Advisory Opinion 03-022

Facts and Procedural History:

On May 30, 2003, IPAD received a letter from Daniel M. Lieber. In this letter, Mr. Lieber asked the Commissioner to issue an advisory opinion regarding his right to gain access to certain data maintained by the City of St. Paul.

In response to Mr. Lieber's request, IPAD, on behalf of the Commissioner, wrote to Donald Luna, St. Paul City Clerk. The purposes of this letter, dated May 30, 2003, were to inform him of Mr. Lieber's request and to ask him to provide information or support for the City's position. On June 9, 2003, IPAD received a response from Reyne M. Rofuth, Senior Assistant City Attorney. In addition, IPAD invited the Minnesota Department of Public Safety to submit comments; the Department declined to do so. A summary of the facts of this matter follows.

In a letter dated April 8, 2003, to the St. Paul Police Department, Mr. Lieber requested the names and addresses of those who have been involved in property damage only automobile accidents, where the apparent extent of damage is $1000.00 or more.

In a letter dated May 1, 2003, the City responded to Mr. Lieber: the department does not write reports on traffic accidents unless there is a personal injury to any party or unless the officer responding to the scene discovers a driver's license or other violation of law. Therefore, we do not collect or maintain the data you requested.

In addition, in response to several questions posed by Mr. Lieber, the City responded that it does not collect or create the data he requested; that it does not believe it is obliged to do so under section 169.09, subdivision 8; and that it may collect, under section 13.82, certain data in response to a request for service in connection with an automobile accident.

In his opinion request, Mr. Lieber stated: [o]bviously, one of my concerns is that the Saint Paul Police Department is responding to service requests from the public, or on their own initiative, and absolutely no data is being collected. It would seem that the department is purposely circumventing the Chapter 13 rights of the public by not collecting data. (Emphasis his.)

In her comments to the Commissioner, Ms. Rofuth referred to various correspondence between Mr. Lieber and the City, in which he has cited Minnesota Statutes, Section 169.09, Subdivisions 8, 9, and 10 (2003) and Section 13.82 (2003), as authority that the Department is mandated to collect certain accident information, and to not do so, is a violation of either of those statutes.

Ms. Rofuth continued:

The Department's information is that for a period of time, unless there was a personal injury to a party in an accident or unless the Department subsequently discovers a driver's license or other violation of law, the Department officers did not investigate accidents, did not collect data to fill out accident report forms, nor did it fill out the accident report forms. When Department officers were dispatched to accident scenes, routine request for service and response data was created and maintained pursuant to Minn. Stat. section 13.82, subd. 3 and 6. But not all subpart data from these two subdivisions were created on every dispatch. If accidents involved the Department perquisite criteria of personal injury or violations of law, Department officers did investigate the accident, did collect accident report data and did fill out accident report forms.

The Department's legal comment is that there is no statutory mandate that the Department investigate, collect accident report data and fill out accident reports pursuant to Minnesota Statutes, Section 169.09 or Minnesota Statutes, Chapter 13. The Department has the legal discretion as to what it investigates and due to budgetary concerns, investigative practices vary from year to year. If Department officers investigated an accident, accident report data was collected and the accident report form was filled out and processed pursuant to Minn. Stat section 169.09.

Ms. Rofuth further stated that under section 169.09, subdivision 8, a police officer is obliged to file an accident report form only if the officer investigates the accident. Being dispatched to an accident scene and talking to parties of an accident is not an investigation. If there is no investigation, the police officer has no statutory responsibility to collect accident report data nor to collect data to be forward [sic] to the commission [sic] on an accident report form.

Ms. Rofuth also discussed the applicability of section 169.09, subdivisions 3, 4, 7, 9 and 10, and stated that none of these statutory provisions mandates that police officers investigate accidents or collect or create accident report data. In addition, Ms. Rofuth stated that section 13.82, subdivisions 3 and 6 do not mandate the collection of data.

Issue:

In his request for an opinion, Mr. Lieber asked the Commissioner to address the following issue:

If a law enforcement agency responds to a request by the public for law enforcement services or takes action on its own initiative, and the request or action relates to a property-damage-only accident where the apparent extent of damage is $1000 or more, have the Chapter 13 public access rights been violated if the agency has not created or collected any data?

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Discussion:

Minnesota Statutes, section 169.09, subdivision 7, provides, in relevant part:

The driver of a vehicle involved in an accident resulting in bodily injury to or death of any person or total property damage to an apparent extent of $1,000 or more, shall forward a written report of the accident to the commissioner of public safety within ten days thereof.

Section 169.09, subdivision 8, provides:

A law enforcement officer who, in the regular course of duty, investigates a motor vehicle accident that must be reported under this section shall, within ten days after the date of the accident, forward an electronic or written report of the accident to the commissioner of public safety.

According to Ms. Rofuth, for a period of time the City did not investigate traffic accidents, or collect the data required on accident report forms, unless there was a personal injury to a party in an accident or unless the Department subsequently discovers a driver's license or other violation of law. The City may have created routine request for service and response data pursuant to section 13.82, subdivisions 3 and 6.

Ms. Rofuth also stated that under section 169.09, subdivision 8, a police officer must file an accident report form only if the officer investigates the accident. Being dispatched to an accident scene and talking to parties of an accident is not an investigation.

In her comments, Ms. Rofuth suggested that when an officer reaches the scene of an accident, s/he, at the least, determines: 1) whether there was an injury to a person; 2) whether there is apparent property damage of at least $1000.00; and 3) whether the driver(s) has a license or other outstanding violation.

The Commissioner agrees with the City's position that Chapter 13 does not mandate the collection of specific data in this circumstance. By way of contrast, section 169.09 does require the collection or creation of specific data under certain conditions. Nonetheless, Minnesota Statutes, section 15.17, requires that [a]ll officers and agencies of [government entities] shall make and preserve all records necessary to a full and accurate knowledge of their official activities. Section 15.17, subdivision 4, states: [a]ccess to records containing government data is governed by sections 13.03 and 138.17. Accordingly, section 15.17, read in concert with section 13.03, imposes an obligation upon government entities to make and preserve a record of their actions, so that those records will be available for public inspection.

The Commissioner said the following in Advisory Opinion 01-064:

The City's position, as articulated by Mr. Steiner, is that the Police Department has met its obligation under section 15.17. Mr. Erickson argues there is a specific set of facts that the Police Department did not record, as well as the general lack of an official report. While Mr. Steiner is correct that the City has certain discretion regarding what data it records and maintains, it must meet the threshold provided in section 15.17; that is, the City must make and preserve all records necessary to a full and accurate knowledge of their official activities. [Emphasis added.]

Apparently, the only data created about the first of the two police responses to Mr. Erickson's residence (Case #MP99400432) are those contained in the Emergency Communication Records. This document appears to be a log sheet documenting radio communications with the officers. Given Mr. Erickson's accounting of the events that occurred in relation to #MP99400432, it is not clear why the officers involved did not create a more detailed report of the incident. What little record the Department did create, does not enable the public to gain any understanding of the officers' official activities in relation to their response to Mr. Erickson's request for assistance. There appears to be no record of what the officers did while in and around Mr. Erickson's home and why they did what they did.

. . . . It is the Commissioner's opinion, therefore, based on the information provided, that the City did not sufficiently demonstrate why it did not, in this case, produce a record that would fully and accurately document the activities conducted by the police officers dispatched to Mr. Erickson's home.

The same reasoning holds here. Under section 15.17, the City is obliged to document the actions its officers take as they perform their official duties at an accident scene. In her comments to the Commissioner, Ms. Rofuth stated that, at least for some period of time, City officers did not collect data to fill out accident report forms, but that officers dispatched to accident scenes did create routine request for service and response data, per section 13.82, subdivisions 3 and 6, but that not all subpart data from these two subdivisions were created on every dispatch. Further, the City told Mr. Lieber that it does not collect or maintain the data he requested, i.e., the names and addresses of those who have been involved in property-damage-only automobile accidents, where the apparent extent of damage is $1000.00 or more. It's not clear what data the City does create or collect when it responds to accidents. However, section 15.17 does mandate that the City somehow document the official actions of its officers. To the extent that documentation corresponds to the public data provisions of section 13.82, or are otherwise public under section 13.03, those data are public. The Commissioner acknowledges that it is up to the City to determine the specific data it is obligated to collect, create and maintain.

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Opinion:

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

If a law enforcement agency responds to a request by the public for law enforcement services or takes action on its own initiative, and the request or action relates to a property-damage-only accident where the apparent extent of damage is $1000 or more, the Chapter 13 public access rights have been violated if the agency does not collect, create or maintain any data, because the agency has failed to document its actions as required under section 15.17.

Signed:

Brain J. Lamb
Commissioner

Dated: July 10, 2003

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