Advisory Opinion 04-073

Facts and Procedural History:

On September 22, 2004, IPAD received a letter dated September 20, 2004, from Adrian Wesolowski. In the 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 September 24, 2004, were to inform him of Mr. Wesolowski's request and to ask him to provide information or support for MSTRWD's position. On October 14, 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 25, 2004, Mr. Wesolowski wrote to Mr. Adrian and asked to inspect the following data relating to the removal of a water main:

1. Copy of the asbestos survey conducted by the MST Watershed District in the area of where the pipe will be removed or disturbed.
2. A copy of the notice given to the Minnesota Pollution Control Agency (MPCA).
3. A copy of the notice given to the Environmental Protection Agency (EPA).
4. A copy of any documentation which shows the analysis of the composition of the water line removed.
5. A copy showing the name of the licensed contractor who will remove the above waterline for the watershed district.
6. A copy of the deed restriction which will be placed on the property where the pipe is disturbed and removed.
7. Any other public data in relation to the removal of the above water main.

In his opinion request, Mr. Wesolowski wrote:

My August 25th, 2004 letter of request was personally handed by myself to [the MSTRWD secretary] during regular business hours [on August 25]....After nearly a month, the MSTRWD has made no response of any kind to [my] request to inspect documents.

Issue:

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

Did the Middle-Snake-Tamarac Rivers Watershed District comply with Minnesota Statutes, Chapter 13, in regard to an August 25, 2004, request to inspect certain 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 on the day before Mr. Adrian was scheduled to go on leave....Since the receipt of the Department's letter on September 28th, the District has simply been putting together their response as opposed to answering Mr. Wesolowski's request....

Although I am not sure if it has any bearing on the Department's decision, the District will respond to Mr. Wesolowski's request and Mr. Wesolowski will have the ability to review any data the District has regarding his August 25th request which is at issue in this opinion.

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. Mr. Wesolowski delivered his data request to the MSTRWD on August 25, 2004. It appears, based on Mr. Sobolik's comments, that, as of October 14, 2004, seven 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 adds the following. In his comments, Mr. Sobolik questioned whether item number seven of Mr. Wesolowski's request is in fact a valid request for data under Minnesota Statute Chapter 13. The seventh item Mr. Wesolowski requested is: Pursuant to the Minnesota Data Practices Act I request to inspect the following public data...Any other public data in relation to the removal of the above water main. Chapter 13 confers upon individuals the right to gain access to (inspect or obtain copies of) government data. Here, it appears that Mr. Wesolowski has asked to inspect any additional data that the MSTWRD maintains relating to the water main, beyond those specified in items number one through six. Either the MSTRWD has additional public data or it does not. The Commissioner views this as a valid data practices request.

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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 25, 2004, request to inspect certain data.

Signed:

Dana B. Badgerow
Commissioner

Dated: November 12, 2004

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