Discussion:

Ms. Lutterman asserted that [a]s an initial issue, however, it should be noted that the issue raised by X does not implicate the Data Practices Act; rather, it involves a question of compliance with the City's Civil Service Code. The Commissioner does not have jurisdiction to resolve disputes involving civil service issues and no authority to issue an opinion. However, Mr. Nickitas has asked the Commissioner to address the City's obligations under Minnesota Statutes Chapter 13 to provide X with access to data relating to his application for employment with the City. The Commissioner agrees that this is a question of data practices and rights of data subjects and therefore it is appropriate for her to issue an opinion.

This matter is somewhat complicated by Mr. Nickitas's and the City's use of various terms to describe aspects of the City's hiring procedure, and to identify related data. There is no agreement between the parties as to how to characterize the oral interview X had with the panel. It is not clear if the problem is one of semantics, or substance. Mr. Nickitas refers to the oral interview as an examination. The City provided him with blank oral examination scoring sheets. Chief Flynn referred to the interview as a question test. Ms. Lutterman says the City did not conduct an oral examination. The issue is whether the interview is an oral examination: Mr. Nickitas says it is; the City says it is not. It may appear that this is just an exercise in semantics, however, the distinction may have some bearing on the classification of the data X seeks.

If the data are examination data, then the operation of Minnesota Statutes Section 13.34, the examination data section of the Data Practices Act, must be considered. The relevant provisions of Section 13.34 state that if the disclosure of data, consisting solely of materials used in examinations to determine individual qualifications for public employment, would compromise the objectivity or fairness of the testing or examination process, then those data are classified as nonpublic. If the data sought by X were determined to be governed by Section 13.34, then there would be implications regarding his right to gain access to the data.

The City has stated that if oral examination data existed, they would be classified as nonpublic under Section 13.34. However, the classification of data as nonpublic under Section 13.34 is not a presumptive classification. In order to deny access to examination data, it must be determined, by the responsible authority, that access would compromise the objectivity, fairness, or integrity of the examination process. However, X was given a copy of the interview questions and a blank oral examination score sheet. Therefore, it appears that the City has already determined that data which document the panel's evaluation of X are not classified as nonpublic under Section 13.34.

It appears that Mr. Nickitas is confused about the proper characterization of the interview. Given the information he has received from the City, confusion is perhaps understandable. However, based on the information the City has provided to the Commissioner, the City does not consider the interview conducted by the panel to be an oral examination. According to the City, applicants for the firefighter position, including X, were interviewed by a panel, consisting of current employees. Those employees evaluated his performance in the interview. It appears those evaluations were done in writing. According to the City, that evaluation process did not produce examination data, as defined in Section 13.34. Given the City's position that the data are not examination data, it is appropriate to focus the discussion on the what type of data are created by panel members as part of their evaluations in the interviews, and who has access to the data.

The first issue is whether the City is obligated to retain the oral examination score sheets for two years. Mr. Nickitas, in his April 4, 1995, letter to the City, asked for copies of the oral examination grading sheets for his client and all of the individuals on the firefighter eligibility lists who competed against X. The City responded that it did not retain interviewer evaluation sheets.

According to the excerpt from the City code, provided by Mr. Nickitas, the City must retain for at least two years a copy of any written tests used, a description of any other tests used, a copy of the public notice of the tests, a copy of the scoring stencils or other scoring standards used and the reports of the examiners. (Ord. No. 6619, 3-1-43, section 69.) (Emphasis added.) According to Ms. Lutterman, that requirement applies to the civil service hiring process, and stated [h]ere, the civil service testing process did not include an oral examination.

Apparently, the City's position is that the oral interview, which Chief Flynn stated was an important part of the evaluation of applicants, is considered not to be part of the civil service hiring process, and not subject to the requirements of the Code. Mr. Nickitas apparently was under the impression that all aspects of the hiring process were subject to the civil service hiring procedures set forth in the City Code, and that data generated from the interview were subject to the retention requirements cited above.

However, regardless whether the City Code imposes requirements on the retention of the data generated by the interview process, the requirements of Minnesota Statutes Section 138.17, the Records Management Statute, and federal EEOC requirements regarding records retention must still be met.

Government records, i.e. records which document official transactions, may not be destroyed except as provided by Section 138.17. Pursuant to Section 138.17, records may be destroyed as provided in an approved records retention schedule. The City does have on file, in PIPA's offices, a records retention schedule which was approved by the records disposition panel. It is not clear, from the descriptions in the schedule, which category is appropriate for the data in question, i.e. data which document the City's hiring decisions. According to the schedule, depending upon the appropriate categorization, the data must be retained either for two years, or permanently. However, if the data are not included on an approved records retention schedule, the City may not destroy the data without special approval from the records disposition panel.

Federal employment law imposes an additional obligation upon government entities to retain certain data. Pursuant to 29 C.F.R. section 1602.31, [a]ny personnel or employment record made or kept by a political jurisdiction (including...records having to do with hiring...) shall be preserved by the political jurisdiction for a period of 2 years from the date of the making of the record or the personnel action involved, whichever occurs later. Therefore, it appears the City is obligated by both its own retention schedule and EEOC requirements to retain the type of data sought by X for a period of at least two years.

The second issue is whether the data on the oral examination score sheets are classified as public or private data. Minnesota Statutes Section 13.43, subdivision 1, defines personnel data as ...data on individuals collected because the individual is or was an employee of or an applicant for employment by...a state agency, statewide system or political subdivision.... (Emphasis added.) Subdivisions 2 and 3 of this Section list the data on current and former employees or applicants which are public. Subdivision 4 states that all other personnel data are private data on individuals.

X was an applicant for City employment, and, according to the information provided, remains ranked first on the eligible list. He wants to find out why he hasn't been hired by the City. The Minnesota Legislature, through its enactment of Section 13.43, subdivisions 1 and 3, has clearly determined that applicants for public employment are subjects of government personnel data, and have certain rights of access to the government data generated by their applications. Clearly, by operation of Section 13.43, the data X seeks are personnel data.

The third issue is whether the City's failure to retain the oral examination score sheets constitutes a violation of X's right to gain access to private data about himself, pursuant to Section 13.04, subdivision 3. After consideration of the first and second issues, it is clear that if the data in question exist, X has the right under Sections 13.03 and 13.04 to gain access to them. Ms. Lutterman maintains the data never did exist. Perhaps oral examination score sheet data did not. However, as evidenced by the documents provided, certainly X was given an oral interview. According to the letter written by Chief Flynn, it appears that he was evaluated by a panel of examiners. It appears data were created by the examiners while they conducted the interview, and ranked the candidates as described by Chief Flynn. It also appears those data may no longer exist. If they do not, it is not certain that destruction of the data was authorized. In fact, it appears that the City had obligations to retain the data, pursuant to both state and federal law.

The unauthorized destruction of government data frustrates the ability of individuals to exercise their rights under Sections 13.03 and 13.04. The Legislature included applicants for public employment in its definition of subjects of personnel data, so that those applicants could do exactly what X is attempting to do: find out why he was not hired by the City. If the City, or any government entity, can evade its responsibility/accountability by destroying those data, then the rights granted to data subjects under Chapter 13 and other laws are thwarted.

The final issue is the identity of the City's responsible authority. The City, in its response, did not identify its responsible authority. Ms. Lutterman stated that the data in question do not exist, but if there had been an oral examination, ...the testing data would be in the custody and control of the Civil Service Board and its Secretary, who is the chief executive officer of the Board.

Pursuant to Section 13.02, subdivision 16, and Minnesota Rules, Part 1205.0200, subpart 14(B), the responsible authority of a city is the individual, an employee of the city, who is appointed by the city council. It is not clear whether Mr. Nickitas asked the City to identify its responsible authority, and what response, if any, he received. In any case, it ought not to be difficult for citizens to identify a government entity's responsible authority. Minnesota Rules Part 1205.1200, subpart 2, states:

The identity of the individual charged with the responsibility of overseeing an entity's data practices ought not to be in question. In this case, it is the individual so appointed by the City council, and so identified in the public document required pursuant to the Rules, as noted above. The City, in its response, did not identify its responsible authority.

Opinion: