Advisory Opinion 04-076

Facts and Procedural History:

On October 8, 2004, IPAD received a letter dated October 6, 2004, from Adrian Wesolowski. In his letter, Mr. Wesolowski asked the Commissioner to issue an advisory opinion regarding his access to certain data that the Middle-Snake-Tamarac Rivers Watershed District (MSTRWD) maintains.

In response to Mr. Wesolowski's request, IPAD, on behalf of the Commissioner, wrote to Ronald Adrian, the MSTRWD Engineer. The purposes of this letter, dated October 11, 2004, were to inform him of Mr. Wesolowski's request and to ask him to provide information or support for MSTRWD's position. On November 2, 2004, IPAD received a response, dated same, from Blake Sobolik, an attorney representing the MSTRWD.

A summary of the facts as Mr. Wesolowski provided them is as follows. In a letter dated August 30, 2004, Mr. Wesolowski wrote to Mr. Adrian and asked to inspect the following data:

1. Any documents or notes, including handwritten notes, which would show measurements and calculations for the cfs or fps or any other public data showing velocity, flowage or volume of water in the Snake River area taken at or in the vicinity of the bridge known as the Morkassel Bridge in McCrea Township on CSAH 34 during the years 1996 and 1997. Also any documents showing measurements and calculations for velocity, flowage, or volume of water which overtopped CSAH 34 within one mile in each direction of the Morkassel Bridge during the years 1996 and 1997.

2. Any documents or notes, including handwritten notes or records showing the dates and exact times when water flow measurements were taken in the 1996 and 1997 time period at or near the above Morkassel Bridge or on CSAH 34 within in [sic] one mile north or south of the above Morkassel Bridge. 3. Any documents or notes which show the instruments used to measure the above cfs or fps showing the type of velocity meter used, whether the counter was manual or electronically metered, and whether or not sounding weights, and whether a sounding reel were used to make measurements for questions #1 and #2 above. Also, any documents showing whether or not a bridge board was used in obtaining measurements in questions #1 and #2.

4. Receipts showing records of purchase for the equipment or documents showing how the above instruments (in question #3) were acquired by the MST Watershed District for use in taking measurements in questions #1 and #2 above.

5. Any other public data in relation to water velocity or volume measurements during the years 1996 and 1997 at or near the above Morkassel Bridge.

6. Any public data which would show what members of the MST Watershed staff took the above measurements in questions #1 and #2 above. Also, any public data which would show whether or not any one other than the MST Watershed District staff took velocity, flowage, or volume measurements at the locations and time periods outlined in questions #1 and #2 above.

In his opinion request, Mr. Wesolowski wrote:

My [August 30th, 2004, data practices request] was personally handed by myself to [the MSTRWD secretary] during regular business hours [on August 31]....After over a month, the MSTRWD has not provided access to documents nor has allowed any inspection of public data referred to in the above request to inspect data.

Issue:

In Mr. Wesolowski's request for an opinion, he asked the Commissioner to address the following issue:

Did the Middle-Snake-Tamarac Rivers Watershed District comply with Minnesota Statutes, Chapter 13, regarding an August 30, 3004, request to inspect certain government data?

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Discussion:

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 comments to the Commissioner, Mr. Sobolik noted that Mr. Wesolowski has commenced litigation against the District relating to issues stemming from a flood control project.

Mr. Sobolik wrote:

...the District is a small public entity. The District office personnel consists of Ronald Adrian, who is the District Engineer and also must function as its Administrator. The District also employs a full-time secretary. The District also employs three (3) full-time technical personnel who primarily deal with survey work and monitoring of construction projects....As the Department is aware, Ronald J. Adrian is designated as the responsible authority for management of the data practices of the District....I provide this information...so that you are aware of the fact that Mr. Adrian is the only one responsible for complying with these data practices requests....

[Mr. Wesolowski's request] came at a time when [he] knew that Mr. Adrian was not going to be in the office. [He] knows this because recently [he is] at every regular meeting of the District. Specifically, on the August 16, 2004, regular Board meeting, [Mr. Wesolowski was] present. At the close of the meeting, the schedule of Mr. Adrian was discussed. Mr. Adrian reported that for personal reasons he would be out of the office from August 26th through September 1st and from September 14th through September 21st....While Mr. Adrian was in the office from approximately September 2nd through September 13th, were four weekend days, one holiday, and a budget hearing set for September 9th...In addition, Mr. Adrian had to oversee the various projects that were in progress as well as do his other engineering and administrative functions. The timing of Mr. Wesolowski's request that underlies his request for an advisory opinion was received by the District after Mr. Adrian was on leave....Since the receipt of the Department's letter on October 13th, the District has simply been putting together their response to this advisory opinion as opposed to answering Mr. Wesolowski's request....

[Mr. Wesolowski] has also been contacted with respect to the data underlying the request which is at issue in this opinion. To date, the District has not heard from Mr. Wesolowski.

The Commissioner makes the following comments. First, there is no provision in Chapter 13 preventing an individual from requesting and gaining access to data merely because that person is involved in litigation with the government entity maintaining the requested data. (See Advisory Opinions 95-012, 96-038, 97-005

Second, there is no provision in Chapter 13 granting government entities more time to respond to a data request because the entity is short staffed. In Advisory Opinion 03-030, the Commissioner wrote:

Ms. Kepple stated that an immediate response was not possible, because the person handling yearbook requests was not available shortly after the District received X's request. Compliance with Chapter 13 should not depend upon whether or not one specific person is available to respond to a data request. Government entities must enact policies and procedures for managing government data so that they are able to respond properly within the statutory time frames, with the personnel available when they receive a data request.

(See also Advisory Opinions 03-026 and 03-031.)

It is well established that government entities are required to respond to data requests in a prompt and appropriate manner, and within a reasonable time. In his opinion request, Mr. Wesolowski states that he delivered his data request to the MSTRWD on August 31, 2004. The copy of the data request he submitted to the Commissioner has what appears to be a date stamp that reads, Received Aug 31 2004. Below the date stamp are the initials CK , which are the initials of the MSTRWD secretary. It appears, based on Mr. Sobolik's comments, that, as of November 2, 2004, nine weeks after having received Mr. Wesolowski's request, the MSTRWD still was putting together their response. In the Commissioner's opinion, this is not timely. If the MSTRWD has not yet responded to Mr. Wesolowski and (1) advised him the data do not exist; (2) advised him that the data are classified as not public; or (3) arranged a time for inspection; it should do so promptly.

(The Commissioner notes the previous analysis is identical to those contained in Advisory Opinions 04-073 and 04-074, in which Mr. Wesolowski raised similar issues regarding separate data requests he made of the MSTRWD.)

The Commissioner adds the following. In his comments, Mr. Sobolik questioned whether items 1, 2, 3, 5, and 6 of Mr. Wesolowski's data request are data practices requests. The Commissioner has reviewed these items and finds them to be requests for government data. Either the MSTRWD maintains these data or it does not. If not, it needs to so inform Mr. Wesolowski. If so, and the data are public, the MSTRWD promptly needs to provide Mr. Wesolowski with access.

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Opinion:

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

The Middle-Snake-Tamarac Rivers Watershed District did not comply with Minnesota Statutes, Chapter 13, in regard to an August 30, 2004, request to inspect certain data.

Signed:

Dana B. Badgerow
Commissioner

Dated: November 29, 2004

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