Facts and Procedural History:

Rosalyn Pautzke asked for an advisory opinion regarding her right to get access to data from Rice County, under Minnesota Statutes, Chapter 13 (Data Practices Act). The County submitted comments in response to Ms. Pautzke’s request.

Ms. Pautzke provided a summary of the facts. 

The County never responded to my requests on September 6 and September 10 for EAW [Environmental Assessment Worksheet] comment letters. Both requests were submitted to persons identified by the County as Responsible Authority Designees. My initial request for the spreadsheet of EAW comment letter questions was made to Responsible Authority Designees on September 10 and renewed on September 11, 18, 23, and 25. Following my request for the live / native format spreadsheet file, on October 3 the County offered a PDF scan of the poor-quality printed copy and quoted a per page charge of $0.25, which resulted in a $10.00 charge for the digitized 40 pages. I did not assert that charging by page for an electronic file was inappropriate because the PDF of a poor-quality copy was not what I had requested.

On October 4, my renewed request for a live / native format spreadsheet file was denied by the County because they do not release editable files. The spreadsheet is maintained in Excel format….

On October 4 and 14, the County quoted a charge of $9.25 and $9.50 for an uneditable Excel file based on 37 and 38 pages at $0.25 each, respectively. On October 15, I asked whether I would be receiving a file in native format and indicated my willingness to pay the price quoted.

The County has not responded.

Issues:

Discussion:

Government data are defined as, “all data collected, created, received, maintained or disseminated by any government entity regardless of its physical form, storage media or conditions of use.” (See Minnesota Statutes, section 13.02, subdivision 7.) Government data are public unless classified by statute, temporary classification, or federal law. (See Minnesota Statutes, section 13.03, subdivision 1.) 

When a government entity receives a request from an individual who is not the subject of the data, the entity is required to respond in an appropriate and prompt manner, and within a reasonable time. (See section 13.03, subdivision 2(a) and Minnesota Rules, part 1205.0300.) Although the Legislature did not define reasonable time, the Commissioner has stated in previous advisory opinions that it is relative to the nature or complexity of the request and amount of data requested. (See Advisory Opinions 98-040, 02-020, and 14-003.)

Additionally, the Minnesota Supreme Court has held:

Section 13.03, subdivision 2(a), dictates that government data be made available and that personnel responsible for making it available establish procedures that insure it is made available. It follows, then, that when the procedures are followed and the requested data are not made available appropriately or promptly, the “established procedures” do not insure that government data are properly available.

Webster v. Hennepin County, et al., 910 N.W.2d 420, 431 (Minn. 2018) (Webster).

The Rice County Guidelines and Procedures for the Minnesota Government Data Practices Act (Guidelines) lists the County responsible authority and designees in Appendix A. The responsible authority and data practices compliance official is Catherine Miller, Assistant County Attorney. The designees include the Director of Environmental Services, Julie Runkel, and the County Administrator, Sara Folsted. (See Guidelines pages 32-34). 

Issue 1: Did Rice County respond appropriately to a September 6, 2019, request for the Wolf Creek Autobahn environmental assessment worksheet comment letters and any attachments pursuant to the Minnesota Government Data Practices Act, Minnesota Statutes, Chapter 13?

On September 6, 2019, Ms. Pautzke requested copies of the EAW comment letters the County received. She stated that she would accept the letters electronically via email or as a link. In her opinion request, she stated that the County never responded to her request for the comments. In its response to the Commissioner, the County submitted an email that included a link to all the comments, which the County sent to all the commenters on September 13, 2019. Ms. Pautzke was one of the commenters. Ms. Pautzke argues that this email, which was part of the notification for the EAW comment process, does not satisfy the requirement of responding to her data request. 

The County argued that it responded appropriately by providing the responsive data via a link in a September 13, 2019, email, even though the email did not specifically state that it was in response to a data request. 

The Commissioner agrees with the County. Ms. Pautzke asked for data, she gave the County acceptable options for how to respond and the County provided her the requested data in one of the preferred formats (i.e., as a link), in a timely manner. While not strictly required, the Commissioner notes that as a best practice, and for the purposes of clarifying with data requesters when two obligations overlap (i.e., the EAW comment notification process and responding to request for public data), the County might consider noting for requesters that one response satisfies both requirements.

Issue 2: Did Rice County respond appropriately to a September 10, 2019, request for a draft spreadsheet related to the Wolf Creek Autobahn project pursuant to the Minnesota Government Data Practices Act, Minnesota Statutes, Chapter 13, by:

As a threshold issue, in its comments to the Commissioner, the County argued that the spreadsheet was not a “draft” but rather “a partial document, in its initial stages of creation…. Such a partial document not need [sic] to be released upon request.” The Commissioner has previously opined that public data contained in “drafts” are accessible to the public. (See Advisory Opinions 02-026, 05-038, 08-009, and 15-006.) In general, the Data Practices Act classifies data, not documents, and classification determines access. Here, the data elements in the spreadsheet are public and the County has an obligation to provide them in a prompt and appropriate manner, regardless of their status as final, draft, partial, or complete.

a. Responding in an appropriate and prompt, reasonable amount of time

Ms. Pautzke submitted her initial request for the “draft spreadsheet” on September 10, 2019, to Ms. Runkel. She also submitted her request to Ms. Folsted on September 12, 2019. Ms. Folsted stated that she forwarded the request to Ms. Miller. Ms. Pautzke also sent the request to Ms. Miller directly several times. (There is a factual dispute as to how many times Ms. Miller received the request). As of the date of Ms. Pautzke’s advisory opinion request, October 21, 2019, Ms. Runkel had not responded to the request. Ms. Miller responded as noted below.

The County made several arguments as to why it responded promptly and appropriately to Ms. Pautzke’s data request. First, it argues that the Ms. Runkel responded appropriately to the September 10 request.

In its comments to the Commissioner, the County wrote that prior to Ms. Pautzke’s written data request, she and Ms. Runkel had a conversation about the spreadsheet. Ms. Runkel informed her:

[T]hat the spreadsheet was still in the process of being created and that she was not the one creating it.... Thus, when Ms. Pautzke requested the spreadsheet on September 10, Ms. Runkel had nothing to give her because Ms. Runkel did not yet have the spreadsheet. 

Ms. Runkel's response to Ms. Pautzke was timely, appropriate, and accurate because the spreadsheet was not yet government data.

The conversation described by the County did not constitute an appropriate response, as it took place prior to Ms. Pautzke submitting her written data request. 

Moreover, the Commissioner has stated in previous advisory opinions that no response is not an appropriate response. (See Advisory Opinions 04-008 and 09-027). (Apparently, a week after the Commissioner accepted Ms. Pautzke’s request for an advisory opinion, Ms. Runkel sent Ms. Pautzke a letter regarding the spreadsheet.)

The County argues that Ms. Miller’s response was prompt and appropriate because after receiving the request on September 23, 2019, she responded on September 25, 2019, stating “[a] spreadsheet is in the initial stages of being drafted and currently does not contain much information. It is currently a list of the questions/issues and does not yet contain any finalized responses. If you would like a copy of this draft, please let me know.” It is unclear why Ms. Miller did not provide a copy of the spreadsheet at this time, as Ms. Pautzke had specifically requested the draft spreadsheet multiple times. 

b. By providing access to data in the format in which it is maintained

When a government entity maintains data in a computer storage medium, the entity should provide it in that medium if it can reasonably make a copy. “This does not require a government entity to provide the data in an electronic format or program that is different from the format or program in which the data are maintained.” (See section 13.03, subd. 3(e).)

The County maintains the spreadsheet in an electronic program – Excel. In her October 2 letter to Ms. Pautzke, Ms. Miller referred to a copy charge of 25 cents per page for 40 pages; per-page copy charges relate to paper copies of 100 or fewer and Ms. Pautzke inferred that Ms. Miller was offering her a paper copy. Ms. Pautzke clarified that she wanted an electronic copy, since she was aware that it was a spreadsheet. Ms. Miller then offered her a PDF copy. 

Ms. Miller wrote in an October 4, 2019, letter that the County does not release “documents in editable formats.” Ms. Pautzke agreed to accept a copy with the contents locked but that still allowed her to use the functions in Excel to sort and change the font size. The County said it would not provide her an “editable” version. 

In Advisory Opinion 09-006, the Commissioner addressed a similar situation:

According to Ms. Swanson, the City “typically converts Word documents to PDF so they cannot be altered.” The City also maintains the data in Word format. As noted above, government entities are not obliged to convert data to a particular format in response to a data request. However, they are obligated, upon request, to provide access to data in whatever format they do maintain them. (Minnesota Statutes, section 13.03, subdivision 3(e).) Accordingly, in response to Mr. Siljander's request, the City should have provided him access to the data in Word format.

The result is the same here. The County should provide Ms. Pautzke with the spreadsheet in the format in which the County maintains it, which the Commissioner understands to be an unlocked Excel spreadsheet. (See Issue 2(c) regarding passing along the costs of the County’s decision to lock the spreadsheet to Ms. Pautzke.)

The Commissioner understands that government entities have concerns about data requesters altering data or lifting data from documents. However, public data are available to anyone for any reason and the public can use public data elements in a document or file any way they choose. This does not mean that every spreadsheet or all metadata in a document are public. Here, where the data are public, the requester is entitled to access in the format and program in which it is maintained, as she requested.

c. Assessing a reasonable copy charge

The Data Practices Act allows government entities to charge for copies. Entities may charge a maximum of 25 cents a page for paper copies of 100 or fewer. Entities may charge actual costs for paper copies of more than 100 pages. (See section 13.03, subd. 3(c).) For copies of electronic data, the “entity may require the requesting person to pay the actual cost of providing the copy.” (See section 13.03, subd. 3(e).)

In assessing “actual costs” for public data, an entity may charge for the employee time it takes to search and retrieve the data, as well as the time it takes to transmit the document (it also includes materials and mailing costs, which are not at issue here). The Commissioner has consistently advised that the employee rate used to calculate copy costs should be the lowest paid employee who can make the copy. (See Advisory Opinions 00-027, 01-033, 01-047, and 04-055.) 

In Advisory Opinion 04-038, she wrote:

[I]f a government entity, in trying to determine how to arrive at a reasonable fee, recognizes that a lower-paid employee would be able to complete the task, it would be appropriate for the entity to charge a fee based on a rate that is lower than the rate of the employee who actually retrieves the data.

The County quoted Ms. Pautzke five different charges for a copy of the spreadsheet: 1) $10.00 (40 pages at 25 cents per page); 2) $10.00 for a PDF copy; 3) $9.25 (37 pages at 25 cents per page) for an uneditable Excel spreadsheet; 4) $9.50 (38 pages at 25 cents per page) for an uneditable Excel spreadsheet; and 5) $8.95 for an uneditable Excel spreadsheet. 

On October 14, Ms. Miller wrote: “[t]he actual cost to provide the requested information would be over $10.00…. This is calculated as 10 minutes at over $50.00 per hour, including wages and benefits. Therefore, we chose to charge the lesser amount of .25 per page.” 

The County wrote to the Commissioner:

The over $50.00 per hour charge refers to Ms. Miller's base salary. Ms. Miller's exact hourly rate, inclusive of benefits, is $66.00. It would take Ms. Miller ten minutes to prepare the document for Ms. Pautzke, including locking it down. In her October 3 email, Ms. Pautzke acknowledged that she may be charged for the employee time required to lock down the content of the cells…. Thus, the actual cost of employee time to make and electronically transmit the document was $11.00 (10 min = 1/6 of an hour) (1/6 x $66.00 per hour= $11.00). The County could have chosen to charge $11.00 but, instead, chose to charge the lesser amount of $9.50, which is reasonable. (Emphasis added.)

With regard to the November 4, $8.95 quote, the County wrote:

This amount, which was based on the Administrative Coordinator's salary, is also reasonable. The Administrative Coordinator's exact hourly rate, inclusive of benefits, is $35.82. It would take the Administrative Coordinator fifteen minutes to prepare the document for Ms. Pautzke, including locking it down…. Thus, the actual cost of employee time to make and electronically transmit the document was $8.95 (15 min = 1/4 of an hour) (1/4 x $35.82 per hour = $8.95). Although there are three lower paid employees in the Planning and Zoning Office (exact hourly rates at $34.40, $31.45, and $29.70), they are not familiar with Excel and it would take them much longer to prepare and provide the document, resulting in a cost that was more than $8.95. Thus, the County assessed a reasonable charge of $8.95. (Emphasis added.)

The copy charge structure in the Data Practices Act for actual costs is not based on the amount of data (i.e., how many “pages” in an Excel spreadsheet), but rather the time it takes for an employee to search for, retrieve, and transmit it. The time it would take to search for and retrieve a 37 “page” Excel spreadsheet should be the same as the time it takes to search and retrieve the same spreadsheet when it consists of 38 “pages,” as a spreadsheet is simply one electronic file.

The County argues that the originally-quoted copy costs would have been less than the actual costs, and thus would be considered reasonable. However, this argument is based on an inaccurate calculation of the actual costs. In its calculations, the County included the time it would take to “lock down” the spreadsheet, even though that was not a part of Ms. Pautzke’s request, but rather something the County chose to do based on its “policy.” Chapter 13 does not include a requirement to restrict the manipulation or editing of public data elements. The County cannot pass along costs to requesters for activities that are not required or permitted by the law (except in limited situations where an entity voluntarily creates data for a requester). The County’s obligation is to provide access to public data in the way in which they are maintained.

The Commissioner concludes, based on the forgoing discussion of the issues with Ms. Pautzke’s on-going data request, that the County did not respond appropriately to the September 10 request for the draft spreadsheet. 

Finally, the Commissioner notes that the County’s current data access policies required by Minnesota Statutes, section 13.025, are from 2017. She reminds government entities that they must review and update the required access policies on a yearly basis, and, as a best practice, following any personnel changes. This enables members of the public and data subjects to know where to direct data requests and ensures that government staff are aware of their obligations to respond. (See Advisory Opinions 13-007 and 19-002.) Once the written policies are in place, entities must then have internal procedures to ensure timely and appropriate responses to requests as required by section 13.03. (See also, Webster.) Based on the internal handling of Ms. Pautzke’s requests, it is the Commissioner’s opinion that Rice County did not have internal procedures in place to ensure a timely or appropriate response to this data request.

Opinion:

Based on the facts and information provided, the Commissioner’s opinion on the issues raised is as follows:

1. Rice County responded appropriately to a September 6, 2019, request for environmental assessment worksheet comment letters by providing an email with a link.
2. Rice County did not respond appropriately to a September 10, 2019, request for a draft spreadsheet. 

Signed:

Alice Roberts-Davis 
Commissioner

November 27, 2019