Facts and Procedural History:

On July 30, 2003, IPAD received a letter, dated same, from Dennis Flaherty, Deputy Mayor for the City of Saint Paul. In his letter, Mr. Flaherty asked the Commissioner to issue an advisory opinion regarding the classification of certain data the City maintains. The Commissioner sought comments from the data requestor, Tim Nelson of the St. Paul Pioneer Press. On August 8, 2003, IPAD received comments, dated same, from Paul Hannah, an attorney representing the newspaper.

A summary of the facts is as follows. In an email dated July 21, 2003, Mr. Nelson wrote to Angie Nalezny, the City's Director of Human Resources. He stated that he believed the City had conducted an investigation into a complaint made about a particular individual, X. Mr. Nelson requested any related paperwork or electronic records, voice mail, or other documentation related to any complaints regarding X.

Mr. Flaherty responded in an email dated July 23, 2003. He wrote:

...Ms. Nalezny did investigate a report of possible harassment by [X] by interviewing the person who was alleged to be the victim. We are not permitted by law to identify or confirm the identity of the alleged victim, who worked for the City. Based on Ms. Nalezny's interview with the alleged victim, she determined that there was no harassment and no need to make further investigation or documentation. Therefore the file on this matter consists entirely of Ms. Nalezny's interview notes. Because those notes are data on the alleged victim who was volunteer of the City, it is the alleged victim's private data. Thus, it is personnel data under Minnesota Statutes Section 13.43, subd. 1, and private personnel data under Minnesota Statutes section 13.43, subd. 4....

...you state that information about [X] is not protected under the personnel provisions of [Chapter 13]. I agree with you that [X] is neither an employee nor a volunteer of the [City]. Therefore any data the City might have on [X] with respect to this or similar allegations is not personnel data under Minnesota Statutes Section 13.43. However, as noted above, all of the data collected on this matter is private data on the alleged victim.

Mr. Nelson wrote back in an email dated July 21, 2003. He argued, That the interview notes taken by Ms. Nalezny include identifying information on [X] does not mean that the notes in their entirety are [not public]....According to Minn. Statutes, Section 13.03, subdivision 3, you are obligated to separate the public from the non public data in this record and make it available for inspection. (Emphasis provided.)

In his opinion request, Mr. Flaherty wrote:

...Ms. Nalezny had received an allegation concerning [X] from a City employee...who worked with the volunteer. The co-worker had no first hand information. Ms. Nalezny interviewed a senior staff person to whom the co-worker had also made the allegation and she also interviewed the volunteer on the phone and later in person. Based on the volunteer's statements, Ms. Nalezny concluded that the complaint was unfounded and without merit. The only documentation of this are the handwritten notes Ms. Nalezny took contemporaneously with her interviews.

Mr. Flaherty provided to the Commissioner a copy of the notes with identifying data redacted.

Issue:

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

Pursuant to Minnesota Statutes, Chapter 13, what is the classification of the following data that the City of St. Paul maintains: interview notes collected from or about a volunteer concerning a complaint about a member of the public?

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Discussion:

Pursuant to Minnesota Statutes, section 13.03, subdivision 1, government data are public unless otherwise classified.

Data on individuals collected and maintained because an individual is or was an employee or volunteer are classified pursuant to section 13.43, personnel data. Subdivision 2 of section 13.43 lists the types of personnel data that are public. Subdivision 4 of section 13.43 classifies most other types of personnel data as private. Data on individuals is defined as all government data in which any individual is or can be identified as the subject of the data, unless the appearance of the name or other identifying data clearly can be demonstrated to be only incidental to the data. (See section 13.02, subdivision 5.)

In his comments to the Commissioner, Mr. Hannah wrote about the notes created by Ms. Nalezny:

The [City] takes the position that all these data are private because all of the data was obtained from the volunteer or was about the volunteer, and is about private matters.

However, even a cursory review of the facts contained in Mr. Flaherty's letter establishes that this position is untenable. Personnel data is first defined as data on individuals. Data on individuals means all government data in which any individual is or can be identified as the subject of that data. Almost all the data which document the investigation undertaken by the [City], and which document the actions allegedly taken by the non-employee are not data on individuals, and are therefore not personnel data at all....

Second, these data exist because of allegations of harassing conduct by a person who is neither an employee nor a volunteer in the Mayor's office. As such...[the data] is not personnel data at all.

Since the data concern multiple data subjects, some redacting of data identifying actual employees or volunteers may be necessary, but should not affect the bulk of the data dealing with the allegations concerning the conduct of the interloper and the investigation undertaken by the City....If necessary, those data identifying actual employees or volunteers can be redacted by the City, at its expense....

The Commissioner has reviewed the notes Ms. Nalezny created. They consist of what appear to be incomplete sentences. Further, the City has redacted some of the data. Because of what the City submitted, it is very difficult for the Commissioner to determine, with any certainty, how the data are classified. Therefore, the Commissioner will provide only general guidance.

Data on individuals of which the volunteer or other employees are the subject are classified pursuant to section 13.43. Pursuant to section 13.43, subdivision 4, the City is restricted from releasing to the public any private data about the volunteer or other employees. However, the City must release any data about the volunteer or other employees that are public. Although it depends upon the specific context, in most cases, names of employees and volunteers are public. In addition, the City needs to be mindful that any data of which the volunteer or other employees are not the subject are public pursuant to section 13.03, subdivision 1.

Data of which X is the subject, including his/her name, are not classified pursuant to section 13.43 but are public pursuant to section 13.03, subdivision 1. The Commissioner also points readers to Demers v. City of Minneapolis, 468 N.W.2d 71 (Minn. 1991). In this case, the Court held that identifying information about complainants on non-pending, non-current police departmental internal affairs complaint forms is public.

Finally, any data not on individuals (see section 13.02, subdivisions 4 and 5) in the notes are public pursuant to section 13.03, subdivision 1.

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Opinion:

Based on the facts and information provided, my opinion on the issue that Mr. Flaherty raised is as follows:

The Commissioner cannot determine, with certainty, the classification of data in the interview notes collected from or about a volunteer concerning a complaint about a member of the public. Data of which the volunteer or other employees are the subject are classified pursuant to section 13.43. Data of which X is the subject are classified as public pursuant to section 13.03, subdivision 1. Data not on individuals are classified as public pursuant to section 13.03, subdivision 1.

Signed:

Brian J. Lamb
Commissioner

Dated: September 9, 2003

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