Advisory Opinion 04-070

Facts and Procedural History:

On September 9, 2004, IPAD received a letter dated September 8, 2004, from X. In the letter, X asked the Commissioner to issue an advisory opinion regarding X's access to certain data about his/her child that Hennepin County maintains.

In response to X's request, IPAD, on behalf of the Commissioner, wrote to Daniel Engstrom, Assistant Administrator, Hennepin County Human Services. The purposes of this letter, dated September 16, 2004, were to inform him of X's request and to ask him to provide information or support for the County's position. On October 6, 2004, IPAD received a response, dated same, from Arthur Katzman, Senior Assistant County Attorney.

A summary of the facts as X provided them is as follows. In a letter dated June 23, 2004, X wrote to Mr. Engstrom:

I am writing to obtain copies of all data related to my [child] which is maintained by Hennepin County Developmental Disabilities and which corresponds to each of the ten requests below. I am requesting:
2) Telephone logs
3) Communications logs
4) Meeting notes, observation notes, etc.
5) Emails
6) Memoranda, correspondence
7) Reports
8) Invoices, billings, claims
9) Intake documents
10) All other data not contained in requests 1-9.

X wrote again to Mr. Engstrom on July 27, 2000. In part, X stated, To date, I have had but one phone contact from my [child's] worker...and she faxed me a copy of a [sic] Hennepin County's Data Practices Policy. X also wrote, Depending upon whether there are any charges involved I may come inspect them at your location and order individual copies...

The social worker wrote back in a letter dated August 11, 2004:

On June 23rd Hennepin County received your request for data on your [child]. On July 6th we had a telephone conversation regarding this request. On that date I also faxed to you a copy policy regarding fees for data. I did not hear back from you regarding how you wanted to proceed.

On July 24th we received your request for data related to your [child]. On August 2nd I left you two telephone messages as I hoped to clarify how you wished to proceed to review [your child's] case record and other requested information. I have not had any response to date.

The cost of copies is 25 cents per page as indicated on my July 6th fax to you. You are welcome to come and review [your child's] records here at the [County] and determine what documentation you would like to have copied.

In a letter dated August 13, 2004, X wrote to Mr. Engstrom. X wrote:

On 7/27/04 I sent you a letter indicating that I had not received any response to my request except a telephone call from my [child's] worker...

On 8/2/04 [the social worker] called again and left a message on my answering machine.

I am requesting that all further communications related to servicing this request be conveyed to me in writing unless I specify otherwise.

I am requesting that you immediately gather my [child's] records and inform me as to whether or not there will be a fee for the copies of the records....

If there will be a fee then I request that you provide me the fee and a copy of all data used in calculating the fee, including a breakdown of all component costs. I would consider a per page charge of 25 cents to be unreasonable and not reflective of actual costs....

Issues:

In X's request for an opinion, s/he asked the Commissioner to address the following issues:

Did Hennepin County comply with Minnesota Statutes, Chapter 13, in its determination regarding a June 23, 2004, request for copies of data? Did Hennepin County comply with Minnesota Statutes, Chapter 13, in its determination regarding an August 13, 2004, request for all data used in calculating the fee, including a breakdown of all component costs?

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Discussion:

Issue 1: Did Hennepin County comply with Minnesota Statutes, Chapter 13, in its determination regarding a June 23, 2004, request for copies of data?

When an individual requests access to government data of which s/he is the subject, the government entity must respond within ten working days. (See Minnesota Statutes, section 13.04, subdivision 3.) Pursuant to section 13.02, subdivision 8, a parent may gain access to private data about his/her child.

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

[X] sent [X's] initial data request to Daniel Engstrom on June 23, 2004....On July 6, 2004 (the eighth business day after [X's] request), Ms. Wolf called [X] and spoke with [X] regarding [X's] request, as well as advising [X] that there would be a charge for the data. In connection with the charge, she faxed [X] Hennepin County's policy regarding charges. Ms. Wolf's understanding was that [X] would get back to her as to how [X] wanted her to handle the data request, in light of the fact that there would be charges involved....

[X] never responded to Ms. Wolf. Instead, [X] wrote to Mr. Engstrom a second time on July 27, 2004, saying, Since {the July 6 phone call and fax from Ms. Wolf} I have not received any communications regarding the fulfillment of my requests. My clients would respectfully submit that the responsibility shifted to [X] to get back to Ms. Wolf...to tell her how [X] wanted her to proceed....In fact, [X] had already been told by Ms. Wolf that there would be charges for copies, and what is more, she provided [X] with the county's policy regarding those charges and what the per page amount would be....

Ms. Wolf again responded in a timely fashion by calling [X] on August 2nd, and left [X] telephone messages to clarify how [X] wished to proceed to review [X's child's] case record and other requested information. (See Ruth Wolf's letter of August 11, 2004). Again, she received no written or oral response from [X]. In a further attempt to comply with [X's] request, Ms. Wolf wrote to [X] on August 11, 2004....Again, instead of contacting Ms. Wolf, [X] again wrote to Mr. Engstrom on Aug. 13, 2004. Once again, [X] acknowledges that On 8/2/04 Ms. Wolf called again and left a message on my answering machine. But rather than call her back and arrange to inspect the records consistent with [X's] earlier suggestion in [X's] July 27 letter, [X] inexplicably wrote to Mr. Engstrom again on August 13, 2004.

Ms. Wolf made further attempts to comply with [X's] data request. On August 18, she again left a message on [X's] answering machine regarding [X's] request to review [X's] child's file. [X] failed to return her call or otherwise respond. On August 23, 2004, Ms. Wolf contacted [X] and let [X] know that [X's child's] file was available for review. [X] again chose not to review it. [X] acknowledges this call in [X's] letter to you dated Sept. 8....

X requested copies of data in a letter dated June 23, 2004. Pursuant to section 13.04, subdivision 3, the County was obligated to respond within ten business days. Here, because X requested copies and the County's policy states that, generally, it collects fees up front, communication between the parties needed to occur prior to X receiving the data. There is no dispute that Ms. Wolf spoke with X by telephone on the eighth business day and faxed X a copy of the County's policy on Copy and Data Fees.

However, from that point on, the Commissioner cannot determine whether it was the County or X who did not follow through to ensure that X received copies of the data s/he requested. According to Mr. Katzman, Ms. Wolf understood that X would get back to her to as to how [X] wanted her to handle the data request. X's July 27, 2004, letter suggests that, perhaps, X was expecting additional communications regarding the fulfillment of [X's] requests. If X does not yet have copies of the data s/he requested in June 2004, the Commissioner urges both parties to work to resolve the matter promptly.

Issue 2: Did Hennepin County comply with Minnesota Statutes, Chapter 13, in its determination regarding an August 13, 2004, request for all data used in calculating the fee, including a breakdown of all component costs?

Pursuant to Minnesota Statutes, section 13.03, 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, section 1205.0300.)

In his comment to the Commissioner, Mr. Katzman wrote, Ms. Wolf had not received [X's August 13, 2004, letter] and, while I have no doubt that [X] sent it, my clients could find no record of having received it. Thus, my clients have not responded to it. Accordingly, we will respond at this time.

Mr. Katzman attached a copy of a memo from the county's senior program analyst, who originally did the research and study on how that per page cost should be determined. It clearly breaks down the component costs. Mr. Katzman stated that a copy of the memo was being provided to X.

The Commissioner has the following comments. First, she is puzzled by Mr. Katzman's assertion that the County did not receive the August 13, 2004, letter. Mr. Katzman referred to the letter in his comments regarding Issue 1 and made no mention of the County not having received the letter. Then, in regard to Issue 2, Mr. Katzman states that the letter was not received. Either the County did or did not receive the letter, but the Commissioner cannot make a certain determination. If the County did receive the letter, it did not respond in a timely manner. If the County did not receive the letter, it had no obligation to respond.

Second, X asked to be provided with the fee and a copy of all data used in calculating the fee, including a breakdown of all component costs. It is the perspective of the Commissioner that, while the County's memo represents a breakdown of the copy fee, it is not clear if it represents all data used in calculating the fee. The Commissioner reminds her readers that pursuant to Minnesota Statutes, section 15.17, subdivision 1, All officers and agencies of [government entities]... shall make and preserve all records necessary to a full and accurate knowledge of their official activities. Section 15.17, subdivision 4, states, Access to records containing government data is governed by sections 13.03 and 138.17. Accordingly, section 15.17, read in concert with section 13.03, imposes an obligation upon government entities to make and preserve a record of their actions so that the data in those records will be available pursuant to the provisions of Chapter 13. If the County created and compiled detailed data in determining its copy charge, e.g., an analysis of the costs of all materials, labor/fringe benefits, and equipment usage, those data likely are official records and, based on X's request, should be made available to X, if they exist.

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Opinion:

Based on the facts and information provided, my opinion on the issues that X raised is as follows:

The Commissioner cannot determine whether Hennepin County complied with Minnesota Statutes, Chapter 13, in its response to a June 23, 2004, request for copies of data. The Commissioner has no basis upon which to conclude, with certainty, whether Hennepin County complied with Minnesota Statutes, Chapter 13, in its response to an August 13, 2004, request for all data used in calculating the fee, including a breakdown of all component costs.

Signed:

Dana Badgerow
Commissioner

Dated: October 29, 2004

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