August 12, 1997; Minnesota Department of Transportation
8/12/1997 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 PIPA and, with the exception of any data classified as not public, are available for public access.On June 3, 1997, PIPA received a letter dated June 1, 1997, from M. In the letter, M asked the Commissioner to issue an opinion regarding her/his access to certain data maintained by the Minnesota Department of Transportation. PIPA, on behalf of the Commissioner, wrote to James Denn, Commissioner of Transportation, in response to M's request. The purposes of this letter, dated June 24, 1997, were to inform him of M's request and to ask him to provide information or support for the Department's position. On July 2, 1997, PIPA received a response, dated same, from Cassandra O'Hern, Assistant Minnesota Attorney General. A summary of the facts surrounding this matter is as follows. On several occasions, M requested information about her/himself from the Minnesota Department of Transportation (MnDOT). In one of her/his requests, dated December 17, 1996, M asked for copies of data you have collected, with me as the subject. In one of the Department's responses, dated October 2, 1996, staff stated, Your request...has been received and reviewed....Further information...will be provided to the Union Business Agent provided the agent agrees to and enters into a signed stipulation concerning the information provided. In another letter dated January 16, 1997, the Department enclosed some of the requested data and stated that the investigative report would be made available to the Union Business Agent provided the Union enters into and signs a stipulation concerning the information provided. Further, in a letter dated April 18, 1997, Department staff wrote, The other information you have requested cannot be provided to you under the Minnesota Data Practices Act. The department has offered to provide this information to your exclusive representative once a stipulation has been agreed to by them. (A copy of the stipulation was provided to the Commissioner.) Issue:
In her/his request for an opinion, M asked the Commissioner to address the following issue:
Discussion:
Pursuant to Minnesota Statutes Section 13.04, subdivision 3, an individual, upon request to a government entity, shall gain access to data which are about her/him immediately or within 5 to 10 working days.
In the case of this opinion, M requested access to data about her/him maintained by MnDOT. The Department refused to provide M access to some of the data but stated that M's Union Business Agent could gain access to the data if the Union signed a stipulation relating to future disclosures of the data. In her response, Ms. O'Hern stated, MNDOT has acted properly in this matter pursuant to Minn. Stat. section section 13.04, 13.43 and 13.39. She went on to state that M's conduct was the subject of an investigation by the Department. Ms. O'Hern first asserted that M cannot gain access to the data s/he requested because of Section 13.43, subdivision 8, which states that when allegations of harassment are made against an employee, the employee cannot gain access to data identifying the complainant if the entity determines that access would 1) threaten the personal safety of the complainant or witness, or 2) subject the complainant or witness to harassment. Ms. O'Hern wrote:
Ms. O'Hern's second assertion is that M cannot gain access to data classified as confidential by Section 13.39, civil investigative data. She wrote, On November 26, 1996, AFSCME gave notice to MNDOT of its desire to proceed with arbitration regarding [M]. Therefore, Minn. Stat. section 13.39 is also applicable to this case. Pursuant to Minn. Stat. section 13.39, data collected as part of an active investigation is confidential in the case of data on individuals... In addition, Ms. O'Hern noted that the Department had provided M with an opportunity to receive the tape recording of an interview M had with the investigator. She also stated that the investigator had provided M with his (the investigator's) notes from the meeting. She added that M was informed that the investigative report would be available to the AFSCME Union Business Representative after the union executed the stipulation. In summation Ms. O'Hern wrote:
As stated above, pursuant to Section 13.04, subdivision 3, an individual, upon request, has the right to gain access to data about her/him which are maintained by a government entity. If the data about the person are public or private, the person must be given access. If the data about the person are classified as confidential (not accessible to the data subject), the entity is required to so inform the individual. In the case of this opinion, M requested access to data about her/himself. While s/he did gain access to the investigator's notes and was offered a copy of a tape recording, the only other response M received was that a union representative would be able to get a copy of the investigative report upon signing a stipulation. Pursuant to Section 13.04, this is not a proper response. Either the data are available to M or they are not. If the data are not accessible to M because 1) MnDOT has determined the data are harassment data and release of those data would either threaten the safety of the complainant or witness, or subject the complainant or witness to harassment, or 2) MnDOT's chief attorney has determined that the data are civil investigative data, then the Department should have so informed M at the time of her/his request. Because MnDOT did not provide M with an answer as to why s/he could not gain access to the data, it has not responded properly (see Section 13.04) to her/his request. Opinion:Based on the facts and information provided, my opinion on the issue raised by M is as follows:
Signed: Elaine S. Hansen
Dated: August 12, 1997 |
Educational data
Personnel data
Civil investigative data (13.39)
Data subject access to personnel data
Harassment data (13.43, subd. 8)
Labor/union access (13.43, subd. 6)
