1-0205-15336-2

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

FOR THE COMMISSIONER OF ADMINISTRATION

 

In the Matter of the Appeal of the Determination of the Responsible Authority for the City of Richfield that Certain Data about Jeanne Biever are Accurate and/or Complete

FINDINGS OF FACT,

CONCLUSIONS AND

RECOMMENDED ORDER

         

This matter came on for hearing before Administrative Law Judge George A. Beck on October 14, 2003 at the Office of Administrative Hearings in Minneapolis, MN.  The record closed on the date of the hearing after final arguments by the parties.

Jeanne Biever, 6701 17th Avenue South, Richfield, MN 55423 represented herself at the hearing assisted by Bob Hall.  The City of Richfield was represented by Mary D. Tietjen, Esq. of the firm of Kennedy and Graven, 200 South 6th Street, Suite 470, Minneapolis, MN 55402.

NOTICE

 

This report is a recommendation, not a final decision.  The Commissioner of Administration will make the final decision after a review of the record.  The Commissioner may adopt, reject or modify the Findings of Fact, Conclusions, and Recommended Order.  Under Minn. Stat. § 14.61, the final decision of the Commissioner shall not be made until this Report has been made available to the parties to the proceeding for at least ten days.  An opportunity must be afforded to each party adversely affected by this Report to file exceptions and present argument to the Commissioner.  Parties should contact Brian Lamb, Commissioner, Department of Administration, 50 Sherburne Avenue, St. Paul, MN  55155, to learn the procedure for filing exceptions or presenting argument.

 

If the Commissioner fails to issue a final decision within 90 days of the close of the record, this report will constitute the final agency decision under Minn. Stat. § 14.62, subd. 2a.  The record closes upon the filing of exceptions to the report and the presentation of argument to the Commissioner, or upon the expiration of the deadline for doing so.  The Commissioner must notify the parties and the Administrative Law Judge of the date on which the record closes.

 

Under Minn. Stat. § 14.62, subd. 1, the agency is required to serve its final decision upon each party and the Administrative Law Judge by first class mail or as otherwise provided by law.

 

STATEMENT OF ISSUE

          Whether the data about Jeanne Biever contained in a tape-recording of an October 24, 2002 meeting with City Manager Samantha Orduno is accurate and/or complete within the meaning of the Minnesota Government Data Practices Act.[1]

Based upon all of the files, records and proceedings in this matter, the Administrative Law Judge makes the following:

FINDINGS OF FACT

1.                Jeanne Biever is a Richfield resident who owns a home in the vicinity of the airport on 17th Avenue and has an interest in airport noise issues, including the acquisition of homes near the airport.  On October 8, 2002 the Richfield City Council voted to use federal funds to purchase apartments on Cedar Avenue instead of homes on 17th Avenue.[2]

2.                In a letter dated October 14, 2002 the City advised residents of a meeting to bring affected persons up to date on airport noise mitigation plans to be held the evening of Wednesday, October 23, 2002.[3]  Ms. Biever and Richfield City Manager Samantha Orduno were both present at the meeting.  At the end of the meeting Ms. Biever questioned Ms. Orduno about whether Congressman Sabo was really pleased with the way the federal funding was being spent.  Orduno told Ms. Biever that she could drop by her office anytime and they would call Congressman Martin Sabo’s office to clarify his view on the spending of federal funds for the acquisition of housing near the airport.[4]

3.                The next morning Ms. Biever called and made an appointment with Ms. Orduno to meet at noon that day (October 24, 2002) at City Hall.  Ms. Orduno decided to tape-record the meeting because she believed that Ms. Biever’s recollections of meetings sometimes differed from that of other participants.

4.                Ms. Orduno did make a tape-recording of the meeting and the City subsequently prepared a transcript of that recording.  Ms. Orduno tape-recorded the meeting so that she and Ms. Biever would have a record of the meeting.[5]  When the meeting ended, Ms. Orduno offered to provide Ms. Biever with a copy of the tape, but Ms. Biever declined.

5.                The tape-recording of the meeting and the transcript did not contain a record of everything that was said during the meeting.  Towards the beginning of the meeting Ms. Orduno made a telephone call to Marjorie Duske at Congressman Sabo’s office in Washington, DC.  Ms. Orduno had a conversation with the receptionist before being referred to Ms. Duske.  The tape-recording includes a statement by Ms. Orduno asking to be put through to Ms. Duske’s voicemail, but the tape-recording does not contain any message that Ms. Orduno left on Ms. Duske’s voicemail.  The tape-recording contains parts of the conversation that Ms. Orduno had with the receptionist.  In the voicemail message that Ms. Orduno left for Ms. Duske, she stated that Ms. Biever was in her office and that Ms. Orduno was calling with the hope to clear up what was said regarding Congressman Sabo’s statements about how the $10 million in noise litigation (funding) was spent.  Ms. Orduno also stated in the voicemail that she and Ms. Biever would be available for a while and asked Ms. Duske to return the call if she received the message.[6]

6.                Towards the end of the meeting Ms. Biever stated that “You have come in there and raped us.”[7]  Ms. Orduno then proceeded to relate some personal comments during which she cried.  With Ms. Biever’s consent, this portion of the tape was taped over while Ms. Biever was still present at the meeting.

7.                The tape-recorder used to record the meeting was voice activated.[8]  It apparently stopped when nothing was being said during the meeting and then restarted when someone spoke.  The fact that the tape-recorder was voice activated was unknown to the participants in the meeting and not discovered by either the City or Ms. Biever until approximately one week prior to the hearing of this matter in October of 2003.

8.                At Ms. Biever’s request, Ms. Orduno agreed that the tape would not be played for anyone else without Ms. Biever’s permission.  This request was noted on the paper jacket on the tape.[9]

9.                After the meeting Ms. Orduno placed the tape in her desk drawer.  About ten minutes after the meeting ended, Ms. Orduno’s assistant, Doris Swanson, entered Ms. Orduno’s office and told her that Ms. Biever had called and asked for a copy of the tape.  Ms. Orduno then gave the tape to Ms. Swanson and told her to have a copy made right away.  Ms. Swanson gave the tape to Deputy City Clerk Deborah Guiher and asked her to make a copy right away.  She made a copy and then returned the original and copy to Doris after about five to seven minutes.

10.             Ms. Biever then picked up the copy of the audiotape on the morning of October 25, 2002 and paid a $5.00 fee.[10]  When Ms. Biever listened to the copy of the tape she believed that it had been edited.  She then filed a written request dated October 27, 2002 asking for a copy of the original unedited version of the tape, asserting her rights under the State Data Practices Act.[11]

11.             On the following Monday morning, October 28, 2002, Ms. Biever called Deborah Guiher and asked her who had made a copy of the tape and who had had it in their possession.  She also asked Ms. Guiher if Ms. Guiher would sit in with Ms. Biever while she listened to the tape.  Ms. Biever also asked if she could view the duplicating equipment.

12.             Later that Monday morning Ms. Biever arrived at City Hall with Bob Hall and Ms. Orduno advised them that they could listen to the original tape but could not view the duplicating equipment.[12]

13.             By a letter dated October 30, 2002, Ms. Orduno advised Ms. Biever that the City would not provide her with the original tape-recording, in order to assure that it was not lost or damaged.[13]

14.             On November 6, 2002, Ms. Biever submitted a data challenge request to Ms. Orduno as the responsible authority for the City, alleging that there were many inaccuracies in the tape and that approximately 10 to 15 minutes were missing, including a voicemail left to Marjorie Duske’s office.[14]

15.             Ms. Orduno replied to Ms. Biever in a letter dated November 7, 2002 in which she acknowledged that the message left on Ms. Duske’s voicemail was not audible on the tape.  Ms. Orduno then stated in her letter that:

In that respect, the tape-recording is incomplete, and this letter will supplement and correct the record.  As you recall, in my phone call to Ms. Duske’s office, I spoke briefly with the person who answered my call and was then put through to Ms. Duske’s voicemail.  In my voicemail to her, I stated that I had you in my office and I was calling with the hope that we could clear up what was said regarding Congressman Sabo’s statements about how the $10 million was spent.  I also told her that we would be here for awhile and that if she got this message to please call back.  The entire phone conversation took less than five minutes.[15]

16.             In her letter Ms. Orduno also stated that the tape may have been shorter than the meeting because a portion was rewound in Ms. Biever’s presence and because the meeting continued for a few minutes after the tape was stopped.  Ms. Orduno stated that the tape had not been edited in any way.

17.             In a letter dated November 18, 2002 Ms. Biever advised Ms. Orduno that she was appealing her decision to the Commissioner of the Department of Administration.[16]

18.             Ms. Biever then filed an appeal of Ms. Orduno’s determination with the Department of Administration on November 26, 2002.[17]  In a letter dated December 3, 2002 the Department asked Ms. Biever to clarify what data about her was being challenged before her appeal could be accepted.[18]

19.             On February 3, 2003 Ms. Biever made another filing with the Department in which she stated that the voicemail to Marjorie Duske was missing from the tape which stated information about Ms. Biever.  She also stated that the tape did not have a question she posed to the City Manager about whether she could erase something from the tape as the City Manager had done.[19]

20.             Deputy City Clerk Deborah Guiher prepared a transcript of the tape-recording using a transcript machine in the Pubic Safety Department of the City.[20]  After the transcript was typed Ms. Guiher later reviewed it and added some changes based upon a second review of the tape-recording.[21]

21.             On March 12, 2003 the Department of Administration issued a Notice of and Order for Hearing setting the hearing in this matter for May 7, 2003.  The hearing was subsequently continued in order to allow the parties to meet in an effort to mediate the dispute.  The mediation effort was not successful.

22.             There are a number of clicks and “whooshes” or “funny sounds” on the tape recording, but no indication that data is missing apart from the voicemail left for Marjorie Duske and the discussion of rape that was erased with Ms. Biever’s agreement.[22]

Based upon the foregoing Findings of Fact, the Administrative Law Judge makes the following:

 

CONCLUSIONS

1.                Minnesota Law[23] gives the Commissioner of Administration and the Administrative Law Judge authority to consider and rule on the issues in this contested case proceeding.

2.                The Notice of and Order for Hearing was proper in all respects and the Department of Administration has complied with all substantive and procedural requirements of law and rule for maintaining this administrative contested case proceeding.

3.                The City of Richfield is a political subdivision of the State and is subject to the provisions of the Minnesota Government Data Practices Act.[24]

4.                Jeanne Biever is the subject of data on an individual that is being maintained by the City of Richfield.[25]

5.                The Data Practices Act defines “data on individuals” as:

“All government data in which any individual is or can be identified as the subject of that data, unless the appearance of the name or other identifying data can be clearly demonstrated to be only incidental to the data and the data are not accessed by the name or other identifying data of any individual.”[26]

6.                The Data Practices Act provides that individual subjects of data may contest the accuracy or completeness of data relating to them with the public authority responsible for maintaining that data.  If the responsible authority declines to correct data about which there is a dispute, individuals may then appeal that decision in a contested case proceeding under the Administrative Procedures Act.[27]

7.                Data on individuals that have been successfully challenged by an individual must be completed, corrected or destroyed by the political subdivision.[28]

8.                “Accurate” means that the data in question is reasonably correct and free from error.[29]

9.                “Complete” means that the data in question reasonably reflects the history of an individual’s transactions with the particular entity.  Omissions in an individual’s history that place the individual in a false light shall not be permitted.[30]

10.             The individual filing an appeal has the burden of proving by a preponderance of the evidence that the data in question is not accurate or complete.[31]

11.             That Ms. Biever has demonstrated that the tape recording is missing the voicemail message left for Marjorie Duske, the contents of which is set out in Finding of Fact No. 15.

12.             That Ms. Biever has failed to demonstrate that data about her in the tape recording is otherwise not accurate or complete.

13.             There is no evidence in this record to indicate that anyone edited or tampered with the tape recording of the October 24, 2002 meeting.

14.             The Memorandum that follows explains the reasons for these Conclusions and is incorporated into the Conclusions.

          Based upon these Conclusions, the Administrative Law Judge makes the following:

RECOMMENDED ORDER

IT IS RESPECTFULLY RECOMMENDED:  That the Commissioner of Administration issue an Order (1) directing the City of Richfield to retain its November 7, 2002 letter to Jeanne Biever with the original of the tape recording of the October 24, 2002 meeting and to provide the letter to anyone requesting the tape; (2) directing the City to provide the letter to anyone who has listened to the tape; and (3) otherwise, dismissing this appeal.

Dated this

29th

day of

October

2003.

 

                                                                

S/ George A. Beck

GEORGE A. BECK

Administrative Law Judge

Reported: Three Tapes,

No Transcript Prepared.

 

MEMORANDUM

          Under the Minnesota Government Data Practices Act, an individual who is the subject of government data has the right to contest the accuracy or completeness of that data.  The City of Richfield is a political subdivision subject to the provisions of the Act.  Rules adopted to implement the Data Practices Act interpret “accurate” to mean that the data in question is reasonably correct and free from error.  “Complete” means that the data reasonably reflects the history of an individual’s transactions with the particular entity.  If data on individuals is successfully challenged, it must be corrected or completed by the political subdivision.

          The appeal filed by Jeanne Biever challenges the accuracy and completeness of a tape-recording of a meeting that she had with City Manager Samantha Orduno on October 24, 2002.  Ms. Biever has the burden of proof to demonstrate that data about her on the tape is not accurate or not complete.  In her initial written appeal to the Department Ms. Biever alleged only that the tape was missing a voicemail to Marjorie Duske which contained information about Ms. Biever.  She also stated that the tape did not contain a question about whether she could erase something from the tape as the City Manager had done.  However, it appears that this question was posed to Ms. Orduno at the end of the meeting after the tape-recording had been ended.  The City did respond to Ms. Biever’s appeal promptly and agreed to supplement the tape with a statement of what was left on Ms. Duske’s voicemail.[32]  However, Ms. Biever continued her appeal and during this contested case proceeding has also argued that data is missing on approximately 17 pages of the transcript of the tape, primarily where clicks are heard or “funny sounds” are heard on the tape.  Ms. Biever has not suggested what data is missing in the transcript and has not alleged that it pertains to her.

          Some portion of Ms. Biever’s suspicion about the content of the tape can be explained by the fact that she did not realize that a voice-activated tape recorder had been used.  This was not discovered until shortly before the hearing in this matter on October 14, 2003.  It appears that the “funny sounds” on the tape may have been caused when the tape recorder stopped or started again.  However, it also appears as though Ms. Biever saw a data challenge as a means to continue her dispute with the City over how noise litigation funding is spent in Richfield.

          The voicemail left for Ms. Duske does refer to Ms. Biever being present in Ms. Orduno’s office and to that extent is data about Ms. Biever.  This is the only data about Ms. Biever that she has demonstrated is missing or inaccurate.  That data may be missing because the voice-activated recorder did not hear it.  Ms. Biever has otherwise failed to meet her burden of proof in this proceeding.  After listening to the tape, the ALJ concludes that it cannot be determined that the tape was altered.  The mere presence of clicks or funny sounds on an inexpensive voice-activated tape recorder does not establish omissions.  The conversation does not contain obvious omissions.  Ms. Biever has not suggested what might be missing, so, in any event, a remedy would not be feasible. 

The record does demonstrate that Ms. Biever has alleged that Ms. Orduno had edited or altered the tape-recording in some fashion.  Ms. Biever has not produced any evidence in this record to support that allegation.  Ms. Orduno has credibly testified that the tape was not edited and the testimony of other City staff supports that conclusion.

          It is therefore recommended to the Commissioner that the tape-recording be supplemented with the November 7, 2002 letter sent by Ms. Orduno to Ms. Biever, which sets out the information that was left on the voicemail.[33]  It is further recommended that the appeal be otherwise dismissed.

                                                                                                    G.A.B.


[1] Minn. Stat. § § 13.01-.90.

[2] Ex. C.

[3] Ex. H.

[4] Ex. 10.

[5] Stipulation.

[6] Stipulation.

[7] Ex. 4, p. 25.

[8] Ex. 1.

[9] Ex. 2.

[10] Ex. 5.

[11] Ex. 6, 8.

[12] Ex. 10, p. 3.

[13] Ex. 9.

[14] Ex. 11.

[15] Ex. 12.

[16] Ex. 13.

[17] Ex. 14.

[18] Ex. 15.

[19] Ex. 16.

[20] Ex. 3.

[21] Ex. 4.

[22] Ex. 2, Ex. 4, Ex. A.

[23] Minn. Stat. § § 13.04, subd. 4 and 14.50.

[24] Minn. Stat. § § 13.01, subd. 1 and 13.02, subd. 11.

[25] Minn. Stat. § 13.02, subd. 5.

[26] Minn. Stat. § 13.02, subd. 5.

[27] Minn. Stat. § 13.04, subd. 4.

[28] Minn. Stat. § 13.04, subd. 4.

[29] Minn. Rule pt. 1205.1500, subp. 2A.

[30] Minn. Rule pt. 1205.1500, subp. 2B.

[31] Minn. Rule pt. 1400.7300, subp. 5.

[32] Finding of Fact No. 15.

[33] Ex. 12.