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Advisory Opinion 96-022

May 30, 1996; Minnesota Department of Human Rights

5/30/1996 10:14:43 AM

This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.

Facts and Procedural History:

For purposes of simplification, the information presented by the citizen who requested this opinion and the response from the government entity with which the citizen disagrees are presented in summary form. Copies of the complete submissions are on file at the offices of PIPA and, with the exception of any data that are not public, are available for public access.

On April 10, 1996, PIPA received a letter dated April 8, 1996, from Robert Northrup. In his letter, Mr. Northrup requested that the Commissioner issue an opinion regarding his access to certain data maintained by the Minnesota Department of Human Rights, hereinafter Human Rights. (Attached to Mr. Northrup's letter were copies of past correspondence with Human Rights.)

In response to Mr. Northrup's request, PIPA, on behalf of the Commissioner, wrote to David Beaulieu, Commissioner of Human Rights. The purposes of this letter, dated April 12, 1996, were to inform Mr. Beaulieu of Mr. Northrup's request, to ask him or Human Rights' attorney to provide information or support for Human Rights' position, and to inform him of the date by which the Commissioner was required to issue this opinion. On May 10, 1996, PIPA received a response from Ken Nickolai, Director of Policy and Legal Affairs for Human Rights.

A summary of the facts surrounding this matter is as follows. In a letter dated March 7, 1996, addressed to Mr. Northrup from Commissioner Beaulieu, Mr. Northrup was informed that a charge filed against him had been dismissed. In a letter dated March 21, 1996, Mr. Northrup wrote to Commissioner Beaulieu and requested a copy of the charging party rebuttal statement. In a letter dated March 29, 1996, Mr. Nickolai responded to Mr. Northrup's request:

The Minnesota Human Rights Act, Minn. Stat. Ch. 363, does not allow the release of that information. As a closed case, the material in the file must be handled pursuant to Subd. 3 of Section 363.061. That portion of the act classifies the file as private data, with only limited exceptions. The rebuttal statement is not included in one of the exceptions. As a result, we cannot release the information you requested.

Mr. Northrup then requested an advisory opinion from the Commissioner.

Soon thereafter, in a letter dated April 26, 1996, Mr. Nickolai wrote to Mr. Northrup and provided to him a copy of the rebuttal statement. Mr. Nickolai wrote, Enclosed is a copy of the rebuttal statement given to the Department by the Charging Party...Since we last spoke, the Charging Party requested that the agency re-open this case. After reviewing the matter, the Commissioner then authorized the release of the rebuttal statement and the re-open request to you. The Department has informed the Charging Party that it will not grant [the charging party's] request that the agency change its original decision in this matter.

PIPA, on behalf of the Commissioner (of Administration), then contacted Mr. Northrup to determine if he wished to withdraw his opinion request. Mr. Northrup advised PIPA that he wished to go ahead with his request.

In response to Mr. Northrup's opinion request, Mr. Nickolai, on behalf of Human Rights, wrote:

After reviewing Mr. Robert Northrup's request for data, we concluded that the Department initially erred by not releasing the information he requested. As you know, to protect the confidentiality of information provided to us in the course of investigating complaints of Human Rights violations, the legislature has established specific data practice requirements in Minn. Stat. Ch. 363, as well as those in the Data Practices Act. The definitional sections of the latter are incorporated by reference into the former.

The information Mr. Nothrup [sic] requested was data provided by the charging party about Mr. Northrup's alleged conduct. As the subject of the data, we should have provided that data to him on first request. We have now corrected our mistake and provided Mr. Northrup with that data and will be reminding all staff about this and other exceptions to the confidentiality provisions of our law.

Issue:

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

Is Mr. Northrup, the respondent in a Minnesota Department of Human Rights closed case, entitled to gain access to any of the data in the charging party's rebuttal statement?

Discussion:

Data maintained by Human Rights are classified in Minnesota Statutes Chapter 363. In the situation at hand, it appears that Mr. Northrup's file, at the time of his request for an advisory opinion, was considered to be a closed case file, for the purposes of Chapter 363. Section 363.01, subdivision 7, states, 'Closed case file' means a file containing human rights investigative data in which an order or other decision resolving the alleged or suspected discrimination has been made or issued by the commissioner, a hearing officer, or a court, and the time for any reconsideration of or appeal from the order or decision has expired.

Section 363.061, subdivision 3, classifies data maintained in closed case files. Clause (a) states:

Human rights investigative data on an individual contained in a closed case file is classified as private, with the exception of the following documents: the name and address of the charging party and respondent, factual basis of the allegations, and the statute under which the action is brought, the part of the summary of the investigation that does not contain identifying data on an individual other than the complainant or respondent, and the commissioner's memorandum determining whether probable cause has been shown. [Emphasis added.]

Minnesota Statutes Section 13.02, subdivision 12, defines private data as data which is made by statute or federal law applicable to the data: (a) not public; and (b) accessible to the individual subject of that data.

Therefore, because Mr. Northrup's case file is closed and he is the subject of the data, it appears that any investigative data about Mr. Northrup maintained by Human Rights is accessible to Mr. Northrup. (It should be noted that clause (c) of Section 363.061, subdivision 3, does authorize the Commissioner of Human Rights to make investigative data contained in a closed case file inaccessibleto the charging party or the respondent in order to protect medical or other security interests of the parties or third persons. However, in the present situation, Human Rights apparently never attempted to use clause (c) as a basis for denial of access to the data.)

Based on Mr. Nickolai's May 10, 1996, letter, Human Rights is apparently cognizant that its initial denial of Mr. Northrup's request was inappropriate. In his letter, Mr. Nickolai advised the Commissioner that Mr. Northrup was provided with a copy of the data and that Human Rights will be reminding all staff about this and other exceptions to the confidentiality provisions of our law.

Opinion:

Based on the correspondence in this matter, my opinion on the issue raised by Mr. Northrup is as follows:

Pursuant to Minnesota Statutes Section 363.061, subdivision 3, data in a closed investigative data are private data. Therefore, unless the Commissioner of Human Rights has made those data inaccessible by invoking the authority granted in Section 363.061, subdivision 3 (c), Mr. Northrup should be granted access to the investigative data of which he is the subject.

Signed:

Elaine S. Hansen
Commissioner

Dated: May 30, 1996

Response to data requests

Human rights data (Chapter 363A / 363)