Facts and Procedural History:

On May 4, 2004, IPAD received a letter dated May 3, 2004, from Marshall Helmberger of the Timberjay newspapers. In his letter, Mr. Helmberger asked the Commissioner to issue an advisory opinion regarding his access to certain data that the City of Orr maintains.

In response to Mr. Helmberger's request, IPAD, on behalf of the Commissioner, wrote to David Dill, the city administrator. The purposes of this letter, dated May 7, 2004, were to inform him of Mr. Helmberger's request and to ask him to provide information or support for City's position. IPAD did not receive a response from the City.

A summary of the facts as Mr. Helmberger provided them is as follows. In a letter dated March 29, 2004, he wrote to the City:

Consider this a formal request for a detailed description of the allegations against [a] recently-terminated [city employee, X], along with all documents relating to the investigation of said allegations. We have an absolute right to this information under MS 13.43, Subd. 2, Para. 5...

In a letter dated April 2, 2004, Patrick Spott, an attorney, responded on behalf of the City. He stated:

Over a period of time there have been complaints made against [X] concerning [X's] employment...[X's] termination is the end result of those complaints. The complaints were made verbally against [X]. The City of Orr has not reduced those complaints to writing, have [sic] not conducted a formal investigation, nor have interviews been conducted. The basis of the complaints are outlined in the reasons for [X's] termination.

Complaints have also been made against [X] to members of the Orr City Council from the public at large. These complaints were made orally to members of the City Council concerning [X]. The complaints have not been reduced to writing and there are no documents describing the complaints against [X].

There has [sic] also been complaints lodged against [X] at public meetings by the public. The meeting minutes and the video of the meetings are available for inspection upon reasonable request.

...On March 29, 2004, a meeting was held, with notice provided to [X], whereby [X's] employment with the City of Orr was terminated. The reasons for [X's] termination are as follows:

Not adequately performing the duties of the [position]
 Attitude Problems
 Attendance Problems
 Failure to take directions and complete assigned tasks
 Failure to adequately perform the administrative and financial duties of the [position].

The reasons listed are the basis for [X's] termination. The City does not possess documentation other than meeting minutes and the video of meetings which are available for inspection...

In his opinion request, Mr. Helmberger wrote:

...When we asked for the dates of the meetings Mr. Spott referenced, he cited only one meeting, back in February or March, 2003. Our review of that meeting's minutes did reveal that a council member requested that [X] work longer hours in exchange for a pay increase which accompanied [X's] assumption of additional duties. There was nothing in the minutes, or at the meeting, that appeared critical of [X]. The council did opt to increase [X's] hours, and [X] began working the longer day after that point. But there clearly isn't anything there that would suggest a reason for termination, nor any kind of investigation.

...Our concerns about [the City's] response increased after the April 12 city council meeting, during which one of the council members told local citizens who were questioning him about the reasons for firing [X], that the city hadn't given people the real reason. ...

Issue:

In his request for an opinion, Mr. Helmberger asked the Commissioner to address the following issue:

Has the City of Orr complied with Minnesota Statutes, Chapter 13, in responding to a March 29, 2004, request for access to data relating to the termination of an employee?

---

Discussion:

Government data about employees are classified at Minnesota Statutes, section 13.43. In a situation where someone has complained about an employee, the following data are public pursuant to section 13.43, subdivision 2(a)(4): the existence and status of the complaint or charge. If the government entity has taken disciplinary action and a final disposition has occurred, the following data are public pursuant to section 13.43, subdivision 2(a)(5): the final disposition of any disciplinary action together with the specific reasons for the action and data documenting the basis for the action. A final disposition occurs when:

...[the government entity] makes its final decision about the disciplinary action, regardless of the possibility of any later proceedings or courts proceedings. In the case of arbitration proceedings arising under collective bargaining agreements, a final disposition occurs at the conclusion of the arbitration proceedings, or upon the failure of the employee to elect arbitration within the time provided by the collective bargaining agreement....

(See section 13.43, subdivision 2(b).)

Here, although the City and the City's attorney publicly have stated that X was terminated and have provided related information, the Commissioner does not know, definitively, if a final disposition has occurred. If so, any data of the type described in section 13.43, subdivision 2(a)(5), are public. If not, only the existence and status of the complaint(s) or charge(s) are public.

The Commissioner adds the following note. Minnesota Statutes, section 15.17, subdivision 1, states, All officers and agencies of [government entities]... shall make and preserve all records necessary to a full and accurate knowledge of their official activities. Section 15.17, subdivision 4, states, Access to records containing government data is governed by sections 13.03 and 138.17. Accordingly, section 15.17, read in concert with section 13.03, imposes an obligation upon government entities to make and preserve a record of their actions so that the data in those records will be available pursuant to the provisions of Chapter 13.

Thus, given the language in section 15.17, when the City decided to terminate X, it needed to document its decision. That documentation constitutes an official record, must be maintained pursuant to the entity's approved records retention schedule, and is subject to the access provisions of Chapter 13.

---

Opinion:

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

It does not appear that the City of Orr complied with Minnesota Statutes, Chapter 13, in its determination regarding a February 26, 2004, request for access to data.

Signed:

Brian J. Lamb
Commissioner

Dated: June 22, 2004

---