May 18, 1995; Minneapolis Fire Department Relief Association
5/18/1995 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 citizen who requested this opinion and the response from the government entity with which the citizen disagrees are presented in summary form. Copies of the complete submissions are on file at the offices of PIPA and are available for public access.On April 28, 1995, PIPA received a letter dated April 25, 1995, from Gary Hill of KSTP-TV. In his letter, Mr. Hill requested that the Commissioner issue an advisory opinion regarding his dispute with the Minneapolis Fire Department Relief Association (hereupon, Association) over access to expense account reimbursement data. Mr. Hill's letter had four attachments. The first was a copy of the original request for data, dated April 17, 1995, made by Robb Leer of KSTP-TV. The second attachment was a copy of the initial response to Mr. Leer's request, dated April 20, 1995, from Robert Christianson, an attorney representing the Association. Attached to this letter was a copy of the Association's policy concerning data privacy issues. The third attachment was a copy of the final response, dated April 21, 1995, from Mr. Christianson. The forth attachment was a copy of a letter, dated April 21, 1995, from Robert Lewis Barrows, an attorney representing KSTP-TV. This letter disputed the response received from Mr. Christianson. In response to Mr. Hill's request, PIPA, on behalf of the Commissioner, wrote to Jens Peterson, President of the Association. The purposes of this letter, dated May 2, 1995, were to inform Mr. Peterson of Mr. Hill's request, to ask him or the Association's attorney to provide information or support for the Association's position, and to inform him of the date by which the Commissioner was required to issue this opinion. On May 9, 1995, PIPA received a response from Mr. Christianson. A summary of the detailed facts surrounding this issue is as follows. On April 17, 1995, Mr. Leer requested information relating to expenses incurred during out-of-town conferences by five of the Association members. Mr. Leer requested totals as well as individualized itemizations of expenses paid by the Association to the members. On April 20, 1995, Mr. Christianson wrote to Mr. Leer and provided him with a copy of the Association's data practices policy (a three-page document), ...I assume you will comply with that policy concerning the request. As soon as we have satisfied our client that your request is appropriate and you have complied with our client's policy thereto, information permitted to be disclosed pursuant to the Act will be provided to KSTP-TV.... On April 21, 1995, Mr. Christianson again wrote to Mr. Leer and advised him, We have advised the [Association] that the gross expenditures by the [Association] incurred in connection with the [conferences] are proper subjects of disclosure pursuant to [Chapter 13]...We have also concluded that a breakdown of each individual's expenses incurred in connection with the subject meetings is non-public data under the section of [Chapter 13] which governs personnel data.... On April 21, 1995, Mr. Barrows wrote to Mr. Christianson and advised him, ...While your letter indicates that such information is 'non-public data' under the section of [Chapter 13] which governs personnel data, I think you may have misread some of that statute. Minn. Stat. section 13.43, subd. 2 specifically classifies the following personnel data as public: 'the basis for and the amount of any added remuneration, including expense reimbursement, in addition to salary; ...' I believe that the information that KSTP-TV requested falls squarely within the above quoted section and is required to be produced.... On April 25, 1995, Mr. Hill requested this opinion.
Issue:
In his request for an opinion, Mr. Hill asked the Commissioner to address the following issues:
Discussion:
The primary dispute which led to Mr. Hill's request for this opinion is whether detailed data documenting a public employee's receipt of remuneration, and the basis for any such remuneration are public data.
The specific statutory language in question is contained in Minnesota Statutes Section 13.43, subdivision 2 (a):
In response to Mr. Leer's request for reimbursement data, the Association determined that data comprising gross expenditures, i.e. a total of all expenses paid, are public but that data comprising an itemization of expenses incurred by each individual are not public. In Mr. Christianson's May 9, 1995, letter he asserts that the dispute centers around the definition of the word remuneration. In examining a Minnesota Court of Appeals case, Toro Co. v. Commissioner of Economic Security, 356 N.W.2d 789 (Minn.App. 1984), and a definition of remuneration in Black's law dictionary, he concludes that the definition of remuneration is limited to, reward and pay, and would not include non-salary reimbursement for expenses incurred while employees were engaged in official duties. The Toro Co. case examines the use of the term remuneration in the context of an unemployment compensation case, not in the context of Chapter 13. In addition, while Black's law dictionary is an excellent reference, it is not definitive. Further, Mr. Christianson suggests that, ...it is unclear whether [Chapter 13] contemplated the inclusion of non-salary reimbursements for expense incurred by employees.... He also states that if an employee receives a per diem advance to defray expected expenses and the employee does not spend the full amount, only the amount not spent is considered to be remuneration and is therefore, public data. The Commissioner respectfully disagrees with Mr. Christianson's contention that the Legislature did not consider the issue of non-salary reimbursements. The language in Section 13.43 specifically relates to expenses that are in addition to salary. It appears that the central dispute regarding the meaning of Section 13.43 revolves around the words basis for and remuneration. Since the Legislature has not specifically defined these terms, it is appropriate to seek guidance from a dictionary. As defined in The American Heritage Dictionary, Second College Edition, Houghton Mifflin Company, Boston 1985, basis is defined as, 1. a supporting element; foundation. 2. The chief component of something. 3. The essential principle. Remunerate is defined as, 1. To pay to (a person) for goods provided, services rendered, or losses incurred. 2. To compensate for; make payment for.... Applying the aforementioned definitions to the phrase, the basis for and the amount of any added remuneration, including expense reimbursement, in addition to salary [are public data]; the meaning of the phrase seems clearer: the main component of or the supporting element of any compensation or payment, as well as the amount of any compensation or payment, in addition to an employee's salary, are public data. The Legislature clearly intended the following data about public employees to be public: the amount an employee receives for reimbursement for expenses which are in addition to salary, and the details describing the basis for the amount paid. While it is unclear what type of reimbursement system is employed by the Association, i.e. whether members are reimbursed directly on a dollar-for-dollar basis or whether members receive some type of a per diem payment, the method used is irrelevant. The classification of the data is not contingent upon the type of reimbursement received by an employee. Data specifying the amount and data documenting the basis for per diem payments or for dollar-for-dollar reimbursements are public. The second issue raised by Mr. Hill in his request for an opinion is whether the Association's Resolution pertaining to Chapter 13 is in conformity with Chapter 13. In Mr. Christianson's May 9, 1995, response, he stated that the Resolution was adopted on August 28, 1992, and that it, in accordance with Section 13.03, subdivision 3, sets forth the requirements for obtaining public government data from the Association. He goes on to state, ...It does not contain any requirements contrary to either the letter of the law or the spirit of the law. Furthermore, it was not implemented by the Association. Consequently, there is no dispute before you.... Mr. Christianson also noted that KSTP-TV was not charged for the data it had received. Regardless, Mr. Hill did request that the Commissioner examine the Resolution. In addition, upon examination of Mr. Christianson's April 20, 1995, letter to Mr. Leer, it does appear that the Association attempted to invoke the terms of the Resolution, ...I enclose a copy of the [Resolution]. I assume you will comply with that policy concerning the request.... Upon review of the Resolution, it appears there are several statements which do not quite mirror the language of Chapter 13. First, in Mr. Christianson's May 9, 1995, letter he states that the Resolution, ...sets forth the requirements for obtaining public government data from the Association.... (Emphasis added.) However, in the introductory paragraph of the actual Resolution, the language reads, The Trustees...adopt the following policies and procedures to be followed in connection with any requests under [Chapter 13].... (Emphasis added.) This distinction is significant because Chapter 13 sets up one set of policies and procedures for access to data which are public and another set of policies and procedures for access to data which are private. For instance, number three of the Resolution reads, ...The request also shall specifically state that the applicant will pay all actual costs of searching for and retrieving documents and other data, including pro rata time and expenses of employees, and costs of compiling and copying the documentation or other data.... This language is taken almost verbatim from Section 13.03, subdivision 3, requests for access to public data. However, the document does not describe what charges would be assessed if an individual is seeking copies of private data about her\himself. Section 13.04, subdivision 3, regulates those requests for access to data and provides a different standard for charges. Second, number four of the Resolution, in part, states, ...In addition, the Association shall charge all costs of copying and compiling the documents or other data, with copying costs charged on the basis of 50cent; per page.... Again, it is unclear whether this charge is based on an individual requesting copies of public or copies of private data. In addition, the estimate of 50cent; per page raises an additional issue. In Advisory Opinion 94-059, the Commissioner determined that the government entity did not meet the burden of establishing that a 50cent; per sheet copy fee was the actual cost of providing copies of public data. In the current scenario, with limited information available, the Commissioner is unable to comment as to whether a charge of 50cent; a page is appropriate. Third, number six of the Resolution states that the Association shall try to comply with all requests within a reasonable time based on the availability of staff and other business considerations. Again, it is unclear whether this policy is based on an individual seeking access to public data or access to private data. If an individual is seeking access to public data, Section 13.03, subdivision 2, states, The responsible authority...shall establish procedures...to insure that requests for government data are received and complied with in an appropriate and prompt manner.... Minnesota Rules 1205.0300, subpart 3, states, ...the responsible authority may shall provide for a response to a request for access within a reasonable time....
If the request for data is from an individual seeking access to private data about her/himself, Section 13.04, subdivision 3, states,
Number six also states, ...the Association shall respond in writing setting forth any reasons documentation cannot be furnished.... The requirements in Chapter 13 are more detailed and specific. Section 13.03, subdivision 3, states:
Finally, number nine states, Any objections by applicants to responses for requests under [Chapter 13] shall be subject to review by the Trustees at the next regular meeting, or at such special meetings as may be convened to discuss the request.... Pursuant to Section 13.02, subdivision 16, government entities are to appoint or designate a responsible authority who is the, ...individual responsible for the collection, use, and dissemination of any set of data on individuals, government data, or summary data unless otherwise provided by state law. Accordingly, it is the responsible authority's duty to initially handle any issues surrounding disputes over access to data. Pursuant to Minnesota Rules Chapter 1205, subpart 1205.1000, the responsible authority is required to be given full administrative authority to carry out the duties assigned by Chapter 13 and Minnesota Rules Chapter 1205. Opinion:Based on the correspondence in this matter, my opinion on the issues raised by Mr. Hill is as follows:
Signed:
Elaine S. Hansen
Dated: May 18, 1995
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Personnel data
Responsible authority
Fire relief associations - subject to Chapter 13
Remuneration
Duties, generally
