September 2, 1994; Anoka County
9/2/1994 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 History:
On August 12, 1994, PIPA received a letter from Mr. Bart F. Biernat, a resident of Minneapolis, Minnesota. In his letter, Mr. Biernat described attempts by him to gain access to certain data that he believed ought to be maintained by Anoka County and asked for an opinion of the Commissioner of Administration, Commissioner, concerning the issue stated under Issue below. The facts Mr. Biernat stated concerning his disagreement with Anoka County, County, are summarized as follows. In addition to describing his dispute with the County, Mr. Biernat provided copies of the correspondence and other materials described below.
In 1992, the County entered into a contract for consulting services with the DCA Stanton Group, consultant. Mr. Biernat provided a copy of this contract whose objective was for the consultant to review county personnel practices and to make recommendations and develop a strategy for implementation of changes to the county personnel program. Public funds of approximately $17,000 were paid to the consultant for preparation of reports and presentations to the County's Board of Commissioners.
According to Mr. Biernat, County personnel prepared changes to county personnel polices and made recommendations to the County Board of Commissioners that were based in part on information and conclusions that appeared in the consultant study. In 1993, the County Board approved those resolutions. Also in 1993, one County Commissioner distributed a memo to County employees announcing a plan for improvements to the County's compensation system and, in that memo, referenced the fact that this plan was based, at least in part, on the consultant study.
On October 5, 1993, Mr. Biernat sent a letter to Mr. Jay McLinden, the County's Administrator, requesting all reports and materials related to the consultant study. On October 15, 1993, Mr. Biernat received a response from Mr. Ronald Welde, the County's Director of Human Resources, that stated that the consultant study . . . is no longer retained by Anoka County. After receiving that letter, Mr. Biernat met with Mr. John Sprague, the Assistant Director for Human Resources, who stated that the consultant report was the property of the consultant and could not be accessed using the Minnesota Government Data Practices Act.
After providing that chronology, Mr. Biernat offered arguments as to why this report ought to be available to him and requested an opinion concerning the issue described below.
In response to Mr. Biernat's request, PIPA, on behalf of the Commissioner wrote to Mr. Welde. The purposes of this letter, dated August 12, 1994, were to inform Mr. Welde of Mr. Biernat's request, provide a copy of the request to him, to ask Mr. Welde or the County's attorney to provide information or support for the County's position and to inform him of the date by which the Commissioner was required to issue this opinion.
Subsequently, PIPA was contacted by phone by Mr. Anthony Palumbo, the Anoka County Attorney's Office specialist on data practices issues. Mr. Palumbo indicated that he would work with the consultant to make a copy of the consultant's report available to Mr. Biernat. PIPA staff indicated to Mr. Palumbo that if Mr. Biernat received a copy of the report and stated to the Commissioner or PIPA that he no longer needed an opinion that no opinion would be issued.
On August 30, 1994, Mr. Biernat wrote to PIPA. He enclosed a copy of a letter, dated August 25, 1994, sent to him by Mr. Palumbo. This letter stated that the consultant report was not being retained by the County and that the report was available directly from the consultant. Mr. Biernat also enclosed an August 27, 1994, letter that he sent to Mr. Palumbo that described Mr. Biernat's attempts to get a copy of the report from the consultant. According to Mr. Biernat, Mr. George Gmach, a representative of the consultant, informed him that as the consultant had no obligations under the Data Practices Act that Mr. Biernat would have to pay a charge of $25.00 to get access to any part of the report. In addition to that charge, he would also be charged for the cost of copies of the report. Mr. Biernat then renewed his request for an opinion from the Commissioner.
Although, Mr. Palumbo made the efforts described above to provide Mr. Biernat with access to this report through the consultant, the County itself did not make any submission in response to the notice of opinion sent to Mr. Welde. The balance of this opinion should be read in light of the County's choice not to submit information explaining its position.
In his letter requesting a Commissioner's opinion, Mr. Biernat asked the Commissioner to address the following issue:
In making his request for an opinion, Mr. Biernat cited the case of Pathmanathan v. St. Cloud State University, 461 N.W. 2d 726 (Minn. App. 1990) and argued that his dispute with the County was controlled by the result in that case. In the Pathmanathan case, an individual who was applying for a position at St. Cloud State sought access to a report done by a private investigator that was not in the possession of St. Cloud State but was retained by the private investigator. In reaching its result in the Pathmanathan case, the Court of Appeals relied heavily on the fact that the St. Cloud State's contract with the investigator included a term in which St. Cloud State retained ownership rights to reports and information generated by the investigator in doing the background checks on prospective employees. The contract between the County and the consultant does not contain a comparable contract term. However, Term XVI of the contract does state the following:
In collecting, storing, using and disseminating data on individuals in the course of providing services hereunder, the Consultant agrees to abide by all pertinent state and federal statutes, rules and regulations covering data privacy, including but not limited to the Minnesota Data Practices Act and all rules promulgated pursuant thereto by the Commissioner of the Department of Administration. (Emphasis added.)
This contractual provision can certainly be read to mean that the consultant has obligated itself to comply with the entire Minnesota Data Practices Act (sic). Abiding by all of the provisions of the Minnesota Government Data Practices Act, means that the consultant obligated itself to make copies of data that are public under the Act available to a member of the public, such as Mr. Biernat, free of charge for purposes of inspection and for a reasonable cost of providing copies if copies are requested. (See Minnesota Statutes Section 13.03, subdivision 3.) There is no provision of the Minnesota Statutes that appears to classify a consultant's report of recommendations for changes to the County's compensation system as anything other than public data. (See Minnesota Statutes Section 13.03, subdivision 1, the presumption that all government data are public unless there is a state statute or federal law that provides to the contrary.)
Given its acceptance of an obligation to abide by all provisions of Minnesota Statutes Chapter 13, the consultant should make a copy of the report available at a reasonable cost to Mr. Biernat.
Another route presents itself for access to a copy of the consultant's report. Part of the concern raised by Mr. Biernat in his request for an opinion goes to what he sees in this situation of the County's ability to evade certain obligations under the Data Practices Act. In Mr. Biernat's view, the County contracted with this consultant, the consultant was paid public funds to do a study, the study was presented in the form of a written report to the governing body of the County and County representatives acknowledge that the report was used by the County to make decisions concerning the County's system of compensating employees. After the County's obvious reliance on the report in making decisions, it did not retain a copy of the report. When Mr. Biernat sought access to the report, the County told him it did not have the report.
Chapter 13 does not contain any specific language imposing obligations on government agencies to retain government data. After broadly defining government data, the Act states that all government data are public unless classified otherwise. (See Minnesota Statutes Sections 13.02, subdivision 7 and 13.03, subdivision 1.) The definition of government data and the presumption that government data are public are clear statements of intent by the legislature, in this age of information, to give the public access to data the public wants to examine to determine what its government is doing and why. Although not specifically providing for retention of government data for purposes of accountability in Chapter 13, the legislature has long required public officers of this state acting for any governmental entity to . . . make and preserve all records necessary to a full and accurate knowledge of their official activities. (Minnesota Statutes Section 15.17, subdivision 1.) When the legislature amended the predecessor language to what now appears in Chapter 13, establishing the presumption of public data and providing for maximum access to public data, the legislature also amended Minnesota Statutes Section 15.17. This amendment provided that access to records required to be kept under Section 15.17 is governed by Chapter 13. (See Session Laws of Minnesota 1979, Chapter 328.)
When read together, Section 15.17 and Section 13.03, impose an obligation on the County to preserve records that it uses to conduct public business so that those records will be available for public inspection. In this situation, it is quite clear that the County used and relied on the consultant's report to make decisions about its compensation system. It is also clear that the County failed in its obligation to preserve the report that it used and on which it relied in making decisions concerning the public's business. To fulfill its obligations under Minnesota Statutes, the County should re-acquire a copy of the report and make it available to the public under the conditions provided in Chapter 13.
Based on the correspondence in this matter, my opinion on the issue raised by Mr. Biernat is as follows:
Debra Rae Anderson
Dated: September 2, 1994
Legislative authority and intent
Presumption of openness
Location of data
Obligation to maintain and preserve records