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    Advisory Opinion 96-002

    January 16, 1996; City of Mahtomedi

    1/16/1996 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.


    Note: The Minnesota Supreme Court in Burks v. Metropolitan Council, No. A14-1651 (Minn. Aug. 24, 2016), held that data subjects have the right to access data about themselves, even if the data in question identify private data on other individuals.

    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

    Facts and Procedural History:

    For purposes of simplification, the information presented by the citizen who requested this opinion and the response from the government entity with which the citizen disagrees are presented in summary form. Copies of the complete submissions are on file at the offices of PIPA and, with the exception of any data classified as not public, are available for public access.

    On November 27, 1995, PIPA received a letter dated November 20, 1995, from Scott Martin, an attorney representing X. In his letter, Mr. Martin requested that the Commissioner issue an advisory opinion regarding access to certain data maintained by the City of Mahtomedi, hereinafter Mahtomedi.

    In response to Mr. Martin's request, PIPA, on behalf of the Commissioner, wrote to John Olinger, City Administrator of Mahtomedi. The purposes of this letter, dated December 6, 1995, were to inform Mr. Olinger of Mr. Martin's request, to ask him or Mahtomedi's attorney to provide information or support for Mahtomedi's position, and to inform him of the date by which the Commissioner was required to issue this opinion. On December 15, 1995, PIPA received a response, by FAX, dated December 15, 1995, from Becky Thorson and William Everett, attorneys for Mahtomedi. (In subsequent correspondence, Mr. Martin, Mr. Olinger and Ms. Thorson were informed that the Commissioner would be taking additional time, as allowed by statute, to issue this opinion.)

    (The Commissioner wishes to add that in a letter dated November 22, 1995, Ms. Thorson requested that the Commissioner not issue this opinion because X has brought a lawsuit against Mahtomedi seeking an order to compel the release of the documents which are the subject of this opinion. Mr. Martin responded to Ms. Thorson's request in a letter to the Commissioner dated November 27, 1995, by urging the Commissioner to issue this opinion. As is evident, the Commissioner determined to proceed with Mr. Martin's request for an opinion.)

    A summary of the detailed facts surrounding this matter is as follows. According to Mr. Martin, X is a former employee of Mahtomedi. In the spring of 1995, X requested, from Mahtomedi, all personnel data regarding himself. Mr. Martin wrote, ...X was finally advised that certain documents were being withheld from him because other persons could also be identified in those documents, and that those individuals also had privacy interests in those documents pursuant to Minn. Stat. Sec. 13.43. Mr. Martin also wrote that he believes Mahtomedi's position of withholding entire documents, because portions of those documents contain data regarding others, is without support in statute or case law.

    Further, Mr. Martin argued it is inappropriate for Mahtomedi to withhold a document containing the name of an individual who is claimed to have contacted X's supervisor John Olinger to make a complaint regarding X's conduct.... Mr. Martin wrote, In denying X's request for the identity of the individual, the City attempts to claim that the individual making the complaint has a privacy interest in the release of her name under the Data Practices Act.

    In their response, Ms. Thorson and Mr. Everett wrote:

    The City agrees...that entire documents may not be withheld if redaction will adequately prevent the disclosure of private or confidential data on other individuals. The City respectfully urges the Commissioner in answering this inquiry, however, to recognize that circumstances may sometimes exist where withholding multiple subjects documents in their entirety is the only means for protecting private or confidential data about subjects other than the requestor.

    In responding to the second issue raised by Mr. Martin, Ms. Thorson and Mr. Everett argued, based on Section 13.43, subdivision 8, that the data in question may be inaccessible to the complained about individual. Ms. Thorson and Mr. Everett then raised three additional issues stating, The parties in this case would be most assisted with guidance from the Commissioner addressing a number of these circumstances. As the Commissioner noted in her December 6, 1995, letter to Mahtomedi's City Administrator, it is her intention, in this advisory opinion, to address the two issues raised by Mr. Martin in his opinion request. Mahtomedi is certainly welcome to request additional advisory opinions if it so desires.


    Issues:

    In his request for an opinion, Mr. Martin asked the Commissioner to address the following issues:
    1. Upon responding to a request for access to data by a data subject, is it appropriate, pursuant to Chapter 13, for a government entity to withhold entire documents because those documents apparently contain private or confidential data about the data subject and another individual(s)?
    2. What is the classification of data which identify individuals who have made complaints against employees of government entities?

    Discussion:

    In debating the first issue, both Mr. Martin and Ms. Thorson/Mr. Everett cited Commissioner of Administration's Advisory Opinion Number 94-034 and Northwest Publications, Inc. v. City of Bloomington, 499 N.W.2d 509 (Minn.App. 1993). In his opinion request, Mr. Martin stated that the court in Northwest Publications first noted that Chapter 13 contemplates the possibility of documents containing both public and nonpublic data and provides for their separation.

    Mr. Martin also cited Advisory Opinion Number 94-034, stating, ...the Commissioner of Administration stated that the legislature by enacting Minn.Stat.Sec. 13.04 recognized that the information regarding individuals stored by the government can have a tremendous impact on the life of the individual, and has therefore given individuals liberal access to the data held by the government. Therefore, said Mr. Martin, Mahtomedi should provide the requested documents, editing out such portions as may be necessary to protect the privacy rights of others.

    In their response, Ms. Thorson and Mr. Everett argued, based on both the holding in Northwest Publications and language in Advisory Opinion Number 94-034, that if the nature of a document is such that disclosable and non-disclosable data cannot be separated, then the document cannot be released. Of the situation-at-hand, Ms. Thorson and Mr. Everett stated, Some documents, however, contained confidential or private data on other individuals, besides X. The City contacted most of the other subjects. These people have refused to give the City a waiver authorizing release of data of which they are the subject. Ms. Thorson and Mr. Everett further stated:

    The City agrees with the principle of data practices law advanced by [X] that entire documents may not be withheld if redaction will adequately prevent disclosure of private or confidential data on other individuals. The City respectfully urges the Commissioner in answering this inquiry, however, to recognize that circumstances may sometimes exist where withholding multiple subjects documents in their entirety is the only means for protecting private or confidential data about subjects other than the requestor.

    As the Commissioner stated in Advisory Opinion Number 94-034, it is her opinion that if documents, etc., contain data about one or more data subjects, it may be necessary for a government entity to withhold, from one or more of the data subjects, access to some or all of the content of those documents. The Commissioner's position is buttressed by the holding in Northwest Publications which states that entire documents may be withheld under Chapter 13 only when public and nonpublic information is so inextricably intertwined that segregation of the material would impose a significant financial burden and leave the remaining part of the document with little informational value. However, it is important to note that the Commissioner, as well as the court in Northwest Publications, maintains that denial of access of data to the data subject should occur only in situations where it is impossible to appropriately separate or redact the data.

    In the present situation, if it is not possible for Mahtomedi to separate the multiple subject data (of which X is a subject) without releasing private data about another data subject, then it is appropriate for Mahtomedi to withhold entire documents from X.

    In addressing the second issue, Mr. Martin argues that under Demers v. City of Minneapolis, 468 N.W.2d 71 (Minn. 1991), the identity of the complainant must be made available to X. As Mr. Martin noted, the court in Demers held that information identifying complainants on nonpending, noncurrent police departmental internal affairs complaint forms is public government data under Chapter 13.

    Ms. Thorson and Mr. Everett argue that while the identity of a complainant is generally information to which an employee is entitled, pursuant to Section 13.43, subdivision 8, such data can be withheld. Section 13.43, subdivision 8 states:

    When allegations of sexual or other types of harassment are made against an employee, the employee does not have access to data that would identify the complainant or other witnesses if the responsible authority determines that the employee's access to that data would:
    (1) threaten the personal safety of the complainant or a witness; or

    (2) subject the complainant or witness to harassment. If a disciplinary proceeding is initiated against the employee, data on the complainant or witness shall be available to the employee as may be necessary for the employee to prepare for the proceeding.

    In the current situation, Mahtomedi has apparently taken the position that the complaint made against X was, in its nature, harassing. Ms. Thorson and Mr. Everett stated, That complaint, together with the context and circumstances surrounding its receipt...compelled the City to regard the complaint as harassment data under section 13.43, subd. 8. (In his opinion request, Mr. Martin disputed Mahtomedi's analysis of the complaint by stating, X was not accused of harassing the individual who made the complaint to Mr. Olinger. )

    Ms. Thorson and Mr. Everett further noted that Section 13.43, subdivision 8, expressly sets forth the threshold for disclosure of harassment data....If no disciplinary action is taken against the employee as a result of the complaint, then no need for disclosure is justified. Apparently, Mahtomedi has taken the position that because X was not disciplined as a result of this particular complaint, he is not entitled to gain access to the identity of the complainant.

    In addressing the second issue of this advisory opinion, it is important to look first to the Demerscase, in which an individual requested access to complaints made to a city regarding the city's police officers. The city, in responding to the request, withheld the identity of the individuals making complaints, asserting that the data were private personnel data under Section 13.43, subdivision 2. In part, the court wrote:

    Personnel data, as defined by Minn.Stat. section 13.43, subd. 1, includes data on individuals collected because the individual is or was an employee.... Data on individuals is defined as all government data in which any individual is or can be identified as the subject of that data * * *. Minn.Stat. section 13.02, subd. 5 (1988) (emphasis added). The plain language of these statutes indicates that personnel data are data that identify the employee who is the subject of the data. The police officer, whose identity is public data under section 13.43, is the subject of the data. The complainant is neither the employee nor the subject of the data. Accordingly, as held by the trial court and the court of appeals, information identifying the internal affairs complainant is not personnel data at all.

    The court went on to find that information identifying complainants on nonpending, noncurrent police departmental internal affairs complaint forms is public government data subject to disclosure under Chapter 13.

    Thus, based on Demers, it seems clear that identifying data about a complainant who is not an employee are public data. However, the difficulty with the Demerscase is that it is unclear whether its holding also applies to situations in which the complainant is an employee. The court makes at least two comments which could lead one to reasonably conclude that the holding does not apply to employee complainants. The court stated, Similarly, respondent has agreed throughout the proceeding that portions of internal affairs files are not public, particularly those data so classified, such as names of juveniles, victims of abuse or co-employees. (Emphasis added.) The court also stated, The complainant is neither the employee nor the subject of the data [therefore, the data cannot be private personnel data].

    In applying the Demers analysis to the current situation, it is clear that if the complainant whose identity is sought by X is not a current or former employee of Mahtomedi, then identifying data about her/him should be accessible to X.

    But, if the complainant is a current or former employee of Mahtomedi, it appears that Demers does not apply and therefore, the identifying data are personnel data (see Section 13.43) about the complainant.

    In their response to Mr. Martin's opinion request, Ms. Thorson and Mr. Everett argued that regardless of the Demers holding, Mahtomedi, pursuant to Section 13.43, subdivision 8, may withhold from X, access to identifying data about the complainant. This is so, stated Ms. Thorson and Mr. Everett, because the complaint was one of harassment; because Mahtomedi's responsible authority had determined that X's access to the data would either threaten the personal safety of the complainant, or subject the complainant to harassment; and because no disciplinary proceeding was initiated against X as a result of the complaint.

    While the Commissioner appreciates Mahtomedi's argument and analysis, they do create a practical problem which the Commissioner believes was not intended by the Legislature when it enacted Section 13.43, subdivision 8. The problem with the use of subdivision 8 arises if the complainant is not an employee. In such a situation, the result of accepting Mahtomedi's argument would be that identifying data about the complainant would not be accessible to the complained about employee, but would be available, based on Demers, to members of the public. This result, i.e., that the data are available to all individuals except the person being complained about, seems absurd to the Commissioner.

    This result is reached because Section 13.43, subdivision 8, does not classify data about a complainant as anything other than public. Rather, it specifies the situations in which access to data that identify the complainant, or other witnesses, can be withheld from an employee being complained about.

    As, pursuant to Minnesota Statutes Section 624.24, the Legislature does not intend a result that is absurd, it does not appear that Mahtomedi may invoke Section 13.43, subdivision 8, in this situation. However, because the Commissioner understands the dilemma created by Mahtomedi's argument, it is the Commissioner's intention to bring this matter to the 1996 Legislature in hopes of obtaining some type of resolution.

    Opinion:


    Based on the correspondence in this matter, my opinion on the issues raised by Mr. Martin is as follows:
    1. Upon request for access to data by a data subject, if a document contains private data about the data subject and other individuals, the government entity may withhold the entire document if it is not possible for the data in the document to be separated without releasing private data about another data subject to the requestor.
    2. If the person who complains about an employee of a government entity is not an employee of the entity, identifying data about that complainant are public. If, however, the complainant is an employee of the entity, the data are classified pursuant to Section 13.43 and are private data about the complainant.
     

    Signed:

    Elaine S. Hansen
    Commissioner

    Dated: January 16, 1996

    Educational data

    Legislative authority and intent

    Multiple data subjects

    Personnel data

    Inextricably intertwined data (See also: Northwest Publications, Inc. v. City of Bloomington, 499 N.W.2d 509)

    Data subject access

    Multiple data subjects

    Complainant identity

    Data subject access to personnel data

    Harassment data (13.43, subd. 8)

    Public and not public data

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