Issues:

Based on Mr. Borger's opinion request, the Commissioner agreed to address the following issues:

Discussion:

Issue 1:

Did the Metropolitan Council comply with Minnesota Statutes, Chapter 13, in responding to the Star Tribune's January 17 or 18, 2006, request for a copy of the proposed contract with the transit workers union (that the union rejected in initial voting on January 15 and 16, 2006), when the Council did not indicate any willingness to produce the document until January 31, 2006, and did not state any specific legal basis for refusing to provide the document until January 27, 2006?

Pursuant to Minnesota Statutes, section 13.03, when a government entity receives a data request from an individual who is not the subject of data, the entity is required to respond in an appropriate and prompt manner, and within a reasonable time. (See section 13.03, subdivision 2(a), and Minnesota Rules, part 1205.0300.)

Further, previously issued advisory opinions have established that, when responding to data requests, government entities should provide the data, advise that the data are classified such as to deny the requesting person access, or inform the requestor that the data do not exist.

Here, on January 17 or 18, 2006, the Star Tribune's reporter made a verbal request to Mr. Gibbons. It appears the reporter made a request for data, namely the proposed contract document, as opposed to having asked a question. The distinction is important because Chapter 13 applies only when individuals make requests for data that exist in some type of physical form. (See section 13.02, subdivision 7.)

In his January 18, 2006, email to the reporter, Mr. Gibbons responded on behalf of the Council. In his email, Mr. Gibbons defers to BMS and suggests the reporter contact the mediator. In his January 23 email in response to the reporter's verbal request for a legal reason as to why she could not gain access to the proposed contract, Mr. Gibbons wrote that the Council would not be releasing the data. Mr. Gibbons did not provide a statutory basis for refusing to provide the data, which is required by section 13.03, subdivision 3. Therefore, the Council's response was not appropriate.

The following note is in order. In his comments to the Commissioner, Mr. Grossman remarked that the Star Tribune reporter did not make her request to the responsible authority of the Council, as outlined in section 13.03, subdivision 3. Technically, this is correct. However, if the Star Tribune did not follow the Council's policy/procedures for requesting data, Mr. Gibbons should have advised the reporter to re-direct her request. Mr. Gibbons did not do so. Once the Council received the data request from the reporter, it had a reasonable time to respond. The Council could have used that time to evaluate thoroughly the request before providing its response to the Star Tribune. While Mr. Gibbons apparently was trying to be sensitive to the reporter's deadlines, it might have been more prudent to take the time allowed by Chapter 13 to prepare an appropriate response, i.e., to advise Ms. Blake that the Council had determined that the data are classified as not public, and to cite the statutory basis for that determination.

Issue 2:

Did the Metropolitan Council comply with Minnesota Statutes, Chapter 13, in responding to the Star Tribune's request for a copy of the proposed contract with the transit workers union (that the union rejected in initial voting on January 15 and 16, 2006) where the Council's stated basis for refusing to provide the data was Minnesota Statutes, section 13.37, subdivision 2?

Before proceeding, the Commissioner notes the following. In the discussion of Issue 1, she concluded that the Council did not respond appropriately to the Star Tribune's data request because Mr. Gibbons, in his January 23, 2006, email, did not provide a statutory basis upon which the Council was denying access to the data. Later, Mr. Grossman offered three reasons as to why the data in the rejected contract should be protected. Mr. Borger asked the Commissioner to comment; her analysis follows below in Issues 2, 3, and 4.

Pursuant to Minnesota Statutes, section 13.03, subdivision 1, government data are public unless otherwise classified.

Section 13.37, subdivision 2, classifies labor relations data as nonpublic (data not on individuals) and private (data on individuals). Subdivision 1(c) of section 13.37 defines labor relations data as management positions on economic and noneconomic items that have not been presented during the collective bargaining process or interest arbitration, including information specifically collected or created to prepare the management position.

Here, the Metropolitan Council, prior to the data request, had presented the data in the rejected contract during the collective bargaining process. Therefore, the data did not fit the definition of labor relations data and section 13.37, subdivision 2, was not an appropriate basis upon which to deny access to the contract.

Issue 3:

Did the Metropolitan Council comply with Minnesota Statutes, Chapter 13, in responding to the Star Tribune's January 17 or 18, 2006, request for a copy of the proposed contract with the transit workers union (that the union rejected in initial voting on January 15 and 16, 2006), where the Council's stated basis for refusing to provide the data was an Application for Temporary Classification of Data pursuant to Minnesota Statutes, section 13.06, subdivision 1, submitted on January 25, 2006?

Pursuant to section 13.06, government entities may apply to the Commissioner of Administration for permission to classify data or types of data as private or confidential (data on individuals) or nonpublic or protected nonpublic (data not on individuals). Pursuant to subdivision 1 of section 13.06, upon filing of the application with the Commissioner, the data shall be deemed to be classified as set forth in the application for a period of 45 days, or until the application is disapproved, rejected, or granted by the Commissioner, whichever is earlier.

The Commissioner received the Council's request for a temporary classification on January 25, 2006.

In his comments to the Commissioner, Mr. Grossman wrote:

In this case, the Metropolitan Council was mediating, under the established statutory process, a dispute with a labor union where the mediator's verbal order, as well as the applicable rules, classified information disclosed to and received by the mediator as nonpublic. The Metropolitan Council also reviewed Minn. Stat. section 13.37 The Metropolitan Council was, however, concerned that a possible argument under Minn. Stat. section 13.37, subd. 1(c) could be construed as requiring this type of information to be public and therefore subject to disclosure. As a result, the Metropolitan Council was concerned about disclosing data that could later be found to be nonpublic, and in the process potentially undermining the chances for a successful mediation of the dispute with its potential to disrupt needed services to the public.

Under these circumstances, the Metropolitan Council appropriately turned to the procedure for temporary classification

Pursuant to section 13.03, subdivision 1, government data are public unless otherwise classified by statute, temporary classification, or federal law. If, as part of determining its response to a data request, a government entity concludes there is a need to request a temporary classification and submits an application, the data are protected once the Commissioner receives the application. This protection continues for 45 days, or until the Commissioner either disapproves, rejects, or grants the request, whichever is earlier. Thus, the fact that the Council had filed an application for a temporary classification was an appropriate basis upon which to deny access to the rejected contract.

The Commissioner adds the following note. By enacting section 13.06, the Legislature has provided entities with an option to protect certain data immediately if an entity has concerns about publicly releasing those data. This policy would be frustrated if the entity were prohibited from applying for a temporary classification once it had received a data request for the data in question.

Issue 4:

Did the Metropolitan Council comply with Minnesota Statutes, Chapter 13, in responding to the Star Tribune's request for a copy of the proposed contract with the transit workers union (that the union rejected in initial voting on January 15 and 16, 2006) where the Council's stated basis for refusing to provide the data was a gag Order issued by the Bureau of Mediation Services mediator pursuant to Minnesota Statutes, section 179A.04, subdivision 3?

In his comments to the Commissioner (of Administration), Commissioner Cunningham wrote:

At the time of Ms. Blake's request for access to the proposed contract, the Metropolitan Council and the transit union had engaged the BMS to provide mediation services pursuant to Minn. Stat. section 179A.15 (2004). Accordingly, the Commissioner was allowed to take the most expedient steps to bring about a settlement, including assisting in negotiating and drafting an agreement. Id. Properly read, this statute provides the Commissioner with authority to instruct the participants in a matter he is mediating on the extent to which they can disclose their bargaining positions.

The authority for the Metropolitan Council to comply with [the nondisclosure directive] is found in Minn. Stat. section 13.79, subd. 2(b) (2004). That subdivision provides that:

All data received or maintained by the commissioner or staff of the Bureau of Mediation Services during the course of providing mediation services to the parties to a labor dispute under the provisions of chapter 179 are classified as protected nonpublic data with regard to data not on individuals and as confidential data on individuals except to the extent that the commissioner of the Bureau of Mediation Services determines such data are necessary to fulfill the requirements of section 179A.16, or to identify the general nature of parties to a labor dispute.

When the Metropolitan Council's proposed contract was presented to the mediator, it became subject to this provision and as such, classified as either protected nonpublic or confidential data. Minn. R. 5510.2905, subp. 1 thus governed the Metropolitan Council when it considered Ms. Blake's request.

Minnesota Rules, section 5510.2905, subp. 1, is one of several sections in Minnesota Rules, Chapter 5510 that governs, among other things, the conduct of mediation. Section 5510.2905, subpart 1, states:

Information disclosed to the commissioner or an authorized agent by any party during mediation, and all files, records, reports, documents, or other papers received or prepared by the commissioner during the performance of duties and responsibilities related to mediation of a dispute are classified as protected nonpublic data with regard to data not on individuals and as confidential data on individuals, except to the extent the commissioner determines to unclassify such data in the referral of a dispute to interest arbitration or to identify the general nature of or parties to a labor dispute.

The Commissioner has the following comments. As prescribed in section 13.03, subdivision 1, government data are public unless otherwise classified by statute, temporary classification, or federal law. Accordingly, Minnesota Rules do not classify data, nor does a mediator's Order. Therefore, it was not appropriate for the Council to deny access to the data in the rejected contract offer based on either Minnesota Rules, section 5510.2905, or the mediator's Order.

However, the Commissioner believes an argument can be made that the Council appropriately withheld the data in the rejected contract pursuant to section 13.79. In his comments to the Commissioner, Mr. Grossman wrote:

In deference to the urgency of the Star Tribune's request, the Metropolitan Council quickly prepared a response setting forth the bases for its classification of the requested data as nonpublic data. The combined pressure of a time constraint imposed by the ongoing labor negotiations coupled with the need to promptly respond to the Star Tribune's data request, resulted in no reference to Minn. Stat. section 13.79, which specifically covers the type of data requested and is dispositive of the issue in this matter.

At the time the Star Tribune requested the rejected contract proposal on January 17 or 18, 2006, the requested data fell squarely within the definition of mediation data as set forth in Minn. Stat. section 13.79, subd. 2(b). The Metropolitan Council and the Transit Union submitted this labor dispute to the Bureau of Mediation Services and were working with their appointed mediator.

Section 13.79, subdivision 2(b), appears to classify only those data maintained by the Bureau of Mediation Services. Such a reading, however, creates an absurd result, which, pursuant to Minnesota Statutes, section 645.17, is not to be presumed. If data relating to a mediation conducted by BMS are protected at BMS but not protected in the agency that created the data, the purpose in classifying the data at BMS is frustrated.

The Commissioner, however, strongly encourages interested parties to take this issue to the Legislature to ensure that the valid policy reasons for protecting data during mediation are considered and appropriate data classifications adopted. In addition, the Council may wish again to seek a temporary classification.

Opinion:

Based on the facts and information provided, my opinion on the issues that Mr. Borger raised is as follows:

Signed:

Dana B. Badgerow
Commissioner

Dated: May 4, 2006