of the activities authorized by the statute. The actual statement of policy contained in Section 13.03, reflects a legislative judgment that a government entity ought to be able to recover its actual costs for providing copies of public data. Charging everyone the same price for copies may be fair to some individuals and not to others. Whether the charge is fair is not the issue. The issue is whether or not a standard charge of $5.00 per page for the first page of public data requested to be copied and a charge of $1.00 per page for each additional page reflects the actual costs to the Sheriff of providing copies of public data. The legislative policy, as set forth in Section 13.03, subdivision 3 does not authorize a government entity to be compensated for all of its activities but allows the entity, if it so chooses, to recover the actual costs of providing copies of public data.

X's and his wife's request illustrates the problem. Assuming that X and his wife were actually asking for copies of public data, which they were not, they were charged $37.00 for getting copies of a file and a portion of another file. Most of the pages copied appear to have come from one investigative file. It is reasonable to assume that those pages were kept in one place in the Sheriff's filing system. The placement of the data in one location would minimize the time necessary to search out the data. As the Act does not allow an entity to charge for separating public from not public data, the time necessary to prepare this file for copying would mean removing any staples or clips and carrying it to a copying machine. The actual copying of 33 pages of materials would also entail a minimal expenditure of time on the part of clerical staff of the Sheriff. Depending on the actual type of copying equipment used by the Sheriff, compilation of the copies was probably an automatic part of the copying process. It is also important to note that at no time did X and his wife request certified copies and no notices of certification appear on the copies provided to them. It does not seem likely that searching for, retrieving, and making copies of 33 pages of data taken from two files of the Sheriff's office would yield $37.00 in actual costs to the Sheriff.

Issue 3

Deletions of data from the data provided and justifications for each of those deletions.

When copies of the inactive investigative data were provided to X and his wife, the Sheriff deleted certain items of data from those copies. In his letter to Mr. Plisner, Lieutenant Dornbusch explained that the Sheriff would not make available data classified as confidential under Minnesota Statutes Section 13.82, subdivision 5a and Minnesota Statutes Section 13.82, subdivision 10 (d). In her comments on behalf of the Sheriff, Ms. Kushner cited Section 13.03 that requires responsible authorities to cite a specific statutory basis for denying access to public data. She stated that Lieutenant Dornbusch's letter was in compliance with that requirement. She also noted that Lieutenant Dornbusch's citation to 13.82, subdivision 5a would, by reference, include a classification of data as confidential under Minnesota Statutes Section 626.556 as a basis for a denial of access. In summary, the Sheriff's position is that X was properly denied access to the data that was deleted from the copies of data provided to him because the deleted data would either identify a reporter of child maltreatment or would identify witnesses who feared reprisals from X based on threatening statements they had heard him make.

Review of the materials provided by the Sheriff reveals that the Sheriff generally deleted three types of data from the copies of the data provided to X and his wife. Deleted were: data associated with the identity of the individuals who made reports alleging maltreatment of X's and his wife's children; data identifying witnesses who expressed concern about alleged threats by X; and a portion of a Ramsey County Human Services Child Protection Assessment. Examination of the statutory basis for the deletion of each of those types of data follows.

Minnesota Statutes Section 626.556, subdivision 11 classifies the names of reporters of maltreatment as confidential. In addition to classifying the name of the reporter as confidential, this statutory provision makes it a misdemeanor for persons conducting assessments or investigations to reveal the name of the reporter while a report of maltreatment is under investigation or assessment. This subdivision also puts a heavy burden on any subject of a maltreatment report who tries to require release of the name of the reporter by a court. Disclosure by a court of the name of a reporter requires a written finding by the court that the report was false and that there is evidence the report was made in bad faith. Chapter 13 adds an additional element to the treatment of data about reporters, in active or inactive criminal investigative files, by clarifying that data that identifies reporters, and not just their names, are classified as confidential data. In the interest of encouraging reports of child maltreatment, the legislature has put an extremely high wall around data that identifies reporters.

In deciding what data concerning the reporter to delete from the data provided to X and his wife, the Sheriff not only deleted the name and other specific data that could identify the reporter but also deleted other data identifying associates of the reporter and other data that could possibly identify the reporter. It is not clear from the information provided if all of that data would indeed identify the reporter. However, in light of the very strong policy statement the legislature has presented in Minnesota Statutes Sections 626.556 and 13.82, subdivision 5a, it is not surprising that the Sheriff applied a rule that appears to say: If there is any chance that certain data might reveal the identify of a child maltreatment reporter, including names of associates, then do not release the data. Given the specific guidance provided by the legislature and the policy implicit in that guidance, the Sheriff's position is understandable and defensible under Chapter 13.

The language protecting crime victims and witnesses in Minnesota Statutes Section 13.82, subdivision 10 (d) states that names of victims and witnesses will be private data in those instances when the victim or witness . . . specifically requests not to be identified publicly, and the agency reasonably determines that revealing the identify of the victim or witness would threaten the personal safety of the witness. It is clear that the language requires a two step process. First, the law enforcement agency must receive a specific request from victim or witness to protect their identity. Second, the law enforcement agency must examine that request and make a reasonable determination as to whether revealing the victim's or witness identity would threaten their personal safety or property.

It is reasonably clear from the data provided by the Sheriff that in this instance the Sheriff did receive requests from witnesses interviewed that their identities be protected. What is not clear from the data provided is whether the Sheriff made the reasonable determination, required by Section 13.82, subdivision 10 (d), that in the interest of the protection of the personal safety or property of these witnesses it indeed was reasonable to protect their identities. When this statutory provision was being considered by the legislature, there was concern that while requests for protection of identities by victims and witnesses could very well be legitimate, always protecting their identities could deprive the public of access to sources of information and could allow individuals to make negative remarks about someone else without accountability. To balance those interests, the legislature provided for the two step process that is outlined in Section 13.82, subdivision 10 (d).

When a law enforcement agency receives a request for protection of identity, Section 13.82, subdivision 10 requires that the agency make an independent and reasonable determination based on facts and circumstances as to whether the request ought to be honored. It should also be noted that in 1993, in response to concerns that this provision was not being properly administered, the legislature required agencies to establish procedures to acquire the data necessary to make the decisions concerning protection of identities of victims and witnesses. (See Minnesota Session Laws 1993, Chapter 351, Section 18.

The data provided by the Sheriff contains no explanation of the process or procedures the Sheriff followed in making the determinations required by the Section 13.82, subdivision 10 (d). If the Sheriff merely concluded that it would honor the requests made and not do the independent determination that is required by this section, then it has not done what is required by the Act. A decision to withhold data identifying a witness in that circumstance would not be proper. It could be that the Sheriff has made the independent determination required and has established procedures that document how that determination is made. However, there is nothing in the data or response provided by Ms. Kushner that indicates that is the case.

Lastly, the Sheriff deleted from a copy of a Ramsey County Child Protection Report a notation that a person provided information. There is nothing that indicates this person was a child maltreatment reporter or a person related in such a way to a reporter that revealing this person's identify would reveal the identity of the reporter. In addition, there is nothing that indicates that this person was a witness who requested that their identity be protected and that the Sheriff had reasonably determined their identity should be protected. This deletion is somewhat curious because it was deleted from the child protection assessment that is classified as private by Minnesota Statutes Section 626.556, subdivision 11. This assessment is available as private data to X and his wife. In light of the above, it appears that this particular deletion was not justified.

In the second half of the issue raised by X, he asked whether the Sheriff is required to justify each deletion or omission with particularity. In this instance, the Sheriff has indicated specific sections of Minnesota Statutes that are the basis for denying X and his wife access to the data in question. Although this does not track each item deleted and state a specific statutory basis for deleting that item, it does provide the information required by Minnesota Statutes Section 13.03. The method used by the Sheriff to provide that citation, in this instance, also avoids the issue of whether providing the statutory basis directly associated with each specific item deleted could, contextually, identify a specific individual protected by a statutory section. On balance, X has received the information required by Section 13.03, subdivision 3 so he knows the basis on which the Sheriff determined not to release the data and the Sheriff has avoided the possibility of identifying a person by specifically associating the statutory basis with the data deleted. In this instance, that is a reasonable compromise of conflicting imperatives.

Opinion:

Based on the correspondence in this matter, my opinion as to the issues raised by X is as follows: