Minnesota Department of Administration Advisory Opinion 95-042

This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.


Facts and Procedural History:

For purposes of simplification, the information presented by the citizen who requested this opinion and the response from the government entity with which the citizen disagrees are presented in summary form. Copies of the complete submissions are on file at the offices of PIPA and are available for public acces.

On September 11, 1995, PIPA received a letter requesting this opinion from Sonja D. Kerr, attorney at law, in which she described her attempts to gain access to certain data maintained by the Minnesota Department of Education (MDE.) (The Department was recently reorganized into a new Department, the Minnesota Department of Children, Families and Learning.) Ms. Kerr enclosed copies of correspondence relating to this matter.

On September 13, 1995, PIPA, on behalf of the Commissioner, wrote to Ms. Ann Schluter, at that time Acting Commissioner of MDE. The purposes of that letter were to inform Ms. Schluter of Ms. Kerr's request, to ask her to provide information or support for the Department's position, and to inform her of the date by which the Commissioner was required to issue this opinion. (In subsequent correspondence, Ms. Kerr and Ms. Schluter were informed that the Commissioner would be taking additional time, as allowed by statute, to issue this opinion.)

On October 2, 1995, PIPA received a letter in response from Robert J. Wedl, Assistant Commissioner, MDE. A summary of the detailed facts of the matter follows.

According to Ms. Kerr, on August 7, 1995, she wrote to the Department to request access to certain data maintained by the Department (see items a-e in Issue 1 below.) The data sought by Ms. Kerr were referenced in correspondence between the Department and the Minnesota Office of Administrative Hearings (OAH.) Ms. Kerr did not gain access to any of the data she requested until September 12, 1995, and she was not provided with copies of all the data she requested until September 26, 1995.

Mr. Wedl, in his response to the Commissioner, said that copies of the data requested by Ms. Kerr, other than the "policy interpretation letters," (item 1(d) below), were mailed to her on September 12, 1995. Copies of the policy letters, which needed to be compiled, were mailed to Ms. Kerr on September 20, 1995.



Issues:

In her request for an opinion, Ms. Kerr asked the Commissioner to address the following issues:

  1. Are the following data public:

    1. A "prehearing order form."

    2. A memorandum to the ALJs entitled "Issues Appropriate for Hearing" and a copy of the Assistant Attorney General Memorandum arguing that only the most recent school year can be the focus of a hearing.

    3. A copy of a directive sent by Adele Ciriacy of MDE to the ALJs with a copy of the procedures to which Judge Beck referred.

    4. A copy of any MDE policy letters interpreting MDE rules.

    5. The number and nature of any complaints received by MDE about any of the special education judges and the names of any judges that anyone has asked to be removed from the roster or eliminated from the list.

    6. What is the Department's obligation, pursuant to Chapter 13, to respond to Ms. Kerr's request?


NOTE: Subsequent to Ms. Kerr's opinion request, she was provided access to all of the data she requested. Therefore, this opinion will address only Issue 2.


Discussion:

As noted, Ms. Kerr was provided with access to all of the data she sought from the Department. Pursuant to Minnesota Statutes Section 13.03, subdivision 1, absent any other provision of state and federal law that provides otherwise, the data in question are public government data. Section 13.03 contains the general provisions that govern public access to government data.

Section 13.03, subdivision 1, provides that government entities must maintain data in such an arrangement and condition as to make them easily accessible for convenient use. Section 13.03, subdivision 2, provides that requests for access to government data must be "complied with in an appropriate and prompt manner."

In addition, Minnesota Rules Part 1205.0300, subpart 2, provides that "[t]he responsible authority shall provide for a response to a request for access within a reasonable time."

The remaining issue is whether the Department met its full obligation, under Chapter 13, to provide Ms. Kerr with prompt access to the data. The legislature has not provided a specific definition of "prompt" so guidance is appropriately sought from a dictionary. (See Minnesota Statutes Section 645.08.) As defined in The American Heritage Dictionary, College Edition, Houghton Mifflin Company, Boston 1985, "prompt" means "on time; punctual; done without delay."

It appears, from the copies of the correspondence between the Department and OAH, that all of the data sought by Ms. Kerr were clearly identified by her. The Department apparently did not, at any time, suggest to Ms. Kerr that the data did not exist, or were not public. It appears that the data, other than the policy letters, which needed to be compiled, ought to have been readily available. However, the Department did not provide Ms. Kerr with access to any of the data for five weeks.

In situations in which the requester clearly identifies the data sought, and the data exist (other than the compilation of the policy letters), the only thing that seems to be required of the government entity, in order to meet its statutory obligation, is to photocopy the data and provide it to the requester. A response five weeks later is neither prompt nor reasonable.

Although the Department did not provide information about its data practices policies and procedures, in instances like this one, those procedures ought to provide for a response within a matter of days, not weeks.

The Commissioner does note that the Department was in the midst of a reorganization at the time it received Ms. Kerr's request.


Opinion:


Based on the correspondence in this matter, my opinion on the issues raised by Ms. Kerr is as follows:


The Department does not appear to have met its obligation, pursuant to Chapter 13, to provide Ms. Kerr with prompt and reasonable access to public government data.

Signed:

Elaine S. Hansen
Commissioner

Dated: October 31, 1995