Facts and Procedural History:

On August 29, 2005, IPAD received a letter dated August 25, 2005, from Jim Stengrim. In his letter, Mr. Stengrim asked the Commissioner to issue an advisory opinion regarding his right to gain access to certain data that the Red River Watershed Management Board maintains.

IPAD, on behalf of the Commissioner, wrote to Naomi Erickson, the Board's Data Practices Compliance Official, in response to Mr. Stengrim's request. The purposes of this letter, dated September 2, 2005, were to inform her of Mr. Stengrim's request and to ask her to provide information or support for the Board's position. On September 16, 2005, IPAD received a response, dated same, from Louis Smith, an attorney representing the Board.

A summary of the facts as provided by Mr. Stengrim is as follows. In a letter dated September 20, 2004, Mr. Stengrim wrote to Ms. Erickson and asked to inspect various government data. Of relevance to this opinion is Item 3 of his request for, Past five years annual audits.

In his opinion request, Mr. Stengrim wrote, A meeting was scheduled for September 30, 2004 to inspect the requested data. Upon arriving for the meeting, the [Board] representatives handed [sic] a letter dated September 30, 2004, from Mr. Smith, their attorney.

In the September 30, letter, Mr. Smith stated, In response to your request of September 20, all of the data referred to in Items 1-13 have been produced for your inspection.

In his opinion request, Mr. Stengrim wrote, Copies were made of the documents presented as annual audits. Since time was an issue a careful review of the documents was not conducted until later. It was discovered that they were not annual audits.

In a letter dated December 2, 2004, Mr. Stengrim wrote to the Board, noting that the annual audits were not among the data made available to him on September 30. He again asked for the audits.

In his opinion request, Mr. Stengrim wrote, As of the date of this letter, there has been no response from the [Board].

Mr. Stengrim provided to the Commissioner a copy of the September 20 and 30 letters, and a copy of the December 2 letter.

Issue:

Based on Mr. Stengrim's opinion request, the Commissioner agreed to to address the following issue:

Did the Red River Watershed Management Board comply with Minnesota Statutes, Chapter 13, in responding to a September 20, 2004, request to inspect the annual audits for the past five years?

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Discussion:

Pursuant to Minnesota Statutes, section 13.03, when a government entity receives a data request from an individual who is not the subject of the data, the entity is required to respond in an appropriate and prompt manner, and within a reasonable time. (See section 13.03, subdivision 2(a), and Minnesota Rules, part 1205.0300.)

Further, previously issued advisory opinions have discussed that when responding to data requests, government entities should provide the data, advise that the data are classified such as to deny the requesting person access, or inform the requestor that the data do not exist.

In his comments to the Commissioner, Mr. Smith wrote:

The [Board] provided to Mr. Stengrim in response to his request all annual financial statements for the past five years.

Apparently, Mr. Stengrim's concern is that the annual financial statements provided to him were not audited. The [Board] does not possess audited statements for the years in question.

In his September 20, 2004, letter, Mr. Stengrim asked to inspect annual audits for the past five years. On September 30, 2004, the Board provided what it indicated were data responsive to the request. However, the Board did not provide the audits or explain that the audits did not exist. When Mr. Stengrim again inquired about the audits on December 2, 2004, the Board did not respond. As stated above, the Board has certain obligations when responding to data practices requests. When the Board responded to Mr. Stengrim's September 20, 2004, request, the Board should have notified him that it was not in possession of the annual audits. Thus, the Board's response was not timely.

A final note is in order. It is not clear what Mr. Smith means by stating that the Board does not possess the data. The Commissioner assumes he means that the data do not exist, not that someone else other than the Board is in possession of the data. As the Commissioner has opined previously, it is important for government entities to be clear and unambiguous in their communications regarding data practices requests.

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Opinion:

Based on the facts and information provided, my opinion on the issue that Mr. Stengrim raised is as follows:

The Red River Watershed Management Board did not comply with Minnesota Statutes, Chapter 13, in responding to a September 20, 2004, request to inspect the annual audits for the past five years.

Signed:

Dana B. Badgerow
Commissioner

Dated: October 4, 2005

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