Advisory Opinion 07-015

Facts and Procedural History:

On May 22, 2007, IPAD received two letters dated May 12, 2007, from Greg LaFond. In his letters, Mr. LaFond asked the Commissioner to issue an advisory opinion regarding his right to gain access to certain data from the Sherburne County Sheriff's Office.

IPAD, on behalf of the Commissioner, wrote to Bruce Anderson, Sheriff, in response to Mr. LaFond's request. The purposes of this letter, dated May 30, 2007, were to inform him of Mr. LaFond's request and to ask him to provide information or support for the Office's position. On June 7, 2007, IPAD received a response, dated June 6, 2007, from Scott Lepak, an attorney representing the Sheriff's Office.

A summary of the facts as provided by Mr. LaFond is as follows. Regarding the first issue, in a letter dated March 28, 2007, Mr. LaFond's attorney wrote to the Sheriff. Of relevance here, he asked to inspect various data related to an employee of the Sheriff's Office.

In a letter dated April 20, 2007, Mr. Lepak responded on behalf of the Sheriff's Office. Contained in the letter were data requested by Mr. LaFond.

In his opinion request, Mr. LaFond wrote, . . . The request specifically asked that a number of documents be made available for inspection and potential copying. At no time did [my attorney] request copies of these documents of . . . internally prepared summaries of selected information. (Emphasis provided.)

Regarding the second issue, also in the March 28, 2007, request, Mr. LaFond's attorney asked to inspect daily logs and incident reports submitted by an employee of the Sheriff's Office during a certain time period.

In the April 20, 2007, letter, Mr. Lepak wrote, The County does not appear to maintain incident data by deputy. It does maintain incident data by department. By law these data are classified as active or inactive. Mr. Lepak included instructions as to how Mr. LaFond could obtain the data.

In his opinion request, Mr. LaFond wrote, . . . it is inconceivable that a law enforcement agency would not require patrol officers to complete daily logs.

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Issues:

Based on Mr. LaFond's opinion request, the Commissioner agreed to address the following issues:

In responding to a March 28, 2007, data request, did the Sherburne County Sheriff comply with Minnesota Statutes, Chapter 13, when it copied the data into a response rather than allowing the requestor the opportunity to inspect the actual physical data? Did the Sherburne County Sheriff comply with Minnesota Statutes, Chapter 13, in responding to a March 28, 2007, request for daily logs and incident reports submitted by a particular officer?

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Discussion:

Issue 1:

In responding to a March 28, 2007, data request, did the Sherburne County Sheriff comply with Minnesota Statutes, Chapter 13, when it copied the data into a response rather than allowing the requestor the opportunity to inspect the actual physical data?

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

. . . the requested information . . . involves personnel data pursuant to Minn. Stat. Sec. 13.43 and is private data unless specifically listed as public data. . . . Accordingly, in regard to these requests, the County is required to establish appropriate safeguards for all records containing data on individuals. . . . In the present case, the security safeguard was to separate the public from the private data. (Note that the County did not charge for this task . . .) It is the County's position that it fully complied with the data practices act by separating this data and providing the public information to Mr. LaFond. In those instances where information existed but was not provided, the letter notes that the requests for private data on the individual was [sic] denied pursuant to Minn. Stat. Sec. 13.43. . . .

Pursuant to Minnesota Statutes, section 13.03, individuals have the right to request and gain access to public government data. Here, Mr. LaFond asked for certain data about an employee, some of which are public and some of which are not public. While Mr. Lepak is correct that government entities have an obligation to keep data on individuals secure, that obligation is not meant to supersede the requirement that, in responding to data requests, entities make the actual data available. (One exception, that does not apply here, is when the data are law enforcement data - see section 13.82, subdivision 16.) In Advisory Opinion 04-031, the Commissioner wrote:

Section 13.03, subdivision 3, states that individuals shall be permitted to inspect and copy public government data. This means that when an individual asks to inspect public data, the entity shall provide the requestor with the actual data. This ensures that the requestor will be able to gain an understanding of the context relating to the data s/he is seeking, especially if the entity has redacted (blacked/whited out) surrounding data.

In situations where a particular document contains both public and not public data, and an individual has requested access to the public data, the entity might, for example, choose to copy the document, redact the not public data, and make the redacted copy available for the individual to inspect. The Commissioner is aware that some entities might prefer to lift public data from a document and place those data on an otherwise blank document for the individual to inspect (cut-and-paste). This is problematic because (1) the entity is withholding the actual data and (2) the possibility exists that the entity will make an error transferring the data from its original source onto another document.

Here, the Sheriff's Office did not comply with Chapter 13 when it copied the data into a response rather than allowing Mr. LaFond and/or his attorney the opportunity to inspect the actual physical data.

Finally, the Commissioner notes that inspection of data always is free and even if Mr. LaFond's attorney had asked for copies, the Sheriff's Office could not have charged the cost of separating the public from not public data.

Issue 2:

Did the Sherburne County Sheriff comply with Minnesota Statutes, Chapter 13, in responding to a March 28, 2007, request for daily logs and incident reports submitted by a particular officer?

As stated above in the Facts section, the Office's response was that it does not maintain incident data by deputy/officer. Mr. Lepak added that Mr. LaFond and/or his attorney could inspect the data as they are maintained - by department.

In his comments to the Commissioner, Mr. Lepak wrote, . . . the County responded . . . by simply notifying Mr. LaFond that he could inspect the public data by setting up an appointment. It is reasonable, in light of the potential volume of the data requested, to provide prior notice to the County of when Mr. LaFond would like to review this data so that the information may be made available.

If, indeed, none of the daily logs/incident reports contain data that identify responding officers, the Office's response to Mr. LaFond's attorney is appropriate. However, by not maintaining these data so they are connected to officers who respond to particular calls for service, it is possible the Office is not in compliance with Minnesota Statutes, section 15.17, commonly known as the Official Records Act. Section 15.17 requires government officials to make and preserve all records that document their official activities. Data that are official records must be maintained for periods of time as prescribed in record retention schedules. Knowing which officers respond to which calls and the details of what happened would seem critical for documenting action by the Office.

Further, if the Sheriff's Office, in maintaining the daily logs/incident reports by department, has a notation in the documents that identifies responding officers, the Office should provide to Mr. LaFond the documents related to the inquired-about officer. As the Commissioner wrote in Advisory Opinion 06-029:

. . . The fact that the Office cannot easily locate grievances filed against the County Attorney should not significantly affect the response time. Chapter 13 confers upon individuals the right to request and gain access to data. The Committee asked for specific data - labor grievances filed against Amy Klobuchar - and the Office is obliged to provide those data regardless of how they are filed.

Thus, the Office's reply complied with Chapter 13 only if none of the daily logs/incident reports contain data that identify responding officers.

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Opinion:

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

In responding to a March 28, 2007, data request, the Sherburne County Sheriff did not comply with Minnesota Statutes, Chapter 13, when it copied the data into a response rather than allowing the requestor the opportunity to inspect the actual physical data. The Sherburne County Sheriff complied with Minnesota Statutes, Chapter 13, in responding to a March 28, 2007, request for daily logs and incident reports submitted by a particular officer only if none of the daily logs/incident reports contain data that identify the officer.

Signed:

Dana B. Badgerow
Commissioner

Dated: July 11, 2007

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