Facts and Procedural History:

On September 15, 1994, the Commissioner of Administration (Commissioner) received a letter from Mr. Mark R. Anfinson, the attorney for the Hibbing Daily Tribune, a newspaper located in Hibbing, Minnesota. In this letter, Mr. Anfinson described attempts by a reporter working for his client to gain access to certain personnel data maintained by the City of Hibbing, hereinafter City. A summary of what Mr. Anfinson related is as follows.

The City's Council held a closed meeting after announcing the meeting was closed for the purpose of considering charges against a City employee. At the end of the closed portion of its meeting, the City then held an open portion of its meeting. At the open part of the meeting the City Council voted to discipline an employee. After that action, a reporter for the Hibbing Daily Tribune asked for the name of the employee who was disciplined and the nature of the discipline. The City denied this request and told the reporter that under the Data Practices Act, Minnesota Statutes Chapter 13 and, hereinafter, Act or Chapter 13, that those two items of data were not public. After providing the foregoing explanation, Mr. Anfinson asked the Commissioner to issue an opinion that addressed the issue found in the Issue section below.

In response to his request, PIPA, on behalf of the Commissioner, wrote to Mr. John Fedo, the City's Administrator. The purposes of this letter, dated September 16, 1994, were to inform Mr. Fedo of Mr. Anfinson's request, to provide a copy of the request to him, to ask Mr. Fedo to provide information or support for the City's position and to inform him of the date by which the Commissioner was required to issue this opinion. (In subsequent correspondence to Mr. Anfinson and the City, the Commissioner notified them that she would be taking some part of the additional 30 days allowed by statute to issue this opinion.)

On September 28, 1994, via facsimile transmission, PIPA received a response from Mr. Steve Fecker, an attorney for the City. The City's position as summarized from Mr. Fecker's response is as follows.

Mr. Fecker agreed that the City had refused to provide the data described above to the reporter for the Hibbing Daily Tribune. Mr. Fecker stated that this employee had the right to file an appeal under a collective bargaining agreement and still had time in which to do so. Given that possibility, it was the City's position that there had been no final disposition of the disciplinary action that the City was imposing against this employee and the City was not obligated under Chapter 13 to make the name of the employee or the nature of the proposed disciplinary action public. Mr. Fecker did acknowledge that a strong argument could be made under Section 13.43 of the Act that the name of the employee was public. However, it was his opinion that there was no support in Section 13.43, subdivision 2 for the proposition that the nature of the disciplinary action the City intended to impose was public data prior to the final disposition of the disciplinary action.

Issues:

Discussion:

Section 13.43 has been the object of considerable legislative attention in recent years. The current language of the section declares a legislative policy that balances two strongly competing interests. The public has an important interest in knowing how government entities are handling and have handled complaints and charges that are made against public employees. On the other hand, public employees have strong reputational and other interests in not having unsubstantiated and potentially false complaints or charges made against them disclosed to the public. The legislature has achieved that balance by saying that certain data about complaints or charges against public employees will always be public but certain other data, and particular details concerning a given complaint or charge against a public employee, will not become public unless and until there is a final disposition of a disciplinary action against the employee.

In this particular balancing of interests, the public is able to find out that charges or complaints have been made against an employee and how the government entity is handling those complaints or charges. If a final disciplinary action is imposed on the employee, the public will also be able to learn the details of the action itself and why the action was taken, including all data that supports the action. If no disciplinary action is imposed or if a proposed disciplinary action is overturned because the employee grieved a proposed disciplinary action under a collective bargaining agreement, the employee's interest is protected because there is very limited dissemination to the public of any details about the allegations.

In this instance, the City, acting through its Council, decided to discipline an employee. At the time that decision was announced, the City did not provide to the public, even when asked to do so, either the employee's name or what disciplinary action was being proposed. This particular employee has rights under a collective bargaining agreement to grieve the proposed discipline. Therefore, there will be no final disposition of the proposed disciplinary action until either the employee fails to go forward with a grievance or the City's proposed disciplinary action is upheld by an arbitrator. As there is not yet a final disposition of this disciplinary action, Section 13.43, subdivision 2 specifies that the following data about this employee and the City's handling of the complaints or charges against this employee are public: the employee's name; the status of the City's handling of the complaints or charges against the employee and the fact that the complaints or charges have resulted in the City proposing a disciplinary action against the employee.

The language of Section 13.43 is very clear that, with the exception of undercover law enforcement officers, the names of public employees are always public. It seems equally clear that the name of an employee can also be associated with other public data about that employee. In this instance, that means that the City should provide to the newspaper the name of the employee and the fact that there have been complaints or charges against that named employee. Section 13.43 also directs that the status of complaints or charges about a named employee and whether or not the complaint or charge resulted in a disciplinary action also be treated as public data and made available to the newspaper and other members of the public.

What is not clear on the face of the statute itself is whether or not the nature of the discipline the City is attempting to impose is also public. Given the extensive legislative history of this section and the balancing of interests described above, a reasonable interpretation of the language whether or not the complaint or charge resulted in a disciplinary action means that Section 13.43 requires the City to disclose the fact that, in this instance, it is proposing to impose a disciplinary action. However, the City is not required, particularly in an instance where the employee has collective bargaining agreement rights that may set aside the proposed disciplinary action, to provide to the public personnel data that will describe the nature of the proposed disciplinary action.

Opinion: