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OAH 8-0305-21608-DP |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
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Mike and Katie
Schmid,
Complainants, v. Sheriff Brad
Gerhardt, Sheriff, Martin County Sheriff’s Department, Respondents. |
ORDER |
On October 4, 2010, Mike and Katie Schmid (Complainants) filed a Complaint with the Office of Administrative Hearings. The Schmids alleged that Sheriff Brad Gerhardt and the Martin County Sheriff’s Department (the County) violated the Minnesota Government Data Practices Act by denying Complainants the opportunity to listen to, or obtain a copy of, an audio recording of a 911 call made on May 30, 2010. Respondents filed an initial response to the Complaint on October 25, 2010.
After reviewing the Complaint and the County’s Response to the Complaint, the Administrative Law Judge determined that the Complaint presented sufficient facts to believe that violations of Chapter 13 had occurred. Specifically, the Administrative Law Judge concluded that there was probable cause to believe that the County violated Minnesota Statute §§ 13.03 and 13.05, subd. 4(d) by denying the Schmids the opportunity to listen to, or obtain a copy of, an audio recording of a 911 call made on May 30, 2010.
An evidentiary hearing in this matter was held at the Office of Administrative Hearings, 600 North Robert Street, St. Paul, Minnesota with the Sheriff, the County, their counsel, and witnesses P.S., Deputy Jeff Markquart, Sheriff Brad Gerhardt and Martin County Attorney Terry Viesselman appearing via video teleconferencing from the Martin County Public Safety Building. The Administrative Law Judge, the Complainants and their counsel were present in the courtroom at OAH.
Patricia E. Kuderer, Rossi, Cox, Vucinovich, Flaskamp, P.C., appeared on behalf of Complainants Mike and Katie Schmid. Ann R. Goering, Ratwik, Roszak & Maloney, P.A., appeared on behalf of Respondents Brad Gerhardt and the Martin County Sheriff’s Department.
The hearing record closed on Monday, January 10, 2011 following receipt of the parties’ post-hearing submissions.
Based upon the record and all of the proceedings in this matter, including the Memorandum incorporated herein, the Administrative Law Judge makes the following:
FINDINGS OF FACT
1. On May 30, 2009, P.S. dialed 911 and was connected to the Martin County 911 dispatcher. P.S. reported to the dispatcher that she was concerned about reckless boating behavior on a local lake.[1]
2. The Martin County Sheriff’s office sent two deputies to investigate P.S.’s report. One of the deputies intercepted the Schmids on their boat as they moved under a bridge and through a channel and engaged in a conversation with Complainant Mike Schmid about required lights that were missing from their boat.[2]
3. Later that evening, Martin County Sheriff’s deputies arrested Mike Schmid and charged him with obstruction of legal process, fleeing in a motor vehicle, fleeing on foot and improper lights on a boat during night hours.[3]
4. Criminal charges were brought against Mr. Schmid. As part of the criminal proceedings, County personnel disclosed to Mr. Schmid and his attorneys materials relating to the 911 call. Among the disclosures was the identity of the caller, P.S.[4]
5. On June 16, 2010, Complainant Katie Schmid requested to hear the recording of the 911 call made by P.S. The County refused to provide the recording.[5]
6. Also on June 16, 2010, at the request of the Schmids, P.S. summarized her recollection of the 911 call in a written statement.[6]
7. After providing the Schmids with her written statement, P.S. contacted Respondent Gerhardt. She explained that she wanted to listen to the audio of the 911 call with the Schmids. Respondent Gerhardt informed P.S. that the audio was considered private data and that “nobody could listen” to it.[7]
8. In a letter dated June 24, 2010, the Schmids sent the Respondents a formal request to listen to the 911 recording.[8]
9. Following the Respondents’ offer to provide a transcript of the recording, but not the recording itself, the Schmids obtained a copy the transcript from the Respondents on July 2, 2010; yet renewed their request for a copy of the recording “in its raw form.”[9]
10. The transcript was not consistent with P.S.’s recollection of what she said during the call.[10]
11. The Schmids contacted P.S. and asked for a written authorization permitting them, their attorney and Katie Schmid’s father, access to the original 911 recording. On July 23, 2010, P.S. signed an authorization which granted access to the recording “for purposes of listening to the tape or to obtain a copy of the tape.” The authorization stated that it expired 90 days after July 23, 2010.[11]
12. On July 26, 2010, the authorization was submitted to the County from the Schmids’ attorney with a renewed request for access to the recording.[12]
13. Terry Viesselman is the Martin County Attorney.[13]
14. Sometime in mid to late July, Elton Kuderer, Katie Schmid’s father and a former colleague of Mr. Viesselman, visited Mr. Viesselman at his office to discuss the data practice request. Mr. Viesselman explained to Mr. Kuderer the Data Practices Act did not permit a release of the recording.[14]
15. When Mr. Viesselman was presented with P.S.’s authorization, he was concerned about the legal adequacy of the consent form, as well as whether P.S.’s consent to the disclosure was informed and voluntary. Mr. Viesselman telephoned P.S. on July 26 in an attempt to confirm whether she intended to authorize the disclosures.[15]
16. Mr. Viesselman told P.S. that he thought the authorization was insufficient because it did not clearly state the purpose of the release of the data.[16]
17. When Mr. Viesselman asked whether she wanted the tape released, P.S. explained to Mr. Viesselman that she was annoyed by the various contacts she had received regarding the contents of the recording and the disclosure of its contents.[17]
18. P.S. told Mr. Viesselman that she was upset that she had been identified as the 911 caller in the first instance.[18]
19. P.S. recounted that Respondent Gerhardt had earlier told her that the recording was private data and that it was against the law for it to be released to anyone. Sheriff Gerhardt led P.S. to believe that neither her consent, nor a written authorization, would permit disclosure of the recording of the 911 call.[19]
20. Mr. Viesselman told P.S. that this was not correct and that the tape could be released with a proper authorization. Mr. Viesselman said he would deny the request because he thought the release was not technically correct and he would tell the Schmids that there was a problem with the authorization. He would likewise inform them they would need a proper authorization if they wanted a copy of the tape.[20]
21. At the end of the conversation Mr. Viesselman was under the impression that P.S. did not want to release the tape; however, P.S. never revoked her consent or stated that she wished to revoke her consent.[21]
22. In a letter dated July 29, 2010, Mr. Visselman denied the Schmids’ July 26 request for access to the 911 recording. The stated basis for denying the Schmids access to the recording was that the authorization signed by P.S. did not meet the requirements of Minn. Stat. § 13.05, sub. 4(d)(6), in that the authorization did not state “the purpose or purposes for which the information may be used” by the Schmids “both at the time [of] the disclosure and at any time in the future.”[22]
23.
The Schmids were never informed that the
24. Similarly, in a July 29, 2010 letter to P.S., Mr. Viesselman did not reference a withdrawal of P.S.’s consent to disclosure. Instead, the letter focused on the claimed defect that the authorization did not “state the purpose or purposes for which the information may be used by the people having access to it, both at the time of the disclosure and at any time in the future.”[24]
25. P.S. voluntarily signed the July 23, 2010 authorization and never revoked this authorization.[25]
26. Believing that the Respondents had misread the statutory requirements for consent, the Schmids re-submitted the same authorization to the Respondents on September 7, 2010, renewing their request for access to the 911 recording.[26]
27. On September 27, 2010, Mr. Viesselman wrote to the Schmids on behalf of the Respondents, reiterating that the authorization signed by P.S. did not meet the requirements of Minn. Stat. § 13.05, subd. 4(d) and that the Schmids could not have access to the recording.[27]
28. At the hearing in this matter, a digital version of the audio recording was played with P.S.’s knowledge and consent.[28]
CONCLUSIONS
1.
2. Pursuant to Minn. Stat. § 13.085, subd. 6(a), a rebuttable presumption exists that a complainant who substantially prevails on the merits in an action brought under this section is entitled to an award of reasonable attorney fees, not to exceed $5,000. An award of attorney fees may be denied if the judge determines that the violation is merely technical or that there is a genuine uncertainty about the meaning of the governing law.
3.
4.
5. Because P.S. initiated the 911 call that is sought by Schmids, the audio recording of the call is private data as to P.S.
6.
Minn. Stat. § 13.05, subd. 4(d) permits private
data to be “used and disseminated to any person or entity if the individual
subject” of the data gives her informed consent. Additionally, section 13.04, subd. 4(d) authorizes
the Commissioner of Administration to set standards by rule as to whether a
person has given informed consent to the release of private data.
7.
Under Minn. R. 1205.1400, subp. 3, an
authorization qualifies as “informed consent,” if the subject of the data
“possesses and exercises sufficient mental capacity to make a decision which
reflects an appreciation of the consequences of allowing the entity to initiate
a new purpose or use of the data in question.”
8.
P.S. signed the consent to release of data with
an understanding that the Schmids could listen to and obtain a copy of the 911
call. P.S. gave informed consent for the
copy of the 911 audio recording to be released.
9.
P.S. never revoked or withdrew her consent,
either orally or in writing. The fact
that P.S. thought her consent was ineffective to prompt disclosure of the
recording does not alter the analysis.
Notwithstanding her belief that her preferences would not matter, she
had consented to disclosure to the Schmids and continues to consent to these
disclosures.
10.
The requirement that a consent be “specific as
to the purpose or purposes for which the information may be used by any of the
parties [to whom the subject is authorizing information to be disclosed], both
at the time of the disclosure and at any time in the future” applies only to
informed consent for release of data for insurance purposes, and does not apply
to the disclosure of 911 recordings.
11.
During the 2010 Session, the Minnesota
Legislature re-codified Minn. Stat. § 13.05, subd. 4(d)(6) as section 13.05,
subd. 4a.
12.
Respondents’ denial of the Schmids’ request to
release the audio recording of P.S.’s 911 call placed on May 30, 2009,
constituted a violation of Minn. Stat. § 13.05, subd. 4(d).
13.
Minn.
Stat. § 13.03, subd. 3(f) requires that, if the responsible authority denies
access to requested data, the responsible authority must “cite the
specific statutory section . . . on which the determination is based.”
14. Respondents’ failure to state all of the reasons for the denial of the Schmids request to release the audio recording of P.S.’s 911 call placed on May 30, 2009 constituted a violation of Minn. Stat. § 13.03, subd. 3(f).
ORDER
1. Respondents shall permit the Schmids to listen to, and obtain a copy of, the recording of the May 30, 2009, 911 call in its original format.
2. The Office of Administrative Hearings shall refund $950.00 of the Complainant’s $1000.00 filing fee.
3. Respondents shall remit to the OAH $1000.00 to cover hearing service costs incurred in conducting this proceeding as documented in an invoice to be sent by OAH to Respondents.
4. Within 14 days of the date of this Order, the Schmids shall submit to the undersigned Administrative Law Judge a claim for attorney’s fees, in an amount not to exceed $5,000. The claim shall be supported by affidavit and appropriate documentation.
5. The Schmids request that a civil penalty be imposed is DENIED.
Dated: January 25, 2011
/s/ Eric L. Lipman
__________________________
ERIC
L. LIPMAN
Administrative
Law Judge
A party aggrieved by a final decision on a complaint filed under section 13.085 is entitled to judicial review of the decision as provided in Minn. Stat. §§ 14.63 to 14.69.
MEMORANDUM
As noted in the earlier Probable Cause Order, the Respondents misapplied the law when they attempted to impose the more elaborate consent requirements at Minn. Stat. § 13.05, subd. 4(d)(6), to P.S.’s authorization to release the 911 recording. The consent requirements that apply to 911 recordings are simpler and set forth at Minn. Stat. § 13.05, subd. 4(d).
The question remaining for hearing was whether P.S. ever revoked her consent. P.S.’s testimony on that point was clear – she stated repeatedly, in both affidavit form and at the later hearing, that she never revoked her consent or intended to revoke her consent to the release of the 911 recording to the Schmids.
Mr. Viesselman testified that when he spoke with P.S. on July 26, 2010, she was upset that her name had been disclosed to the Schmids during the earlier criminal proceedings. He interpreted her displeasure over being contacted on this matter as a withdrawal of her authorization for disclosure. This claim is without merit.
The Respondents have not cited any authority for the proposition that a written authorization can be later withdrawn by an oral declaration. Yet, even assuming that this was a possibility, Mr. Viesselman concedes that P.S. never told him that she wanted to revoke her consent or stated that her consent was withdrawn.
While the Respondents may have been attempting to mollify P.S. by avoiding a release of the 911 recording, such soothing is not permitted by the Data Practices Act and, in fact, made matters far worse. Even assuming that Respondents’ refusal to release the 911 tape was a well-intentioned attempt to protect P.S. from further involvement in the matter, their refusal (on the grounds of an inadequate authorization) was calculated to have the Schmids contact P.S. many more times – both before and after this suit was filed.
Likewise, had Mr. Viesselman, revealed the true basis for avoiding disclosure, as required by the Act, the Schmids might have proceeded differently; asking for a new consent instead of renewing their request in September with the same signed authorization they had presented in July. The Respondents failed to discharge their legal duty to tell the Schmids the reasons they were being denied access to the recording.
Respondents requested that the Administrative Law Judge assess a civil penalty as permitted by Minn. Stat. § 13.085, subd. 5. The Administrative Law Judge declines to assess such a penalty because the factors required to be considered in determining whether to assess the penalty do not demand such a result. The factors require a determination of whether the governmental entity has substantially complied with general data practices under Chapter 13, including such things as designation of a responsible authority and development of public access procedures.[29] While the Respondents made several crucial mistakes in the handling of this case, there was no evidence presented to demonstrate that, in general, they have not substantially complied with the general requirements of the Data Practices Act.
Finally, Minn. Stat. § 13.085 sets forth specific instructions about allocation of costs and attorney’s fees. As the prevailing party, the Schmids are entitled to a refund of all but $50 of their original filing fee and Respondents are to reimburse the Office of Administrative Hearings for its costs in this proceeding, up to a maximum of $1,000.
In addition, unless the Administrative Law Judge determines that the Respondents’ violation of the Data Practices Act was “merely technical” or that there is “a genuine uncertainty about the meaning of the governing law,” the Respondents are required to pay the attorney fees for prevailing parties, the Schmids, up to a maximum of $5,000.[30]
The violations in this matter were not merely technical – they were significant and substantive in that deprived the Respondents of access to data to which they were entitled for a period of approximately five months. Nor were the violations a result of uncertainty about the meaning of the law. The law is clear. The Respondents misread it and applied a gloss to it which was legally and factually unsupported. It is appropriate for Respondents to pay the Schmids’ attorney fees.
E. L. L.
[1] Testimony of P.S.; Exhibit 14, Affidavit of P.S., ¶ 2.
[2] Ex. 112, Affidavit of Terry Viesselman, ¶ 3, ex. 2.
[3] Ex. 112, Aff. of T. Viesselman, ex. 2 and 3.
[4] Attachment to Expedited Data Practices Complaint, at 1 (Oct. 1, 2010) (“Complaint”).
[5] See, Affidavit of Patricia Kuderer, Ex. 11 (Kuderer Aff.)
[6] Ex. 14, Aff. of P.S., ¶ 3, Ex. A.
[7] Id.¸¶ 4.
[8] Expedited Data Practices Complaint, Kuderer Aff., Ex. 13.
[9]
[10] Test. of K. Schmid; compare Ex. 2 and Ex. 4.
[11] Id.., ¶ 5, Ex. B.
[12]
[13] Viesselman Test.
[14]
[15]
[16]
[17]
[18]
[19]
[20]
[21]
[22] Ex. 10.
[23]
[24] Ex. 15.
[25] Ex. 14; P.S. Test.
[26] Ex. 11.
[27]
Ex. 12.
On August 1, 2010, between the time of the July and September requests,
a new version of the authorization statute took effect. The amended statute more clearly separated
the requirements for consent to release for insurance purposes – by moving
these provisions to a new and separate subdivision. See,
2010
[28] Gerhardt Test.
[29] See, Minn. Stat. § 13.08, subd. 4 (2010).
[30] Minn. Stat. § 13.085, subd. 6.