Note: In December 1999, staff of the Information Policy Analysis Division, on behalf of the Commissioner, redacted not public data from this opinion. The redaction was necessary to bring the data in the opinion into compliance with amendments the Legislature made to Minnesota Statutes, section 13.072, the advisory opinion enabling legislation.

Facts and Procedural History:

A resident of the City of Centerville made a written complaint against X. The Council referred this complaint to an Employee Review Board composed of two members of the Council. The Board investigated the complaint for the purpose of recommending action to the Council. At a regularly scheduled meeting of the Council, held on May 25, 1994 and during a portion of the meeting that was open to the public, a member of the Review Board brought up the issue of the complaint and distributed the written recommendations of the Board and a draft letter to the complainant.

X asked this member of the Review Board if the data privacy implications of this item had been discussed with the city attorney. After some further discussion about the issue of the citizen complaint and how it should be handled, and a further expression of concern by X about discussion of this matter at an open meeting, the Council took action to table consideration of the Review Board recommendation until the Council had an opportunity to review further information. On June 22, 1994, the matter was discussed at a closed meeting of the Council.

X then stated that she interpreted Minnesota Statutes Section 471.705, the state Open Meeting Law , to say that preliminary discussion of complaints or charges against a city employee should be discussed at a closed meeting unless the employee requests that the meeting be open. She then asked that the Commissioner issue an opinion about the issue stated in the Issue section below.

In response to X 's request, PIPA, on behalf of the Commissioner, wrote to Mr. John C. Buckbee, III, the mayor of the City of Centerville. Copies of this letter were sent to the City's attorney and to X . The purposes of this letter, dated August 5, 1994, were to inform Mr. Buckbee of X 's request, to ask Mr. Buckbee or the City's attorney to provide any information or support for the Council's position and to inform him of the date by which the Commissioner was required to issue this opinion. The Commissioner has received no response to the letter sent to the City.

Issues:

Discussion:

Among the rights that are provided for individuals, who are the subjects of private government data, is the right not to have that private data about them disclosed to the public. Private data means data that are not public. (See Minnesota Statutes Section 13.02, subdivision 12.) The legislature has determined that a number of types of data and datum are private under Chapter 13. In the case of public employees such as X , the legislature has provided very specific treatment of personnel data about public employees. In Minnesota Statutes Section 13.43, the legislature has listed data about public employees that are public data and then clearly stated that all data not identified to be public are classified as private. (See Minnesota Statutes Section 13.43, subdivisions 2 (a) and 4.)

In an instance where a complaint or charge is made against a public employee, the fact that a complaint or charge has been made and the status of the handling of that complaint or charge by the government entity are the only data that are public until there has been a determination by the public employer that disciplinary action will be taken against the employee. Details concerning the complaint or charge and the reasons for a proposed disciplinary action do not become public until there is a final disposition of the disciplinary action. (See Minnesota Statutes Section 13.43, subdivision 2.) In this particular instance, the Council had not made any decision about a possible disciplinary action concerning X . At the time the Council began the May 25, 1994, discussion of the recommendation of the Employee Review Board, the data that were public about the complaint against X was the fact that a complaint had been made and the status of the processing of that complaint, i.e. it had been investigated by the Review Board and the Board had a recommendation. No other data about this complaint could be public unless and until the Council decided to impose a disciplinary action and that action became final.

In recent years, the legislature has taken steps to harmonize the sometimes conflicting imperatives of the state's Open Meeting Law , Minnesota Statutes Section 471.705, and the classification by the Data Practices Act and other statutes, of various types of data as not public. This policy harmony is attained by the legislature specifying, in the Open Meeting Law, when bodies subject to that law can close meetings to discuss certain types of not public data. The Open Meeting Law also specifies conditions for discussions of certain types of data and provides authorizations in many instances for governing bodies to discuss data, that would otherwise be not public, in meetings that are open to attendance by the public. (See Minnesota Statutes, Section 471.705, subdivision 1d.)

Although the statute that authorizes the issuance of opinions by the Commissioner gives her the authority to issue opinions involving rights of subjects of data, the Commissioner is reluctant to venture very far into interpretations of the requirements of the Open Meeting Law. In this instance, because the issue raised by X about her rights as a data subject directly intersects with the Open Meeting Law and because a major purpose of these opinions is educational, the balance of this opinion will address what impact the Council's discussion had on X 's rights under Chapter 13. The issue of legislative direction on the issuance of opinions that fall into this intersection will be raised with the legislature in the 1995 session.

The Open Meeting Law states that a public body must close one or more meetings for preliminary consideration of allegations or charges against individuals subject to its disciplinary authority. If the governing body concludes that discipline is warranted as a result of the specific charges or allegations they have considered, further meetings concerning those specific charges or allegations must be open to the public. (See Minnesota Statutes Section 471.705, subdivision 1d (c) as amended by Minnesota Sessions Laws 1994, Chapter 618, section 39.)

X contends that the Council discussion of the Review Board recommendations was a consideration of the allegations against her at an open meeting. She further contends that this discussion was the first time the Council had actually considered the allegations against her and that, as required by the Open Meeting Law, the meeting should have been closed for that discussion. Because it was not, she concludes that her right to not have private data disclosed to the public was violated by the Council.

In the written minutes of the May 25, 1994, Council meeting that X provided, the Council began discussing the handling of the complaint against X after the written recommendations of the Review Board were distributed. These Council minutes are not a verbatim transcript but a summary of the Council's deliberations. After X raised the question of the appropriateness of the discussion, one Council member noted that disciplinary action was not recommended by the Review Board. Another Council member asked questions about one of the detailed recommendations. It is not clear from the minutes if that question and the response to it contained actual details of the statements made about X in the recommendation. The Mayor noted that this appears to be an ongoing problem but what this consists of is not clear from the minutes. Another Council member made general comments about handling complaints against employees. X again raised the question of the appropriateness of the discussion. A Council member moved to table consideration of the Review Board recommendation and that motion carried.

Public employees who are subject to the authority of governing bodies, as is X , have the right to have allegations and charges against them protected against public disclosure by the requirement in the Open Meeting Law that the preliminary consideration of the allegations or charges be conducted in a closed meeting. Although an employee can waive that right by asking that the meeting be opened to the public, it is clear from X 's comments at the May 25, 1994 meeting that she either had not been given that choice or did not want the meeting to be open.

Although it is not clear from the minutes just exactly what details of the complaint and the Review Board's proposed handling of the complaint were actually discussed, it appears that this was the first meeting at which the Council was considering the allegations against X . Some of the comments of Council members summarized in the minutes could have disclosed details of the complaint, the investigation of that complaint and the proposed resolution. Suffice it to say if any details about the complaint against X were discussed by the Council at the open meeting on May 25, 1994, they failed in their duty to her to keep those data private, consistent with Chapter 13 and the Open Meeting Law. The Council did not close the meeting to have the preliminary consideration of the private data that comprised the allegations and charges as is required by the Open Meeting Law.

Opinion: