Minnesota Department of Administration: Advisory Opinion 03-025



Minnesota Department of Administration


Advisory Opinion:03-025

This
is an opinion of the Commissioner of Administration issued pursuant to Minnesota
Statutes, section 13.072 (2002). This opinion is based on the facts and
information available to the Commissioner as described below. All correspondence
and other information relied on by the Commissioner in issuing this opinion
are on file in the office of the Information Policy Analysis Division (IPAD)
of the Department.

Facts
and Procedural History:

On
June 26, 2003, IPAD received a letter from Patricia Wolff. In this letter,
Ms. Wolff asked the Commissioner to issue an advisory opinion regarding her
right to gain access to certain data maintained by Nobles County.

In response to
Ms. Wolff’s request, IPAD, on behalf of the Commissioner, wrote to Melvin
J. Ruppert, Nobles County Administrator. The purposes of this letter, dated
June 30, 2003, were to inform him of Ms. Wolff’s request and to ask him to
provide information or support for the County’s position. On July 10, 2003,
IPAD received a response from Gordon L. Moore, III, Nobles County Attorney.
A summary of the facts of this matter follows.

In her opinion
request, Ms. Wolff wrote that a new policy in Nobles County, which she characterized
as “restricting access to information on feedlots,” appeared to be in violation
of Minnesota Statutes, Chapter 13.

The new policy,
approved by the Nobles County Board of Commissioners on June 24, 2003, contains
the following provisions regarding public access to the feedlot inventory:
the requestor must submit a written application; there is a five-day waiting
period; the cost for a copy is $250; the copy must be picked up in person;
and a copy is available in printed format only.

In his comments
to the Commissioner, Mr. Moore provided some background regarding the feedlot
inventory. He stated that the County had considered classifying the inventory
as “security information” as that term is defined at Minnesota Statutes, section
13.37, subdivision 1 (a). According to Mr. Moore, the reason was “the County’s
great interest in the value added to the local economy by animal agriculture
and the concern regarding potential acts of bio-terrorism and the devastating
potential of such acts on Nobles County.” Instead, the County sought recommendations
from its Planning Advisory Commission and its Environmental Advisory Committee.
Those recommendations were adopted by the Board as the new policy at issue
here.

In 1994, Nobles
County passed a feedlot-licensing ordinance. Under this ordinance, Nobles
County received a delegation of feedlot permitting from the State allowable
under Minnesota Statutes, section 116.07. Counties that assume responsibility
for the feedlot permitting process must complete a “Level II Feedlot Inventory,”
which, according to Mr. Moore, was an extensive and expensive process. (The
Inventory is a requirement under rules promulgated by the Minnesota Pollution
Control Agency. See Minnesota Rules, section 7020.0350.)

Mr. Moore stated
the following:

Nobles
County received a grant from the Board of Water and Soil Resources for $35,000
to assist with the costs of developing the Feedlot Inventory. However, this
grant covered only a part of the over $100,000 cost to the County for the
completion of the inventory.

On July 7,
2003, the [inventory] consisted of 104 separate 11″ by 17″ printed pages
of data. The [Excel] spreadsheet does not print out the data in an immediately
reviewable manner; the pages are not sequentially numbered but it has to
be assembled by staff and is eight pages across and 13 pages down when placed
together. The spreadsheet also requires explanation by staff as to what
it means.

Unfortunately,
due to the limitations of the present computer equipment in the Public Works
Office, printing off the entire Feedlot Inventory is a laborious and time-consuming
process for Office staff. The large paper size necessitated [sic] for the
Inventory and the large amount of data printed typically results in computer
crashes and/or paper jams in the printer, and requires a staff member to
monitor printing status. Additionally, the assembly of the inventory into
a meaningful document requires staff time as well. It is typical for the
printing and assembly of the entire inventory to take up to two hours. The
full-time benefited [sic] secretary who is handling this printing makes
$13.96 per hour excluding benefits, which typically can add an additional
35% to total County cost.

The $250.00
fee for a copy of the entire Inventory is based upon staff time for printing
the inventory, paper cost, and ink cost ($75.00), in addition to the commercial
value of the inventory ($175.00). The commercial value is based on a prior
history of feed and livestock building salespersons who have contacted Wayne
Smith [Director of Environmental Services for the County] regarding the
Inventory for assistance with their sales routes. For those persons, the
Feedlot Inventory constitutes a targeted mailing list for such persons in
one of the largest livestock producing Counties in the State. The County
spent in excess of $100,000 on development costs for the inventory and the
County believed that recouping a small amount of this fee would be appropriate
if the entire Inventory was requested.

If an individual
wishes to see a specific part of the inventory or get specific information
about feedlots in a particular part of the County, County staff will provide
that information for inspection at no cost. The County policy regarding
the waiting period was included to let people know that the Inventory would
not necessarily be available immediately and to give staff a reasonable
chance to copy the inventory off without interrupting other County business.
Mr. Smith explains that if his staff could complete the copying prior to
the expiration of five days he would certainly provide the data at that
time. Because the inventory changes sometimes on a weekly basis, a copy
made last month would not necessarily reflect the status of the Inventory,
necessitating a new printout.

The Inventory
has never been made available by the County in an electronic format on the
County’s website or on any remote access location.

Mr. Moore discussed
each component of the County’s policy, which the Commissioner will consider
below.



Issue:

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

Pursuant
to Minnesota Statutes, Chapter 13, are the following components of
the Nobles County policy regarding public access to the “feedlot inventory”
allowable: a) Requestor must submit a written application; b) There
is a five-day waiting period; c) The cost is $250; d) Requestor must
pick up copy in person; and e) Copy is available in printed format
only?


Discussion:

The
Commissioner does wish to note, at the outset of this discussion, that the County’s
policy arose from a discussion about potential County targets for terrorism. The
County contemplated, but chose not to assert that the inventory is “security information”
within the meaning of section 13.37, subdivision 1 (a). Accordingly, there is
no dispute here that the inventory is classified as public. (If the County continues
to have reasonable concerns for security, it may ask the Commissioner to address
in a separate opinion whether it may invoke section 13.37 to deny public access
to the inventory.)

Several provisions
of Minnesota Statutes, section 13.03, govern access to public government data.
A fundamental requirement is that government entities must “establish procedures,
consistent with [Chapter 13], to insure that requests for government data are
received and complied with in an appropriate and prompt manner.” The County
did not address how the policy at issue here conforms to the County’s general
data access procedures. It would seem, that if the County has established those
procedures, it would not have needed to enact a policy that applies to a particular
document. The Commissioner has opined that government entities must apply such
procedures consistently to all data they maintain.

With respect to
the County’s requirement that anyone seeking a copy of the inventory apply in
writing, Mr. Moore stated that section 13.03 “does not require data requests
to be made in writing, [and] it does not prohibit such requirements either.”
Mr. Moore said the County’s requirement is communicated clearly to the public,
and is intended to avoid disputes. Mr. Moore also stated: “. . . requiring someone
to request a copy of [the inventory] in writing provides a record of whom it
has been distributed to . . . .”

Mr. Moore is correct
that section 13.03 is silent with respect to any requirement that a data request
be made in writing. He cited Advisory
Opinion 95-030
, in which the Commissioner opined that a government entity
may chose to require written requests for data. Government entities are free
to establish that requirement as part of their public access policies and procedures.
As noted above, it is not clear to the Commissioner if that requirement is consistently
applied to requests for other government data the County maintains.

The Commissioner
finds Mr. Moore’s statement about the County maintaining a record of individuals
who have requested a copy of the inventory problematic. According to section
13.05, subdivision 12, “[u]nless specifically authorized by statute, government
entities may not require persons to identify themselves, state a reason for,
or justify a request to gain access to public government data. A person may
be asked to provide certain identifying or clarifying information for the sole
purpose of facilitating access to the data.” The Opinion Mr. Moore cited predates
the section 13.05 prohibition on requiring persons to identify themselves in
order to gain access to data. The County may ask for identification only for
the purpose of facilitating access to the data, not in order to create a record
of those seeking copies of the inventory.

In his discussion
of the County’s five-day waiting period for a copy of the inventory, Mr. Moore
discussed the “laborious” process involved in creating a copy. He stated: “.
. . the Inventory typically takes . . . up to two hours to copy and assemble.
Depending on the press of business, this could be an extreme inconvenience to
the County if the requirement was that the copy be immediately available for
pickup.” Mr. Moore noted that the Commissioner has previously opined that government
entities do not need to provide immediate access to public government data,
but must respond promptly.

Section 13.03,
subdivision 3 (c) provides that if a government entity cannot provide copies
at the time a request is made, copies shall be provided “as soon as reasonably
possible.” In addition, according to section 13.03, subdivision 1, government
data must be maintained in such manner as to be “easily accessible for convenient
use” by the public.

Mr. Moore stated
that the County included the five-day waiting period in its policy as a means
to communicate clearly with the public, and that if a copy can be produced sooner,
it will be. On its face, that seems reasonable. However, the reasons Mr. Moore
cited to explain the waiting period are problematic.

According to Mr.
Moore, the County maintains the feedlot inventory data in a manner that is clearly
not easily accessible for convenient use. The large-size paper jams the copier,
the computer containing the data often “crashes” during printing, the pages
must be assembled and explained in order to make sense, etcetera. Apparently
the County opted to assume responsibility for the feedlot permitting process,
at which time it should have taken whatever steps it needed to ensure that it
could provide the public with related data as required by Chapter 13. Furthermore,
Mr. Moore suggested that the County’s need to provide copies of the inventory
can interfere with other County business. Although Chapter 13 does not require
government to drop everything to respond to data requests, providing the public
with appropriate access to public government data, as required by Chapter 13
and other statutes, is County business. The County should examine its current
process and amend it in order to be in compliance with Chapter 13.

With respect to
the $250.00 copy fee, Mr. Moore stated that $75.00 of that total represents
the County’s actual cost to search for and retrieve the approximately 104 pages
of data, as well as the cost of ink, paper and employee time to make the copies.
Those charges are allowable under section 13.03, subdivision 3 (d), if they
are the County’s actual costs.

The County collects
the remaining $175.00 of the copy fee because it asserts, per section 13.03,
subdivision 3 (d), that the inventory has commercial value and was developed
with significant expenditure of public funds. Subdivision 3 (d) provides:

When
a request under this subdivision involves any person’s receipt of copies of
public government data that has commercial value and is a substantial and discrete
portion of or an entire formula, pattern, compilation, program, device, method,
technique, process, database, or system developed with a significant expenditure
of public funds by the agency, the responsible authority may charge a reasonable
fee for the information in addition to the costs of making, certifying, and
compiling the copies. Any fee charged must be clearly demonstrated by the agency
to relate to the actual development costs of the information. The responsible
authority, upon the request of any person, shall provide sufficient documentation
to explain and justify the fee being charged.

From the information
the County provided, it appears that the $175.00 add-on fee is appropriate,
because the inventory is an entire compilation that was developed with a significant
expenditure of public funds, assuming the County can provide sufficient documentation
as to how the fee relates to recovery of a portion of the $100,000 development
cost of the inventory. However, the County did not explain why, if the fee is
new, it did not charge it in the past, and how it relates to the County’s public
data access policies and procedures. Government entities must apply their data
access policies and procedures consistently; it is particularly helpful to the
entity when dealing with data that have high public interest. In addition, the
County’s justification for charging an add-on fee because of the commercial
value of the inventory underscores the need to maintain those data in a manner
as to be reasonably accessible for convenient use.

Chapter 13 does
not directly address the County’s requirement that copies of the inventory must
be retrieved in person. Mr. Moore did not discuss the County’s rationale, and
he did not discuss whether the County requires in-person retrieval of all copies
of any County data. As long as the County complies with the statutory requirement
that it cannot require a requestor to supply her/his identity, the County may
impose this requirement. The Commissioner wishes to note that this requirement
likely means that some persons who desire access to County data will be unable
to gain access, because they are unable to travel to Nobles County. That result
violates the spirit, if not strictly the letter, of laws governing the rights
of the public to have access to data about their government. Furthermore, strict
application of this provision may cause both the County and the public practical
problems and unnecessary expense. For example, in some circumstances, it may
be more cost effective for the County to provide copies of government data via
fax, e-mail or U.S. mail.

With respect to
the County’s policy that the inventory will not be made available in electronic
format, Mr. Moore stated that the inventory has never been available on the
County’s website, via the internet, or on any of the County’s remote computer
terminals. Mr. Moore stated that a government entity is not required to provide
data in an electronic format that is different from the format in which the
entity maintains the data. He wrote: “[t]he County’s policy means that the inventory
is unavailable over the internet. Accuracy of the data requires that it not
be subject to manipulation or change via computer programs. It is currently
unknown whether or not the County has the ability to provide the data on a computer
disc or CD-ROM with appropriate security devices to prohibit alteration of the
data . . . .”

Section 13.03,
subdivision 3 (e) provides:

The responsible
authority of a state agency, statewide system, or political subdivision that
maintains public government data in a computer storage medium shall provide
to any person making a request under this section a copy of any public data
contained in that medium, in electronic form, if the government entity can reasonably
make the copy or have a copy made. This does not require a government entity
to provide the data in an electronic format or program that is different from
the format or program in which the data are maintained by the government entity.
The entity may require the requesting person to pay the actual cost of providing
the copy.

The issue here
is not whether or not the inventory has been available electronically in the
past. The inventory is maintained in an Excel spreadsheet. Mr. Moore stated
that “it is unknown” whether the County is reasonably able to produce or have
produced an electronic copy of the spreadsheet. The County must, per the requirements
of section 13.03, subdivision 3 (e), make available an electronic copy of the
inventory.

An additional comment
is in order. Mr. Moore said portions of the inventory may be inspected free
of charge, but did not say whether the County makes the entire inventory available
for free inspection. If it does not, it must, per the requirements of section
13.03, subdivision 3 (a).


Opinion:

Based on the facts
and information provided, my opinion on the issue raised by Ms. Wolff is as
follows:

Pursuant
to Minnesota Statutes, Chapter 13, the following components of the
Nobles County policy regarding public access to the “feedlot inventory”
are allowable, if the policy is consistent with the County’s general
data access policies and procedures:

a.
The County may require the requestor to make a written request,
but may not require identification, except to facilitate responding
to the request.

b.
The County may reasonably take five days to fulfill a request, but
must provide a copy as soon as reasonably possible. The county must
meet its obligation to maintain the data so that they are reasonably
accessible for convenient use.

c.
The County may, with adequate documentation, charge $75.00 for the
copy of the inventory, plus an add-on fee of $175.00 to recover
a portion of its development costs, because the inventory has commercial
value, is an entire compilation, and was produced with a significant
expenditure of public funds.

d.
The County may require a requestor to retrieve the copy in person.
The Commissioner questions this requirement as potentially frustrating
the rights of the public to gain access to government data. Strict
adherence may cause both the County and the public practical problems
and unnecessary expense.

e.
The County must provide a copy of the inventory in electronic format
if it is reasonably able to do so, per the requirements of section
13.03, subdivision 3 (e).

Signed:

Brian J. Lamb

Commissioner

Dated: July 31,
2003

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