Minnesota Department of Administration Advisory Opinion 97-012

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 person who requested this opinion and the response from the government entity with which the person disagrees are presented in summary form. Copies of the complete submissions are on file at the offices of PIPA and, with the exception of any data classified as not public, are available for public access.

On January 16, 1997, PIPA received a letter requesting this opinion from Wynn Curtiss, an attorney, on behalf of a client. In that letter, Mr. Curtiss clarified an earlier opinion request, and described his efforts to gain access to certain data maintained by the St. Bonifacius & Minnetrista Public Safety Department ("SBMPSD"). Mr. Curtiss enclosed copies of related correspondence.

In response to Mr. Curtiss's request, PIPA, on behalf of the Commissioner, wrote to Craig A. Anderson, Chief of the St. Bonifacius & Minnetrista Public Safety Department. The purposes of this letter, dated January 22, 1997, were to inform Chief Anderson of Mr. Curtiss's request, to ask him or the SBMPSD's attorney to provide information or support for its position, and to inform him of the date by which the Commissioner was required to issue this opinion.

On February 7, 1997, PIPA received a response from William J. Everett, attorney for the SBMPSD. A summary of the detailed facts of this matter follows.

Mr. Curtiss's client was involved, as a driver, in an automobile accident in the City of Minnetrista. Following a law enforcement investigation, a decision was made not to file charges against either party to the accident. According to Mr. Curtiss, he requested copies of photographs taken by the SBMPSD after learning from the prosecutor "that no charges were to be filed and thus, the requested data was inactive investigative data."

According to Mr. Curtiss, he initially requested copies of the photographs by telephone. At that time, he was told that he could receive copies, conditional upon (1) payment in advance of a "flat fee" of $25; (2) provision of an authorization signed by his client or the other party to release the photographs; and (3) payment of the additional actual cost to reproduce the photographs.

Subsequently, Mr. Curtiss wrote to Lori Brazil, the Administrative Assistant to whom he was told to direct his request. In that letter, dated November 11, 1996, Mr. Curtiss questioned the propriety of the SBMPSD's first two conditions as set forth above. Mr. Curtiss asserted that the $25 flat fee was not allowable because, as the subject of the data, his client was required to pay only the actual cost to reproduce the photographs, pursuant to Minnesota Statutes Section 13.04, subdivision 3. Mr. Curtiss also asserted that given that the investigation was closed and no charges were to be filed, the photographs he requested were public data, and a release was not required.

In response, Ms. Brazil wrote to Mr. Curtiss, in a letter dated November 13, 1996:

In reference to your concerns, our $25 fee for such requests is based on ...certifying, and compiling of data.' encompassing administrative time to compile' the necessary information to respond to your request. This is a set Department fee based on the average preparation time to process such a request and thus, is charged up front. Once the reprints are received, they are submitted with an invoice for exact cost of the reprints to the party paying the initial fee.


In addition, Ms. Brazil stated: "[w]hen contacting our City Attorney's office today, I learned a decision was very recently made that no charges will be filed in this case. Therefore, the release signed by an involved party is no longer required, although Department policy requests one be submitted."

In his response to the Commissioner, Mr. Everett stated that the $25 fee "is based on the actual costs incurred by the SBMPSD in providing photographic reprints." Mr. Everett provided detailed information which support that position. The SBMPSD has no in-house photographic reproduction capability, and is located eight miles from the nearest commercial facility. In its calculation of the cost to provide copies of photographs, the SBMPSD included the costs of labor, mailing and transportation.

In sum, Mr. Everett stated:

The SBMPSD has fully complied with [Minnesota] Rule 1205.0300, subp. 4 and Minn. Stat. [Section] 13.04, subp. 4 [sic] in establishing a fee for providing photo reprints. The department has established a scheduled fee of $25 in the normal course of its operations for providing photo reprints in precisely the manner envisioned by the Commissioner's administrative rule. This fee is calculated based on the agency's experience with the actual costs to the department of providing photo reprints. There is no basis for finding this fee to be in violation of the data practices act.


In regard to the issue of whether the SBMPSD properly requested that Mr. Everett provide a written authorization in order to gain access to the photographs, Mr. Everett disagreed with Mr. Curtiss about the status of the photographs at the time Mr. Curtiss first requested access. According to Mr. Everett, "[a]t the time Mr. Curtiss began requesting reprints of the accident scene photographs, the data he was requesting was confidential or protected non-public [sic] data. Once it became public data, the SBMPSD offered it to Mr. Curtiss without a release." Mr. Everett stated that the photographs constituted criminal investigative data, pursuant to Section 13.82, subdivision 5, and as such were classified as confidential or protected nonpublic until the determination was made by the prosecuting authority on November 10, 1996, not to file criminal charges. (See Section 13.82, subdivision 5

Mr. Everett further stated:

Mr. Curtiss (and his client) had no right under [Chapter 13] to obtain photo reprints from the SBMPSD at any time prior to the date of [the prosecutor's] decision that no charges would result from the investigation of the traffic accident. Prior to [the prosecutor's] position, Mr. Curtiss could have gone directly to [the prosecutor] to seek photo reprints if Mr. Curtiss felt his client was a crime victim [pursuant to Section 13.82, subdivision 6]. . . .


According to Mr. Everett, Mr. Curtiss first requested copies of the photographs by telephone on November 8, 1996. In a letter dated November 10, 1996, Mr. Curtiss's client was informed that no criminal charges would be filed in the case. Mr. Everett stated that when Mr. Curtiss repeated his request in his November 11 letter to the SBMPSD, Ms. Brazil responded that ". . . a release would no longer be necessary to obtain reprints of the photos."


Issues:

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

  1. Pursuant to Chapter 13, may the St. Bonifacius & Minnetrista Public Safety Department charge a set fee of $25 in addition to the cost of copies of the photographs?

  2. Pursuant to Chapter 13, is it appropriate for St. Bonifacius and Minnetrista Public Safety Department to require a consent to release authorization as described by Mr. Curtiss?

NOTE: In the January 22, 1997, letter sent to Chief Anderson, PIPA mistakenly included an issue that the Commissioner did not intend to address in this opinion. Mr. Everett did not address that issue in his response.



Discussion:

Mr. Everett acknowledged that a "flat fee" for providing copies of data may be looked upon with suspicion. Pursuant to Minnesota Statutes Section 13.04, subdivision 3, responsible authorities may require subjects of government data to pay "the actual costsof making, certifying, and compiling" copies of the data. (Emphasis added.) In this case, the SBMPSD is able to justify the inclusion of a flat fee because the fee reflects the actual cost incurred by SBMPSD to provide copies of photographs.

Minnesota Rules Part 1205.0400, subpart 5, provides that the responsible authority may charge a data subject a "reasonable" fee for copies of data about her/himself and refers responsible authorities to Part 1205.0300, subpart 4, for guidance in determining the amount of the reasonable fee.

According to the information provided by Mr. Everett, the SBMPSD has complied with the guidelines set forth in Minnesota Rules Part 1205.0300, subpart 4. Pursuant to the Rule, labor, transportation and mailing costs may be charged to the data requestor. In addition, that subpart provides that responsible authorities may be guided by "any schedule of standard copying charges as established by the agency in its normal course of operations." Mr. Everett provided detailed information which documents the SBMPSD's costs, on average, for providing copies of photographs, in addition to the photo processing costs. The $25 fee is appropriate pursuant to statute and rule.

With regard to the second issue, Mr. Curtiss and Mr. Everett disagree on the timing of Mr. Curtiss's request. According to Mr. Curtiss, at the time he made his first request for access to the photographs, he had learned from the prosecuting authority that no charges would be filed. In that case, the photographs were inactive investigative data and were public, and the SBMPSD ought not to have required a consent to release them. (Pursuant to Section 13.82, subdivision 5, photographs which are inactive investigative data and which are "clearly offensive to common sensibilities" are classified as private or nonpublic data. That does not appear to be the case here.)

According to Mr. Everett, at the time Mr. Curtiss made his initial request for the photographs, the prosecutor had not determined whether criminal charges would be filed. In that case, the photographs were active investigative data, and were classified as confidential or protected nonpublic data. Therefore, the SBMPSD could not release the photographs to Mr. Curtiss with or without his client's consent. (See Section 13.02, subdivisions 3 and 13.) Mr. Everett stated that when Ms. Brazil learned that the investigation was no longer active, she informed Mr. Curtiss that the photographs were accessible without his client's consent. In her November 13, 1996, letter to Mr. Curtiss, Ms. Brazil stated: "the release signed by an involved party is no longer required, although Department policy requests one be submitted." Although it is not necessary to do so, the SBMPSD may requesta consent to release for public information, but it may not requireit.

The Commissioner was not provided information which allows her to determine whether the investigation was active or inactive at the time of Mr. Curtiss's initial request. However, in either case, the SBMPSD was not authorized to require a written release from Mr. Curtiss's client, because the data were either public, and therefore subject to release without consent of the data subject, or confidential or protected nonpublic, and therefore not accessible to Mr. Curtiss or his client.


Opinion:


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

  1. Pursuant to Minnesota Statutes Section 13.04, subdivision 3, and Minnesota Rules Part 1205.0300, subpart 4, the St. Bonifacius & Minnetrista Public Safety Department may charge a set fee of $25 in addition to the cost of having copies of photographs prepared by a photo processing company.

  2. The SBMPSD was not authorized to require a written release from Mr. Curtiss's client, because at the time of Mr. Curtiss's initial request, the data were either classified as public, and therefore accessible without consent of the data subject, or confidential or protected nonpublic, and therefore not accessible to Mr. Curtiss or his client.

Signed:

Elaine S. Hansen
Commissioner

Dated: March 19, 1997