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May 20, 1998; City of Blaine
5/20/1998 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, except for any data classified as not public, are available for public access. On April 3, 1998, PIPA received a letter from David M. Johnson, Chief of Police for the City of Blaine. In his letter, Mr. Johnson asked the Commissioner to issue an opinion regarding the classification of certain data maintained by the City's Police Department ( BPD ). A summary of the detailed facts of this matter follows. Since the mid 1980s, BPD has displayed photographs of current and former employees on an interior wall of the police facility. The photo gallery is located in an area that is always accessible to police staff, and occasionally accessible to the public. Photographs of undercover officers are not displayed. According to Mr. Johnson, [i]t is unclear at this time whether the officers and staff ever consented to the taking and displaying of their pictures. Issues:In his request for an opinion, Mr. Johnson asked the Commissioner to address the following issues:
Discussion:Issues 1. and 2. Pursuant to Section 13.02, subdivision 7, government data are all data collected, created, received, maintained or disseminated by any state agency, political subdivision, or statewide system regardless of its physical form, storage media or conditions of use. Further clarification is provided by Minnesota Rules, Part 1205.0200, subpart 4, which states that [d]ata can be maintained in any form, including, but not limited to, paper records and files, microfilm, computer medium, or other processes. The Rule further provides that [a]ll data, in whatever form it is maintained, is data on individuals' if it can in any way identify any particular individual. Accordingly, photographs of government employees are government data on individuals. Pursuant to Section 13.43, personnel data are data on individuals collected because the individual is or was an employee of a government entity. Pursuant to Section 13.43, subdivisions 2 and 4, certain specific personnel data are classified as public, and all other personnel data are private. Photographs are not included in the list of public data. Therefore, photographs of current or former government employees are private personnel data. In further support of that conclusion, pursuant to Section 13.43, subdivision 2 (c), a government entity may display a photograph of a current or former employee to a prospective witness as part of . . . [an]investigation of any complaint or charge against the employee. If employee photographs were public data, there would have been no reason for that statutory provision. Issue 3. Pursuant to Section 13.04, subdivision 2, when an individual is asked by a government entity to supply private or confidential data about her/himself, the entity must inform the individual of the following: (a) the purpose and intended use of the requested data within the collecting entity; (b) whether the individual may refuse or is legally required to supply the requested data; (c) any known consequence arising from supplying or refusing to supply private or confidential data; and (d) the identity of other persons or entities authorized by state or federal law to receive the data. This notice requirement is often referred to as a Tennessen Warning. Thus, BPD was and is required to provide its employees with Tennessen Warnings upon collection of their photographs. Issue 4. Pursuant to Section 13.05, subdivisions 3 and 4, a government entity may disseminate private data without the individual data subject's consent only if 1) there is authority in law to do so and 2) the data subject received a proper Tennessen Warning. In addition, according to Section 13.05, subdivision 3, and Minnesota Rules Part 1205.0400, subpart 2, employees of a government entity may gain access to private data about other individuals only if necessary for the administration and management of programs specifically authorized and their work assignments reasonably require access. Therefore, BPD must secure the informed consent of its employees before displaying their photographs, if any unauthorized person may view (i.e., gain access to) an employee's photograph. Issue 5. As discussed above, the photographs of BPD employees are government data because they are data collected, created, received, maintained or disseminated by BPD. The source of funding for the creation and/or display of the photographs is irrelevant. Even if they were paid for by a private entity, the photographs are still private personnel data. Opinion:Based on the facts and information provided, my opinion on the issues raised by Mr. Johnson is as follows:
Signed:
Elaine S. Hansen
Dated: May 20, 1998 |
Personnel data
Photographs of employees
Employee photos
