Discussion:

Pursuant to Minnesota Statutes Section 13.04, subdivision 2, when an individual is asked by a government entity to supply private or confidential data about him/herself, the entity must inform the individual of the following: (a) the purpose and intended use of the requested data within the collecting entity; (b) whether the individual may refuse or is legally required to supply the requested data; (c) any known consequence arising from supplying or refusing to supply private or confidential data; and (d) the identity of other persons or entities authorized by state or federal law to receive the data. This notice requirement is often referred to as a Tennessen Warning.

In the current situation, the application form requests data about an individual from that individual. Specifically, the explanation regarding the Equal Employment Opportunity Information section, in relevant part, states:

The information requested below will be used to evaluate our efforts to reach all segments of the population and in reviewing our selection and placement efforts. The information is VOLUNTARY and PRIVATE. It is detached and retained separately from your work history. It is not referred to hiring managers or supervisors....We appreciate your cooperation in our efforts to ensure Affirmative Action and Equal Employment Opportunity. Any false statement may be punishable by law.

In M's opinion request, M wrote, [DPS Director of Personnel] stated, that because I had claimed to be Caucasian in the past, he may have to turn this information over to Internal Affairs Div.. He claimed I was filing a false application.

M further wrote, I read to [DPS Director of Personnel] directly from the application, that the information about my [Racial/Ethnic] group is private and voluntary. The information should not be given to hiring managers and supervisors.

In his response, Commissioner Davis argued that the application did include a Tennessen Warning notice. He wrote, While the notice indicated that the information would not be referred to hiring managers or supervisors,' the notice did not promise to withhold the fact that M provided false information from supervisors. The Tennessen Warning was complete and provided M with clear and unequivocal notice that a false statement may be punishable by law.'

Commissioner Davis also argued there is no showing that M's racial/ethnic selection was provided to anyone with hiring authority. He wrote:

The fact that M may have provided false information on his/her application may have been provided to some DPS personnel who had supervisory responsibility over M. M's actual selection of Native American,' however, was not provided to decision makers....This private data was not used in the hiring process, but pursuant to the Tennessen Warning, was used in the investigation regarding M's false statements....The data was not used by anyone not contemplated by the original warning, which included DPS personnel concerned with accurate equal employment opportunity information and other DPS personnel associated with investigation of a false statement.

As discussed above, pursuant to Section 13.03, subdivision 2, the Tennessen Warning notice requirement, is comprised of four separate elements. The fundamental purpose of the Tennessen Warning notice is to enable an individual to make an informed decision as to whether s/he wishes to provide the requested data to the government entity. It essentially serves as a form of privacy protection whereby individuals may protect their privacy by deciding not to provide the data to the government.

In the present case, DPS did provide some type of a Tennessen Warning notice. However, DPS apparently did not clearly communicate all of the intended uses of the equal employment data. As Commissioner Davis asserted, The private data...pursuant to the Tennessen Warning, was used in the investigation regarding M's false statements. This was not clearly stated in the Tennessen Warning; the notice said only that the information would be used to evaluate our efforts to reach all segments of the population and in reviewing our selection and placement efforts. The fact that the notice includes the statement, Any false statement may be punishable by law, does not, as Commissioner Davis asserted, clearly communicate to the supplier of data that the information will be monitored for accuracies and may be used to discipline an employee. If that is one of the intended purposes and uses, the notice should have so stated.

Although the notice on the application form states that the collected information is not referred to hiring managers or supervisors, it appears this may have happened. In his/her opinion request, M wrote, Since a complaint was filed with Internal Affairs, my immediate supervisors...were also made aware of my [racial/ethnic] choice... Moreover, Commissioner Davis alluded to this in his response by stating, The fact that M may have provided false information on his/her application may have been provided to some DPS personnel who had supervisory responsibility over M. (Emphasis added.)

Opinion:

Based on the facts and information provided, my opinion on the issue raised by M is as follows:

Signed:

Elaine S. Hansen
Commissioner

Dated: January 27, 1998