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:
On January 15, 2002, IPA received a letter from "X" and "Y." In their letter, X and Y asked the Commissioner to issue an advisory opinion regarding their rights concerning certain data maintained by the Minnesota Department of Public Safety (DPS).
In response to X and Y's request, IPA, on behalf of the Commissioner, wrote to Charles R. Weaver, Commissioner of DPS. The purposes of this letter, dated January 18, 2002, were to inform him of X and Y's request and to ask him to provide information or support for DPS's position. On February 11, 2002, Commissioner Weaver responded. On March 6, 2002, IPA received additional comments from Laurie Beyer-Kropuenske, DPS's Data Practices Compliance Official, that corrected a factual error. A summary of the facts of this matter follows.
In letters dated August 9, 2000, Daniel A. Eller, attorney for X and Y, wrote to the Bureau of Criminal Apprehension (BCA), a division of DPS:
Please be advised that I represent [X or Y] regarding the above referenced matter which was dismissed by the Crow Wing County Attorney Donald Ryan, on or about May 8, 2000. At this time, on behalf of [X or Y], I hereby demand returned to [X or Y] all finger and thumb prints, distinctive physical mark identification data and other identification [sic] along with copies and duplicates of them to my office. This request is made pursuant to Minn. Stat. 299C.11(d) [sic]. All charges were dismissed in this matter prior to the determination of probable cause. Which probable cause hearing was scheduled for May 22, 2000.
According to X and Y, DPS returned X's finger prints and "arrest data" but not Y's, and did not return photographs to either X or Y. IPA also received information from X on behalf of Y that asserts that neither Y nor Mr. Eller received the information Mr. Eller requested in his August 9, 2000, letter.
In his response to the Commissioner of Administration, Commissioner Weaver stated that in a letter dated August 25, 2000, BCA notified Mr. Eller "that BCA has deleted criminal history record information on [X] and that BCA has returned the identification data to counsel, Mr. Eller." According to Ms. Beyer-Kropuenske, BCA also returned the identification data on Y to Mr. Eller.
Commissioner Weaver stated that BCA did not have any photographs of X or Y on file at the time of the request, and that the aforementioned records are "the only records the Department has maintained on this matter." Ms. Beyer-Kropuenske stated that on March 5, 2002, BCA staff conducted a search of both the Minnesota and FBI criminal history databases and "no information remains in either system related to the data referenced" in X and Y's August 2000 correspondence.
In their request for an opinion, X and Y asked the Commissioner to address the following issues:
Pursuant to Minnesota Statutes, section 299C.10, certain "identification data" such as finger and thumb prints, and photographs, etc., are required to be collected by law enforcement agencies under circumstances related to the arrest of an individual. Pursuant to section 299C.11(b), under certain conditions a government entity "shall, upon demand, return to the arrested person finger and thumb prints, photographs, distinctive physical mark identification data, information on known aliases and street names, and other identification data, and all copies and duplicates of them."
According to Commissioner Weaver and Ms. Beyer-Kropuenske, any data responsive to Mr. Eller's requests on behalf of X and Y have either been destroyed or provided to Mr. Eller. According to X on behalf of Y, Mr. Eller did not receive the information on Y that Commissioner Weaver stated was returned to him. Thus, there is an obvious factual dispute here that the Commissioner (of Administration) cannot resolve. However, given that DPS has correspondence dated in August 2000 that states that the data in question were being returned to X and Y, the Commissioner must conclude that DPS complied with its statutory obligations under section 299C.11.
Based on the facts and information provided, my opinion on the issue X and Y raised is as follows:
David F. Fisher
Dated: March 13, 2002