Advisory Opinion 05-032

Facts and Procedural History:

On September 26, 2005, IPAD received a letter dated September 24, 2005, from Molly Hoffman, on behalf of Harbor Friends, a non-profit organization. In her letter, Ms. Hoffman asked the Commissioner to issue an advisory opinion regarding the organization's right to gain access to certain data that the City of Grand Marais maintains.

IPAD, on behalf of the Commissioner, wrote to Michael Roth, City Clerk, in response to Ms. Hoffman's request. The purposes of this letter, dated September 26, 2005, were to inform him of Ms. Hoffman's request and to ask him to provide information or support for the City's position. On October 7, 2005, IPAD received a response, dated October 4, 2005, from Mr. Roth.

A summary of the facts as provided by Ms. Hoffman is as follows. To her opinion request, Ms. Hoffman attached a copy of a data request John Haluska made on behalf of Harbor Friends. Of relevance to this opinion, Mr. Haluska asked for the following data on September 1, 2005:

During the course of entering into the conservation easement relating to the area surrounding the harbor in Grand Marais, notes, documents, photos, maps, files, document logs, phone logs, and other materials were produced relevant to the matter of the easement and negotiations with the Minnesota Land Trust.

Please provide a list of all such materials.

Included with these documents reportedly was a spiral notebook. It is reported to have been recently in the possession of the city administration staff. Please provide a copy of this notebook.

In her opinion request, Ms. Hoffman wrote:

The city did not provide a written response. The City Administrator Mike Roth told Mr. Haluska that the supporting documentation for the Conservation Easement did not exist in city files and that there was no spiral notebook, that it was a 3-ring binder and that it wasn't in the city files either.

Contacts with past and present city officials confirm that the Conservation Easement materials we had requested are in city files. Last week City Attorney Donald Davidson confirmed that the 3-ring binder and additional documents are in city files. City Administrator Mike Roth, as recently as September 9, 2005, continued to deny that the 3-ring binder or any other of the requested documents related to the Conservation Easement were in city files.

Issue:

Based on Ms. Hoffman's opinion request, the Commissioner agreed to address the following issue:

Has the City of Grand Marais complied with Minnesota Statutes, Chapter 13, in regard to a September 1, 2005, request for data relating to a conservation easement?

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Discussion:

Pursuant to Minnesota Statutes, section 13.03, subdivision 3, when a government entity receives a data 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.)

Further, previously issued advisory opinions have discussed that when responding to data requests, government entities should provide the data, advise that the data are classified such as to deny the requesting person access, or inform the requestor that the data do not exist.

Finally, section subdivision 1 of section 13.03 provides that government entities shall keep records containing government data in such an arrangement and condition as to make them easily accessible for convenient use.

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

In regards to [Mr. Haluska's] request, there is no such list of materials. Also, he referenced someone reporting a spiral notebook recently in the possession of the City Administration staff, presumably me. There is no such spiral notebook. I thought he might be referring to the property report that was to be included with the Conservation Easement. I was unaware of its existence at the time. I had previously discussed this property report with my Park Director. In 2001, we had met with Minnesota Land Trust staff that were preparing a detailed property report. We were shown a draft of the report but never provided with a copy. I informed both Ms. Hoffman and Mr. Haluska of this situation.

On Tuesday, September 20, I received an email from the City Attorney notifying me of the existence and location of documents relating to the Conservation Easement, including the property report. He had informed Mr. Haluska of the existence of the materials on Friday, September 16. The City Attorney indicated to me that Mr. Haluska would be coming to City Hall to view these documents. As of today, Mr. Haluska has not stopped by.

It is my determination that all of the files that were recently located in regards to the Conservation Easement are public. Mr. Haluska and Ms. Hoffman may examine them in my office and request copies of any or all of the information. It is clear in Ms. Hoffman's letter that the spiral notebook in Mr. Haluska's request is indeed the property report in my possession, so a copy will be forwarded to them immediately.

Mr. Roth provided a copy of the September 20 email he received from attorney Donald Davidson. In part, Mr. Davidson wrote, There is a large amount of historical data concerning the conservation easement in the vault, as well as the property condition report, mainly a photographic record of the property as it existed in '96 - '97. John [Mr. Haluska] said none of this information was provided to him.

On September 1, 2005, Mr. Haluska asked for a list of certain documents relating to the conservation easement. He also asked for a copy of a related spiral notebook. Regarding the request for a list, Mr. Roth replied that the City did not have a list. If the City does not maintain a list, it is not required to create one to respond to Mr. Haluska's data request.

Regarding the request for the spiral notebook/3-ring binder, the Commissioner has the following comments. As stated in previously issued opinions, when government entities respond to data practices requests they should provide the data, advise that the data are classified such as to deny the requesting person access, or inform the requestor that the data do not exist. Here, Mr. Roth first advised Mr. Haluska that the notebook did not exist in City files. Sometime thereafter, the City Attorney advised Mr. Roth that certain data relating to the conservation easement did exist and that those data were in the vault. Apparently, the City then informed Mr. Haluska of the situation.

Pursuant to section 13.03, government entities are obligated to keep records in such an arrangement so they are easily accessible for convenient use. To comply with this provision and to respond to data practices requests, entities need to have a general knowledge of what types of data they maintain and where those data likely are located. Here, it appears Mr. Roth, the City's responsible authority, was not aware that data responsive to Mr. Haluska's request were in the vault. It is not clear why Mr. Roth did not know about the data in the vault but the Commissioner encourages the City to work to correct related issues so the City can respond appropriately to future data practices requests. If Mr. Haluska has not yet been given a copy of the notebook/binder, the City should do so promptly.

As a final note, the Commissioner encourages data requestors to ask for specific data rather than asking for documents. Here, it would have been clearer if Mr. Haluska had asked for the data he believed to be in the spiral notebook, as opposed to asking for a copy of the notebook, itself. The ensuing discussion then would have revolved around whether the data did or did not exist, rather than specifics about the type of notebook.

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Opinion:

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

Regarding a September 1, 2005, request for a copy of list of data relating to a conservation easement, the City of Grand Marais' response complied with Minnesota Statutes, Chapter 13. Regarding a September 1, 2005, request for a notebook relating to the easement, the City's response was not appropriate; therefore, the City did not comply with Chapter 13.

Signed:

Dana B. Badgerow
Commissioner

Dated: October 25, 2005

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