Advisory Opinion 05-017

Facts and Procedural History:

On March 18, 2005, IPAD received a letter dated same, from Tim Nelson, a reporter for the Saint Paul Pioneer Press. In his letter, Mr. Nelson asked the Commissioner to issue an advisory opinion regarding his right to gain access to certain data that the City of Saint Paul maintains.

IPAD, on behalf of the Commissioner, wrote to Donald Luna, City Clerk, in response to Mr. Nelson's request. The purposes of this letter, dated March 25, 2005, were to inform him of Mr. Nelson's request and to ask him to provide information or support for the City's position. On April 14, 2005, IPAD received a response, dated same, from Gerald Hendrickson, Deputy City Attorney.

A summary of the facts as Mr. Nelson provided them is as follows. In an email dated February 6, 2005, Mr. Nelson wrote, We would like to see Sia Lo's personnel file, as well as any other written or recorded records of any complaints against him in the city's possession.

In an email to the city dated February 11, 2005, Mr. Nelson amended and clarified his February 6, 2005, request. Of relevance to this opinion, he asked for:

1. Any email in the city's possession regarding Sia Lo's work on the Hmong Funeral home; any other electronic communications he or any other city employees had regarding that project and Song Lo Fawcett, J. Kue Vang, Kue Vang, JB Realty, Cha Vang, the St. Paul Port Authority, the Vang Pao Foundation, the Kelly and Fawcett law firm Kamp;F Acquisitions, Kamp;F Development or Kurt Schultz; any email detailing allegations against Lo brought by city employees or non-city employees.

2. Any documents in the city's possession regarding Sia Lo's work on the Hmong Funeral Home; any other paper communications or records in the possession of Lo or any other city employees had regarding that project,... any paper communications between Song Lo Fawcett, J. Kue Vang, Cha Vang, the St. Paul Port Authority, or... Kurt Schultz; any email detailing allegations against Lo brought by city employees or non-city employees...

5. I would like a copy of Sia Lo's city personnel file, including any allegations of wrongdoing lodged against him... and the accuser; any disciplinary records, training or counseling documents and job descriptions.

6. I would like copies of any requests for public information under [Chapter 13] that you receive from any other... ;media organizations...

The City responded in an email dated March 3, 2005.

This is in response to your request for a written justification for not providing access to the personal e-mails of Sia Lo, an employee of the City of Saint Paul. This correspondence explains more fully what I told you verbally earlier.

The Office of the City Attorney advised me that Mr. Lo's personal e-mails were not subject to disclosure under Minnesota law.

Where, as in Saint Paul, city policy allows for incidental personal use of the city e-mail system, and where the employee does not create or maintain an e-mail in his capacity as a government employee, the e-mails are personal, and not government data subject to disclosure...

The City of Saint Paul Internet Access and E-Mail Policy does allow for incidental personal use of the city e-mail system by employees. Thus those e-mails on Mr. Lo's computer that were not created or maintained in his capacity as a city employee are personal, not governmental data.

We carefully reviewed all of Mr. Lo's e-mails. We gave you all those e-mails that were created or maintained by him in his capacity as a city employee or relating to his governmental duties. The only documents which we did not provide to you are those that do not fit these standards. It is our belief that the law makes these his personal e-mail messages, not government data. That is they are his, not the City's, so we are not authorized to release them.

I also want to make it clear to you that Mr. Lo's duties included working on the Hmong funeral home matter. Consequently, we gave you all of Mr. Lo's e-mails dealing with that subject...

Issues:

Based on Mr. Nelson's opinion request, the Commissioner agreed to address the following issues:

1. Did the City of Saint Paul comply with Minnesota Statutes, Chapter 13, in responding to a February 11, 2005, request for copies of any requests for public information under [Chapter 13] that [the City received] from any other [media organizations] ? 2. Did the City of Saint Paul comply with Minnesota Statutes, Chapter 13, in refusing to release certain data in emails relating to a specific City employee?

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Discussion:

Issue 1:

Did the City of Saint Paul comply with Minnesota Statutes, Chapter 13, in responding to a February 11, 2005, request for copies of any requests for public information under [Chapter 13] that [the City received] from any other [media organizations] ?

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, section 1205.0300.)

In his comments to the Commissioner, Mr. Hendrickson wrote:

At the time of Mr. Nelson's request for data, the City intended to provide him with the copies of other media organizations' request [sic], but through inadvertence, failed to do so. This first came to our attention in your letter to Mr. Luna. Thereafter, the City provided this data to Mr. Nelson along with an apology.

Mr. Hendrickson provided a copy of the April 7, 2005, letter the City sent to Mr. Nelson.

Mr. Nelson requested the data on February 11, 2005. Two months later, the City mailed him the data. Such a response time is not reasonable and therefore the City did not comply with Chapter 13.

Issue 2:

Did the City of Saint Paul comply with Minnesota Statutes, Chapter 13, in refusing to release certain data in emails relating to a specific City employee?

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

In Advisory Opinion 01-075, the Commissioner noted there are situations in which a government entity may be in possession of data that are beyond the purview of Chapter 13. For example, if an entity has a policy that allows for personal use of Internet access, email, or government-owned equipment, related data are not government data, and are personal data. The entity's decision to release or not release those data is not governed by Chapter 13. The Commissioner wrote:

Thus, while the vast majority of data that exist on a City employee's PC or laptop are government data, there also may be data on the employee's computer that are personal. What constitutes these personal data depends on what the City has authorized for personal use. Any such personal data are not government data because, although they have been created and/or maintained on a government-owned PC or laptop, the employee did not create them in her/his capacity as a government employee, and the purpose of the data is not related to the operation of government. Personal data, therefore, do not fall under the purview of Chapter 13 and the Commissioner does not have authority to address the classification of such data.

(See also Advisory Opinions 02-003, 02-049, and 04-030.)

In his comments to the Commissioner, Mr. Hendrickson wrote:

Your division, in [Advisory Opinion 01-075], takes the position that the mere fact that e-mail records are on a city-owned computer does not make the e-mail government data subject to [Chapter 13]. The touchstone of the analysis in that opinion depends on what the City has authorized for personal use. Where, as in Saint Paul, city policy allows for incidental personal use of the city e-mail system, and where the employee does not create or maintain an e-mail message in his capacity as a government employee, an e-mail message is personal, and not government data subject to disclosure...

The City of Saint Paul Internet Access and E-Mail Policy does allow for incidental personal use of the City e-mail system by employees. Thus, the e-mail messages in question that were not created or maintained in the City employee's capacity as a City employee are personal, not governmental data.

Mr. Nelson provided the Commissioner with a copy of the City of Saint Paul Internet Access and E-mail Policy, Revised Effective May 1, 2002. In relevant part, it states:

Personal Use of E-Mail and Internet Access
Incidental and occasional personal use of e-mail and Internet access is tolerated subject to the same policies, procedures and legal considerations that apply to business-related e-mail and Internet use. Incidental and occasional personal use must be done on employee time such as during lunch or breaks. Such personal use is permissible so long as the incremental cost is negligible, no city's business activity is preempted by the personal use, and no city policies or laws are violated. Excessive personal use and personal use in violation of this Policy, can be grounds for discipline up to and including termination. Personal use of the city's Internet access and e-mail constitutes the user's consent to the city to monitor, read, and use in any way any message, record, or other information created by the personal use.

The Commissioner has the following comments. First, the City's policy clearly allows for some personal use of its email and Internet connection. Second, the City apparently is in possession of personal emails that Mr. Lo created. Third, as the Commissioner consistently has discussed, such data are not subject to the provisions of Chapter 13.

It should be noted that if the City is maintaining any of the data in the personal emails to document any past or future disciplinary action it may take against Mr. Lo, it appears those data become government data and are subject to Chapter 13. (See Advisory Opinion 02-049.)

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Opinion:

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

1. The City of Saint Paul did not comply with Minnesota Statutes, Chapter 13, in responding to a February 11, 2005, request for copies of any requests for public information under [Chapter 13] that [the City received] from any other [media organizations]. 2. Assuming the data in the emails withheld by the City were not created by Mr. Lo in his capacity as a government employee, are not related to the operation of government, and are not being maintained to document past or future disciplinary action, the data are not subject to the requirements of Chapter 13.

Signed:

Dana B. Badgerow
Commissioner

Dated: May 11, 2005

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