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September 10, 1999; University of Minnesota
9/10/1999 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 July 22, 1999, IPA received a letter from Eric E. Jorstad, an attorney, on behalf of his client, the Star Tribune Company, publisher of the Star Tribune. In his letter, Mr. Jorstad asked the Commissioner to issue an opinion regarding the Star Tribune's rights to gain access to certain data redacted from a report issued by the University of Minnesota. Mr. Jorstad enclosed a copy of the redacted report. In response to Mr. Jorstad's request, IPA, on behalf of the Commissioner, wrote to Tracy M. Smith, Associate General Counsel for the University. The purposes of that letter, dated July 28, 1999, were to inform her of Mr. Jorstad's request, and to ask her to provide information or support for the University's position. In that letter, the Commissioner asked the University to submit an unredacted copy of the Report with its response. In a letter dated July 30, 1999, Ms. Smith said that the University would respond to Mr. Jorstad's request, but would not provide the Commissioner with an unredacted copy of the Report. Ms. Smith wrote: In light of the extraordinarily personal nature of the information contained in this sexual misconduct report and the assurances given to students and sexual assault victims, the University must decline voluntarily to release the unredacted Report. In addition, because the character of the Report and the appropriate application of law to it are evident from the public version, disclosure to the Commissioner of the unredacted version is unnecessary. On August 9, 1999, IPA received the University's response from Ms. Smith. A summary of the detailed facts that give rise to this opinion follows. In March of 1999, various allegations of rules violations were made against the University of Minnesota Men's Intercollegiate Athletics Department. In the March 26, 1999, retainer agreement between University General Counsel Mark B. Rotenberg and outside counsel, the University charged the outside counsel with investigating allegations of violations of NCAA rules, Big 10 Conference rules and University rules in the University of Minnesota Men's Intercollegiate Athletics Department. The outside counsel was not asked to examine the merits of the underlying criminal charges. In a May 21, 1999, Star Tribune article, the newspaper alleged a pattern of interference by University personnel in investigations of criminal sexual misconduct charges against male student-athletes. In a letter to the outside counsel dated May 24, 1999, University Chief of Staff Tonya Moten Brown confirmed that the scope of the outside counsel's duties would include exploration of those allegations within the context of your ongoing investigation. In July 1999, the University released to the public a report entitled Outside Counsel's Report: Interference in Investigations of Alleged Criminal Sexual and Domestic Misconduct By Student-Athletes at the University of Minnesota. Attached to the Report was a memorandum stating that private or confidential data were redacted pursuant to Minnesota Statutes, sections 13.32, 13.39, 13.43 and 13.82. The redacted copy of the Report consists of 110 pages. There were several pages, 41-48, and 94, missing from the copy provided to the Star Tribune. Of the 101 pages provided, approximately 75 are completely or substantially redacted. In addition, 45 of 54 subheadings in the Table of Contents were redacted. The Appendix consists of some 121 pages, of which approximately 57 are completely or substantially redacted. In addition, 26 of 50 headings in the Table of Contents to the Appendix were redacted. In his opinion request, Mr. Jorstad wrote: [w]e believe the University has improperly withheld public data by overbroad redactions from the Report. We cannot specify or prove the improper redactions because of the very nature of the University's action; we do not know what was withheld. Issue:In his request for an opinion, Mr. Jorstad asked the Commissioner to address the following issue:
Discussion:Before analyzing the merits of the University's position with respect to the data in question, it is important to note that the Commissioner respectfully disagrees with Ms. Smith's assertion that the appropriate application of the law [to the Report is] evident from the public version . . . . There are numerous instances in the redacted Report when data on consecutive pages have been substantially or entirely redacted, and it is therefore impossible, without the full context, for the Commissioner to determine whether each deleted data element has been properly classified. (See, for example, Report pages 23-38.) Thus, it would have been most helpful, for purposes of issuing a more instructive opinion, had the University provided the Commissioner with an unredacted copy of the Report. Mr. Jorstad's point is well taken; in a case like this, the public cannot ascertain the propriety of the government entity's action in withholding data. However, the Commissioner will provide as much specific comment and guidance as possible under the circumstances. According to Ms. Smith, the redacted data are classified as not public under one or more provisions of Minnesota Statutes, namely sections 13.39 (civil investigative data), 13.32 (educational data), 13.43 (personnel data) and 13.82 (law enforcement data.) Mr. Jorstad disagrees that sections 13.32, 13.39 and 13.43 classify any of the data in question as not public. Mr. Jorstad's position is that most of the data are inactive law enforcement data that may be redacted only as authorized under section 13.82, subdivision 10(b), which protects the identities of victims or alleged victims of criminal sexual conduct. According to Ms. Smith, [t]he University redacted the detailed factual findings and analyses of specific incidents because they constitute active civil investigative data [under section 13.39]. . . . As the sexual misconduct report is part of the University's active, ongoing investigation of alleged misconduct in athletics, the investigative data in the Report are confidential. In order for government data to be classified as not public under section 13.39, the data must be collected as part of an active investigation undertaken for the purpose of the commencement or defense of a pending civil legal action, or which are retained in anticipation of a pending civil legal action. (See section 13.39, subdivision 2(a).) Under subdivision 1, a pending civil legal action' includes but is not limited to judicial, administrative or arbitration proceedings. Whether a civil legal action is pending shall be determined by the chief attorney acting for the [government entity]. (Emphasis added.) In her response to the Commissioner, Ms. Smith enclosed a copy of a memorandum dated March 18, 1999, in which Mr. Rotenberg stated: [a]s chief attorney and General Counsel of the University of Minnesota, I confirm that a civil legal action is pending regarding alleged violations of NCAA rules in connection with past and current student-athletes. The provisions of Minn. Stat. section 13.39 therefore apply to the University's investigation into this matter. As the Commissioner has stated in numerous advisory opinions, whether data may be classified as civil investigative data is substantially the discretion of the government entity's chief attorney. (See, for example, Advisory Opinions 94-006, 95-048 and 98-017.) (Also, in 1993, the Minnesota Supreme Court did place some boundaries around what may constitute civil investigative data. See St. Peter Herald v. City of St. Peter, 496 N.W.2d 812 (Minn. 1993).) In this case, the University's chief attorney made the determination required under section 13.39; accordingly, the University may redact from the Report data collected as part of an active investigation undertaken for the purpose of the commencement or defense of a pending civil legal action. Without viewing the data in question, the Commissioner cannot determine if all of the redactions made by the University were proper; however, the University has broad discretion in its application of section 13.39. Regarding the application of section 13.32, Ms. Smith wrote: [a]part from the confidentiality provisions of section 13.39, much of the redacted Report was not subject to public release because it contained educational data about University students which are classified as private data under section 13.32, and also classified as not public under federal law, namely the Family Educational Rights and Privacy Act, 20 U.S.C. section 1232g ( FERPA ). Ms. Smith stated: [a] university's investigation of its own treatment of students, conducted by outside private attorneys, is not a law enforcement record. Ms. Smith further stated that the University of Minnesota Police Department ( UMPD ) did not conduct the investigation or write the Report, and that the University released all public law enforcement data contained in the Report, namely six police reports, or portions thereof, included in the Appendix. (The University redacted the identities of sexual assault victims or alleged victims from the police reports, pursuant to section 13.82, subdivision 10(b).) Pursuant to section 13.32, subdivision 1(a), Educational data' means data on individuals maintained by a public educational agency or institution or by a person acting for the agency or institution which relates to a student. In addition, according to the same subdivision: Records of a law enforcement unit of a public educational agency or institution which are maintained apart from education data and are maintained solely for law enforcement purposes, and are not disclosed to individuals other than law enforcement officials of the jurisdiction are not educational data; provided, that education records maintained by the educational agency or institution are not disclosed to the personnel of the law enforcement unit. The University of Minnesota police department is a law enforcement agency for purposes of section 13.82 and other sections of Minnesota Statutes dealing with law enforcement records. Records of organizations providing security services to a public educational agency or institution must be administered consistent with section 13.861. FERPA contains similar provisions governing records of law enforcement units of educational institutions. (See 34 C.F.R., section 99.8.) Both state and federal law acknowledge that there are law enforcement units of educational institutions, and provide that as long as those units maintain their records separately from the educational institution, they are not regulated either by section 13.32 or FERPA. In this case, records of the UMPD, if they meet the requirements of section 13.32 and FERPA, are regulated under section 13.82. Mr. Jorstad does not agree that section 13.32 applies to the data in the Report. He wrote: [b]ecause the Report's purpose is to evaluate alleged criminal sexual and domestic misconduct,' we assume that all incidents described (and redacted) in the Report in fact involved UMPD or other units of the University involved with law enforcement. Thus, under the terms of section 13.32, the requested records are law enforcement data subject to the disclosure requirements of section 13.82. However, as Ms. Smith stated, the investigation that produced the Report was conducted not by the UMPD, but by outside counsel. Furthermore, she stated: the fact that the Report by its terms does not examine the merits of the underlying charges,' Report at 1, further confirms that the Report is not a law enforcement record, as examining the merits of criminal allegations is precisely what law enforcement agencies do. The Commissioner concurs with Ms. Smith that as a whole, the Report does not constitute law enforcement data. The data in the Report that relate to students are properly classified under section 13.32, and as such, the relevant data are private under subdivision 3 and FERPA. Ms. Smith also discussed the provisions of state and federal law that prohibit the disclosure of private data on individuals and personally identifiable information about students. (See section 13.02, subdivision 5, Minnesota Rules Part 1205.0200, subpart 4, 20 U.S.C. 1232g (b)(1), and 34 C.F.R. section 99.3.) Ms. Smith stated: [i]n accordance with these standards, the University reasonably redacted certain information that could reveal the identity of the involved students. Given the particular circumstances surrounding the Report, the likelihood that a student's identity could be traced from details is quite high. . . . . As noted above, without viewing the unredacted Report, it is impossible for the Commissioner to determine whether the extent of the University's redaction is appropriate. However, it is reasonable for the University, in this circumstance, to apply a stringent standard when exercising its judgment to prevent the release of data that could identify a particular student. (See also Advisory Opinions 94-016 and 96-025.) Lastly, Ms. Smith stated: [a]gain, apart from the confidentiality provisions of section 13.39, portions of the Report also were legally required to be redacted because they contain private personnel data under Minn. Stat. section 13.43. . . . . In this case, the University was investigating the conduct of its own personnel . . . . Ms. Smith stated that investigative reports of employee conduct are private unless they contain data that document the basis for final disciplinary action. (See section 13.43, subdivision 2(5).) She cited Advisory Opinions 93-010, 95-026 and 99-008, in support of her position. Pursuant to section 13.43, subdivision 2 and 4, certain data about public employees are public and all other personnel data are private. Ms. Smith stated that the University did not redact public personnel data from the Report. Ms. Smith further stated that much of the data about employees also contains data about students. The Commissioner has noted in previous opinions that even in employee discipline cases, certain data about students are private. (See Advisory Opinions 93-010, 95-026, 97-018.) Again, the extent of redactions make it impossible for the Commissioner to conclude that the data are properly classified. Given the nature of the Report, i.e., an investigation of allegations of employee misconduct, it is reasonable for the University to take the position that significant portions of the Report are private personnel data. However, if any of the data document the basis of final disciplinary data, or fall under the requirements of section 13.43, subdivision 2(e) (data related to a complaint or charge against a public official), those data are public. In summary, the Commissioner is of the opinion that given the nature of the Report, i.e., part of an ongoing investigation into serious allegations of rules violations by University personnel, including interference in investigations of student misconduct, it is reasonable for the University to take the position that portions of the Report are not public data pursuant to sections 13.32, 13.39, 13.43 and 13.82. However, without viewing the Report in its entirety, the Commissioner is not able to determine that each redacted data element was properly classified by the University, and therefore properly withheld from the public. Opinion:Based on the facts and information provided, my opinion on the issue raised by Mr. Jorstad is as follows:
Signed: David F. Fisher
Dated: September 10, 1999 |
Civil investigative data
Educational data
Chief attorney has substantial discretion to determine
Civil investigative data (13.39)
Personnel data included (See also: Personnel data - educational data)
