Facts and Procedural History:

Ms. Walther then described an incident, that occurred on or about May 19, 1994, in which she alleged that the Chief of Police and Mayor of the City released a packet of information to the public. In that packet was a memorandum, dated December 30, 1993, from the Chief to the City's finance director. Ms. Walther provided a copy of this memo. She quoted a portion of this memo that stated, with appropriate editing, the following:

Ms. Walther stated that her client had been informed by the City's manager and responsible authority under the Data Practices Act, Mr. Gerald Splinter, that the Chief and Mayor had been told not to release this memo since it contained private personnel data. According to Mr. Walther, Mr. Splinter also told Mr. M that the memorandum was private personnel data. Ms. Walther also noted that at the time the memo was released to the public that Mr. M was no longer an undercover police officer.

Ms. Walther then asked that the Commissioner issue an opinion on the issue reproduced below in the Issue section. Implicit in her statement of the issue is a request for the Commissioner to issue an opinion on whether her client had a right to not have certain data, alleged to be private, released to the public.

In response to Ms. Walther's request, PIPA, on behalf of the Commissioner, wrote to Mr. Gerald Splinter, the responsible authority for the City. The purposes of this letter, dated, August 18, 1994, were to inform Mr. Splinter of Ms. Walther's request, to provide a copy of the request to him, to ask the City 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.

On August 29, 1994, PIPA received a response letter from Mr. Charles L. LeFevere, who identified himself as legal counsel for the City. In his letter, Mr. LeFevere offered two possible interpretations for the provision of the Minnesota Government Data Practices Act, Chapter 13 of Minnesota Statutes and hereinafter Act or Chapter 13, that states that all personnel data maintained by an entity subject to Chapter 13 that relate to an individual's employment as an undercover police officer are private data on individuals. (See Minnesota Statutes Section 13.43, subdivision 5.) According to Mr. LeFevere, this language could be interpreted to only apply to data on officers who are currently employed as undercover police officers or it could be interpreted to apply to any data on an individual who has been employed as an undercover officer at any time in the past. It is the City's position that the first interpretation is the only reasonable and practical interpretation of the statute. In support of that position, Mr. LeFevere offered five reasons as summarized in the following.

Citing a provision in the statutory interpretation act, Minnesota Statutes Section 645.16, Mr. Lefevere argued that the words of Section 13.43 are sufficiently clear in their actual statement to be interpreted to only apply to data about an individual who is currently employed(emphasis added) as an undercover law enforcement officer. In the case of Mr. M, he was not employed as an undercover officer at the time the data were released to the public.

Mr. LeFevere also referenced the portion of the Statutory Interpretation Act that states that, in ascertaining legislative intent, courts should be guided by a presumption that the legislature does not intend a result that is absurd, impossible of execution or unreasonable. In Mr. LeFevere's view, interpreting Section 13.43 to make all data maintained on an officer who has ever been employed in an undercover capacity would produce an unworkable result because no data whatsoever could ever be disseminated to the public about that officer no matter what capacity they were currently working in. He also argued that interpreting this section to apply to data about an officer only while the officer was working undercover would serve no public purpose because the public data provisions of Section 13.43 would already have established that, for example, a given individual, was or is a police officer.

Mr. LeFevere noted that Section 13.09 of the Data Practices Act provides for a misdemeanor penalty for willful violations of Chapter 13. In. Mr. LeFevere's view, this makes Chapter 13 a penal law and penal laws are to be strictly construed. He cited a case in support of that view. A strict interpretation of the language at issue would lead to a conclusion that Section 13.43, subdivision 5 does not apply to individuals who have been employed in an undercover capacity in the past.

It was also Mr. Lefevere's view, in reference to Minnesota Statutes Section 645.16, that the legislative purpose for enacting this provision was not to protect individuals from retaliation but rather to protect them from having their covers blown while working undercover. Given that interpretation of legislative purpose, there would be no need to have this data classified as private after an officer has left an undercover assignment.

Lastly, Mr. LeFevere discussed the language in Section 645.17, that the courts, in ascertaining legislative intent, should understand the legislature favors the public interest as against any private interest. Given the presumption, stated in Section 13.01, subdivision 3, that all government data are public unless otherwise classified and the fact that the legislature has identified a number of data elements about public employees that are public, it was Mr. LeFevere's conclusion that the public interest in having data about undercover law enforcement officers ends when the officer is no longer working undercover. Therefore, the public interest in having certain data about public employees public will best be served if Section 13.43, subdivision 5 is interpreted to mean it does not apply to data on officers once they leave undercover status.

Issue:

Discussion:

Both Ms. Walther and Mr. LeFevere agree that when this memo was created by the City's police chief and sent to its finance officer that Mr. M was employed as an undercover police officer. They also agree that when the memo was disseminated to the public, Mr. M was no longer employed as an undercover law enforcement officer. The underlying question then is whether Mr. M's change in status yields a change in the data maintained about him by the City. As Mr. LeFevere points out, the plain words of the statute indicated that all personnel data are classified as private about an individual employed as an undercover law enforcement officer. However, the term employed could mean both currently employed or formerly employed. The words of the statute itself offer no guidance on that issue.

Given that reality, Mr. LeFevere concludes correctly that the Statutory Interpretation Act should be examined for assistance in ascertaining legislative intent in enacting Section 13.43, subdivision 5. Many of the points he makes, in arguing for an interpretation that this provision should no longer apply after an officer leaves an undercover assignment, have some validity. A particularly telling point that he makes is that, an interpretation of this language to classify all data about law enforcement officers who have ever worked undercover as private in perpetuity, could be both unworkable and an absurd result.

However, application of the Statutory Interpretation Act to some of the points he raises can lead, reasonably, to a conclusion that is exactly opposite to the conclusion he reaches. For example, it is reasonable to presume that the legislature classified all data about individuals employed as undercover officers as private not only to protect their covers but also to maximize protection of them from retaliation. These individuals often work in dangerous conditions. They are also involved with situations and individuals that may make them be subject to retaliation for years after they end an assignment as an undercover officer.

In applying the favoring of the public interest over the private interest test to this situation, one can conclude that one type of public interest is served by treating data about undercover officers as public after they complete an undercover assignment. However, another reasonable conclusion that can be reached is that a strong public interest in public safety is served by encouraging individuals to take on these dangerous assignments. This encouragement includes protecting them as much as possible including protecting from public disclosure all data that relates to their undercover service.

Although this issue appears not to have been discussed and decided in a decision of the appellate courts, one district court in Minnesota has examined this issue and determined that the statute should be interpreted to classify as private all data about individuals currently and formerly employed as undercover law enforcement officers. (See Kortz v. City of Albert Lea, Third Judicial District, File No. 24-C-1086, Order dated September 28, 1990.) Although this decision is helpful, it still leaves open the question raised by Mr. Lefevere about the problem of having all data about police officers who are now or who have ever been employed as an undercover officer classified as private.

The plain words of Section 13.43, subdivision 5, examined in light of the presumptions in ascertaining legislative intent, lead to the following conclusion. The data classified as private by Section 13.43, subdivision 5 are not just the personnel data relating to an individual's service as an undercover officer while the individual is employed as an undercover officer but the data about the work undercover continue to be private when the individual no longer is working undercover. However, when working in a non-undercover capacity, data about a police officer, that does not relate to the service undercover, should be treated the same as data about other public employees.

This interpretation of Section 13.43 protects the officer both during and after the undercover assignment. By treating the data about the undercover assignment as private even after the officer leaves that assignment, this interpretation also provides some protection for officers because it may help prevent persons from retaliating against an officer. Treatment of these data as private will make it difficult for a person contemplating retaliation to be able to connect what they know about an undercover officer with actual data about that officer after the officer leaves the undercover assignment. No data will be released to the public about the officer's undercover work unless the officer consents to its release. This rewards the public interest in providing maximum protection to officers who work undercover while at the same time dealing with the obvious problem of having all data about an officer, either working publicly or undercover, classified as private in perpetuity.

Applying this interpretation of Section 13.43, subdivision 5 to the issue presented by Ms. Walther leads to a conclusion that the data about Mr. M, contained in the December 30, 1993, memo were classified as private when it was released to the public on or about May 19, 1994. Because of its private classification, the memo should not have been part of a packet of information released to the public.

Although the Commissioner is comfortable with the result reached in this opinion, it is clear, particularly in light of the arguments and issues raise by Mr. LeFevere, that the legislature should clarify this section so that the plain words of the statute itself, without recourse to the Statutory Interpretation Act, will actually tell everyone what result the legislature desires. To that end, this issue will be raised with the legislature in the 1995 session.

Opinion: