Advisory Opinion 07-022

Note: Minnesota Statutes, section 13.601, was further amended in 2008, after this opinion was issued. In the event that there is a conflict between the conclusion in the opinion and the statute, the later enacted statutory language governs.

Facts and Procedural History:

On September 20, 2007, IPAD received a letter, dated September 18, 2007, from Sheila Kihne. In her letter, Ms. Kihne asked the Commissioner to issue an advisory opinion regarding her right to gain access to certain data from the Minnesota Pollution Control Agency (MPCA.)

In response to Ms. Kihne's request, IPAD, on behalf of the Commissioner, wrote to Brad Moore, Commissioner of MPCA. The purposes of this letter, dated September 24, 2007, were to inform him of Ms. Kihne's request and to ask him to provide information or support for MPCA's position. On October 1, 2007, IPAD received a response, dated same, from Ann E. Cohen, Assistant Attorney General, on behalf of MPCA. Ms. Cohen submitted additional comments in a letter dated October 12, 2007.

A summary of the facts as Ms. Kihne presented them follows. Ms. Kihne wrote that she first requested access to the home addresses for the individual members of the Minnesota Climate Change Advisory Group (MCCAG) in late June 2007, in a telephone conversation with an MPCA staff member. Initially she was told she could have the data; the following day she was told she could not.

Ms. Kihne stated that she then requested access to the home addresses of MCCAG members via e-mail and fax on July 12, 2007. David J. Thornton, Assistant Commissioner of MPCA replied in an e-mail on July 19, 2007, that the home addresses were private.

Ms. Kihne then sent a July 30, 2007, e-mail to Commissioner Moore, and repeated her request. In her e-mail, Ms. Kihne wrote: [i]f the PCA is going to deny access to this information then I'd like to request for [sic] a citation of statute that supports that decision.

In an e-mail dated July 31, 2007, Mr. Thornton replied, I regret that I did not include the statutory citation that we consulted prior to my response to your initial request. I have included it below. Mr. Thornton included citations to sections 13.601, elected and appointed officials, and 13.43, personnel data. He stated [a]gain, our interpretation of the statute is that their home address is private information.

In her comments to the Commissioner, Ms. Cohen referred to MCCAG as an appointed advisory body. She stated that under section 13.43, the definition of personnel data includes data on individuals who perform services on a voluntary basis for a government entity, and that home addresses of volunteers are not public under that section. Ms. Cohen stated that MPCA's position is consistent with Advisory Opinion 00-049, in which the Commissioner opined that the home address of a member of a school board was private. She wrote: . . . such members were 'employees' of the School District and . . . data about such persons was 'personnel data.'

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Issue:

Based on Ms. Kihne's opinion request, the Commissioner agreed to address the following issue:

Did the Minnesota Pollution Control Agency comply with Minnesota Statutes, Chapter 13, when it denied public access to the home addresses of individual members of the Minnesota Climate Change Advisory Group?

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Discussion:

Pursuant to Minnesota Statutes, section 13.03, subdivision 1, government data are public unless otherwise classified.

The 2005 Legislature enacted changes to provisions relating to data on individuals who are members of or applicants to advisory boards or commissions. Of relevance here, prior to August 1, 2005, data about members of or applicants to advisory boards or commissions were classified under section 13.43; home addresses of those individuals were classified as public. The effect of the 2005 change is that data about members of or applicants to advisory boards or commissions are now classified under section 13.601.

Pursuant to section 13.601:

The following data on all applicants for election or appointment to a public body, including those subject to chapter 13D, are public: name, city of residence, education and training, employment history, volunteer work, awards and honors, and prior government service or experience.

In Advisory Opinion 05-036, the Commissioner opined:

Pursuant to section 13.03, subdivision 1, government data are public unless otherwise classified. Section 13.601, subdivision 3, provides that certain data are public - essentially, restating the general presumption. This does not mean that all other data on applicants for election or appointment to a public body are not public. Given the operation of Chapter 13, if the Legislature intended for all other data on applicants for election/appointment to be not public, the Legislature needed to enact a provision so stating.

The Commissioner respectfully disagrees with MPCA's position, as articulated by Ms. Cohen, that members of MCCAG are considered volunteers for purposes of section 13.43. Members of and applicants to boards or commissions are treated as a group separate from volunteers. As noted earlier, in the definition of personnel data that was in effect prior to the 2005 legislation, volunteers and members of or applicants to advisory boards or commissions were distinct categories of individuals, both of whose data were classified under section 13.43. Now, data on those distinct categories of individuals are classified under separate statutes. Data on volunteers are still classified under section 13.43; data on board/commission members/applicants are now classified under section 13.601.

The Commissioner also disagrees that Advisory Opinion 00-049, which was issued prior to the 2005 legislative change, applies here. In that case, school board members were considered employees of the District, and therefore data about them are classified under section 13.43. Ms. Cohen did not state that MPCA considers MCCAG members employees for purposes of section 13.43.

Data about appointed members of advisory boards like MCCAG are classified under section 13.601, which does not classify home addresses as private. Accordingly, the home addresses of MCCAG members are public under the general presumption in section 13.03.

The Commissioner notes that subsequent to 05-036, the Minnesota Attorney General issued two opinions (July 14, 2006; October 6, 2006) related to narrow issues involving the application of section 13.601 to data about candidates for appointment or election to, or incumbents of, elective office, which are not applicable here.

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Opinion:

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

The Minnesota Pollution Control Agency did not comply with Minnesota Statutes, Chapter 13, when it denied public access to the home addresses of individual members of the Minnesota Climate Change Advisory Group.

Signed:

Dana B. Badgerow
Commissioner

Dated: October 31, 2007

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