Advisory Opinion 06-004

Facts and Procedural History:

On January 5, 2006, IPAD received a letter dated January 2, 2006, from Jim Stengrim. In his letter, Mr. Stengrim asked the Commissioner to issue an advisory opinion regarding his right to gain access to certain data from the Red River Water Management Board (RRWMB).

IPAD, on behalf of the Commissioner, wrote to Naomi Erickson, Administrator of RRWMB, in response to Mr. Stengrim's request. The purposes of this letter, dated January 11, 2006, were to inform her of Mr. Stengrim's request and to ask her to provide information or support for the RRWMB's position. On February 3, 2006, IPAD received a response, dated same, from Louis Smith, an attorney representing the RRWMB.

A summary of the facts as provided by Mr. Stengrim is as follows. In a letter dated August 25, 2005, he wrote to Ms. Erickson and asked to inspect the following data:

1. Data that shows the specific area the Agassiz Valley Water Management Project provides flood protection for.
2. The data that shows what townships initiated the Agassiz Valley Water Management Project.
3. The data that shows that the Agassiz Valley Water Management Project will protect the townships infrastructure.
4. The data that shows that the combined efforts of the projects mentioned will affect the peak flows on the main stem of the Red River and offer flood protection downstream.

In a letter dated September 23, 2005, Mr. Smith wrote to Mr. Stengrim:

Your request of August 25, 2005 requests data concerning the Agassiz Valley Water Management Project. The RRWMB will provide its Agassiz Valley project file for your inspection on the dates noted below; you are also directed to the Middle Snake Tamarac Rivers Watershed District [MSTRWD] for further information about the project.

In a letter dated October 2, 2005, Mr. Stengrim wrote to Mr. Smith: It is not clear in your letter if the specific data pertaining to the request dated August 25, 2005 will be available for inspection. Please confirm that this specific data will be available and easily identifiable.

When Mr. Stengrim went to inspect the data on October 24, 2005, he apparently was presented with a letter, dated same, from Mr. Smith. Mr. Smith wrote:

Concerning your request of August 25, 2005, the RRWMB has produced its Agassiz Valley project file for your inspection, and marked the relevant items in the file responsive to your request. Concerning item #2 of that request, please note that the Step One submittal identifies the various stakeholders involved in project initiation; we have not located in the RRWMB's files data concerning specific township initiation, but such data may be available with the MSTRWD.

In a letter dated October 31, 2005, Mr. Stengrim wrote to Ms. Erickson: [referring to the inspection] when data to be responsive to [items #1 and #3] was produced for inspection the data did 'not' address the request.

In a letter dated November 15, 2005, Ms. Erickson wrote to Mr. Stengrim:

The Step 1 submittal and Preliminary Engineer's Report for the Agassiz Valley Water Management Project were produced for your inspection in response to the items you referenced. Further, specific pages were marked in these reports with Post-It notes and clearly identified in reference to your questions. When you stated that you were seeking more specific detail concerning local benefits of the proposed project, we indicated that the information produced was all that was in the possession of the RRWMB on this topic and we referred you to the [MSTRWD] for further information.

In his opinion request, Mr. Stengrim wrote:

To this date it is unclear if the RRWMB produced all the requested public data. It appears that the RRWMB has been very unclear and ambiguous in responding to the August 25, 2005 data request.

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Issue:

Based on Mr. Stengrim's opinion request, Mr. Stengrim asked the Commissioner to address the following issue:

Did the Red River Watershed Management Board comply with Minnesota Statutes, Chapter 13, in responding to an August 25, 2005, request for data?

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Discussion:

Pursuant to Minnesota Statutes, section 13.03, when a government entity receives a data request from an individual who is not the subject of the data, the entity is required to respond in an appropriate and prompt manner, and within a reasonable time. (See section 13.03, subdivision 2(a), and Minnesota Rules, part 1205.0300.) In responding, the entity must provide the data, advise that the data are classified such as to deny the requestor access, or inform the requestor that the data do not exist.

In his comment to the Commissioner, Mr. Smith wrote:

In summary, the RRWMB clearly provided all data in its possession responsive to Mr. Stengrim's request; he simply appears to desire additional information that the RRWMB does not have, and this was clearly explained to him. Ms. Erickson and Mr. Deal pointed out that the RRWMB funds projects like the Agassiz Valley Water Management Project based on a regional benefit, and that data concerning more localized benefits may be available through the local watershed district.

Mr. Stengrim and the RRWMB appear to be having a dispute as to what data the RRWMB does or does not have that are responsive to his request. Some of this dispute might have been avoided if the RRWMB had sought clarification from Mr. Stengrim about his request.

When Mr. Stengrim inspected the data, Mr. Smith's letter advised that the RRWMB had marked the relevant items in the file responsive to [his] request. Upon inspecting the data, Mr. Stengrim determined that the data RRWMB located relating to items #1 and #3 of his request were not what he was seeking. At that point it is not clear whether Mr. Stengrim asked the RRWMB if they had the data. Ms. Erickson's letter of November 15, 2005, also lacks clarity in that the Commissioner cannot determine whether she is addressing Mr. Stengrim's concerns about items #1 and #3 of his request. Not until Mr. Smith's February 3, 2006, letter to the Commissioner is the RRWMB's position clear - it provided to Mr. Stengrim all data in its possession responsive to his request.

The facts of this situation are such that the Commissioner is unable to determine whether the RRWMB complied with Chapter 13 in communicating what data did not exist. As the Commissioner has written in previous opinions involving the same two parties, she encourages them to find a way to resolve the data practices issues they are experiencing. She specifically notes that a government entity, in fulfilling its obligation to respond to data requests, first must determine whether it maintains the requested data. If not, it must so inform the requestor. Further, if the request is written in such a way that it is not easily understood, the entity should seek clarification before proceeding. Finally, the Commissioner notes that data requestors need to be as clear as possible in their communications relating to data requests.

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Opinion:

Based on the facts and information provided, my opinion on the issue that Mr. Stengrim raised is as follows:

The Commissioner cannot determine whether the Red River Watershed Management Board complied with Minnesota Statutes, Chapter 13, in responding to an August 25, 2005, request for data.

Signed:

Dana B. Badgerow
Commissioner

Dated: February 14, 2006

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