Minnesota
One of the biggest
problems reporters in Minnesota report is high processing fees from government
agencies. And because software and programming are exempt from the law, reporters
have no way of knowing if they were charged fairly. Minneapolis Star-Tribune
reporter Dan Browning notes that typically "it’s free to inspect records.
I’ve taken the approach of asking to inspect data first, then asking for
selected copies. I’ve even done this with databases. It makes it more difficult
for them to jack up the charges if you know what they’re dealing with."
When a state representative
requested e-mail backup tapes from the Minnesota Department of Transportation,
the agency said that back-up tapes were not contained in database format and
that restoring the information would cost about $99,950. Before beginning the
process, the agency requested a prepayment of $51,000. A Minnesota Department
of Administration opinion (see below) said that inspection of the information
should be free.
The law. The
Government Data Practices Act defines "government data" to include
"all data collected, created, received, maintained or disseminated . .
. regardless of its physical form, storage media or conditions of use."
Minn. Stat. § 13.01, subd. 7. All "government data collected, created,
received, maintained or disseminated by a state agency, political subdivision,
or statewide system" must be kept "in such an arrangement and condition
as to make them easily accessible for convenient use." § 13.03, Subd.
1. The Data Practices Act does not apply to "records" but to "data."
The Act makes it clear that the format of the data is not critical to its accessibility.
"Photographic, photostatic, microphotographic, and microfilmed records
shall be considered as accessible for convenient use regardless of the size
of such records." § 13.03, subd. In addition, if an agency maintains
public data "in a computer storage medium," a requestor may specify
a copy of the data in that medium, if the government entity "can reasonably
make the copy or have a copy made." § 13.03, subd. 3(e).
Cases &
opinions. In Minnesota, open records requesters can appeal to the state’s
commissioner of Administration. Reporters regularly appeal requests to the commissioner.
In addition, any government entity can request an advisory opinion from the
Commissioner on any question concerning public access to government data, rights
of subjects of data, or classification of data. An advisory opinion is not binding
on the government entity whose data are the subject of the opinion. However,
a court must give deference to the opinion in a proceeding that involves the
data in dispute. A government entity or person that conforms with an opinion
will not be liable for compensatory or exemplary damages, awards of attorneys
fees or penalties.The state welfare department had to release data stored on
a computer tape because the storage format did not affect the information’s
status as a public record, but the requester had to pay all costs, including
the cost of programming to compile the specific data sought. Minnesota Medical
Association v. Minnesota, 274 N.W.2d 84 (Minn. 1978).
"E-mails generated
or received by the Minnesota Department of Transportation (Mn/DOT) employees
and that contain information about the Hiawatha Light Rail Transit (LRT) project
are presumed public. Pursuant to Chapter 13, the e-mails in question are government
data, regardless of the form in which they are maintained. Pursuant to Chapter
13, Mn/DOT’s back-up tapes are government data and are presumed public.
Under Chapter 13, a government entity may not require the data requestor to
make an initial payment of $51,000 before processing the request for access
to data. In this case, the requestor seeks only to inspect the data; pursuant
to section 13.03, subdivision 3, inspection of public government data is free."
Minn. Dept. of Administration Advisory Opinion:00-019, June 16, 2000.
When a television station requested copies of the Hennepin County Property Tax System, the county quoted a price of $13,500. The Department of Administration’s advisory opinion on that matter found that the county had not properly justified the charge. Advisory Opinion: 02-004, Feb. 7, 2002.
Fees.
A government agency may not charge a requester who only inspects data. Fees
for copies or electronic transmittal of data may include "the actual costs
of searching for and retrieving government data, including the cost of employee
time, and for making, certifying, compiling, and electronically transmitting
the copies of the data or the data, but [the agency] may not charge for separating
public from not public data." When a copy contains "government data
that has commercial value and is a substantial and discrete portion of or an
entire formula, pattern, compilation, program, device, method, technique, process,
data base, or system developed with a significant expenditure of public funds
by the agency, the responsible authority may charge a reasonable fee for the
information in addition to the costs of making, certifying, and compiling the
copies." That fee may include a share of the "actual development costs
of the information." Minn. Stat. § 13.03(3).
If electronic data
are made available in electronic form on a remote access basis, inspection includes
both remote access and the ability to print copies of or download the data.
An agency may charge a fee for such remote access "under a specific statutory
grant of authority." It may also charge a fee for remote access to data
"where either the data or the access is enhanced at the request of the
person seeking access." § 13.03, subd. 3(b).
If the government
data in question have "commercial value," and are "a substantial
and discrete portion of or an entire formula, . . . compilation, program, .
. . database, or system developed with a significant expenditure of public funds
. . ." the agency may charge a "reasonable fee for the information
in addition to the costs of making, certifying, and compiling the copies."
The fee must clearly "relate to the actual development costs of the information."
§ 13.01, subd. 3(d).
Finally, an agency
shall provide an electronic copy of public government data maintained in "a
computer storage medium" if the agency "can reasonably make the copy
or have a copy made." The agency may charge "the actual cost of providing
the copy." § 13.03, subd. 3(e).
If a database contains
both public and nonpublic data, an agency cannot charge for separating the data.
§ 13.03, subd. 3(c). However, separating such data stored in electronic
format may involve complicated programming, which might slow access.
Software.
Section 13.03, subd. 3 states that a request for an entire "program"
with commercial value may trigger a fee related to the development costs of
a program. Section 13.03, subd. 5 allows an agency to acquire a patent copyright
for a software program, or program components thereof, and to enforce such rights.
If the program or component is patented, it is treated as "trade secret
information" protected by § 13.37. If a third party has provided proprietary
software to the state, it may not fall within the definition of government data,
or would be protected as "trade secret information." § 13.37,
subd. 1(b).
Resources. Information Policy Analysis Division, Department of Administration opinion index