December 11, 1996; Minnesota Department of Labor and Industry
12/11/1996 10:16:43 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 PIPA and, with the exception of any data classified as not public, are available for public access.On October 7, 1996, PIPA received a letter requesting this opinion from Stephen Claypatch. In that letter, Mr. Claypatch described his attempts to gain access to certain data he believed to be maintained by the Minnesota Department of Labor and Industry ( DOLI ). Mr. Claypatch enclosed copies of related correspondence. In response to Mr. Claypatch's request, PIPA, on behalf of the Commissioner, wrote to Gary Bastian, Commissioner of DOLI. The purposes of this letter, dated October 11, 1996, were to inform Commissioner Bastian of Mr. Claypatch's request, to ask him or the Department's attorney to provide information or support for its position, and to inform him of the date by which the Commissioner was required to issue this opinion. On October 21, 1996, PIPA received a response from Commissioner Bastian. A summary of the detailed facts of this matter follows. According to Mr. Claypatch and Commissioner Bastian, in March 1996, the Labor Standards Division of DOLI reviewed the certified payroll records of Total Fire Protection, Inc., as part of DOLI's responsibilities under Minnesota Statutes Chapter 177. In a letter dated March 20, 1996, DOLI wrote to John Sjoberg of Shaw-Lundquist Associates, Inc.: [t]his office has reviewed the certified payroll records in regard to the [Byrne and Neil elementary school projects] and find that, according to the records, Total Fire Protection is in compliance with the requirements of prevailing wage. . . . Your records are returned by separate cover. In a letter dated April 30, 1996, Mr. Claypatch asked to view the certified payroll records of Total Fire Protection that DOLI relied upon to reach its determination. In response to Mr. Claypatch, Erik K. Oelker, an investigator at DOLI, wrote: . . . those payroll records were the property of Total Fire Protection and were returned to them. The Department did not retain copies. . . . It is impossible for us to allow you access to something which is not in our possession and control regardless of what classification the data would have under Chapter 13 of the Minnesota Statutes, if it were in our possession and control. Mr. Claypatch said he subsequently spoke, met and corresponded with Commissioner Bastian and others in DOLI, and expressed concern that by not retaining copies of the payroll records, DOLI was violating Minnesota Statutes Section 138.17, the Records Management Act. DOLI continued to deny him access to the certified payroll records of Total Fire Protection.
In his opinion request, Mr. Claypatch wrote:
In his response to the Commissioner, Commissioner Bastian said when the Labor Standards Division investigates complaints, it requests payroll records from complained-about employers. The Division reviews the records, and if it finds a discrepancy, it prepares a worksheet containing calculations for each discrepancy. According to Commissioner Bastian, if a violation is found, the Division notifies the employer of the violation and the amounts owed to employees. The payroll records are returned to the employer and the Division keeps a record of the worksheet showing the calculations for the discrepancies. If DOLI determines that no violation occurred, a letter confirming DOLI has not found a violation is sent to the employer. In that case, the Division retains a copy of the letter of confirmation sent to the employer and returns the payroll records, used to make the determination, to the employer. In reference to DOLI's practice of returning the payroll records to the employer, and not retaining copies, Commissioner Bastian wrote: [t]he records retention sections of the Minnesota Statutes do not require the department to maintain the records that Mr. Claypatch requests. Commissioner Bastian relies upon provisions of Minnesota Statutes Sections 13.05 and 15.17, in support of DOLI's position. According to Commissioner Bastian, once the Department has completed an investigation, [t]he purpose for collecting and storing these documents has been served. Continued storage of these records in such cases is beyond what is [authorized in Section 13.05, subdivision 3], which provides: [c]ollection and storage of all data on individuals and the use and dissemination of private and confidential data on individuals shall be limited to that necessary for the administration and management of programs specifically authorized by the legislature or local governing body or mandated by the federal government.
Commissioner Bastian also wrote that the Department has complied with the requirements of Section 15.17, subdivision 1, which provides: [a]ll officers and agencies of the state, . . . shall make and preserve all records necessary to a full and accurate knowledge of their official activities. According to Commissioner Bastian:
In regard to how the payroll records are classified, Commissioner Bastian wrote:
Commissioner Bastian further noted that pursuant to Section 13.39, inactive investigative data are classified as public. However, because DOLI returns the payroll records to the employer, . . . the department is not in possession of inactive investigative data which would be available for public inspection. Both Mr. Claypatch and Commissioner Bastian acknowledged that certified payroll records may contain employee's Social Security numbers.
Issue:
In his request for an opinion, Mr. Claypatch asked the Commissioner to address the following issue:
Discussion:
DOLI's position is that it has no obligation to retain originals or copies of the certified payroll records it reviews in order to determine whether or not an employer has violated provisions of Minnesota Statutes Chapter 177. According to Commissioner Bastian, those records are classified as investigative data under Section 13.39 while they are in DOLI's possession. Commissioner Bastian stated that those same records would be classified as public after DOLI makes its determination, but, because DOLI doesn't retain copies of the records, . . . the department is not in possession of inactive investigative data which would be available for public inspection.
Mr. Claypatch argues that if DOLI is not obligated to retain the data upon which it relied to determine whether or not a violation of law occurred, and therefore those data are unavailable for public inspection, that DOLI . . . has significant unchallengeable authority. As noted by Commissioner Bastian, Minnesota Statutes Section 15.17, subdivision 1, provides: [a]ll officers and agencies of the state . . . shall make and preserve all records necessary to a full and accurate knowledge of their official activities. In its comments on Mr. Claypatch's opinion request, DOLI made no mention of the requirements of the State's Records Management Statute, Minnesota Statutes Section 138.163 and the following Sections. Pursuant to Minnesota Statutes Chapter 138, government entities may dispose of government records only as provided by that Chapter. (See Section 138.163.) Pursuant to Section 138.17, government entities must seek the approval of the Records Disposition Panel before they may dispose of government records. Pursuant to Section 138.17, subdivision 1, government records are defined to include all . . . data, information, or documentary material . . . made or received by an officer or agency of the state . . . pursuant to state law or in connection with the transaction of public business by an officer or agency . . . . (Emphasis added.) According to DOLI's record retention schedule on file in the offices of PIPA, DOLI retains rules and records of wage determinations and challenges for three years. According to that same schedule, they are classified as public. The description of the records on the retention schedule, i.e., rules and records of wage determinations and challenges, is so vague that it is not possible for the Commissioner to determine if the certified payroll records are meant to be included. The Legislature has established a process whereby government records may be properly disposed. Mr. Claypatch makes a valid argument that if DOLI were not required to retain copies of the certified payroll records for at least some period of time, it would not be possible for the public to hold DOLI accountable for its determinations. The public has an interest in reviewing determinations of government entities, regardless of whether or not a violation of law has been found. The public access provisions of Chapter 13, which strongly favor public access to government data, would be frustrated if government entities did not follows Chapters 15 and 138. From the information provided to the Commissioner, it appears that the payroll records are the only records upon which DOLI bases its determination regarding a violation. However, it is not possible for the Commissioner to determine if that is indeed the case. Pursuant to the requirements of Sections 15.17 and 138.17, if the payroll records are necessary to a full and accurate knowledge of its official activities, DOLI should be retaining copies of the certified payroll records, unless it receives permission from the Records Disposition Panel to do otherwise. If the payroll records are not records which fall under the provisions of Sections 15.17 and 138.17, then they need not be retained. If DOLI ought to be retaining copies of the certified payroll records, it should take whatever steps are necessary to obtain copies, and to allow Mr. Claypatch to have access to them. (See also Commissioner's Advisory Opinion 94-035.) Commissioner Bastian stated that the certified payroll records are voluminous, and it would be burdensome to DOLI to retain them. In addition to requiring retention of government records for accountability purposes, the Legislature has provided in Section 138.17 that various storage media for those records are acceptable. Therefore, DOLI is not required to store papercopies of the payroll records. The Records Management Statute provides DOLI the means to manage public records efficiently, while balancing that efficiency against public accountability. Commissioner Bastian also stated that, although the question of the classification of the payroll records is moot because DOLI doesn't retain copies, nonetheless the data are not available to Mr. Claypatch pursuant to Section 13.39. The Commissioner respectfully disagrees with that position. Subdivision 2 of Section 13.39 provides that data collected by state agencies, political subdivisions, or statewide systems, as part of an active investigation undertaken for the purpose of commencement or defense of a pending civil legal action, or which are retained in anticipation of a pending civil legal action, are classified as protected nonpublic (data not on individuals) or as confidential (data on individuals). Subdivision 3 provides that, with certain exceptions, inactive civil investigative data are public. According to the information provided, DOLI's Labor Standards Division collects certified payroll records from employers in order to investigate complaints the Division receives. In the case of the certified payroll records of Total Fire Protection, no violation was found. Therefore, it does not appear that those records may properly be classified under Section 13.39. Perhaps with a different factual setting, a different conclusion may be reached. Finally Commissioner Bastian stated that employers provide DOLI with payroll records . . . with the belief that the information will be used for the purposes for which it was requested. If we began to abuse our power in the handling and use of these records, the trust necessary for the efficient operation of our law enforcement activities would be seriously compromised. However, pursuant to Section 13.03, subdivision 1, public access to government data may be denied solely on the basis that the data are classified as not public by statute, temporary classification (see Section 13.06), or federal law. If DOLI believes the certified payroll records ought not to be public, it may apply to the Commissioner for a temporary classification, or seek a different classification from the Legislature. As acknowledged by both Mr. Claypatch and Commissioner Bastian, the certified payroll records of employers may contain employee's Social Security numbers. Pursuant to Section 13.49, Social Security numbers are private data, and must be deleted from the data DOLI makes accessible to the public. Opinion:Based on the correspondence in this matter, my opinion on the issue raised by Mr. Claypatch is as follows:
Signed:
Elaine S. Hansen
Dated: December 11, 1996
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Civil investigative data
Records management/retention
Civil investigative data (13.39)
Labor and Industry Department
Records retention schedule
