July 11, 2001; City of Ellsworth
7/11/2001 10:15:43 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 HistoryFor 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 May 31, 2001, IPA received a letter dated May 30, 2001, from Jon Faltinson. In his letter, Mr. Faltinson requested that the Commissioner issue an advisory opinion regarding his access to certain data that the City of Ellsworth maintains. IPA, on behalf of the Commissioner, wrote to Dawn Huisman, Clerk of the City of Ellsworth, in response to Mr. Faltinson's request. The purposes of this letter, dated June 8, 2001, were to inform her of Mr. Faltinson's request and to ask her to provide information or support for the City's position. On June 25, 2001, IPA received a response, dated June 20, 2001, from Harris Darling, an attorney representing the City. A summary of the facts as presented by Mr. Faltinson is as follows. On December 13, 2000, Mr. Faltinson attended the City Council's public taxation and hearing and meeting. He wrote: At the beginning of the meeting, and AGAIN during the meeting, I asked to have a copy of the budgets and material that the members of the Council were looking at so that I could follow along. The first request was ignored, and the second time I asked, I was told NO! All five council members and the City Clerk had copies of the material, but none of them would share, and no copies where [sic] available to the public to inspect, look at, or follow along with. Mr. Faltinson also noted that the City had appointed its first ever responsible authority on December 13, 2000, and questioned whether the City, to comply with the requirements of Minnesota Statutes, Chapter 13, should have previously appointed a responsible authority. Mr. Faltinson further wrote that on December 18, 2000, he asked for a copy of the City's written public access procedures. He stated that his request was ignored. Finally, Mr. Faltinson wrote that on May 7, 2001, he visited City Hall and asked again for a copy of the written public access procedures. The City Clerk referred Mr. Faltinson to the resolution appointing the responsible authority, but did not provide him with any access procedures. Issues:In his request for an opinion, Mr. Faltinson asked the Commissioner to address the following issues:
Discussion:Issue 1Pursuant to Minnesota Statutes, Chapter 13, and Minnesota Statutes, section 13D.01, did the City of Ellsworth provide appropriate access to the public to all written materials discussed at a December 13, 2000, public taxation hearing and meeting? Pursuant to Minnesota Statutes, section 13.03, upon request, an individual shall be permitted to inspect and copy public government data of which s/he is not the subject. In a situation involving a meeting of a body subject to Minnesota Statutes, Chapter 13D, the Open Meeting Law, the government entity has additional statutory obligations regarding the public's access to data. In part, section 13D.01, subdivision 6, states: [at] least one copy of any printed materials relating to the agenda items of the meeting prepared or distributed by or at the direction of the governing body or its employees and: (1) distributed at the meeting to all members of the governing body; (2) distributed before the meeting to all members; or (3) available in the meeting room to all members shall be available in the meeting room for inspection by the public while the governing body considers their subject matter. According to Mr. Faltinson, at the City's December 13, 2000, public taxation hearing and meeting, he requested access to copies of the written materials the council members had received. His request was denied. In his comments, Mr. Darling wrote: At the meeting [Mr. Faltinson] requested a copy of the complete budget. The City Clerk indicated she did not know whether he could have that complete budget and advised him that she would get that to him. The copy of the complete budget was subsequently sent to Mr. Faltinson. Pursuant to section 13.03, government data are accessible unless those data are classified as other than public. Further, as stated above, the City has additional obligations in providing access to data that are the subject of an open meeting. In this case, pursuant to the specific direction of section 13D.01, the City was required to make available at least one copy of any printed materials relating to the agenda items. Based on the information provided, the City did not meet this obligation. Issue 2The City of Ellsworth did not appoint a responsible authority until December 13, 2000. Was the City out of compliance with Minnesota Statutes, Chapter 13, during the time that no responsible authority existed? Pursuant to Minnesota Statutes, section 13.02, subdivision 16, Responsible authority in any political subdivision means the individual designated by the governing body of that political subdivision as the individual responsible for the collection, use, and dissemination of government data. Pursuant to Minnesota Rules, part 1205.1000: Pursuant to Minnesota Statutes, section 13.02, subdivision 16, the governing body of each political subdivision and the governing body of each state agency whose activities are subject to the direction of a governing body shall, by September 30, 1981, if it has not done so, appoint a responsible authority....The governing body shall confer on the responsible authority full administrative authority to carry out the duties assigned by the act and by this chapter. Further, according to Minnesota Rules, part 1205.0200, subpart 14 (B), the responsible authority for a city shall be an individual employee of the city appointed by the city council. In his response, Mr. Darling wrote, The City of Ellsworth did not appoint a responsible authority until December 13, 2000. As stated above, government entities were to have appointed a responsible authority by September 30, 1981. In the case of this opinion, Ellsworth did not appoint its responsible authority until December 2000. Therefore, during the time that no responsible authority existed, the City was not in compliance with certain requirements of Minnesota Statutes, Chapter 13. Issue 3Pursuant to Minnesota Statutes, section 13.03, subdivision 2(b), is the City of Ellsworth required to prepare written public access procedures, and make free copies of those procedures easily accessible to the public? The 1999 Minnesota Legislature enacted the language in section 13.03, subdivision 2(b). It became effective on January 1, 2001, and provides: The responsible authority shall prepare public access procedures in written form and update them no later than August 1 of each year as necessary to reflect any changes in personnel or circumstances that might affect public access to government data. The responsible authority shall make copies of the written public access procedures easily available to the public by distributing free copies of the procedures to the public or by posting a copy of the procedures in a conspicuous place within the government entity that is easily accessible to the public. Mr. Faltinson wrote that on December 18, 2000, he requested from Mr. Darling a copy of the City's procedures explaining how the public can gain access to government data. Mr. Faltinson stated that the City ignored his request. In his comments, Mr. Darling wrote: [T]he City is required to prepare written access procedures and make copies of those procedures accessible to the public. The City is in the process of doing this and has secured a model policy from the Minnesota Department of Administration. The City has also been in contact with the League of Municipalities and are [sic] securing copies of present policies that are in existence in other Cities. Mr. Faltinson made his request for the data on December 18, 2000. Technically, the requirement to prepare and post the procedures did not go into effect until January 1, 2001. However, regardless of whether the data existed at the time of the request, the City was obligated to respond to Mr. Faltinson's request. See section 13.03. The City's response would have been that the data do not exist. The Commissioner is encouraged by Mr. Darling's comments that the City is working to prepare the policies and procedures that Chapter 13 requires of government entities. Given that the specific requirement regarding the public access procedures went into effect in January 1, 2001, the Commissioner encourages the City to create those procedures as soon as possible. Issue 4Is the City of Ellsworth in compliance with Minnesota Statutes, Chapter 13, when it posts a resolution appointing a responsible authority as a substitute for the written public access procedures described in section 13.03, subdivision 2(b)? Mr. Faltinson wrote that on May 7, 2001, he, for the second time, requested access to the data access procedures described in section 13.03, subdivision 2(b). The City's response was to refer Mr. Faltinson to the resolution appointing the responsible authority. In his comments, Mr. Darling wrote: The City has posted a resolution appointing the responsible authority. This cannot be considered a substitute to the written public access procedures. It would appear that the Statute requires both. The more complicated requirement is the establishment of procedures concerning public access to government data and the City is in the process of doing this. Mr. Darling has acknowledged that the City must prepare data access procedures in addition to appointing a responsible authority. Regarding Mr. Faltinson's May 7, 2001, request, the City did not respond appropriately. Opinion:Based on the facts and information provided, my opinion on the issues that Mr. Faltinson raised is as follows:
Signed:
David F. Fisher
Dated: July 11, 2001 |
Responsible authority
Open Meeting Law
Printed materials
Public access procedures
Appointment required
