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March 21, 1996; Minnesota Office of Environmental Assistance
3/21/1996 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 citizen who requested this opinion and the response from the government entity with which the citizen disagrees are presented in summary form. Copies of the complete submissions are on file at the offices of PIPA and, with the exception of any data classified as not public, are available for public access.On February 7, 1996, PIPA received a letter requesting this opinion from Jeff Young, in which he described his attempts to gain access to certain data maintained by the Office of Environmental Assistance (OEA), an agency of the State of Minnesota. Mr. Young enclosed copies of relevant correspondence with OEA. In a telephone conversation on February 8, 1996, PIPA staff clarified with Mr. Young that he believes that OEA has not complied with its obligation, pursuant to Minnesota Statutes Section 13.03, to provide him with access to the data he requested. In response to Mr. Young's request, PIPA, on behalf of the Commissioner, wrote to Edward Garvey, Director of OEA. The purposes of this letter, dated February 8, 1996, were to inform Mr. Garvey of Mr. Young's request, to ask him or OEA's attorney to provide information or support for its position, and to inform him of the date by which the Commissioner was required to issue this opinion. (In subsequent correspondence, Mr. Young and Mr. Garvey were informed that the Commissioner would be taking additional time, as allowed by statute, to issue this opinion.) On February 26, 1996, PIPA received a response from Arthur E. Dunn, Deputy Director of OEA. A summary of the detailed facts of this matter follows. According to Mr. Young, he has been seeking access to certain data maintained by OEA since September of 1995. The data relate to OEA's Compost Utilization Project (CUP). Mr. Young provided information which indicates that he has had numerous contacts with OEA in his efforts to gain access to the data he seeks. According to him, at various times since September 1995, he was told by OEA that the CUP report would be sent to him. Finally, he was told by OEA in December 1995, that the final report would not be available until March 1, 1996. In December 1995, Mr. Young requested a Commissioner's advisory opinion, which related to the same data at issue in this opinion. At that time, in his written requests to OEA, Mr. Young had asked for a copy of the CUP report. However, according to Mr. Young, in a December 12, 1995, telephone conversation with Dave Benke of OEA, Mr. Benke . . . asked me if I wanted only Final CUP Reports. At that time I asked Mr. Benke for all reports, whether preliminary or final, and I feel I made myself quite clear on this issue. Mr. Young withdrew his advisory opinion request when he was informed by OEA that the final report would not be available until March 1, 1996. Mr. Young then wrote to Mr. Garvey, in a letter dated January 15, 1996, and requested access to all data related to the CUP report. He emphasized that his request was not limited to the final report. According to Mr. Young, in response to that letter, Mr. Garvey called him approximately the last week of January 1996. Mr. Young stated to PIPA staff that he believed, after the telephone call with Mr. Garvey, that OEA was continuing to deny him access to the data he was seeking. Mr. Young then requested this opinion. In a letter dated February 15, 1996, Mr. Dunn requested additional time in which to respond to the Commissioner. According to Mr. Dunn, OEA's contractor, Malcolm Pirnie, Inc., has responsibility for preparation of the final CUP report, and physically maintains some of the data Mr. Young requested. Mr. Dunn wrote: [u]nder the terms of the OEA's contract with Malcolm Pirnie, Inc. all reports, studies and other documents generated under the contract are the property of the State. Therefore, we believe we are entitled to request, on Mr. Young's behalf, that Malcolm Pirnie, Inc. make the data in their possession on the CUP available to Mr. Young for his review. In part, Mr. Dunn requested additional time to respond to the Commissioner in order to determine whether Malcolm Pirnie, Inc. intends to comply with the request. We request until February 26, 1996, to inform you of whether we will be required to take additional steps to secure access to the data in the possession of our contractor. Mr. Dunn added: [a]s to the data in the physical possession of the OEA, Mr. Young has been invited, orally, to make an appointment to review the files. To date, he has not exercised that option. By this letter, we reiterate our agreement that the data in our files is public data and that Mr. Young is entitled to access them. In his letter dated February 26, 1996, Mr. Dunn largely reiterated the content of his letter dated February 15, 1996, including the statement: . . . we believe we are entitled to request, on Mr. Young's behalf, that Malcolm Pirnie, Inc. make the data in their possession on the CUP available to Mr. Young for his review. Mr. Dunn did not indicate whether or not OEA had, in fact, actually made the request of its contractor that in part necessitated the delay in OEA's response to the Commissioner. Mr. Dunn added: [a]t the time of receipt of your letter [i.e., the receipt on February 14, 1996, of the notification of Mr. Young's advisory opinion request] the OEA was in the process of responding formally to [Mr. Young's January 15, 1996 data request to OEA.] The Draft letter attached offers Mr. Young the opportunity to make an appointment to review the file. (Emphasis added.) The draft letter Mr. Dunn referred to is dated February 16, 1996. Issue:
In his request for an opinion, Mr. Young asked the Commissioner to address the following issue:
Discussion:
Clearly, there is no disagreement between Mr. Young and OEA regarding the classification of the data he is seeking. The data are public, and Mr. Young is entitled to gain access to them. Therefore, this is a discussion of whether OEA has met its obligations under Minnesota Statutes Chapter 13, the Minnesota Government Data Practices Act, to provide Mr. Young with appropriate access to the data.
Minnesota Statutes Section 13.03 contains the general provisions that govern public access to government data. Section 13.03, subdivision 2, provides: [t]he responsible authority . . . shall establish procedures, consistent with this chapter, to insure that requests for government data are received and complied with in an appropriate and prompt manner. (Emphasis added.) In addition, Minnesota Rules Part 1205.0300, subpart 3, provides: [t]he responsible authority shall provide for a response to a request for access within a reasonable time. (Emphasis added.) The question at hand is whether OEA's response to Mr. Young was in compliance with Chapter 13 and its implementing rules. Specifically, did OEA provide a response to Mr. Young's request in a prompt manner and within a reasonable time ? The Commissioner has addressed this general issue a number of times. In Commissioner of Administration Advisory Opinion Number 96-003, the Commissioner wrote:
Further, the Commissioner wrote:
In the circumstance at issue in Advisory Opinion Number 96-003, at least six weeks passed before the data requestor received any kind of a response from the government entity. As the Commissioner stated in that opinion, such a response time is neither prompt nor reasonable. In Mr. Young's case, it is possible that when he made his initial request, OEA misunderstood just what information he was requesting. It is possible that OEA thought that Mr. Young wanted only the finalCUP report, and that misunderstanding lasted from September to December of 1995. However, according to Mr. Young, in a December 1995 telephone conversation with Mr. Benke, he clearly stated that he wanted any and all data about the CUP that had been generated to that time, including draftsof the report. He repeated that assertion in a letter to the Commissioner, dated December 19, 1995. (That letter also served as Mr. Young's request to withdraw his initial advisory opinion request, and as such was copied and sent to OEA by PIPA as notice that the opinion would not be issued.) In any case, Mr. Young followed up all of his previous requests and clearly requested access to any and all data, not just the final report, related to the CUP, in his January 15, 1996, letter to OEA Director Garvey. Mr. Garvey and Mr. Young spoke by telephone a week or so later. However, Mr. Young does not interpret Mr. Garvey's message in that conversation to be a provision of access to the data he has been seeking for many months. OEA did not provide information to the Commissioner to support its assertion that it has, in fact, clearly communicated to Mr. Young how and when he may gain access to the data. As of February 26, 1996, seven weeks after the date of his January 15, 1996, request, it appears that OEA had neither secured copies of the data held in the physical possession of its consultant Malcolm Pirnie, Inc., nor arranged for Mr. Young to gain access to those data directly from Malcolm Pirnie, Inc. Regardless whether certain of the data Mr. Young seeks are in the physical possession of OEA's contractor, OEA retains the obligation to provide access to those data. (For further discussion of that point, see Commissioner's Advisory Opinion Number 94-035, concerning a government entity's obligation to provide public access to data in a report prepared by a consultant.) OEA also has not provided to Mr. Young any of the data he seeks that are in its possession. The Commissioner accepts on face value OEA's assertion that it has made an oral invitation to Mr. Young to inspect the data it maintains. However, Mr. Dunn sent the Commissioner a copy of a draft letter to Mr. Young, which contained such an invitation, but provided no information to the Commissioner which indicates that OEA ever sent the letter directly to Mr. Young. Clearly there is disagreement between OEA and Mr. Young about how OEA has responded to his attempts to gain access to certain of the public data it maintains. However, it is evident that Mr. Young has been seeking access to data relating to the CUP, data which clearly and without dispute are public data, since September 1995. Mr. Young explicitly sought access to any and all data, not simply the final report, in mid January 1996. OEA has not provided information to the Commissioner, which, as a whole, indicates that it has met its obligation under Chapter 13 to provide Mr. Young access to public data in a prompt, reasonable manner. Therefore, based on the information provided, the Commissioner cannot conclude that OEA has made a timely response to Mr. Young's requests for access to public data. Opinion:Based on the correspondence in this matter, my opinion on the issue raised by Mr. Young is as follows:
Signed: Elaine S. Hansen
Dated: March 21, 1996 |
Response to data requests
Statutory construction (Ch. 645)
Draft documents
Definition of prompt or reasonable time
Words and phrases construed (645.08)
