November 15, 1999; Minnesota State Colleges and Universities
11/15/1999 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 person who requested this opinion and the response from the government entity with which the person disagrees are presented in summary form. Copies of the complete submissions are on file at the offices of IPA and, except for any data classified as not public, are available for public access. On September 13, 1999, IPA received a letter from Christina Clark, an attorney, on behalf of her client, M. In this letter, Ms. Clark asked the Commissioner to issue an advisory opinion regarding M's right to gain access to certain data maintained by the Minnesota State Colleges and Universities ( MnSCU ). Ms. Clark's request required clarification with IPA staff. In response to Ms. Clark's request, IPA, on behalf of the Commissioner, wrote to Mr. Morris Anderson, Chancellor of MnSCU. The purposes of this letter, dated September 21, 1999, were to inform him of Ms. Clark's request and to ask him to provide information or support for MnSCU's position. On September 30, 1999, IPA received a response from Tomas L. Stafford, Assistant Attorney General, on behalf of MnSCU. A summary of the facts of this matter follows. M was an instructor at one of the member colleges of MnSCU. M requested copies of personnel and any inactive civil investigative data about her/himself, in the form of a consent to release data dated May 21, 1999, and submitted to Mr. Stafford. The heading on the form stated that the Authorization was for the release of public and private data under the Minnesota Government Data Practices Act, which is codified at Minnesota Statutes, Chapter 13. In the consent to release, M authorized the release to her/himself, made reference to data in M's personnel files and records, and stated that the specific records s/he was requesting were unknown to me. In a cover letter submitted with M's consent, Ms. Clark stated to Mr. Stafford [b]y the time I got your message about having [M] simply write and request that the data be sent to [M], I had already modified the release and forwarded it to [M]. Accordingly, I'm using the release instead of your suggestion. However, I assume the modified release achieves the same result as your suggestion. In response, M received certain data from MnSCU. According to Ms. Clark, M requested the data in order to prepare for a grievance arbitration, which was brought against MnSCU on M's behalf by the United Technical College Educators (UTCE). During the arbitration hearing, a MnSCU employee testified that she had received complaints against M, . . . and that she had documented these complaints and maintained them in a file in her office . . . [and during her testimony, she read from those documents.] The documents detailing those complaints were not included in the data MnSCU provided to M in response to her/his May 21, 1999, data request. Issue:In her request for an opinion, Ms. Clark asked the Commissioner to address the following issue:
Discussion:In relevant part, pursuant to Minnesota Statutes, section 13.43, personnel data are data about an individual that are collected because the individual is or was an employee of a government entity subject to Chapter 13 regulation. According to section 13.39, subdivision 3, inactive civil investigative data are public, unless the release of the data would jeopardize another pending civil legal action, and except for those portions of a civil investigative file that are classified as not public data by this chapter or other law. Private data are accessible to the subject of the data. (See section 13.02, subdivision 12.) In his response to the Commissioner, Mr. Stafford stated: The request was unusual in form, because, instead of simply requesting personnel data relating to himself, [M] signed a form release intended to be used to permit the release of employee data to a third party. Nonetheless, the college accepted the document and proceeded to comply with [M's] request. Because [M] used a form intended for the release of information to a third party, [M's] request for data was confusing. Furthermore, [M] did not specifically describe the personnel data that [s/he] wished to review. . . . . The college administrator who responded to [M's] request understood it as a request for inactive civil investigative data and for [M's] official personnel file, as defined by the UTCE contract and maintained pursuant to the terms of that contract. The college did not maintain inactive investigative data on [M]. . . . . According to Ms. Clark's letter [to the Commissioner requesting this opinion], [M] intended to provide the documents to UTCE to prepare for a grievance arbitration. [M] did not indicate to the college that [s/he] intended to use the documents in [M's] grievance proceeding. In fact, [M] did not indicate to the college what use [s/he] intended to make of the documents requested. Mr. Stafford further stated that because MnSCU had provided UTCE with copies of M's official personnel file prior to M's request, that UTCE should have known that MnSCU had understood [M's] request as a request for his official personnel file. Mr. Stafford also wrote: [g]iven the lack of specificity in [M's] request, it was incumbent upon [M] to contact the college to explain that the scope of [her/his] request extended beyond [M's] official personnel file to all personnel data. Mr. Stafford stated that MnSCU does not dispute that the data in question are available for M's review, subject to possible redaction of private student data pursuant to section 13.32 and federal law. The Commissioner agrees that it was unusual for M to make her/his data request in the form of a consent to release data to her/himself. It is perhaps understandable that MNSCU was confused by M's request. However, the request form refers to private and public personnel data and references section 13.43. M clearly requested access to personnel data maintained about her/him by MnSCU pursuant to the requirements of Chapter 13, not data in the official personnel file as defined by the employment contract. M stated in her/his request that s/he did not know the specific data MnSCU maintained about M, which M presumably would have been able to identify if her/his request had been limited to the data specified in the contract to be included in the official file. MnSCU should not have interpreted M's request as being limited to the official file, and MnSCU should have provided M with all the private or public data it maintains about M, with appropriate redactions. Further, in order to avoid the confusion that arose in this instance, MnSCU might establish specific procedures for access by a data subject to public or private data, pursuant to section 13.05, subdivision 8. It then could rely upon those procedures to clarify an otherwise confusing request for access to data. Opinion:Based on the facts and information provided, my opinion on the issue raised by Ms. Clark is as follows:
Signed:
David F. Fisher
Dated: November 15, 1999 |
Personnel data
Data subject access to personnel data
Data subject rights of access procedures (13.05, subd. 8)/(13.025, subd. 3)
