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April 4, 2000; City of Ely
4/4/2000 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: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 January 27, 2000, IPA received a letter dated January 24, 2000, from Thomas and Patricia Mighell. In their letter, the Mighells requested that the Commissioner issue an opinion regarding their access to certain data the City of Ely maintains. IPA staff requested that the Mighells clarify their opinion request; they did so in a letter dated February 3, 2000. IPA, on behalf of the Commissioner, wrote to Lee Tessier, Clerk/Treasurer for Ely, in response to the Mighells' request. The purposes of this letter, dated February 14, 2000, were to inform him of the Mighells' request and to ask him to provide information or support for the City's position. On February 22, 2000, IPA received comments, dated February 21, 2000, from Laurence Klun, attorney for the City. Mr. Klun also sent supplemental materials dated February 28 and March 1, 2000. A summary of the facts is as follows. In their January 24 letter to the Commissioner, the Mighells wrote: At a meeting with the city bldg. Inspectors state code enforcement, which we asked for assistance, we were told that one of the principal reasons for the need for plans specs. was so the public could view them in the future to see how a building was constructed. When we asked to access same the bldg. Inspector denied us access. We went to the attorney generals office and received a copy of 13:37 and the opinion that we should be able to access the data. We contacted the bldg. Official informed him of same and asked him to inform the city; he indicated he would. We went to the city with a copy of 13:37 and was denied access again. We were directed to the city attorney's office. We left a copy of 13:37.... [w]e asked who was responsible city contact. That person is the city clerk in Ely. After several weeks numerous phone calls we received the attorney's denial. Attached to the Mighells' opinion request was a document dated September 10, 1999, signed by Mr. Mighell. He wrote, We are requesting access to all building department records other than those classified non public under 13.37 of [Chapter 13] held by the city of Ely. In his September 8, 1999, response to the Mighells' request for data, Mr. Klun wrote: It is my understanding that you are seeking access to view building plans for commercial or industrial structures, as they have been filed with the City of Ely Zoning Office.... I have reviewed Minnesota Statutes Section 13.37, Subd. 1 (a), which defines Security Information .... [b]uilding plan information, in my opinion, would constitute security information under [Chapter 13].... Therefore, you would not be allowed access to building plans that may be in the possession of the City of Ely's Zoning Officer. In their February 3 letter to the Commissioner, the Mighells wrote: We are requesting access to the comprehensive data held by the city of Ely planning zoning or building dept, in relationship to building plans specifications and all related documents for all types of structures with in the city of Ely or its jurisdiction. These would consist of, but not be limited to, building permits, plans, specifications, reports, citations, office notes in files, letters from to the city, maps charts in general or specific to a structure, environmental conditions of a site or structure, occupancy permits as well as compliance with peripherals such as signage, parking, etc.. This is not to suggest that there is any request for, requirement for, need for or expectations of access to alarm systems, vaults, safes, or other proprietary information that would be reasonable anticipated being classified non-public and is required to be separated, held separate and non-public. Issue:In their request for an opinion, the Mighells asked the Commissioner to address the following issue:
Discussion:Pursuant to Minnesota Statutes, Chapter 13, all government data are presumed public unless otherwise classified by statute, federal law, or temporary classification (section 13.06). Section 13.37, subdivision 2 classifies security information as not public. Security information is defined as government data the disclosure of which would be likely to substantially jeopardize the security of information, possessions, individuals or property against theft, tampering, improper use, attempted escape, illegal disclosure, trespass, or physical injury. (See section 13.37, subdivision 1(a).) In the case of this opinion, there appears to be a dispute regarding which data the Mighells requested. In his response to the Commissioner, Mr. Klun wrote: The understanding I gathered at the time of my September 8, 1999, letter was that Mr. Mighell was looking for building plans for other buildings in the community.... Following my letter of September 8, Mr. Mighell never corresponded with my office requesting any further information. The September 10, 1999, one sentence note by Thomas Mighell, addressed to Thomas Mighell, was never received by my office. I am not aware if it was received by any other city official.... I believe the City responded reasonably based upon the requests communicated. If there is a more specific or further request, which Mr. and Mrs. Mighell may have, we also would intend to respond reasonably to the request. In contrast, the Mighells assert that their request was more comprehensive, i.e., all data relating to building plans and specifications, and all related documents for all types of structures within the City. The Commissioner cannot determine with absolute certainty which data the Mighells requested. If the City did not understand the Mighells' request(s), it should have sought clarification. If the Mighells did not clearly identify which data they are seeking, they should submit another request(s). Regardless of the actual data requested, Mr. Klun did assert the City's position regarding the classification of building plans for commercial/industrial structures. He denied access to the plans based on section 13.37, security information. It is the Commissioner's opinion that certain building plan information can be properly withheld pursuant to section 13.37, subdivision 1(a), security information, or subdivision 1(b), trade secret information. However, if a government entity relies on either of these two provisions, it must be able to demonstrate that the specific data fit the criteria set forth in statute. For instance, if the entity protects data based on the security provision, the disclosure of those data must be likely to substantially jeopardize the security of information, possessions, individuals or property against theft, tampering, improper use, attempted escape, illegal disclosure, trespass, or physical injury. Some examples would be plans that contain details about alarm systems, the presence of hidden safes, etc. (For additional information, see Advisory Opinion 98-046.) Or, if the entity protects data based on the trade secret provision, those data must be government data: including a formula, pattern, compilation, program, device, method, technique or process (1) that was supplied by the affected individual or organization, (2) that is the subject of efforts by the individual or organization that are reasonable under the circumstances to maintain its secrecy, and (3) that derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use. (For more information, see Advisory Opinion 99-035.) In the case of this opinion, Mr. Klun did not demonstrate how any of the data that the City refused to release fit the specific requirements set forth in section 13.37. Therefore, he did not respond appropriately to the Mighells' request. A final note is important. In Mr. Klun's response to the Commissioner, he wrote: It is my understanding that the Department of Administration oversees building plans and had issued advisory information on the Data Practices aspect of building plans. From our Building Inspector I was informed that building plans, architectural, design, structural and utility are classified under M.S. Section 13.37 as non-public data. In follow-up correspondence to the Commissioner, Mr. Klun added, It was our contract building inspector who informed us of the data classification of the commercial plans, which the Mighells requested. Enclosed is a copy of the pertinent pages [from the First Edition January 1999 Minnesota Department of Administration Building Department Information Handbook] that were provided to us. These guidelines were followed in responding to the Mighells. The documents Mr. Klun provided are two pages of the current City General Records Retention Schedule. Although the records retention schedule does include a listing for classifications of various types of data, its primary purpose is to serve as a guide for disposing of government records. Therefore, government entities should not rely on the retention schedule to resolve data classification issues; government data are classified at Chapter 13. Opinion:Based on the facts and information provided, my opinion on the issue that the Mighells raised is as follows:
Signed: David F. Fisher
Dated: April 4, 2000 |
Records management/retention
Security information
Building plans
Records retention schedule
Security information (13.37, subds. 1(a), 2)
