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 December 8, 2004, IPAD received a letter from Mike Maybay, on behalf of KSTP-TV, in which he asked the Commissioner to issue an advisory opinion regarding his right to gain access to certain data that the Minnesota Department of Health (MDH) maintains.
In response to Mr. Maybay's request, IPAD, on behalf of the Commissioner, wrote to Dianne Mandernach, Commissioner of MDH. The purposes of this letter, dated December 13, 2004, were to inform her of Mr. Maybay's request and to ask her to provide information or support for the Department's position. On December 20, 2004, IPAD received a response from Commissioner Mandernach.
A summary of the facts follows. In his opinion request, Mr. Maybay related his attempts, beginning in May or June of 2004, to gain access to data related to MDH's water testing program. Mr. Maybay directed his initial requests to Department staff; he requested access to the data from Commissioner Mandernach, as responsible authority, in a letter dated October 4, 2004. Mr. Maybay described the data he sought:
The Health Department's Drinking Water Protection Program collects samples of drinking water from homes across the state. Those samples are tested for the presence of many substances including lead and copper. Health uses the test results to identify communities whose water systems may be in need of improving for the health and safety of their residents.
In his opinion request, Mr. Maybay wrote to the Commissioner that he worked with a Department staff person "to help me better understand the data they keep so that I could formulate a request to get the data in a form that would be useful to me." Mr. Maybay wrote:
At one point, I believe in late June, [staff] told me she would be asking a supervisor whether the data I was requesting could, in fact, be released to me. When I heard back from her, [she] informed me that she had been told that the Department of Health would be attempting to have IPAD temporarily classify the addresses of the tested homes as non-public. This was confirmed by a person in the Department's Communications department.
From your office I have learned Health submitted an application to IPAD on August 2. That application was returned to Health with a request for further information. As of this letter [dated December 8, 2004], I do not believe Health has responded to that request.
Commissioner Mandernach responded to Mr. Maybay's October 4, 2004, request, in a letter dated October 8, 2004, in which she stated that the Department would not provide him with access to the addresses of homes participating in the water testing program. What follows are excerpts from her comments to Mr. Maybay:
We believe the release of this data would constitute an invasion of privacy for the people living in those homes and would seriously erode participation in this voluntary program, eventually rendering it unworkable.
The data we seek to protect are not classified as private or nonpublic under current law. However, the Data Practices Act allows a state agency or political subdivision to apply to the Commissioner of Administration for temporary classification of data as [not public] (see Minnesota Statutes, section 13.06). The Department of Health and four political subdivisions (the St. Paul Board of Water Commissioners and the Cities of New Hope, Virginia, and Moorhead) have submitted such an application to the Department of Administration, seeking to classify [the data in question as not public].
The Department of Administration returned the Department's initial application with a request for additional information and also verification that requests from two of the participating political subdivisions had been made by each subdivision's 'responsible authority,' as that term is defined in the Data Practices Act. We have requested the additional information from the participating political subdivisions, and are awaiting their response. The application will be resubmitted in the near future.
The Department intends to maintain data about individual homes and homeowners as if the data were private or nonpublic data until such time as the Commissioner of Administration approves or rejects our request for temporary classification on its merits. The Data Practices Act requires an agency to provide data as soon as reasonably possible after the agency receives a request. MDH considers the time during which our temporary classification is pending to be part of the reasonable amount of time we are allowed.
The Department submitted two applications for temporary classification on August 2, 2004. After reviewing the applications, IPAD staff informed the Department on August 9, 2004, that significant issues needed to be addressed before the applications could be considered complete and in compliance with the statutory requirements set forth at section 13.06, and therefore subject to action by the Commissioner.
On December 16, 2004, the Department submitted to the Commissioner two applications for temporary classification of the data in question. In a letter dated January 24, 2005, IPAD notified the Department that those applications were not complete and in compliance with statutory requirements, and, therefore, the Commissioner will not take any official action on those applications until the Department resolves the issues identified by IPAD.
In his request for an opinion, Mr. Maybay asked the Commissioner to address the following issue:
|Did the Minnesota Department of Health comply with Minnesota Statutes, Chapter 13, in its response to an October 4, 2004, request for access to the following data: "addresses of homes participating in the water testing program as well as the corresponding test results (including lead and copper)"?|
Pursuant to Minnesota Statutes, section 13.03, subdivision 1, government data are public unless otherwise classified by statute, federal law, or temporary classification pursuant to section 13.06. The Department acknowledges that the data in question are public.
Under section 13.06, a government entity may submit to the Commissioner an application for temporary classification, for permission to classify data as not public until a proposed statute can be acted upon by the Legislature. Once the application is complete and in compliance with statutory requirements, the data which are the subject of the application are classified as set forth in the application for a period of 45 days, or until the application is disapproved, rejected, or granted by the Commissioner, whichever is earlier.
At the time Mr. Maybay requested access to the data, there were no applications for temporary classification before the Commissioner, and, as of this date, the applications the Department submitted on December 16, 2004, are not before the Commissioner. The Commissioner acknowledges the reasons Commissioner Mandernach cited in support of the Department's position that it was reasonable under the circumstances to deny public access to the data in question. However, there is no statutory basis for that position; the data are public.
Based on the facts and information provided, my opinion on the issue that Mr. Maybay raised is as follows:
|The Minnesota Department of Health did not comply with Minnesota Statutes, Chapter 13, because it denied an October 4, 2004, request for access to public government data.|
Dana B. Badgerow
Dated: January 26, 2005