Advisory Opinion 05-031

Facts and Procedural History:

On September 23, 2005, IPAD received a letter dated September 16, 2005, from Steven Wagner, of The Forum of Fargo-Moorhead. In his letter, Mr. Wagner asked the Commissioner to issue an advisory opinion regarding his right to gain access to certain data that the City of Moorhead maintains.

IPAD, on behalf of the Commissioner, wrote to Bruce Messelt, City Manager, in response to Mr. Wagner's request. The purposes of this letter, dated September 26, 2005, were to inform him of Mr. Wagner's request and to ask him to provide information or support for the City's position. On October 13, 2005, IPAD received a response, dated October 11, 2005, from Brian Neugebauer, an attorney representing the City.

A summary of the facts as Mr. Wagner provided them is as follows. In a letter dated August 16, 2005, Mr. Wagner requested data from the City regarding an August 16 incident involving an alleged killing at a hotel. Police had responded to a 911 call. Of relevance here, Mr. Wagner wrote:

Please consider this a formal request under the state's Data Practice laws for access to all public information.

We are also requesting a transcript of the 911 call relating to this incident, as provided in Minnesota Statute 13.82, subdivision 4. The law says a transcript of the call shall be prepared upon request.

On August 22, 2005, the City responded via a memorandum prepared by an assistant Clay County attorney. The attorney wrote:

In considering the Forum's request for a transcript of the 911 call relative to this incident, it is my opinion that release of that information should be denied. Such information is currently classified as confidential or protected nonpublic data, Minn.Stat. section 13.82, Subd. 7, as it is active investigative data, which has been collected or created by the Moorhead Police Department in order to prepare a case against a person for the commission of a crime. The Moorhead Police Department currently maintains the primary investigative responsibility for the incident.

Issue:

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

Did the City of Moorhead comply with Minnesota Statutes, Chapter 13, in denying access to a request for a transcript of a 911 call?

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Discussion:

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

Data that law enforcement agencies collect, create, and maintain are classified pursuant to section 13.82. Certain law enforcement data are always public, certain law enforcement data are never public, and certain law enforcement data may become public depending on the occurrence of certain events.

Subdivision 4 of section 13.82, in relevant part, states:

The audio recording of a call placed to a 911 system for the purpose of requesting service from a law enforcement, fire, or medical agency is private data on individuals with respect to the individual making the call, except that a written transcript of the audio recording is public, unless it reveals the identity of an individual otherwise protected under subdivision 17. A transcript shall be prepared upon request.

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

Although Minn. Stat. section 13.82, subdivision 4 makes available the transcript of calls for service placed to a 911 system, it is inapplicable in the instant case. Subdivision 4 is inapplicable because the call in the instant case involves evidence of a crime and has been collected by the Moorhead Police Department as part of its active investigation of [the caller] and it is not merely a call for service. Subdivision 7 [of section 13.82] makes confidential information concerning active investigations and specifically does not exempt subdivision 4 from its broad protection for investigative information.This interpretation is consistent with the practical needs of law enforcement agencies and prosecutors not to release transcripts of 911 calls that involve evidence of criminal activity that will be utilized to prosecute the individual making the call.

The Commissioner disagrees, having opined on a similar issue in Advisory Opinion 01-050:

Ms. Rofuth also argued that the caller's identity and the 911 transcript are not public because they are criminal investigative data pursuant to section 13.82, subdivision 7. The Commissioner respectfully disagrees. As discussed above, arrest, request for service, and response or incident data, including the name and address of the individual making the request, are always public. Subdivision 7 provides: [e]xcept for the data defined in subdivisions 2, 3, and 6, investigative data . . . is confidential or protected nonpublic while the investigation is active. Accordingly, the identity of an individual making a request for service is public under subdivision 6. A law enforcement agency is not obligated to disclose to the public that the individual is also a suspect. See also Advisory Opinion 00-078 in which the Commissioner addressed a similar issue.

As discussed above, Ms. Rofuth did not demonstrate that, in this case, the caller's identity qualifies for protection under subdivision 17. Therefore, the transcript is public data. It is the Commissioner's opinion that the transcript cannot be protected under subdivision 7 as criminal investigative data because it is not data that the Department collected or prepared in order to prepare a case against the caller. Rather, a call of this nature to a 911 center is a type of request for service data.

Subdivision 7 of section 13.82 temporarily protects data collected or created by a law enforcement agency in order to prepare a case against a person. Thus, because the August 16, 2005, call placed to the 911 center is not data the City collected or created to prepare a case against an individual, it is not appropriate for the City to use subdivision 7 to deny access to the data. Further, section 13.82, subdivision 17, allows an entity to withhold certain public data if the data reveal the identity of an individual protected under subdivision 17. Mr. Neugebauer did not assert that the caller's identity should be protected under subdivision 17. The City promptly should release a copy of the transcript to Mr. Wagner.

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Opinion:

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

The City of Moorhead did not comply with Minnesota Statutes, Chapter 13, in denying access to a request for a transcript of a 911 call.

Signed:

Dana B. Badgerow
Commissioner

Dated: October 25, 2005

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