Issue:

In his request for an opinion, Ms. Walther asked the Commissioner to address the following issue:

Discussion:

Before proceeding, the Commissioner would like to note the following. In his comments, Mr. Alsop stated that the data requests were very broad and document intensive. He also noted that on two occasions, he sought written clarification from Ms. Walther. (In her opinion request, Ms. Walther provided copies of these two letters.) Mr. Alsop wrote, Ms. Walther provided very little clarification. He also wrote, Once the documents were collected and transferred to the offices of Kennedy Graven, inspection of the data was delayed for at least one additional week to accommodate the schedule of [another of Ms. Walther's clients who had made, essentially, the same data requests]. Mr. Alsop appears to be suggesting that these factors affected the City's response time. The Commissioner has the following comments. Regarding the date of the document inspection, in terms of any data requested in May 2001, the City should have responded prior to July 1, 2001. In other words, for requests made in May 2001, the fact that Ms. Walther and her clients delayed the inspection date for a week or so is irrelevant.

Regarding Mr. Alsop's requests for clarification, the Commissioner has the following comments. One of the letters in which Mr. Alsop requested clarification is dated June 25, 2001. However, the clarification he requested does not seem to be issue-specific. Rather, it appears to focus on whether Ms. Walther and/or X wished to obtain copies of the data or to inspect them. Ms. Walther responded in an e-mail that same day, June 25, 2001. It is not clear how this request for clarification affected the City's response time.

The second letter in which Mr. Alsop requested clarification is dated June 29, 2001. Of relevance here, this letter focuses on two specific requests for clarification. One is about the meaning of personnel data. Ms. Walther responded in a letter dated July 6, 2001. She wrote that she was not going to narrow her request and that no clarification was needed. She stated, 'Personnel data' is very clearly defined in Minn. Stat. section 13.43. Thus, I find it difficult to understand why you believe the request is 'vague.' We wish to review all personnel data on [X]. The Commissioner agrees with Ms. Walther. Personnel data are defined at Minnesota Statutes, section 13.43, subdivision 1. Furthermore, pursuant to Minnesota Statutes, section 13.04, the City had ten working days to respond to the request for personnel data. The City did not seek clarification until approximately four weeks after having received the request; this is not appropriate.

Also in his June 29, 2001, letter, Mr. Alsop asked for clarification regarding a data request Ms. Walther or her client made for accounting data for the Bridges and the Mounds View Community Center. The data request was made on June 15, 2001. The Commissioner will discuss this issue as part of item M.

An additional note is as follows. In her opinion request, Ms. Walther labeled the data requests that either she or X made as A through O. Below, the Commissioner will address each item separately.

A. On May 31, 2001, Ms. Walther or X requested:The agendas, minutes and other data collected, maintained, created, disseminated or discussed by the City's Human Resources Committee since September 1, 2000.

Ms. Walther related that on July 23, 2001, the City provided access to the following agendas for the following dates: February 26; March 26; April 23; and May 29 of 2001. She stated that the City provided no other data.

In his comments to the Commissioner, Mr. Alsop wrote:

The Human Resources Committee is a committee created by the Mounds View City Council pursuant to a resolution adopted on December 11, 2000. The Committee maintains no official calendar and generally meets informally on a monthly basis to review and consider personnel or human resources issues. [X] has been provided copies of all agendas and/or minutes that exist with respect to the City's Human Resources Committee. City staff also gathered all staff reports presented to the Human Resources Committee, however, such reports were inadvertently not included in the documents reviewed by [X]...Copies of the staff reports will be provided to Ms. Ann Walther under separate cover.

Pursuant to Minnesota Statutes, section 13.03, and Minnesota Rules, part 1205.0300, when an individual makes a request for public data of which the requestor is not the subject, the government entity is required to respond in a prompt and appropriate manner, and within a reasonable time.

In this case, X and/or Ms. Walther made a data request on May 31, 2001. The City did not provide access to data until July 23, 2001. This is not prompt, appropriate, or within a reasonable time. Furthermore, as of the date Mr. Alsop responded to Ms. Walther's opinion request, the City had not provided the data Mr. Alsop described as having been inadvertently not included in what the City provided on July 23, 2001. If Mounds View has not yet provided those data to X, it should do so immediately.

In addition, if some of the requested data do not exist, Mounds View should have so informed X and/or Ms. Walther at the time of the request. As the Commissioner has stated in many previous opinions, there is no requirement in Chapter 13 that government entities create data in response to a request.

The following note is in order. If the Human Resources Committee is a body subject to the Open Meeting Law, the Committee may be required to create certain other data, such as a record of any votes taken, and provide notices of its meetings, in addition to other requirements. See Minnesota Statutes, Chapter 13D. Documentation of actions taken by the committee are also subject to Minnesota Statutes, sections 15.17 and 138.17.

B. On May 23 and May 31, 2001, Ms. Walther or X requested:All personnel data (as that term is defined in section 13.43) on X, including, but not limited to, all data collected, created, maintained, disseminated or discussed during closed City Council meetings, all City Human Resources Committee meetings and the Karl Neu Session held in April 2001.

Ms. Walther wrote that although X requested review of all personnel data on him/her, X was provided access only to his/her personnel file. She stated, Upon information and belief, personnel data on [X] is in the possession of the City but is not part of [his/her] personnel file. The request encompasses all personnel data on [X]; not just that kept in [his/her] personnel file. Ms. Walther also discussed X's specific request for access to all videotapes or electronic data having to do with X or the golf course. She added:

Pursuant to Minn. Stat. section 13.43, [X] is entitled to access to all data which has been collected because [s/he] was an employee of the City of Mounds View. [X] believes that a great deal more data has been collected, created and maintained by the City on [him/her] than was produced in response to the request....[S/he] does know that at least some of [his/her] performance evaluations are missing, and that [s/he] was discussed at several meetings in the recent past, and that the City generally maintains notes or other data from such meetings.

In his comments to the Commissioner, Mr. Alsop wrote:

[X's] entire personnel file was copied and included in the documents inspected by [him/her] on July 23, 2001....The City provided [X] with [his/her] personnel file, and the City staff is unaware of any performance evaluations other than those contained in the personnel file. Similarly, the City staff is unaware of any letter of recommendation from a former [elected official] that allegedly was once in [X's] personnel file.

[X] asserts that [s/he] was discussed at council meetings in the past, and that data regarding those meetings was not produced. The City has produced all documents in its possession that are responsive to [X's] request. To the best of City staff's knowledge, no other documents exist that relate to [X's] performance.

Some personnel data (such as payroll records) have not been produced, but the City advised Ms. Walther that those records would be produced upon request. To the extent that personnel data has not been produced, it is due to lack of clarification from [X] as to the specific types of records sought.

Pursuant to section 13.04, when an individual requests access to data of which s/he is the subject the government entity must respond within ten working days. First, providing a copy of what the City has labeled personnel file is not appropriate when an individual asks for all personnel data about him/herself. See section 13.43, subdivision 1, for a definition of personnel data. Chapter 13 governs neither the physical location where government entities maintain data, nor the type of filing system entities use to organize data. Those decisions are left to the discretion of the entity. However, regardless of where the data are located, when an individual requests access to all personnel data about him/herself, the entity must provide access to all data it has collected and maintains about that individual because the individual is/was an employee of the entity.

Second, Ms. Walther and/or X requested the data on May 23 and May 31, 2001. The City did not provide any data until July 23, 2001. This is not a timely response. As the Commissioner previously discussed, he cannot accept Mr. Alsop's argument that the City did not provide X's payroll records because neither X nor Ms. Walther clarified the request. If the City did not understand the request, it was obligated to seek clarification within ten days of the request.

C. On May 31, 2001, Ms. Walther or X requested:All data collected, maintained, created, disseminated or discussed during meetings between City Administrator Kathleen Miller and anyone else regarding Tour Fit.

According to Ms. Walther, the City made some of the requested data available on July 23rd. However, she also wrote:

My client is aware that there was at least one additional meeting where Tour Fit, the City Administrator, Assistant Administrator and other City staff meet [sic] to discuss Tour Fit providing services to the City, however, no information was presented on this meeting; my client also has reason to believe that the Clerk-Administrator and/or Mayor meet [sic] and/or discussed the Tour Fit proposal on numerous other occasions, however, no information was presented on these meetings.

In his comments to the Commissioner, Mr. Alsop wrote, The City has provided [X] with all data in its possession relating to Tour Fit's proposal, including a video tape of the City Council work session conducted on April 16, 2001.

The Commissioner has the following comments. First, as he stated in relation to item A, a response time of two months is not prompt, appropriate, or reasonable.

Second, there is a factual dispute that the Commissioner is unable to resolve. Ms. Walther is in disagreement with the City's response and the City asserts it has provided all data in its possession relating to Tour Fit's proposal. The Commissioner does not know precisely what data the City maintains. For this reason, he is unable to make a determination regarding whether the City provided X with all the data s/he requested. However, it is important to keep in mind that section 15.17 does require the City to make and preserve all records of its official actions.

D. On June 15, 2001, Ms. Walther or X requested:An index of the documents contained on the following computers:

a. The computer used by Mayor Sonterre
b. The computer used by City Administrator Kathleen
c. The computer used by Assistant City Administrator Giovanna Reed
d.. The computer used by X, and
e. The computer used by Finance Director Bruce Kessel

In her opinion request, Ms. Walther wrote that no index or any other data were made available for review on July 23rd.

She also stated:

Partial excerpts of documents and e-mails that were on [X's] computer were provided, that in the context provided made no sense. [X's] computer has already been downloaded and documents and e-mails from that computer were used in the summary of charges against [him/her], yet neither an index of documents nor completed documents were provided on July 23rd.

In his response, Mr. Alsop wrote that his law firm had requested an advisory opinion from the Commissioner of Administration regarding this issue, and that the Commissioner's response is pending. He wrote, Once the City has received the Department's guidance regarding the classification of the requested data, the City will promptly provide [X] with the data as the Commissioner's opinion determines to be applicable.

Rather than repeat what he opined and discussed in the Opinion to which Mr. Alsop referred, the Commissioner directs readers to Advisory Opinion 01-075.

E. On June 15, 2001, Ms. Walther or X requested:All data contained on the hard drive of the following computers:

a. Mayor Sonterre's computer
b. City Administrator Kathleen's computer
c. Assistant City Administrator Giovanna Reed's computer
d. The computer used by X, and
e. Finance Director Bruce Kessel's computer

Ms. Walther wrote:

No access nor any other information was made available on July 23rd. It should be noted that at least some of this data would be responsive to [X's] request for access to all personnel data on himself. It should also be noted that Kennedy and Graven, on behalf of the City, has apparently requested an opinion from the Commissioner on access to such computer data.

In his response, Mr. Alsop provided the same comments for items D and E.

The Commissioner again refers readers to Advisory Opinion 01-075.

F. On June 15, 2001, Ms. Walther or X requested:All data, including, but not limited to, electronic data, referring to or relating to Tour Fit Golf for the past two years.

Ms. Walther wrote, No information was made available on July 23rd.

Mr. Alsop wrote, The City provided [X] with a videotape of the work session in which the Tour Fit proposal was discussed with City officials, along with the documents identified and produced under Section D herein. The City is unaware of any other data which exists or is responsive to these requests.

Pursuant to Minnesota Statutes, section 13.03, and Minnesota Rules, part 1205.0300, when an individual makes a request for access to data of which the requestor is not the subject, the government entity is required to respond in a prompt and appropriate manner, and within a reasonable time. If a government entity does not possess data that an individual requests, the entity is not required to create new data but should so inform the requestor.

In this case, there is a factual dispute that the Commissioner is unable to resolve. Ms. Walther is in disagreement with the City's response and the City asserts it is unaware of any other data responsive to the request. The Commissioner does not know precisely what data the City maintains. For this reason, he is unable to make a determination regarding whether the City provided X with all the data s/he requested.

G. On June 15, 2001, Ms. Walther or X requested: All data, including but not limited to, electronic data, referring to or relating to Total Service Sports ( TSS ) for the past two years.

Ms. Walther wrote, No information was made available on July 23rd.

Mr. Alsop wrote, The City is unaware of any entity named Total Service Sports and does not have any data in its possession related to that entity.

Pursuant to Minnesota Statutes, section 13.03, and Minnesota Rules, part 1205.0300, when an individual makes a request for access to data of which the requestor is not the subject, the government entity is required to respond in a prompt and appropriate manner, and within a reasonable time. If a government entity does not possess data that an individual requests, the entity is not required to create new data but should so inform the requestor.

In this case, there is a factual dispute that the Commissioner is unable to resolve. Ms. Walther is in disagreement with the City's response and the City asserts it does not maintain any data responsive to the request. The Commissioner does not know precisely what data the City maintains. For this reason, he is unable to make a determination regarding whether the City provided X with all the data s/he requested. However, it is not clear why it took the City over one month's time to inform Ms. Walther/X that it maintains no data relating to the request.

H and I. On June 15, 2001, Ms. Walther or X requested:H - The maximum salary payable to the City Administrator for the last five years; and I - The actual compensation paid to the City Administrator for the past five years.

Regarding H, Ms. Walther wrote, No information was presented for maximum salaries for 2000 and 2001. Regarding I, Ms. Walther wrote, The only data provided was Personnel Action forms. The information requested was for actual compensation paid for each of the last five years.

Mr. Alsop wrote:

[On July 23, 2001] the City provided summaries and Personnel Action Forms which were intended to provide [X] with both the maximum salary payable and actual salary of the City Administrator for the last five years. After review of the documents provided to [X], the City has determined that it inadvertently failed to provide the maximum salary payable to the City Administrator for 2001 or the City Administrator's actual salary paid in 2001. This information will be provided to [X's] counsel under separate cover. The omission was unintentional in light of the volume of documents requested and could have been corrected among the parties simply by notifying the City of the deficiency.

This is another factual dispute that the Commissioner is unable to resolve. Ms. Walther asserts that maximum salary levels for 2000 and 2001 are missing, as well as all data requested as item I. Mr. Alsop asserts that the only data not provided to X are the 2001 maximum salary payable data and the 2001 salary paid in 2001. Ms. Walther made this request on June 15, 2001. The City should disclose immediately any data responsive to the request that it has not yet provided.

J. On June 15, 2001, Ms. Walther or X requested:The expense reimbursement requests made by the City Administrator and the Mayor for the past two years, as well as the actual reimbursements made to both the City Administrator and the Mayor.

Ms. Walther wrote:

The City did not include any data for 2000 and further failed to provide access to Visa charges for the period requested, nor items paid directly for items attended by the Clerk-Administrator and Mayor, such as the Nation [sic] League of Cities, Minnesota League of Cities, Rotary, etc., nor items such as reimbursements of the Mayor's cell phone paid directly to the Mayor's business and/or partners.

Mr. Alsop wrote:

The City has provided [X] with access to all data responsive to this request. Expense reimbursements are charges initially paid by individual employees or officials from personal funds and later reimbursed by the City. The City provided that data to [X]. [X] now indicates that [X] would like access to City records that show payments made directly by the City for conferences or other events attended by the city administrator or mayor. The City did not provide those records, but only because [X] did not previously request them. The City is unaware of any reimbursements of the mayor's cell phone paid directly to the mayor's business or partners.

Again, there is a factual dispute that the Commissioner is unable to resolve. Ms. Walther states that the City did not provide data for 2000. Mr. Alsop states that the City provided all data responsive to the request. However, it does seem clear from Ms. Walther's request that she was expecting data from the year 2000. If the City did not provide year 2000 data, it should do so immediately.

Further, in reviewing Ms. Walther/X's request and the type of data the City provided in response (excluding the issue of year 2000 data), it appears the City provided the kind of data Ms. Walther requested. If Ms. Walther wanted the specific types of data she discussed in her opinion request, she needed to ask for those specific data. The Commissioner suggests Ms. Walther submit an additional request to the City and that she provide more detail.

K. On June 15, 2001, Ms. Walther or X requested:The official calendars of the monthly council meetings and work sessions for the City Council from 1997 to present.

Ms. Walther wrote:

The City provided resolutions with an attached preliminary schedule of work sessions and Council meetings. During the time period requested, there were numerous changes to the preliminary schedule, however, the actual official calendar listing the date of the meetings, the related type of meeting, and the time and location of such meetings were not produced.

Mr. Alsop wrote:

The official calendars of the monthly council meetings and work sessions for the City Council from 1997 to the present were made available to [X] on July 23, 2001. Changes to the meetings were not reflected in the official calendars of the City and were not produced for [X's] review, but only because they were not within the scope of the request. The City will produce whatever additional records [X] may request regarding the meeting dates of the City Council.

It is not clear to the Commissioner why the official calendars of the monthly council meetings and work sessions for the City Council would not reflect changes made to those meetings. Pursuant to Minnesota Statutes, section 15.17, All officers and agencies of...cities...shall make and preserve all records necessary to a full and accurate knowledge of their official activities. If a response to a request for the official calendars would not include any changes made to agendas, etc., it is not clear what kind of request one would make to obtain such data. In this case, the City may be in violation of section 15.17. The City should immediately provide the data to X.

L. On June 15, 2001, Ms. Walther or X requested: The official calendars of the monthly meetings of the Golf Course Committee from 1997 to the present.

Ms. Walther wrote, No information was made available on July 23rd. At a minimum, the City maintains an official calendar in addition to agendas and associated staff reports and other handouts, all of which are official records of the City.

Mr. Alsop wrote, The Golf Course Committee did not maintain an official calendar that would be responsive to the foregoing request for by [X]. Ms. Walther suggests in her letter that [X] would like access to staff reports and handouts from Golf Course Committee meetings. Those documents were not produced because they were not within the scope of the request.

The Commissioner does not know what data the City maintains. Therefore, he is not in a position to determine whether the City responded appropriately. However, if the City did not understand the data request, it should have asked her for clarification shortly after having received the request. Again, it is important to keep in mind that section 15.17 requires all government entities to make and preserve all records necessary to a full and accurate knowledge of their official activities.

M. On June 15, 2001, Ms. Walther or X requested:All accounting data, including the trial balances, for the Bridges and the Mounds View Community Center.

Ms. Walther wrote:

On July 23, the only data produced were as follows: trial balances were made available for the period ending June 2001. The information requested relates to the period in question, namely final trial balances for the years ending December 31, 1997, 1998, 1999, and 2000, plus a detailed trial balance that will show the transactions for the period in question, and if necessary, all supporting documentation for such transactions.

Mr. Alsop wrote:

In the absence of a specific time period, the City interpreted this data request to include only the current trial balances and accounting data for the Bridges and the Mounds View Community Center which were produced for [X's] review on July 23, 2001. Despite the City's prior requests for clarification, until Ms. Walther's letter to the Commissioner, the City was unaware that [X] wanted to see final trial balances for the years ending December 31, 1997, 1998, 1999 and 2000 [etc.]. The City will provide the trial balances requested. The City cannot determine, however, what supporting documents [X] considers necessary and will await further clarification from [X] as to specific items for which supporting documentation is requested.

The Commissioner has the following comments. In a letter dated June 29, 2001, Mr. Alsop did, indeed, ask for clarification from Ms. Walther regarding this specific data request. Ms. Walther responded in a letter dated July 6, 2001. She wrote, ...I do not know precisely what data there is; thus, it would be easier if you tell me what there is with respect to financial data on both locations, and I will advise you whether I would like to review it. It does not appear that Mr. Alsop responded. The Commissioner urges both parties to communicate and determine what data exist and what data Ms. Walther is seeking.

N. On June 15, 2001, Ms. Walther or X requested: All documents regarding incentive pay for employees of The Bridges, including, but not limited to, the annual list of incentive pay recipients, for the past four years.

Ms. Walther wrote:

On July 23, the only data produced were as follows: For 2000, a listing of preliminary incentive pay approved by Clerk-Administrator Kathleen Miller was presented. For other years, there were incentive pay listings, however, there were not the copies approved by the Clerk-Administrator. The request was for all documents, and, at a minimum, should include copies approved and initialed by the Clerk-Administrator for all incentive pay for all the years in question.

Mr. Alsop wrote:

The City had understood that [X] wanted the incentive pay amounts, which the City provided. As Ms. Walther indicates, there are other documents that contain the same information, although in a different form. The City misinterpreted the nature of the request and will provide the specific documents requested.

Here, the Commissioner does not know what data the City actually maintains. Ms. Walther's request, based on its original wording, seems clear, i.e., all documents regarding incentive pay for certain employees. These data are public under section 13.43. If the City did not understand her request, it should have sought clarification.

O. On an unknown date, Ms. Walther or X requested:

1. Agendas for all City Council meetings, including Council meetings, special council meetings and work sessions from 1996 through present.
2. Agendas and attachments for all Golf Course Committee meetings from 1996 through present.
3. Tapes of all golf course committee meetings.
4. Resolution requiring taping of all meetings held in City Hall.
5. Tapes of all City Council meetings were [sic] any golf course or community center issue was discussed.
6. Resolution approving data retention schedule and appointing an individual to be responsible for data practices issues.
7. All statements of financial interest filed by Rich Sonterre.
8. All Mounds View City Council Agendas (including all committee agenda) since June 1, 2000.

Ms. Walther wrote, None of these data have been produced for review.

Mr. Alsop wrote:

The City has never received any data requests from Ms. Walther or her [client] for the items listed in numbers 1 through 6 above. The City will provide all public data responsive to the request. Tape recordings of any meetings closed under the attorney-client privilege are not public and will not be provided.

The City acknowledges that items 7 and 8 were included in an e-mail to Robert Alsop at Kennedy Graven dated July 11, 2001. With respect to these two requests, the City inadvertently failed to include the documents responsive to these requests at the inspection on July 23, 2001, which instead focused on the prior data requests made by Ms. Walther on May 31, June 11 and June 15, 2001. These documents will be provided to Ms. Walther under separate cover at no expense.

As to items 1 - 6, the Commissioner does not know when Ms. Walther requested these data and the City states it did not receive any such request. Therefore, the Commissioner cannot opine as to whether the City responded in a timely manner.

However, as to items 7 and 8, Mr. Alsop acknowledges that the City received these requests on July 11, 2001, and that it inadvertently failed to provide the data. Clearly, the City did not respond in a timely manner.

Opinion:

Based on the facts and information provided, my opinion on the issue that Ms. Walther raised is as follows:

Signed:

David F. Fisher
Commissioner

Dated: September 27, 2001