Note: In December 1999, staff of the Information Policy Analysis Division, on behalf of the Commissioner, redacted not public data from this opinion. The redaction was necessary to bring the data in the opinion into compliance with amendments the Legislature made to Minnesota Statutes, section 13.072, the advisory opinion enabling legislation.

Additional note: See Advisory Opinion 02-049 for discussion of a district court ruling that disagrees with this opinion.

Facts and Procedural History:

On August 26, 1993, the Public Information Policy Analysis Division (PIPA) received a request for an opinion from Mr. Marshall H. Tanick, attorney for the Minnesota Daily, the student newspaper at the University of Minnesota. The facts he recited were as follows.

In the spring of 1993, the University of Minnesota decided to terminate the employment of X and Y, a married couple who served as coaches of the University Women's Intercollegiate Gymnastics Team at the University. According to Mr. Tanick, the University's ultimate decision to discipline X and Y by terminating them was the outcome of an investigation about them that was begun because Y distributed two videotape recordings of himself and X, engaged in sexual intercourse, to members of the Women's Gymnastic Team. Mr. Tanick further stated that once the disciplinary action against X and Y had become final, that numerous requests were made by himself on behalf of his client to gain access to public data including copies of these videotapes. He attached copies of those requests and the responses he received from the University and its legal counsel. The University took the position that it would provide some of the requested data because there had been a final disposition of the disciplinary actions against X and Y. However, it refused to provide access to or copies of the videotapes. The University's position was that the videotapes were private personnel data pursuant to Minnesota Statutes Section 13.43 or confidential investigative data pursuant to Minnesota Statutes Section 13.39. In response to that refusal, Mr. Tanick wrote asking for a Commissioner's Opinion.

In response to Mr. Tanick's request, PIPA, on behalf of the Commissioner wrote to Ms. Barbara L. Shiels, Associate General Counsel for the University, in a letter dated September 2, 1993. This letter informed her of Mr. Tanick's request, acquainted her with the Commissioner's authority to issue opinions, asked for any information the University might be able to provide to support its position of withholding this data and informed her of the date by which the Commissioner was required to issue this opinion.

On September 29, 1993, PIPA received, via facsimile transmission, a letter from Ms. Shiels. She confirmed that it was the University's position that the videotapes were private personnel data under Minnesota Statutes Section 13.43 and confidential civil investigative data under Minnesota Statutes Section 13.39. In support of the position that the videotapes are private personnel data, Ms. Shiels stated that the University grievance panel, who considered the cases of X and Y, and Regent Elton Kuderer, who was the University's final decision maker about the disciplinary matters, either did not have the videotapes as part of the record before them or did not view the videotapes in reaching the University's decision.

Mr. Shiels drew a distinction between the distribution of the videotapes, which she agreed was part of the basis for the University's actions against X and Y, and the actual content of the videotapes which she argued was not relevant to University's final disciplinary action. In Ms. Shiel's view the tapes were not part of either the specific reasons for the disciplinary action taken against X and Y or data documenting the basis of the action, and therefore they remain private personnel data.

Ms. Shiels also asserted that the tapes are civil investigative data and therefore are classified as confidential by Minnesota Statues Section 13.39. She noted that X and Y have legal actions pending against the University in federal district court and that there is an appeal involving the cases of X and Y pending before the Minnesota Court of Appeals. She stated that the tapes are being retained for possible use in defending the University in these pending civil legal actions.

After examination of the correspondence presented by Mr. Tanick and Ms. Shiels, personnel of PIPA wrote to Ms. Shiels and asked her to clarify some of the points she had made in her September 29, 1993 letter. This request was sent to her by facsimile transmission on October 11, 1993. On October 12, 1993, a letter from Mr Tanick was delivered to PIPA. This letter contained extensive argument and commentary on the University's position as outlined in Ms. Shiels September 29, 1993 letter. Also on October 12, 1993, Ms. Shiels sent her clarifying response by facsimile transmission.

Issue:

The issue raised by Mr Tanick, in the words of his initial request for an opinion is as follows:

Discussion:

There is no dispute in this situation that the videotapes in question are a form of government data and therefore subject to the applicable requirements of the Minnesota Statutes Chapter 13, the Minnesota Government Data Practices Act and hereinafter the Act . There are disputes as to what type of data these videotapes are and how they are classified for purposes of the Act. To reach the issue of the appropriate classification of a given type or item of data, the opening discussion must focus on what type of data the videotapes in question constitute. By the nature of how the legislature has enacted the various provisions of the Act, there is, when those provisions are applied to the real world, the ongoing probability that a given type of data may fit into more than one category. In this situation, the University argues that these videotapes are both personnel data which is the subject of Section 13.43 of the Act and civil investigative data which is covered by Section 13.39 of the Act.

It is the Commissioner's opinion that these tapes are not civil investigative data subject to the provisions of Minnesota Statutes Section 13.39. The Commissioner is of that opinion for three reasons.

First, the Data Practices Act tries to resolve internal conflicts between its own provisions that produce inconsistent results by stating, at Minnesota Statutes Section 13. 03, subdivision 4, that if data on individuals is classified as both private and confidential by the Act, the data in question is private. Finding this data to be within Section 13.39 of the Act would make the data confidential. Finding that the data are within Section 13.43 would make the data private. However, to conclude the data are private, as Section 13.03, subdivision 4 requires, we must also conclude the data are made private by Section 13.43 and therefore the data must be personnel data for purposes of the Act.

Second, a major reason that the legislature enacted Section 13.39 of the Act is to assist government agencies, when they are subject to possible lawsuit or are in actual litigation, by giving those agencies and their attorneys a level playing field in relation to their opponents. If a person bringing suit against the government could have full access to the agency's data under the Act, without some protection for data essential to the agency's defense of its position, agencies would be at a continual disadvantage in litigation. This was a major reason the legislature enacted Section 13.39. In this instance finding that these videotapes are covered by Section 13.39 would not advance that legislative objective. The record makes it clear that Y actually prepared the videotapes in question. He certainly knows of their existence and content and therefore there appears to be no practical reason why these tapes should be considered to be civil investigative data under Section 13.39.

Lastly, the record of the incidents involving these videotapes makes it clear that Y provided these tapes to members of the Women's Gymnastic Team. Subsequently, personnel of the University confiscated the tapes. In a recent Minnesota Supreme Court case, interpreting Section 13.39, the Court held that when a government agency does not affirmatively take action to collect certain data that the agency cannot claim that the data are civil investigative data. (See St. Peter Herald and the Free Press v. City of St. Peter, 496 N.W.2d l812 (Minn. 1993).)

In the case before the Supreme Court, the issue involved whether a notice of claim sent to the City of St. Peter was civil investigative data. The Supreme Court concluded that the notice of claim was not civil investigative data because the notice was provided to the City and not collected by it. In the Commissioner's view this same logic is applicable to the videotapes in question. The tapes were already in the University's possession before any investigation of the allegations of wrongdoing against X and Y was commenced and they were in that possession, albeit perhaps inadvertently, because of the actions of Y.

The Commissioner is of the opinion that the videotapes are not civil investigative data and are not, therefore, classified as confidential by Section 13.39 of the Act.

Having determined, and both the University and the Minnesota Daily agree on this point, that the videotapes are personnel data within the meaning of Section 13.43 of the Act, the only question that remains is what is the classification of the tapes? Section 13.43 of the Act is somewhat unique in that it reverses the normal presumption of the Act's treatment of various types of data. Most government data is presumed to be public data according to Minnesota Statutes Section 13.03, subdivision 1. However, personnel data is presumed to be private data unless a certain element or type of data appears on one of two lists of data that the legislature has stated must be public data. This result is reached by interpreting subdivisions 2, 3 and 4 of Section 13.43 of the Act.

Among the items and types of data that are public about current and former public employees are the following: whether or not a complaint or charge against an employee resulted in disciplinary action; the final disposition of any disciplinary action together with the specific reasons for the action and data documenting the basis for the action. (Minnesota Statutes Section 13.43, subdivision 2.) It is the University's position that the contents of the videotapes do not constitute either a specific reason for the disciplinary actions taken against X and Y or a part of the data documenting the basis for the action. It is the University Daily's position that the content of the videotapes and the viewing of that content by athletes at the University were the triggering events that lead to the disciplinary actions taken X and Y. For those reasons, the Daily argues the tapes are one of the specific reasons for the disciplinary action against X and Y and are a part of the data that documents the basis for the action.

Although the University makes a strong case that certain decision makers involved in the disciplinary action taken against X and Y never saw the contents of these tapes, it is clear from the record presented that even though some decision makers at the University may not have viewed the tapes, the contents were the primary reason for beginning the investigation of X and Y that ultimately lead to their dismissal. In addition, Regent Kuderer, who the University describes as its final decision maker in the disciplinary process, referred in his disciplinary findings to these tapes as containing sexual relations between X and Y and further found that certain acts and omissions relative to the taping and the distribution of the tapes to students were among the reasons that he concluded that the disciplinary action of dismissal was appropriate. Although, it is agreed that Regent Kuderer never viewed the tapes, he relied in making his findings, including the decision to fire X and Y, on the testimony and admissions of those who had seen the tapes and described their contents.

In addition to the above discussion, a reasonable answer to the question of whether these videotapes and their contents are part of the reasons for the disciplinary actions taken against X and Y and part of the data that documents the basis for those actions can be answered in a common sense fashion. A review of the correspondence, documents describing settlement negotiations between X and Y and the University and the findings made by Regent Kuderer are full of references to the distribution of videotapes containing sexual activity between X and Y. Taken that record as a whole, it would defy common sense for the Commissioner to conclude that these videotapes and their contents, based on a reading of Section 13.43 of the Act, were not among the reasons for or data documenting the basis for the disciplinary actions taken against X and Y.

However, in preparing and issuing these opinions, it is the position of the Commissioner that her primary role is to give the greatest possible effect to the legal and policy objectives that the legislature tries to accomplish in the Data Practices Act and related statutes. Given that objective, the question of whether videotapes of two former public employees, engaged in sexual activity, ought to be made available to the public as public personnel data remains to be considered. To help the Commissioner and others in ascertaining its intent, the legislature has, in addition to presenting the plain words of Minnesota Statutes, also enacted a specific statutory section to provide general guidance. This statute, Minnesota Statutes Section 645.17, states certain presumptions to be followed in making statutory interpretations. The first of those presumptions is that the legislature does not intend that a statute be interpreted in such a way as have an absurd or unreasonable result. It is the Commissioner's opinion that a conclusion that these videotapes ought to be disclosed to the public would be an absurd and unreasonable result.

In its overall handling of the Data Practices Act, the legislature has clearly expressed an intent to take very specific control over issues of access to government data. Although that approach represents a strong commitment to dealing with issues of information policy, the specific approach presents problems where a new situation arises that the legislature did not contemplate when it made specific decisions relative to various types of data. The legislature has itself acknowledged that particular practical problem by, among other things, giving the Commissioner of Administration the authority to issue temporary classifications of data. In the particular instance of release of these videotapes to the public, the Commissioner must ask: would the legislature want the Data Practices Act to be interpreted to make public the videotapes of two public employees engaged in sexual activity or would that be seen by the legislature as an absurd result?

For guidance on that issue, the Commissioner has looked within the Data Practices Act itself. The legislature has in the past considered whether photographs that appear in confidential criminal investigative files, that become public because after a criminal investigation becomes inactive, ought to be treated as public data. The legislature concluded that in those instances where certain photographs are clearly offensive to common sensibilities those photographs ought to become private and not public. In this situation where it appears, incidentally, from the record that X may not have even known these videotapes were being made and given the nature of the activity portrayed on the tapes, it is clear that if these tapes were part of an inactive criminal investigative file they would be private data when the rest of the file became public.

It is the Commissioner's opinion that to treat these data as public would be an absurd result. The Commissioner acknowledges, as discussed above, that a strong case can be made for these tapes to be viewed as public data. However, it is the Commissioner's opinion that to treat these data as public, particularly in light of the legislative intent evidenced by the treatment of similar data in Minnesota Statutes Section 13.82, subdivision 5, would be an absurd result.

Opinion:

Based on the correspondence in this matter, it is my opinion that:

Signed:

Terry L. Bock for
Debra Rae Anderson
Commissioner

Dated: October 15, 1993