Discussion:
Pursuant to the presumption stated in Minnesota Statutes Section 13.03, subdivision 1, all government data collected, created, received, maintained, or disseminated by a political subdivision, such as the City of Brooklyn Park, are public unless otherwise classified by statute, temporary classification, or federal law. It follows, therefore, that the data collected by the Housing Division are public data unless otherwise so classified. Ms. Paulus has requested this opinion primarily to clarify whether any provisions exist, such as Sections 13.41, 504.23, 566.19, or 13.39, which classify the Housing Division Data as not public.
(While the Commissioner is not limited in her discussion of this issue to the aforementioned statute sections, it appears that those particular sections, along with Section 13.82, are the most likely to classify the data collected by the Housing Division.)
First, it does not appear that the Housing Division data are classified as anything other than public by Section 13.41, licensing data. This is because Section 13.41 does not apply to any data collected and maintained by Brooklyn Park. In part, subdivision 1 of Section 13.41 states, As used in this section 'licensing agency' means any board, department or agency of this state which is given the statutory authority to issue professional or other types of licenses, except the various agencies primarily administered by the commissioner of human services. In this instance, it is the Commissioner's conclusion that the terms board, department or agency of this state refer to just that - a board, department, or agency which is part of state government. The Commissioner believes that had the Legislature intended Section 13.41 to include data collected and maintained by licensing divisions or departments of local governments, the language would have clearly so stated. Therefore, Brooklyn Park cannot rely on Section 13.41 to classify the Housing Division Data as anything other than public. (The Commissioner understands that the status of licensing data collected and maintained by local governments has been a contentious issue for some time. This issue will be brought to the attention of the Legislature in 1996.)
Second, it does not appear that Housing Division data are classified as anything other than public by Section 504.23, code violations and disclosure. Section 504.23 states:
All code violation records pertaining to a particular parcel of real property and the buildings, improvements and dwelling units located thereon kept by any state, county or city agency charged by the governing body of the appropriate political subdivision...with the responsibility for enforcing a state, county or city health, housing, building, fire prevention or housing maintenance code shall be available to all persons having a reasonable need for the information contained in the records relating to the premises....The persons to whom the records shall be available under this section include but are not limited to the following persons and their representatives:
(a) any person having any legal or beneficial interest in the premises, including a tenant;
(b) any person considering in good faith the lease or purchase of the premises;
(c) any person authorized to request an inspection under section 566.19; and
(d) a party to any action related to the premises, including actions maintained pursuant to sections 504.18 and 588.18 to 566.33. [Emphasis added.]
The Commissioner bases her conclusion that Section 504.23 does not classify the Housing Division data as anything other than public upon an examination of the plain words of Section 504.23. While Section 504.23 includes a list of persons who are entitled to obtain code violation records, the list is made non-inclusive by the use of the following language: [persons who can obtain the information] include but are not limited to the following persons and their representatives. Nothing in Section 504.34 would prevent the interpreter from reading the including but not limited to language to include the public. Therefore, nothing in Section 504.23 appears to preclude the code violation records from public access.
However, if any doubt exists as to why Section 504.23 does not classify the Housing Division data as anything other than public, an analysis of legislative history may be of assistance. Section 504.23 was enacted in 1974, prior to the 1979 enactment of the presumption of public data language in Section 13.03, subdivision 1. Under the rules of statutory interpretation, when two provisions of statute appear to be in conflict, the later enacted statute is assumed to be the Legislature's last word on a given subject. (See Minnesota Statutes Section 645.26, subdivision 4.) Given that Section 13.03 was enacted after Section 504.23, and the intent of Section 13.03 is clearly to maximize the ability of the public to gain access to government data, it appears the Legislative intent is that Section 504.23 not restrict access to only those persons having a specific interest in the data.
Third, is does not appear that data collected and maintained by the Housing Division are classified as anything other than public by Section 566.19. The relevant language of Section 566.19 is found in subdivision 2 which states, After an inspection of a building has been made upon demand by a tenant or neighborhood organization with the written permission of a tenant, the owner or the owner's agent and the complaining tenant or neighborhood organization shall be informed in writing by the inspector of any code violations discovered and a reasonable period of time shall be allowed in which to correct the violations. While Section 566.19 establishes a requirement that certain persons be informed of the results of an inspection, it does not contain language which would classify the Housing Division data as not public.
Fourth, while none of the aforementioned statute sections appear to classify the Housing Division data as anything other than public, it appear that the data in question may be classified as not public by the language of Section 13.39, civil investigative data. Subdivision 2 of Section 13.39 states that data collected by state agencies, political subdivisions, or statewide systems, as part of an active investigation undertaken for the purpose of commencement or defense of a pending civil legal action, or which are retained in anticipation of a pending civil legal action, are classified as protected nonpublic (data not on individuals) or as confidential (data on individuals).
The Commissioner wishes to note, however, that there are three conditions which must be met when a government entity seeks to classify data as not public pursuant to Section 13.39. The first condition is that there must be a pending civil legal action. This term is defined in subdivision 1 of Section 13.39 as including, but not limited to, judicial, administrative, or arbitration proceedings. From the information submitted by Brooklyn Park for this opinion, it appears that some of the code enforcement data collected and maintained by the Housing Division might, at some time, become part of a civil legal action (and/or a criminal investigation).
The second condition is that the chief attorney acting for the state agency, political subdivision, or statewide system shall determine whether, for purposes of Section 13.39, a civil legal action is pending.
The third condition is that as established by a 1993 Minnesota Supreme Court decision, the data must have been collected by a government entity in anticipation of possible commencement of litigation. (See Commissioner of Administration Advisory Opinion # 95-040.) In St. Peter Herald v. City of St. Peter, 496 N.W.2d 812 (Minn. 1993), the court held that a notice of claim provided to a political subdivision, had not been collected by the political subdivision in anticipation of possible commencement of litigation and thus, could be disclosed under Chapter 13. The court wrote:
Unfortunately, in our view Minn. Stat. section13.39, subd. 2 (1990) does not permit a notice of claim to be classified as a nonpublic document. The statute speaks of 'data collected by * * * political subdivisions.'...'Collect,' then, requires affirmative action by someone, and pursuant to section 13.39, subd. 2, that someone is a political subdivision...The information contained in a notice of claim is indeed retained by a political subdivision in anticipation of the possible commencement of legal action, but is not 'data collected' by the political subdivision as part of an active investigation. The political subdivision has not taken any affirmative action to gather the information contained in a notice of claim; it is simply a passive recipient of that information.
Therefore, if the chief attorney acting for Brooklyn Park determines that a civil legal action is pending, and the data in question have been collected in anticipation of possible commencement of litigation, then it appears those data are classified as either confidential or protected nonpublic. The Commissioner wishes to note that pursuant to Section 13.39, subdivision 3, except for those portions of a file which are classified as not public data by Chapter 13 or other law, inactive civil investigative data are public, unless the release of the data would jeopardize another pending civil legal action.
The Commissioner also wishes to note it is possible that Section 13.82, comprehensive law enforcement data might classify as not public some of the data collected by the Housing Division. However, as Ms. Paulus stated in her opinion request, We understand that complaint investigations begin as civil investigations until a violation is not corrected. At the time staff begins prosecution for obtaining compliance with city ordinances the investigation becomes a criminal investigation. Because Ms. Paulus seemed primarily concerned with the following statutory Sections: 13.41; 504.23; 566.19; and 13.39, and because any application of the Housing Division data to Section 13.82 would likely occur later in the data collection process, the Commissioner has limited her discussion in this opinion to the statute sections referenced by Ms. Paulus.
The second issue raised by Ms. Paulus is whether the term civil legal action (of Section 13.39) refers only to actions initiated by a government entity. Pursuant to Subdivision 2 of Section 13.39, data collected by a government entity as part of an active investigation undertaken for the purpose of the commencement or defense of a pending civil legal action, or which are retained in anticipation of a pending civil legal action, are classified as confidential or protected nonpublic. Based on this language, it appears the Legislature intended Section 13.39 to protect data which are collected for either initiating or defending a civil legal action. Therefore, if the chief attorney determines that the government entity is or will be party to a civil legal action, either as a plaintiff or a defendant, data collected as part of an investigation relating to such a civil legal action are protected under Section 13.39.
Opinion:
Based on the correspondence in this matter, my opinion on the issues raised by Ms. Paulus is as follows:
- While Sections 13.41, 504.23, and 566.19 do not classify the Housing Division's data as anything other than public, Section 13.39 may classify the Housing Division data as not public data.
- Section 13.39 may classify as not public those data which are collected by the government entity for the purpose of either initiating a civil legal action or defending itself against a civil legal action.
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Signed:
Elaine S. Hansen
Commissioner
Dated: December 1, 1995
