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 February 12, 2004, IPAD received a letter dated February 9, 2004, from Jim Stengrim. In his letter, Mr. Stengrim asked the Commissioner to issue an advisory opinion regarding his access to certain data that the Middle-Snake-Tamarac Rivers Watershed District maintains.
In response to Mr. Stengrim's request, IPAD, on behalf of the Commissioner, wrote to Ronald Adrian, the Watershed District's Engineer. The purposes of this letter, dated February 17, 2004, were to inform him of Mr. Stengrim's request and to ask him to provide information or support for the Watershed District's position. On March 11, 2004, IPAD received comments, dated same, from Blake Sobolik, an attorney representing the Watershed District.
A summary of the facts as presented by Mr. Stengrim is as follows. In a letter dated December 19, 2003, Mr. Stengrim clarified a December 16, 2003, request for access to certain data the Watershed District maintains.
In a letter dated December 24, 2003, Mr. Adrian wrote to Mr. Stengrim:
In March 2003, we provided for your review the Agassiz Valley Water Management Project file and at your request we provided you in excess of 2000 copies from this file. As of this date we have not received payment for these copies and you have not indicated to us why this has not been paid. Enclosed also is the re-computed bill for copies previously furnished. This must also be paid prior to us providing you with any copies.
Mr. Stengrim wrote to the Watershed District in a letter dated January 7, 2003 (the Commissioner assumes this should be January 7, 2004):
...I have researched my files and found nothing to indicate that I personally requested in excess of 2000 copies from [the Watershed District]. The billing statement indicates that it is a "revised" statement. During my research I did not find any prior billing statement for March 2003, so please send me a copy of the original billing statement including an itemized listing of the documents requested and copied.
In another letter dated January 7, 2003 (the Commissioner assumes this should be January 7, 2004), Mr. Stengrim wrote to the Watershed District and attached a check to cover the copies he requested in his December 19, 2003, letter.
In a letter dated January 16, 2004, Mr. Sobolik wrote to Mr. Stengrim:
...you claim you did not receive a bill for documents requested in March of 2003. You are correct in that statement. Mr. Dwain Fagerlund, your attorney, received that bill. This bill is dated May 2, 2003....I understand that you were present and assisted Mr. Fagerlund in choosing which copies to make. You should contact Mr. Fagerlund to determine if he received the bill, although I believe he did. The bill which Mr. Fagerlund received was revised downward in keeping with the recently enacted Board policy regarding these Data Practices requests. I understand you did receive the revised bill.
Under the present Board policy, this revised bill must be paid in full before any further copies will be provided to you under [Chapter 13], including the one that will be responded to when Mr. Adrian returns....
In a letter dated January 19, 2004, Mr. Adrian returned Mr. Stengrim's check relating to the December 19, 2003, data request.
In a letter dated January 23, 2004, Mr. Stengrim's attorney wrote to Mr. Sobolik:
...Please be advised that the copies in dispute were made at my request as part of the ongoing litigation. As you are aware, I represent several clients in that matter, not only James Stengrim. The copies made for purposes of the litigation are distinctly separate from any requests that Mr. Stengrim has made pursuant to [Chapter 13]....
In his opinion request, Mr. Stengrim wrote:
The [Watershed District] has denied me copies of requested public documents because they claim I have an outstanding bill for previous requested material. The outstanding bill is for documents that an attorney, who represents myself and several other landowners, requested in March of 2003. The attorney's request for documents was part of the discovery process for the legal action. The original billing statement was sent to the Attorney. I believe it violates my rights under [Chapter 13] to deny my present request for public data because of what the Watershed District claims is "my personal" unpaid bill.
In his request for an opinion, Mr. Stengrim asked the Commissioner to address the following issue:
Pursuant to Minnesota Statutes, section 13.03, subdivision 3(c), a responsible authority or designee shall provide copies of data upon request.
In the case of this opinion, Mr. Stengrim made a request for copies in December of 2003. The Watershed District denied his request because of an outstanding bill for copies to Mr. Stengrim's attorney. (Mr. Stengrim provided the Commissioner with a copy of the invoice, dated May 2, 2003, from the Watershed District to Mr. Stengrim's attorney.)
In his comments to the Commissioner, Mr. Sobolik wrote:
...I believe it is critical the Department of Administration understand that the comment made in Mr. Stengrim's letter to your office of February 9, 2004, is inaccurate. At no time has the District denied Mr. Stengrim access to public data. This is true with respect to Mr. Stengrim's December 19, 2003, request for data. The documents he requested have always been and still are available for his inspection. The District has simply stated that we will not provide copies of this data until the bill which his attorney incurred is paid. The issue, in other words, is not whether Mr. Stengrim had access to documents he requested but whether the District can require payment for previous documents before furnishing additional copies.
I believe the facts of this case are very similar to the unpublished decision of the Court of Appeals in Salminen v. City of Hibbing, (C6-88-2509). In that case, Salminen made repeated requests of the City of Hibbing to review and copy public documents. The City complied with those requests. Salminen was given a bill by the City for costs incurred by the City's employees in searching and copying documents pursuant to Salminen's request. Salminen did not pay the bill and the City refused to allow him to inspect or copy any further documents until the bill was paid. The Minnesota Court of Appeals held that the City has no duty to research or copy documents for Salminen until the bill is paid but does have a duty to allow Salminen to inspect and copy public documents on his own, even though he had not paid for previous costs incurred by the City.
Mr. Sobolik then argued that because Mr. Fagerlund was acting as Mr. Stengrim's agent, "[The District's position is that] an unpaid bill by an attorney is the same unpaid bill of the attorney's client." Mr. Sobolik further stated:
...Therefore, the bill that was forwarded to Mr. Fagerlund was in fact the bill of Mr. Stengrim's and others.
In conclusion, I want to reiterate that at no time has Mr. Stengrim been denied access to data. The only thing Mr. Stengrim has been denied is copies of documents that he has requested because of the unpaid bill of his attorney which it certainly appears the Salminen case allows the district to do....
It is important to note that the Salminen case is unpublished and, pursuant to Minnesota Statutes, section 480A.08, subdivision 3, carries no precedential value. Thus, it does not control the outcome here.
The Commissioner believes the facts of the Salminen case are distinguishable from the facts currently before the Commissioner. In Salminen, the Court of Appeals addressed a situation in which a data requestor with an outstanding bill for previously obtained copies of data sought additional copies of data. The Court held that the City had no obligation to prepare additional copies but that the City was required to allow the data requestor to inspect and prepare his/her own copies. The situation before the Commissioner is different in that Mr. Stengrim's attorney, not Mr. Stengrim, apparently requested the data for which there is an outstanding bill. In addition, it was Mr. Stengrim's attorney, not Mr. Stengrim, who received a copy of the bill on or about May 6, 2003. The Watershed District did not send Mr. Stengrim a copy of the bill until after he made his data practices request in December of 2003. While the Commissioner believes the Court in Salminen reached a reasonable conclusion, there is no provision in Chapter 13 limiting an individual's access to copies of data if someone other than that individual owes a government entity money for unpaid copies of data. Thus, the Watershed District should provide Mr. Stengrim with the copies of data he requested in December 2003 and work with Stengrim's attorney to resolve the attorney's unpaid bill.
Based on the facts and information provided, my opinion on the issue that Mr. Stengrim raised is as follows:
Brian J. Lamb
Dated: March 31, 2004