Advisory Opinion 05-020

Facts and Procedural History:

On April 14, 2005, IPAD received a letter dated same, from Jeff Leyk. In his letter, Mr. Leyk asked the Commissioner to issue an advisory opinion regarding his right to gain access to certain data that Resource Training and Solutions (RTS) maintains.

IPAD, on behalf of the Commissioner, wrote to Robert Cavanna, Executive Director of RTS, in response to Mr. Leyk's request. The purposes of this letter, dated April 21, 2005, were to inform him of Mr. Leyk's request and to ask him to provide information or support for RTS' position. On April 26, 2005, IPAD received a response, dated same, from Thomas Pursell, an attorney representing RTS.

A summary of the facts is as follows. A dispute over RTS' response to a data request by Mr. Leyk is the subject of a previous advisory opinion, 05-011. Subsequent to the opinion, Mark Kinney, an attorney representing RTS, wrote to Mr. Leyk in a letter dated March 16, 2005:

I am writing in response to your request for nonpublic documents pertaining to the health insurance pool and the annual audit of [RTS]. It is our intent that this response conform to the Opinion of the Commissioner of Administration dated March 14, 2005hellip;

Mr. Kinney stated that RTS was making certain data available for Mr. Leyk's review. He wrote, We will make all public data you requested available for inspection at [the Lindquist Vennum law offices in Minneapolis].

In his opinion request, Mr. Leyk wrote:

Under Minnesota Statute Chapter 13hellip;the inspection of public data will be At reasonable times and places (MN Stat. 13.03, subd. 3). By moving this inspection to an independent contractor of RTS in Minneapolis, MN, they appear to violate the language and intent of Chapter 13hellip;.What would prevent a Minnesota Government Agency from hiring a law firm, or other entity, from a different state and claiming that site will be the inspection location?

(Mr. Leyk and RTS are located in the St. Cloud, MN, area, approximately 60 minutes northwest of Minneapolis.)

Issue:

Based on Mr. Leyk's request for an advisory opinion, the Commissioner agreed to address the following issue:

Is Resource Training and Solutions in compliance with Minnesota Statutes, Chapter 13, by requiring a data requestor to inspect data at its attorney's office, which is located in a different city?

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Discussion:

Before proceeding, the Commissioner notes there is no dispute that RTS is a service cooperative pursuant to Minnesota Statutes, section 123A.21, and as such, is subject to the provisions of Chapter 13.

Pursuant to Minnesota Statutes, section 13.03, subdivision 1, government entities are required to keep records containing government data in such an arrangement and condition as to make them easily accessible for convenient use. In addition, subdivision 3 of section 13.03 provides that persons shall be permitted to inspect and copy public government data at reasonable times and places.

In his comments to the Commissioner, Mr. Pursell cited section 13.03, subdivision 3, and wrote:

The statute conspicuously does not require this inspection at the agency's offices. When the Legislature intends such a result, it knows how to say so... The obvious answer to Mr. Leyk's what if scenario is that making records available to a Minnesota resident through a law firm in another state would probably not meet the statutory reasonableness test. [Emphasis provided.]

... In this instance, reviewing records at the law office will have two advantages. In the past, Mr. Leyk has sought non-public data. Many of his questions are likely to require judgment calls about what is public under the statute. These questions will require the advice of counsel, and are better made in the law office than requiring outside counsel to travel to the agency's office. Review at the law office will also avoid disrupting the agency's functioning...

Here, RTS is the involved government entity. As such, it is subject to certain requirements in Chapter 13, namely - for purposes of this opinion - maintaining government data so they are easily accessible for convenient use and providing opportunities, at reasonable times and places, for data requestors to inspect and copy data.

Mr. Pursell (and his law firm), in his role as RTS' attorney, apparently is in possession of some of the data Mr. Leyk requested. The Commissioner, having not received any information regarding the contractual relationship between RTS and Mr. Pursell, assumes that RTS, not Mr. Pursell, is the entity responsible for ensuring a proper response to Mr. Leyk's data request. If Mr. Pursell's law firm were located relatively close to the offices of RTS, it would be reasonable for RTS to require Mr. Leyk to inspect the data at the law firm. This is not the case, however, as the law offices are located some 60 miles away. Pursuant to Chapter 13, RTS is obligated to provide the data to Mr. Leyk at reasonable times and places. Here, it is not reasonable for RTS to require him to go to Minneapolis to gain access to the data.

A final note is appropriate. In his comments, Mr. Pursell wrote that it would be advantageous for Mr. Leyk to travel to Mr. Purcell's office because many of Mr. Leyk's questions are likely to require judgment calls about what is public under the statute and that [such] questions will require the advice of counsel. To clarify, RTS is obligated under Chapter 13 to provide Mr. Leyk with access to the public data he requested. Either RTS does or does not have public data for him to inspect. Whether or not public data exist is not a matter Mr. Leyk should need to discuss with Mr. Purcell. In addition, if Mr. Leyk has questions about the public data RTS provides, RTS is obligated to inform him of the meaning of the data. (See section 13.03, subdivision 3(a).)

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Opinion:

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

Resource Training and Solutions is not in compliance with Minnesota Statutes, Chapter 13, in requiring a data requestor to inspect data at its attorney's office, which is located in a different city.

Signed:

Dana B. Badgerow
Commissioner

Dated: May 20, 2005

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