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 IPA and, except for any data classified as not public, are available for public access.

On November 3, 2000, IPA received a letter from Mark R. Anfinson, an attorney, on behalf of his client, the Hibbing Daily News. In this letter, Mr. Anfinson asked the Commissioner to issue an advisory opinion regarding his client's right to gain access to certain data maintained by the City of Hibbing.

In response to Mr. Anfinson's request, IPA, on behalf of the Commissioner, wrote to John Tourville, Administrator of the City. The purposes of this letter, dated November 9, 2000, were to inform him of Mr. Anfinson's request and to ask him to provide information or support for the City's position. On November 22, 2000, IPA received a response from Richard K. Sellman, attorney for the City. A summary of the facts of this matter follows.

On October 15, 2000, an alleged assault occurred in Hibbing. The police were not called to the scene, but were contacted by the alleged victim the following day. Mr. Anfinson provided copies of two incident reports: Exhibit 1 contains more details, including the names of witnesses identified by the alleged victim; Exhibit 2 does not contain the identities of witnesses of the alleged assault.

A reporter for the Daily News learned of the incident and asked the Hibbing Police Department to provide her with access to so-called response or incident data, which are enumerated at section 13.82, subdivision 6. The Police Department provided the reporter a copy of Exhibit 2.

According to Mr. Anfinson:

In subsequent conversations with the police chief and the city attorney, the police department took the position that the identities of the alleged perpetrators (or suspects) were not public information, even though these people witnessed the incident. Rather, the identities were subject to the provisions of section 13.82, subd. 7 (criminal investigative data). At the time of the reporter's request, none of the suspects had been charged with respect to the incident at the bar. It also appears that one of the individuals who was initially identified as a suspect in the assault was later determined not to have been present at the bar, apparently owing to a misidentification. However, it is clear from the more detailed incident report enclosed as Exhibit 1 that the police did record that individual's name while obtaining information about the incident from the complainant, and that two individuals . . . witnessed the incident, and were listed as suspects.

It is the newspaper's position that where a suspect (or alleged perpetrator) is present at the scene of a possible crime, that individual is at minimum a witness to the incident, and that therefore his or her identity is public under the provisions of section 13.82, subd. 6(g) regardless of whether the individual has been arrested, charged, or cited. This interpretation is based both on the express language of subdivision 6 and on the fact that nowhere else in section 13.82 is there a specific exception referring to a suspect or perpetrator that would seem sufficient to allow authorities to withhold the identity of an individual in that category who was also a possible witness.

In his response to the Commissioner, Mr. Sellman stated that personnel in the Hibbing Police Department took notes as the alleged victim made his statement, and an officer was then assigned to investigate the complaint. The investigating officer further interviewed the alleged victim.

According to Mr. Sellman, handwritten notes were taken down as the incident was [initially] reported which were later entered into a computer, which resulted in the incident report that was provided to the reporter (Exhibit 2.) The investigating officer who then interviewed the victim created the more detailed incident report (Exhibit 1.)

Mr. Sellman stated: [b]ecause the individuals named as suspects were running for local political offices and the department could be perceived as being bias [sic] in the investigation, . . . the Chief asked the St. Louis County Sheriff's Department to continue the investigation.

Mr. Sellman further stated:

Clearly Minnesota Statute 13.82, Subd. 6, does not apply to this situation as there was no agency response to the request for service or action initiated by the police department. [The] request was not for an agency's response but to report a crime. This would naturally lead to an investigation of the reported crime which is covered under [section 13.82, subdivision 7], and is [not public.] Reporting a crime is a request for (investigation) service under Subd. 3 which does not list for disclosure the names of witnesses or victims (or suspects).

. . . . There was no response by the Hibbing Police Department to a request for service and there were no actions taken by the Hibbing Police Department on its own initiative. The newspaper's request was rather under Subd. 3, Request for service data, being a request to investigate a reported criminal act. All of the information listed under Subd. 3 was provided the newspaper. The matter was then assigned for investigation. The investigation data is confidential or non public.

Issues:

In his request for an opinion, Mr. Anfinson asked the Commissioner to address the following issues:

Pursuant to Minnesota Statutes, Chapter 13, did the City of Hibbing respond appropriately to a request for access to the following data: name and address of an individual, present at the scene of an alleged crime, whom the law enforcement agency regards as a potential suspect or perpetrator, when the individual has not been arrested, charged or cited at the time of the request for access to the data? If, after the request for the data described above, the law enforcement agency determines that the potential suspect of perpetrator was not present at the scene, are the data classified under Chapter 13 such that public access may denied?

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Discussion:

According to Minnesota Statutes, section 13.82, certain law enforcement data are always public, certain law enforcement data are never public, and certain law enforcement data may become public depending on the occurrence of certain events. Subdivisions 2, 3 and 6 (arrest, request for service, and response or incident data) specify law enforcement data that are always public. Those data were specified in order to ensure that they could not be withheld from the public as active criminal investigative data under subdivision 7. (Subdivision 7 classifies criminal investigative data as not public while an investigation is active.)

The data described in section 13.82, subdivisions 2, 3, and 6, are not the only public data maintained by law enforcement agencies. The general presumption of section 13.03, that government data are public unless otherwise classified by state or federal law, applies to law enforcement data. Accordingly, the only data that are classified as not public under section 13.82 are the specific data described in the various subdivisions of section 13.82 or in other statutes regulating law enforcement data. (See also Advisory Opinions 97-023 and 97-024, 00-024 and 00-025.)

Pursuant to section 13.82, subdivision 3, certain data created or collected by law enforcement agencies which documents requests by the public for law enforcement services are public government data. Under subdivision 6, certain data created or collected by law enforcement agencies which documents the agency's response to a request for service . . . or which describes actions taken by the agency on its own initiative shall be public government data. Witnesses' names and addresses are specified as public data under subdivision 6(g) (unless her/his identity qualifies for protection under subdivision 17), but are not specified under subdivision 3.

Mr. Sellman stated that subdivision 3 is applicable to this situation, but subdivision 6 is not. We respectfully disagree. Here, the request for service was the report of a crime, and the Hibbing Police Department responded to that request by interviewing the alleged victim, and creating two incident reports. Although the Department determined it would not investigate the case itself, it did respond to the request for service by interviewing the victim, and created government data in the course of its response. Accordingly, the data specified at subdivision 6, including the names and addresses of witnesses not subject to protection under subdivision 17, are public upon creation.

One further note is in order. Mr. Anfinson stated that in conversations with Police Department personnel, they took the position that the identities of the witnesses, because they were suspects, were confidential per subdivision 7 of section 13.82. It is reasonable to assume that witnesses to possible crimes are frequently also suspects. However, as discussed above, arrest, request for service, and response or incident data, including identities of witnesses, are always public. Subdivision 7 provides: [e]xcept for the data defined in subdivisions 2, 3, and 6, investigative data . . . is confidential or protected nonpublic while the investigation is active. Accordingly, the identity of an individual, as a witness, is public under subdivision 6. A law enforcement agency is not obligated to disclose to the public that the individual is also a suspect.

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Opinion:

Based on the facts and information provided, my opinion on the issues raised by Mr. Anfinson is as follows:

Pursuant to Minnesota Statutes, Chapter 13, the City of Hibbing did not respond appropriately when it denied a request for access to the name and address of a witness of an alleged crime. Unless the identity of a witness qualifies for protection under section 13.82, subdivision 17, the witness's name and address are public government data, pursuant to section 13.82, subdivision 6(g). Even if, after the request for the data described above, the law enforcement agency determines that the potential suspect or perpetrator was not present at the scene, the data are classified as public, as part of the response or incident data created in response to a request for service, according to section 13.82, subdivision 6. To meet its obligation under section 13.05, subdivision 5, that all data on individuals are accurate and complete, the Department may want to add a note to the file that acknowledges that an individual was incorrectly identified in the incident report as a witness.

Signed:

David F. Fisher
Commissioner

Dated: December 29, 2000

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